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Syeda Nazira Khatoon (D) By Lr. vs Syed Zahiruddin Ahmed Baghdadi … on 26 September, 2019

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REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4045 OF 2010

Syeda Nazira Khatoon (D) by LR. …Appellant(s)

Versus

Syed Zahiruddin Ahmed Baghdadi Ors. …Respondent(s)

JUDGMENT

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.
Signature Not Verified

One of his devotees, Abdur Rahim, created a wakf in respect of certain
Digitally signed by
ASHWANI KUMAR
Date: 2019.09.26
18:06:42 IST
Reason:

properties by a registered deed of wakf dated 07.02.1913 (hereinafter
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‘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’).

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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
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the mutawalli, being the male lineal descendant of the original

mutawalli.

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 SectionArticle 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
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the mutawalli in the SectionWakf 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
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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
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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 SectionAhmed 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.

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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.

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SectionIn 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.

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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

interpreted.

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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
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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

to 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.

(N.V. Ramana)

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

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

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