SYEDA NAZIRA KHATOON (D) BY LR. Vs SYED ZAHIRUDDIN AHMED BAGHDADI AND OTHERS
Bench: HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR, HON'BLE MR. JUSTICE AJAY RASTOGI
Judgment by: HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
Case number: C.A. No.-004045-004045 / 2010
Diary number: 33886 / 2008
Advocates: VISHAL ARUN Vs ABHIJIT SENGUPTA
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4045 OF 2010
Syeda Nazira Khatoon (D) by LR. …Appellant(s)
Syed Zahiruddin Ahmed Baghdadi & Ors. …Respondent(s)
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
1. The instant appeal arises out of a decision of the High Court of
Calcutta dated 01.10.2008 in the revisional application C.O. No. 936
of 2006, setting aside the order dated 28.02.2006 passed by the
Presiding Officer, Wakf Tribunal, West Bengal in Appeal No. 6 of 2005.
2. The brief facts giving rise to this appeal are as follows:
One Syed Obaidullah Baghdadi Shah founded a khankhah, a
Mohammedan institution for imparting religious doctrine and rules of
life. He gradually became its first spiritual superior or sajjadanashin.
One of his devotees, Abdur Rahim, created a wakf in respect of certain
properties by a registered deed of wakf dated 07.02.1913 (hereinafter
‘the wakf deed’). Written in Bangla/Bengali language, this deed
provided that Syed Obaidullah Baghdadi would be appointed as the
sole mutawalli (hereinafter ‘original mutawalli’) of the wakf. It also
provided that the office of the mutawalli would devolve to “putro
poutradi krome” of the original mutawalli.
On the death of the original mutawalli, his disciple and son Syed
Gyasuddin Ahmed Baghdadi (hereinafter ‘Gyasuddin Ahmed’) became
the sajjadanashin and mutawalli of the wakf estate. In 1977, when
Gyasuddin Ahmed died, he was survived by his wife, six sons, and
nine daughters. According to his Will, his eldest son Syed Badruddin
Ahmed (hereinafter ‘last mutawalli’) was authorized to act as the
sajjadanashin for one of the dargahs in the wakf property. His name
was also recorded as the mutawalli of the wakf estate.
On 19.11.1992, Syed Badruddin Ahmed died, leaving behind his
widow, Nazira Khatoon, and his daughters, one of whom is the
Appellant herein. Crucially, he did not have any male issue. After his
death, Nazira Khatoon applied to the Board of Wakfs to be appointed
as the mutawalli of the wakf estate. Her claim was based on a trust
deed dated 03.02.1984 executed by Syed Badruddin Ahmed, by which
he had appointed her to be the mutawalli of the wakf estate after his
death (hereinafter ‘the trust deed’).
3. By order dated 30.01.1995, the Commissioner of Wakfs allowed
this application and appointed Nazira Khatoon as the permanent
mutawalli of the wakf estate. Her name was accordingly substituted in
place of her deceased husband’s.
However, a dispute ensued when Respondent No. 1 herein, who
is the grandson of Gyasuddin Ahmed and nephew of the last
mutawalli, filed a writ petition, objecting to the appointment of Nazira
Khatoon. He alleged that her appointment went against the original
wakf deed. Consequently, the High Court directed the Wakf Board to
decide the application submitted by Nazira Khatoon again, after
considering the objections of Respondent No. 1.
Upon consideration of arguments by both the parties, the Wakf
Board passed a new resolution on 14.10.1999 observing that the wakf
deed only provides for a male lineal descendant to be the mutawalli of
the wakf estate. It was observed that by appointing Nazira Khatoon as
the mutawalli of the estate, the Board committed an error, and her
appointment based on the trust deed dated 03.02.1984 was in
violation of the provisions of the original wakf deed. Thus, adhering to
the line of succession in the original wakf deed, the members of the
Wakf Board cancelled the appointment of Nazira Khatoon as the
mutawalli of the estate. Instead, Respondent No. 1 was appointed as
the mutawalli, being the male lineal descendant of the original
4. This resolution was challenged by Nazira Khatoon in a writ
application, which was transferred to the Wakf Tribunal, West Bengal
and numbered as Appeal No. 6 of 2005. After hearing both the parties,
the Presiding Officer allowed the appeal by judgment and order dated
28.02.2006. This was done on the basis of the determination that the
Wakf Board does not have the power to review its earlier decision.
Thus, it was held that the order cancelling Nazira Khatoon’s initial
appointment amounted to a review, and was liable to be set aside.
5. Being aggrieved by this judgment and order of the Wakf Tribunal,
Respondent No. 1 herein approached the High Court of Calcutta by
way of a revision application under Article 227 of the Constitution of
India. The High Court allowed this revision application by the
impugned judgment dated 01.10.2008, holding that the original wakf
deed had to be given utmost importance. The term “putro poutradi
krome” in the wakf deed was interpreted to indicate that the office of
mutawalli would go to the sons and grandsons (through successive
generations). In view of this, it was held that Nazira Khatoon would
not qualify to be the mutawalli of the said wakf estate.
