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Md.Abrar vs Meghalaya Board Of Wakf . on 26 September, 2019

1

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4025 OF 2010

Md. Abrar …Appellant

Versus

Meghalaya Board of Wakf Anr. …Respondents

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

1. This appeal arises out of judgment dated 28.01.2009 of the

Shillong Bench of the Gauhati High Court. The High Court by the

impugned judgment dismissed the appellant’s revision petition and

confirmed the order of the Wakf Tribunal dated 19.3.2008 dismissing

the appellant’s application seeking appointment as joint mutawalli,

along with Respondent No.2, of his predecessor’s waqf property.
Signature Not Verified

Digitally signed by
ASHWANI KUMAR
Date: 2019.09.26
18:06:41 IST

The facts giving rise to this appeal are as follows: One Haji Elahi
Reason:

2.

Baksh (‘waqif’), who was resident of Shillong, executed a registered
2

waqf deed dated 9.11.1936 dedicating properties belonging to himself,

his son Md. Shafi and his son­in­law cum nephew Haji Kammu Mia to

the waqf. The relevant clauses of the waqf deed are reproduced as

follows:

“1. The settlor’s son Md Shafi and son in law Kammu Mia,
son of late S.K. Gajnu, shall be joint Mutawallis during their
lifetime.

2. On the death of either of the joint mutawallis, the
survivor shall be the sole Mutawalli for the time being and
shall have power to nominate his successor from the family
line of the settlor.

3. Each successive Mutawallis thereafter shall have the
right to nominate his successor from the same source.

5. Should a Mutawalli die without nominating a successor,
the senior most member among the lineal descendants of
the said Md Shafi and Kammu Mia, if otherwise competent
shall be entitled to hold the office of Mutawalli.”

Md. Shafi died on 20.12.1960, whereupon the surviving

mutawalli among the joint mutawallis, namely Haji Kammu Mia

became the sole mutawalli. However Kammu Mia did not appoint the

successor to the deceased Md. Shafi. Hence Respondent No. 2 in the

present appeal, Md. Sulaiman, who is the son of the late Md. Shafi,

approached the Assam Wakf Board, which had territorial jurisdiction

at that time, seeking appointment as joint mutawalli with Kammu

Mia.

3

The Assam Wakf Board, by order dated 4.3.1973, found that

under Clause 2 of the waqf deed dated 9.11.1936 (supra), the

surviving mutawalli from amongst the joint mutawallis was required to

nominate the successor of the deceased mutawalli from the waqif’s

family line. Since the surviving mutawalli Kammu Mia had failed to do

so, the Wakf Board, taking note of the fact that Respondent No. 2 was

the son of the deceased mutawalli, appointed him as joint mutawalli

along with Kammu Mia. It is relevant to note that this order was not

challenged by any of the parties herein.

Thereafter, Respondent No. 2 Md. Sulaiman acted as the joint

mutawalli along with Kammu Mia, till Kammu Mia’s death on

2.2.1980, upon which Md. Sulaiman became the sole mutawalli.

However, this time it was Md. Sulaiman who failed to nominate a

successor to the deceased Kammu Mia. This was even though Kammu

Mia during his lifetime; by deed dated 19.2.1973 had nominated his

daughter’s son Md. Taiyab as his successor, which fact was also

communicated to the Assam Wakf Board.

In the meantime a separate Wakf Board, i.e. Respondent No.1

was constituted for the State of Meghalaya. Respondent No. 1 by order
4

dated 7.2.1980 recognized Md. Sulaiman as the sole mutawalli.

Aggrieved by the same, Md. Taiyab approached Respondent No. 1

seeking appointment as the sole mutawalli; however his application

was dismissed on the ground that he does not belong to the waqif’s

family line. His appeal against the order dated 7.2.1980 was dismissed

by orders of the Assistant Deputy Commissioner and Additional

Deputy Commissioner of Wakfs respectively. Further, the High Court

dismissed Md. Taiyab’s suit against Respondent No. 1 due to lack of

notice to the Wakf Board as required under Section 56 of the Wakfs

Act, 1954.

