SYEDA NAZIRA KHATOON (D) BY LR. versus SYED ZAHIRUDDIN AHMED BAGHDADI & ORS.

Citation: [2019] 12 S.C.R. 711 · Decided: 26-09-2019 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Disposed off

Judgment (excerpt)

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SYEDA NAZIRA KHATOON (D) BY LR.
v.
SYED ZAHIRUDDIN AHMED BAGHDADI & ORS.
(Civil Appeal No.4045 of 2010)
SEPTEMBER 26, 2019
[N. V. RAMANA, MOHAN M. SHANTANAGOUDAR
 AND AJAY RASTOGI, JJ.]
Wakf – Appointment of Mutawalli – A wakf was created in
respect of certain properties by a registered deed of wakf – This
deed appointed one person as Mutawalli of the wakf estates – Deed
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 eldest son was appointed as the next
Mutawalli – Eldest son of the original Mutawalli had six sons and
nine daughters – After the death of the eldest son of the original
Mutawalli, ‘SBA’ was authorised to act as Mutawalli – ‘SBA’ was
the son of the eldest son of the original Mutawalli – ‘SBA’ did not
have any male issue – Thereafter, ‘SBA’ executed a trust deed and
appointed his wife ‘NK’ as the next Mutawalli after his death –
After the death of ‘SBA’, ‘NK’ applied to the Board of wakfs for
appointment as Mutawalli – Her application was allowed by the
Commissioner of wakfs – Respondent No.1, grandson of the eldest
son of the original Mutawalli and nephew of the last Mutawalli
(‘SBA’) objected her appointed and alleged that her appointment
went against the original wakf deed – Held: In light of the
pronouncements of the Supreme Court and High Court Judgments
and also authoritative texts on Mohammedan law, it is 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 did 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 Mutawalli by ‘SBA’ 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
   [2019] 12 S.C.R. 711
711
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SUPREME COURT REPORTS
[2019] 12 S.C.R.
law – Also, reading and interpreting the term ‘putro poutradi krome’
lends support to the view that it means son and grandson,
generation after generation and therefore does not include any
female descendants – Here, given that ‘NK’ was the wife of the
last Mutawalli and not direct descendent in the family, she was not
entitled to the Mutawalli – 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.
Dismissing the appeal, the Court
HELD: Whether a mutawalli has the right to transfer his
office to another person, as was done by the last mutawalli, ‘SBA’
through the creation of the trust deed.
1. In light of the pronouncements of the Supreme Court
and the High Court Judgments 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 mutawalli by ‘SBA’ 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. [Para
10] [719-C-D]
2. 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 ‘NK’ 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.
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The claim of late ‘NK’ to the mutawalliship of the said wakf
esta

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