Further, upon examination of judicial decisions and the role of
the mutawalli in the Wakf Act, 1995, the Court concluded that a
mutawalli does not have an independent authority to transfer his right
in the wakf to another person by creating a separate and independent
instrument like a trust deed to that effect. Given that the original wakf
deed did not accord such a right of transfer to the mutawalli, it was
held that the trust deed created by the last mutawalli in favour of his
wife could not be given effect. Thus, Respondent No. 1 was held to be
entitled to the office of the mutawalli of the wakf.
6. In view of this factual background, two questions arise for
consideration before this Court.
First, whether the mutawalli can transfer his office to another
person by creating a trust deed, despite the existence of a wakf deed
providing a line of succession to the office. Consequently, it is to be
seen whether the trust deed in favour of Nazira Khatoon is valid.
Second, whether the female descendants of the last mutawalli
(including the Appellant herein) fall within the purview of the term
“putro poutradi korme” as stated in the wakf deed, so as to qualify as a
mutawalli of the wakf estate.
7. Counsel for the Appellant argued that the transfer of the office of
mutawalli is in accordance with the wakf deed, which intends for
female descendants to be included within the term “putro poutradi
korme”. In this regard, he relied on the BanglatoEnglish translation
of the wakf deed given by the original translator appointed by this
Court. According to this translation, the office of the mutawalli would
go from generation after generation (translated from putro poutradi
korme) of the original mutawalli. He also relied on Dev’s Bengalito
English Dictionary to argue that “putro poutradi” conjunctively means
future generations, posterity, or descendants, and that the term is
therefore agnostic to whether such descendant is male or female.
Thus, the wife of the last mutawalli, Nazira Kharoon was eligible to be
the mutawalli under the wakf deed, and consequently, the Appellant
herein also has a right to be appointed as the mutawalli.
Per contra, Counsel for the Respondent No.1 submitted that the
term “putro poutradi” should be understood in light of the individual
meaning of the word “putro”, which means son. Thus, “putro poutradi”
should be read to include male descendants only. He argued that the
last mutawalli was aware of this restriction on mutawalliship under
the original wakf deed, and knowingly executed the trust deed
appointing his wife (Nazira Khatoon) as the mutawalli. Such
appointment was wrongful as it goes against the express terms of the
wakf deed. Learned Counsel further submitted that since Nazira
Khatoon died on 28.05.2009, during the pendency of her special leave
petition before this Court, the right to sue does not survive in her legal
representatives under Order XXII of the Code of Civil Procedure, 1908.
Thus, the Appellant herein (daughter of Nazira Khatoon) does not have
a right to sue in this appeal.
8. We have heard the arguments advanced by both sides and
perused the material on record.
9. The first question to be considered is whether a mutawalli has
the right to transfer his office to another person, as was done by the
last mutawalli, Syed Badruddin Ahmed through the creation of the
trust deed. In this regard, it would be useful to appreciate the role of
the mutawalli of a wakf.
Under Mohammedan law, when a wakf is created, all rights in
the property pass from the wakif or dedicator to the God. The
mutawalli is only a manager of such property and does not have any
rights in it. This role envisaged for a mutawalli finds clear exposition
in Ahmed G.H. Ariff and others v. Commissioner of Wealth Tax,
Calcutta,1 where a 3Judge Bench of this Court observed as follows:
“6… the moment a wakf is created, all rights of property pass out of the Wakif and vest in the Almighty. Therefore, the Mutawalli has no right in the property belonging to the wakf. He is not a trustee in the technical sense, his position being merely that of a superintendent or a manager. A Mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange wakf property or any
1 (1969) 2 SCC 471.
part thereof unless he is expressly empowered by the deed of wakf to do so.”
Thus, it is wellsettled that a mutawalli only acts in a managerial
capacity for the wakf. As regards his power to transfer his office to
another person, he cannot undertake such a transfer, unless such a
power is expressly given to him by the wakif in the wakf deed. The
following excerpt from Mulla’s Principles of Mohammedan Law,2 is
relevant in this context:
“S214: Office of mutawalli not transferable – A mutawalli has no power to transfer the office to another, unless such a power is expressly conferred upon him by the founder…”
This view is also echoed by other scholars including Asaf A.A.
Fyzee.3 We may also fruitfully refer to two decisions of the High Court
of Kerala in this regard. In Badagara Jumayath Palli Dharas
Committee v. Peedikayalakath Ummerkutty Haji,4 the High Court
had to decide the validity of a similar agreement, by which the
mutawalli had transferred his office to a society. Adverting to the
aforementioned excerpt from Mulla’s Principles of Mohammedan
Law (supra), the Court observed that there cannot be any transfer of
mutawalliship and held the agreement of transfer to be invalid.
