Succession To “Mutawalliship” By Descendant Through Female Line Not Barred: SC

Abstract

 This landmark judgment can be visualized as a major step in empowering women as equal rights owner. This judgment is a landmark decree in abolishment of unequal treatment of descendants & lineages of son and daughter, even in the case of inheriting positions of wakf and mutawalliship.

Building a truly evolved city society, involves empowering descendants of the female-line as equal to empowerment given to the descendants of male-line.

Let’s have a detailed look in the unfolding of the case sequence and the proclamation of the judgment by Honorable Supreme Court.

In the Context of Present Case --

1)      This appeal arises out of the judgment dates 28-01-2009, Shillong bench of Gauhati High Court. The Guwahati High Court has dismissed the appellant’s revision petition and confirmed the order of Wakf Tribunal dated 19-03-2008. The tribunal order had dismissed appellant’s application seeking appointment as mutawalli along with Respondent No 2, -- over his waqf property.

2)      In the present case,  :

a.       Scenario & Sequence of Events Preluding to the Present Case:

                                                    i.            A resident of Shillong, Haji Elahi Baksh, had executed a registered wakf deed dated 09-11-1936 dedicating properties to himself, his son (Shafi) & his son-in-law (Kammu Miyan) to Wakf.  

                                                   ii.            The Waqf deed clearly mentioned that his son & son – in – law will be joint mutawallis during lifetime. On death of either, the survivor will be sole mutawalli for time being and will subsequently nominate another joint mutawalli from the family line.

                                                 iii.            Succession clause mentioned that each mutawallis thereafter shall have right to nominate his successor from same source.  Should a Mutawalli die without nominating a successor, the senior most member among the lineal descendants of the said Shafi & Kammu Miyan, shall be entitled to hold the office of Mutawalli.

                                                 iv.            Post demise of Shafi, the surviving mutawalli among the joint mutawallis (Kammu Miyan) became the sole mutawalli. However the Kammu Mia did not appoint the successor to the deceased, Md. Shafi.

                                                  v.            Hence, Md. Suleman, who is the son of Md. Shafi, approached the Assam Wakf Board, which had a territorial jurisdiction at the time of filing the complaint.

                                                 vi.            The Assam Wakf Board, by order dated 4.31973, found that under the clause of Waqf deed, the surviving mutawalli amongst the joint mutawalli was required to nominate the successor of the deceased from the family line.  The Waqf Board taking note of the Respondent 2 being the son of deceased mutawalli, appointed him as joint mutawalli along with Kammu Miyan. The order wasn’t challenged by any party.

                                               vii.            Upon the death of Kammu Mia, on 2-2-80, Md.Sulaiman became the sole mutawalli. However, this time Md.Sulaiman failed to nominate a successor to the deceased Kammu Mia. This is even though Kammu Miyan during his lifetime has already nominated his daughter's son Md. Tayiyab as his successor. He had also communicated this fact to Assam Wakf Board, during his lifetime.

b.      Unfolding of the Present Case:

                                                    i.            A separate Wakf Board, (Respondent no 1) was constituted for State of Meghalaya.

                                                   ii.            Respondent No.1 by order dated 7-2-80 recognized only Md Sulaiman as the sole mutawalli.

                                      iii.            Aggrieved by the above-mentioned development, Md. Taiyab approached Respondent No 1 for his appointment as mutawalli.

                                                 iv.            The Respondent No.1, application to Wakf Board was dismissed on the ground the he doesn’t belong the family line owing to be descendant from maternal lineage.  His appeal against the order dated 7-2-80 was dismissed by orders of the Assistant Deputy Commissioner & Additional Deputy Commissioner of Wakf respectively

                                            v.            Further the High Court dismissed Taiyab's suit against Respondent 1, due to the lack of notice Wakf Board as required u/s 56 of the Wakf Act, 1954.

                                                 vi.            Taiyab again served notice to Respondent 1 in 2002, basis the Waqf Act 1995. The Wakf Tribunal by order dated 19.7.2006 relied on SECTION 25 of the Indian Succession Act  1925, to interpret the term 'family line of the settlor'

                                               vii.            Additionally the tribunal also stated that joint mutawalliship was valid only during the lifetime of Md Shafi and Kammu Miyan, and this jointship would cease on the demise of these concerned. Only the surviving mutawalli and his successor would be the claimant of the mutawalliship.

                                              viii.            Md Tayiab then filed as writ petition, for which the High court by order affirmed the tribunal's decision that the trust property included the property of deceased Kammu Miyan. Therefore one descendant from Kammu Miyan is entitled to be appointed as joint mutawalli alongwith the descendant of Md Shafi.

                                                 ix.            However the court also observed that Indian Successions Act excludes the applicability to Muslim persons, section 25 could be considered in defining the Muslim succession line.  Since Kammu Miyan wasn’t survived by any son, his descendant from female family line can’t be considered for the office of joint mutawalliship. The court also observed that allowing the descendants of female line would not be in interest of administration of trust property by additionally expanding the list of claimants.  

                                                  x.            In view of court’s observation, the appellant Md Abrar, being also a descendant of Kammu Miyan through the female line, approached Wakf Tribunal seeking appointment as joint mutawalliship. The tribunal dismissed the appellant’s application on ground of the High Court’s order having decided the question of mutawalliship .

                                                 xi.            The appellant filed a revision petition before High Court challenging the Tribunal order dated 19-3-2008

                                               xii.            The High Court in substantial reliance upon the decision of Calcutta High Court in Md. Eshaque vs Md Amin  AIR 1948 Cal 312 , held that founder’s female children may be considered as his successor for mutawalliship. The Hon’ble Court observed that the descendant of the founder’s daughter would not be considered as lineal descendants under Muslim law unless there is special term in the wakf deed indicating an intention to the contrary. Hence the appellant was excluded from consideration for mutawalliship. The High Court has observed the cessation of joint mutawalliship upon the death of either joint mutawalli, as the daughter after marriage becomes the member of another family and not being in the direct lineage of original owner lineage.

Evaluation of this Case for Judgment & Action in the Present Case:

c.       Action 1:  Whether a person from waqf family line could succeed to the vacant post of joint mutawalli after the death of any of the two original mutawallis?

d.      Action 2: If the 1^st point is answered in affirmative, whether the joint mutawalli ship can be held by appellant herein though the is Kammu Mia daughter’s son?  

e.      Action 2: Sri Vineet Bhagat, learned counsel for the respondent submitted that the appellant did not give proper intimation regarding the redemption of mortgage of the suit property. As per counsel claim, the respondent was always ready and willing to perform the obligations under agreement, but was hindered by the conduct of appellant in not placing the correct information in accordance with the agreement.