3. Md. Taiyab again served notice on Respondent No. 1 in 2002,

after coming into force of the Waqfs Act, 1995 (‘1995 Act’). The Wakf

Tribunal by order dated 19.7.2006 relied upon Section 25 of the

Indian Succession Act, 1925 to interpret the term ‘family line of the

settlor’ as stated in the waqf deed. Section 25 of the Indian Succession

Act provides as follows:

“25. Lineal consanguinity.—(1) Lineal consanguinity is
that which subsists between two persons, one of whom is
descended in a direct line from the other, as between a man
and his father, grandfather and great­grandfather, and so
upwards in the direct ascending line, or between a man and
his son, grandson, great­grandson and so downwards in
direct descending line…”
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Hence the Wakf Tribunal concluded that since Md. Taiyab was

Kammu Mia’s descendant through the female line, he could not be

regarded as a direct lineal descendant, and hence was not eligible for

appointment as mutawalli.

Additionally, one Md. Zakaria, who was also Kammu Mia’s

daughter’s son, was impleaded before the Tribunal in the same matter

seeking appointment as joint mutawalli. The Tribunal rejected Md.

Zakaria’s claim as well, holding that it was the intent of the wakif that

Md. Shafi and Kammu Mia would enjoy joint mutawalli­ship only

during their lifetime. Such joint mutawalli­ship was to cease on the

death of either of the joint mutawallis, and thereafter the surviving

mutawalli and his successors would continue as the sole mutawalli.

Md. Zakaria filed a revision petition against the Tribunal’s order

dated 19.7.2006 under Section 83(9) of the 1995 Act whereas Md.

Taiyab filed a writ petition challenging the same order. The High Court

by common order dated 25.7.2007 in W.P. No. 184/2006 and C.R.(P)

No. 26/2006 dismissed both petitions, affirming the Tribunal’s

findings. With respect to the issue of joint mutawalli­ship, the High

Court found that the trust property included property of the deceased

Kammu Mia. Hence the waqif would have definitely intended that one

person from Kammu Mia’s family should be included in the
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management of the trust. Therefore Kammu Mia’s descendants would

be entitled to be appointed as a joint mutawalli along with the

descendants of Md. Shafi.

However, the Court simultaneously observed that while Part IV of

the Indian Succession Act excludes applicability to Muslim persons, in

the absence of any definition of lineal descendants in the 1995 Act or

any authoritative pronouncement of Mohammedan law in this regard,

the definition under Section 25 of the Indian Succession Act could be

taken into consideration for interpreting the meaning of the term

‘family line’. Since Kammu Mia was not survived by any son, his

descendants through the female line could not be considered for the

office of joint mutawalli­ship. Further, that allowing the same as a

matter of law would lead to additional expansion in the list of

claimants which would not be in the interest of administration of the

trust property. This Court by order dated 7.9.2007 in SLP (C) No.

15494 of 2007 and by order dated 13.12.2007 in SLP (C) Nos. 24316­

24318 of 2007 declined to grant leave to appeal to Md. Zakaria and

Respondent No. 1 Wakf Board respectively, though it observed that

‘Question of law, if any, is left open.’

4. In view of this Court’s observation, the appellant herein, Md.

Abrar, who is the brother of Md. Zakaria and also a descendant of
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Kammu Mia through the female line, approached the Wakf Tribunal

seeking appointment as a joint mutawalli. The Tribunal by order dated

19.3.2008 dismissed the appellant’s application on the ground that

the High Court order dated 25.7.2007 had attained finality and hence

the question of mutawalli­ship has been decided. The appellant filed a

revision petition before the High Court challenging the Tribunal order

dated 19.3.2008.

The High Court, in substantial reliance upon the decision of the

Calcutta High Court in SectionMd. Eshaque v. Md. Amin, AIR 1948 Cal 312,

held that while the founder’s female children may be considered as his

successors for mutawalli­ship, the descendants of the founder’s

daughters would not be considered as lineal descendants under

Mohammedan law, “unless there is a special term in the wakf deed

indicating an intention to the contrary” (emphasis supplied). Hence the

appellant was excluded from consideration for mutawalli­ship.