2 Mulla’s Principles of Mohammedan Law (21st edn., 2017) at page 298. 3 Asaf A.A. Fyzee, Outlines of Muhammadan Law (5th edn., Tahir Mahmood) at page 249. 4 AIR 2002 Ker 56.
In Abdul Latheef v. K.P. Abdurahiman,5 the Kerala High Court
had occasion to deal with the validity of a transfer of the mutawalli’s
office to a Committee, and held the same to be invalid. The following
observations from the decision are relevant:
“24. The upshot of the discussions is that Muhammadan Law does not generally empower a mutawalli to transfer his right during life time. There is a clear distinction in the matter of powers between the appropriator or the waqif who himself becomes the first mutawalli and a mutawalli appointed by the waqif for administering the wakf. Although the waqif may resign his office as first mutawalli and out of his own residuary or general powers as waqif appoint his own successor, the mutawalli appointed by the waqif or any other person succeeding such a mutawalli has no such unbridled power. All the leading authorities on Muhammadan Law declare that a mutawalli cannot assign or transfer his office to anyone or appoint another during his life time, unless he is clothed with powers which are so general in nature.”
10. In light of these pronouncements and authoritative texts on
Mohammedan law, it is more than clear that the mutawalli does not
have a general power to assign or transfer his office to another person,
unless he is given such powers by the wakf deed itself. In the instant
case, the wakf deed does not give the mutawalli any such power to
select another person as the future mutawalli on his demise, by
creating a trust deed or any other instrument to that effect. In the
absence of such an authorization, the transfer of the office of
5 (2014) 1 KLJ 329.
mutawalli by Syed Badruddin Ahmed by way of a trust deed in favour
of his wife, clearly went beyond the purview of his powers and the
settled principles of Mohammedan law.
The succession of the office of mutawalli should be in accordance
with the intention of the wakif who created the wakf, and the same
cannot be subverted through any other document contrary to the
intention of the wakif. Here, given that Nazira Khatoon was the wife of
the last mutawalli and not a direct descendant in the family, she
would not have been entitled to the mutawalliship even if the wakf
deed were to be interpreted broadly to include female descendants.
Thus, the creation of the trust deed to alter the succession of the office
of mutawalli in her favour, is tantamount to changing the terms of the
original wakf deed. It is a subversion of the intent underlying the wakf
deed and is illegal, as it goes beyond the powers vested with the
mutawalli. The claim of late Nazira Khatoon to the mutawalliship of
the said wakf estate is therefore unsustainable.
11. The second question to be considered is whether the daughters
of the last mutawalli and Nazira Khatoon, including the Appellant
herein, would qualify to be the mutawalli under the express terms of
the wakf deed. For this, the term “putro poutradi korme” requires to be
12. Different translations of the wakf deed have been produced
before us. While the translation adduced by the Appellant at Annexure
P1 interprets “putro poutradi krome” to mean “through successive
generations or successors”, the translation adduced by the
Respondent No.1 at Annexure R1 interprets it as “sons and
grandsons in succession”.
We are inclined to agree with the interpretation put forth by the
learned counsel for the Respondent(s). Admittedly, the official
translation before this Court indicates that the term “putro poutradi
krome” means future generations or descendants. This is also
supported by the dictionaries cited by the Counsel for the Appellant.
However, it is to be noted that the same source also shows that the
word “putro” means son and grandson. In reading and interpreting the
term “putro poutradi krome”, the meaning of the individual words must
also be considered and accounted for. A combined reading of these
terms lends support to the view that “putro poutradi krome” means son
and grandson, generation after generation, and therefore does not
include any female descendants.
13. Following this meaning, it becomes clear that the original wakf
deed did not envisage female descendants to fall within the purview of
these words and hold the office of mutawalli. Thus, Nazira Khatoon or
her daughters (including the Appellant herein) cannot stake any claim
to the mutawalliship of the wakf estate. Instead, being the nephew of
the last mutawalli, Respondent No. 1 herein is a male lineal
descendant of the original mutawalli, and is therefore entitled to hold
the office of mutawalli as per the wakf deed. While it is not in dispute
that women can also hold the office of mutawalli under Mohammedan
law, on the facts at hand, it is clear that the wakif intended to create
the mutawalliship only in favour of male descendants, from generation
14. In view of the foregoing discussion, we uphold the impugned
decision of the High Court of Calcutta dated 01.10.2008 in the
revisional application C.O. No. 936 of 2006 affirming the cancellation
of the appointment of Nazira Khatoon as the permanent mutawalli of
the wakf estate. The instant appeal is dismissed accordingly.
..........................................J. (Mohan M. Shantanagoudar)
New Delhi; .........................................J. September 26, 2019. (Ajay Rastogi)