5. The High Court further found that there was no provision in the

waqf deed dated 9.11.1936 for the appointment of another joint

mutawalli by the surviving mutawalli after the death of one of the

original joint mutawallis. The concept of joint mutawalli­ship would

cease to have any effect after the death of any of the original joint

mutawallis. The surviving mutawalli is only empowered to nominate
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his successor. Further, that once a daughter gets married, she

becomes a member of other families and her children cannot be the

direct lineal descendants of her father. Hence, it is only after the direct

lineal descendants of the waqif are exhausted that Kammu Mia’s

descendants can be considered for appointment as mutawallis. The

High Court also found that there was no custom or usage to the

contrary supporting the appointment of joint mutawallis after the

death of Md. Shafi and Kammu Mia. Hence this appeal.

6. Heard both sides. It is relevant to note that Respondent No. 2

Md. Sulaiman, the present mutawalli of the waqf, has not appeared

before this Court contesting the appellant’s case. Respondent No. 1,

Meghalaya Wakf Board, is agreeable to appoint the appellant as a joint

mutawalli along with Respondent No. 2. However, Respondent No. 1

has only sought a clarification in so far as the common order of the

High Court dated 25.7.2007, in W.P. No. 184/2006 and C.R.(P) No.

26/2006, had found that the waqif had intended that Kammu Mia’s

descendants should continue as one of the joint mutawallis. Whereas

the High Court in the impugned judgment made a contradictory

finding to the effect that the waqf deed dated 9.11.1936 provided for

the cessation of joint mutawalli­ship upon the death of either of the

original joint mutawallis.

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7. Since this Court in SLP (C) No. 15494 of 2007 and SLP (C) Nos.

24316­24318 of 2007 has declined leave to appeal against the High

Court order dated 25.7.2007, we will not be interfering with the

findings therein, but will limit our conclusions to the questions of law

and fact raised in the present appeal. The two issues which arise for

our consideration in the present appeal are:

First, whether a person from the waqif’s family line could succeed

to the vacant post of joint mutawalli after the death of any of the two

original joint mutawallis?

Second, if the first issue is answered in the affirmative, whether

joint mutawalli­ship can be held by the appellant herein, though he is

Kammu Mia’s daughter’s son?

8. With respect to the first issue, we may refer to the following

observations of learned author Mulla in Principles of Mahomedan Law

(21st edn., 2017, Prof. Iqbal Ali Khan ed.) (for short “Mulla”) on page

253, which were relied upon by the High Court in the impugned

judgment:

“S 205A. Succession where two are more mutawallis are
jointly appointed. Where two or more mutawallis are
appointed as joint mutawallis i.e., as joint holders of a
single office, and there is no direction, express or implied,
given by the waqif and where there is no evidence of custom
supporting a usage to the contrary, the office of mutawalli­
ship held jointly will pass on the death of one holder to the
survivor or survivors…
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…A, B and C are appointed joint mutawallis of a waqf.

There is no direction in the waqfnama with regard to what
is to happen if one of them were to die and there is no
evidence of custom. A dies, but before he dies he appoints X
as a mutawalli to succeed him. X cannot act as mutawalli
because on the death of A, the mutawalli­ship passes to B
and C, and A has no power to appoint X as a mutawalli.”
(emphasis supplied)

The aforementioned illustration cited by Mulla is taken from the

decision of the Privy Council in SectionHaji Abdul Razaq v. Sheikh Ali

Baksh, (1947­48) 75 IA 172. Abdul Razaq was referred to by the

Calcutta High Court in its decision in SectionCommissioner of Wakfs v.

Asraful Alam Shani and another, AIR 1975 Cal 162, which was in

turn relied upon by the High Court in the impugned judgment.

Asraful Alam Shani (supra) was a case similar to the present

case wherein two persons were appointed as joint mutawallis, and

after the death of one, the surviving mutawalli claimed to be the sole

mutawalli. The High Court upon consideration of the terms of the waqf

deed in Asraful Alam Shani found that the intention of the waqifs

was that upon the death of any one of them, the survivor shall be the

sole mutawalli. Any person nominated by either of the mutawallis as

their successor during their lifetime could only assume the office when

both joint mutawallis died.

9. From the above discussion it can be said that ordinarily, upon
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the death of one of the joint mutawallis, the surviving mutawalli

becomes the sole mutawalli of the waqf property. In a case where there

are more than two joint mutawallis, after the death of one of the

mutawallis, only the remaining mutawallis would be entitled to

continue as joint mutawallis. Any successor nominated by the

deceased mutawalli can only assume office after the death of the

original mutawallis, unless there is an express or implied direction in

the waqfnama to the contrary.

Hence in the present case, it has to be seen what scheme of

succession was laid down in the waqf deed dated 9.11.1936 (relevant

portion quoted supra). Upon perusal of the terms of the waqf deed, we

are of the considered opinion that the waqif intended that after the

death of any of the original joint mutawallis, the survivor was required

to nominate a person from the waqif’s family line to succeed the

deceased.

It is crucial to note that Clause 2 of the waqf deed dated

9.11.1936 provides that upon the death of either of the joint

mutawallis, the survivor shall be the sole mutawalli ‘for the time

being.’ (emphasis supplied) This differentiates the waqf deed from the

present waqf deed in Asraful Alam Shani (supra) where it was

simpliciter stated that upon the death of either of the joint mutawallis,
12

the survivor shall become the sole mutawalli. The phrasing of the waqf

deed dated 9.11.1936 indicates that the waqif intended that after the

death of either of the mutawallis, the survivor shall continue as the

sole mutawalli only for a temporary period. In the interim, the survivor

is required to nominate a competent successor to the deceased

mutawalli from the waqif’s family line, and thereafter, the said

successor shall have the right to nominate his successor (i.e.

successor’s successor) from the same source.

Further, having regard to the fact that the waqf was constituted

of properties belonging to Md. Haji and Kammu Mia, it can be inferred

that the waqif intended that the succeeding mutawalli should be

nominated from the descendants of the deceased mutawalli. It is

unreasonable that the waqif would have wanted the surviving

mutawalli to continue as a sole mutawalli, and administer the

properties of the deceased in exclusion of the family members of the

deceased mutawalli, unless the family line of the deceased mutawalli

was to be exhausted.

Our interpretation of the waqf deed in the above terms is

supported by the order of the Assam Wakf Board dated 4.3.1973

allowing Respondent No. 2’s claim to be appointed as joint mutawalli

together with the deceased Kammu Mia. The Wakf Board strongly
13

condemned the deceased Kammu Mia for continuing as sole mutawalli

and observed that this indicated a desire on his part to misappropriate

the income of the waqf for his own family, to the exclusion of the other

descendants of the waqif.

The aforesaid order of the Wakf Board has not been challenged

by the respondents in the present appeal at any point of time. We find

it difficult to understand how it can lie to Respondent No. 2 to seek

appointment as joint mutawalli after his father’s death as his father’s

heir and deny the same right to the descendants of his erstwhile co­

mutawalli Kammu Mia.

10. Therefore, what remains to be decided is whether the appellant

can be construed as part of the ‘family line’ of the waqif Haji Elahi

Baksh as required under Clause 2 of the waqf deed. It is relevant to

note that the issue for consideration before us is not whether the

waqif’s daughter or a female descendant can be the mutawalli, but

whether the offspring of the daughter can be considered for mutawalli­

ship. The High Court in the impugned judgment negatived this

contention in reliance upon the decision of the Calcutta High Court in

Md. Eshaque (supra). In Md. Eshaque, the waqif provided for the

devolution of mutawalli­ship in the waqf deed as follows (relevant

portion):

“Clause (a). —…the said office stall devolve till the passing of
14

ages (i.e. for ever) and repetition of months, as God the
merciful wills upon the offspring of my son (ba farzandani—
farzandam) from generation to generation (Naslan baad
naslin) womb after womb (batnam baad batnin)…

Clause (b).—But, whoever from among the male issue of my
son and of the children (off spring) of my son, is learned and
God fearing, and virtuous, and adorned with the ornament
of truth and purity, and embellished with the qualities of
fidelity and honesty and celebrated for, and qualified with
laudable qualities and pleasing manners, shall be appointed
to the office of the aforesaid ‘tawliat’.

Clause (d).—And, if from among the children of the
Mutwalli, several persons are found to adorned and
qualified with the aforesaid attributes, then the person who
is senior­most in age among them be entitled to the
‘tawliat’, and, supposing they be equal in age, then one of
them shall be entitled according to the advice of religions
Musalmans and sober (i.e. pious) learned men, and so long
as there exist male issue, the said office shall not be
transferred to female issue.”

Clause (e).—“If by Divine decree the male issues become
extinct, then it shall be transferred to the females, with the
same aforesaid conditions as are applicable to the class of
males and with the same…” (emphasis supplied)

In that case, the original mutawalli’s son died without any issue.

The question which arose for consideration was whether the son of the

mutawalli’s widowed daughter was competent to succeed as

mutawalli. The High Court, upon extensive consideration of the

opinions of Mohammedan jurists on this point, came to the conclusion

that the Persian word ‘farzand’ used in the waqf deed (the Arabic

synonym of which is ‘aulad’) is legally understood to include both sons
15

and daughters in the male line, but exclude any descendants, of

whatever gender, in the female line.

Importantly, we find from a careful perusal of the decision, that

the High Court in Md. Eshaque (supra) did not rule as a matter of law

that mutawalli­ship can never devolve upon the descendants through

the female line. In the same decision, the High Court noted that in an

earlier decision of the Bombay High Court in Sheikh Karimodin v.

Nawab Mir Sayad Alam Khan, 10 Bom. 119., it was held that the

expression ‘ahfad’, if used in the waqf deed, would be wide enough to

cover descendants of the daughter as well. The clauses of the waqf

deed in Md. Eshaque also expressly indicated that preference was to

be given to the male issue over the female issue.

11. In an earlier decision of the Calcutta High Court in SectionWares Ali v.

Sheikh Shamsuddin, (1936) 63 Cal. L.J. 573, the High Court found

that since the waqif herself had appointed the son of a daughter as

mutawalli, the expression ‘legal heirs’ in the waqfnama must be taken

to include lineal descendants in both the male and female line. SectionIn

Syed Mahomed Ghouse v. Sayabarin Sahib (deceased), AIR 1935

Mad 638, similar terms ‘batnam bad batnam’ and ‘naslan bad naslan’

were used in the waqf deed with regard to succession to mutawalli­

ship. The Madras High Court held, referring to the decision in Sheikh
16

Karimodin (supra) as follows:

“The primary meaning of the words ‘Batnam bad
batnam’ seems to be generation after
generation: see Wilson’s Glossary and Durga Prasad’s
Arabic dictionary. It is contended by Mr. Rangachari, also
by the Advocate for the sixth defendant, that these words
exclude the cognate descendants. It seems to be so in the
case of private grants. In the case of documents relating to
private property, the words have now become words of
limitation and as such they indicate absolute estate and in
the case of absolute estate agnate heirs being residuaries
exclude cognates under the Mahomedan law. But where
these words occur in documents laying down the line of
devolution for a religious office, such as the managership of
a wakf, the above said consequence does not necessarily
follow. There the words generation after generation must be
taken literally and we do not see any reason why at least in
the case of descendants of a person claiming through
females they should be excluded.

It has been contended relying on Abdul Ganne
Kasam v. Hussen Miya Rahimtula and SectionShah Ahmud
Hossain v. Shah Mohiooddeen Ahmad that descendants
through females should not be regarded as members of the
family and must be regarded as strangers. The word ‘family’
itself is ambiguous. In this decision it is used in the sense
of agnate heirs. In a larger sense a man’s descendants
through females are equally members of his family and
certainly under Muhammadan Law are heirs though they
are remote heirs and they can come in by the use of the
appropriate words, for example, by the use of the word
“Ahfad,” as in Shekh
Karimodin v. Nawab Mir Sayad Alam Khan.

The passages relied on in the various text books no
more than summarise the effect of these decisions and do
not help us further. The word “Naslan” certainly includes all
descendants: vide Tyabji’s Muhammadan Law, S. 508 and
“Naslan bad Naslan” indicates all descendants; That is how
it was translated in SectionAli Muqtada Khan v. Abdul Hamid Khan.

On the whole therefore we come to the conclusion that the
words ‘batnam bad batnam’ in Ex. D and the words ‘naslan
bad naslan’ in Ex. M are not intended to exclude the
descendants through females. Baillie’s Mahomedan Law,
17

page 579 does not indicate a contrary view. We have
therefore to consider the relative merits of all the claimants
including the descendants through females.” (emphasis
supplied)

Accordingly, the High Court in Syed Mahomed Ghouse (supra)

confirmed the subordinate court’s finding that the son of a female

descendant would be qualified to manage the waqf property.

12. From the above discussion, we may conclude that it cannot be

said as a rule of law that cognatic heirs of the waqif have no right to

succeed to mutawalli­ship. As Mulla notes on page 90 and as

observed in Fyzee’s Outlines of Muhammedan Law (5th edn., 2008,

Prof. Tahir Mahmood ed., page 339), daughter’s children and their

descendants are also included as descendants of the deceased under

Muslim law, though they are considered a more distant class of heirs

than agnatic heirs. Rather, as we have found in our earlier discussion

on the issue of succession to joint mutawalli­ship mentioned supra, it

is the interpretation of the waqf deed which is germane in each case.

We may also refer, in this regard, to the recent decision of a two­

Judge Bench of this Court, comprising of myself and Rastogi J., where

we have held that in order to establish a claim of hereditary

succession to mutawalli­ship, the intention of the waqif, as manifested

either through the directions given in the waqf deed or the creation of

a custom, is of paramount importance (SectionSee Aliyathammuda
18

Beethathebiyyappura Pookoya Ors. v. Pattakal Cheriyakoya

Ors., C.A. No. 9586/2010, judgment dated August 1, 2019). We are of

the considered opinion that this principle also applies in determining

which class of heirs is included or excluded from mutawalli­ship.

Therefore it has to be seen whether in the present case, having

regard to the terms of the waqf deed, the waqif intended to exclude his

descendants through the female line from mutawalli­ship of the waqf.

In the present case, Kammu Mia was the husband of the daughter of

the waqif Haji Elahi Baksh. Therefore Kammu Mia’s descendants

would naturally be Haji Elahi Baksh’s descendants through the female

line, and the waqif must have been aware of this while drafting the

waqf deed. If the waqif had intended to exclude his descendants

through the female line from succession to mutawalli­ship, he would

have expressly stated that after the death of either the original joint

mutawallis, only Md. Shafi’s descendants would be eligible to succeed

to mutawalli­ship. However, the waqf deed dated 9.11.1936 clearly

provides that either of the surviving mutawallis may nominate a

successor as he thinks fit and that if mutawalli does not nominate a

successor, the senior most member amongst the lineal descendants of

either Md. Shafi or Kammu Mia would be competent to hold

mutawalli­ship, without any preference given to Md. Shafi’s
19

descendants.

Hence it is clear that the waqif not only included the direct

descendants of his son but also his descendants through the female

line, which includes Kammu Mia’s daughter’s descendants, as part of

his ‘family line.’ The High Court’s finding that the waqif intended that

the mutawalli­ship should devolve upon Kammu Mia’s descendants

only after the waqif’s direct lineal descendants are exhausted is

patently incorrect in as much as the waqf deed does not contain any

such stipulation.

13. However, having regard to the fact that there may be several such

descendants in the female line who are vying for mutawalli­ship, we do

not wish to make a specific finding in regard to whether the appellant

is entitled to the said office. Section 63 of the 1995 Act is useful to

refer to at this juncture:

“63. Power to appoint mutawallis in certain cases.—
When there is a vacancy in the office of the mutawalli of a
waqf and there is no one to be appointed under the terms of
the deed of the waqf, or where the right of any person to act
as mutawalli is disputed the Board may appoint any person
to act as mutawalli for such period and on such conditions
as it may think fit.”

In the present case, since Respondent No. 2 has shown a

disinclination to nominate a successor to the deceased Kammu Mia,

as provided for under the terms of the waqf deed, we direct
20

Respondent No. 1 to appoint a competent person from amongst the

said Kammu Mia’s descendants, as it thinks fit, to succeed to joint

mutawalli­ship. This is provided that the said successor shall

thereafter have the right to nominate his successor, per Clause 3 of

the waqf deed. We also direct that the said successor shall, in the

event of the death of Respondent No. 2, nominate a successor from

Respondent No. 2’s family line, which includes descendants through

the female line, so as to avoid any further dispute in this regard.

14. The appeal is allowed in the above terms, and the impugned

judgment is set aside.

……………………………………J.

(N.V. Ramana)

……………………………………J.
(Mohan M. Shantanagoudar)

New Delhi; …………………………………..J.
September 26, 2019. (Ajay Rastogi)

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