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

                         [2019] 12 S.C.R. 711                         711


            SYEDA NAZIRA KHATOON (D) BY LR.                           A
                                v.
      SYED ZAHIRUDDIN AHMED BAGHDADI & ORS.
                  (Civil Appeal No.4045 of 2010)
                                                                      B
                     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     C
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
                                                                      D
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      E
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
                                                                      F
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     G
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
                                                                      H
                               711
712            SUPREME COURT REPORTS                     [2019] 12 S.C.R.


A     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,
B
      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
C            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
D     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
E     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]
F            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
G
      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
H     illegal, as it goes beyond the powers vested with the mutawalli.
         SYEDA NAZIRA KHATOON (D) BY LR. v. SYED                    713
             ZAHIRUDDIN AHMED BAGHDADI

The claim of late ‘NK’ to the mutawalliship of the said wakf        A
estate is therefore unsustainable. [Para 10] [719-E-F]
      Whether the daughters of the last mutawalli and ‘NK’,
including the Appellant herein, would qualify to be the mutawalli
under the express terms of the wakf deed.
                                                                    B
      3. 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 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       C
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. Following        D
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, ‘NK’ or her
daughters (including the Appellant herein) cannot stake any
claim to the mutawalliship of the wakf estate. Instead, being the   E
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.
[Paras 12 and 13] [720-C-F]
     Ahmed G.H. Ariff and others v. Commissioner of Wealth          F
     Tax, Calcutta (1969) 2 SCC 471 – relied on.
     Badagara Jumayath Palli Dharas Committee v.
     Peedikayalakath Ummerkutty Haji AIR 2002 Ker
     56 ; Abdul Latheef v. K.P. Abdurahiman (2014) 1 KLJ
     329 – affirmed.                                                G

     Mulla’s Principles of Mohammedan Law (21 st edn.,
     2017) at page 298 – referred to.
     Asaf A.A. Fyzee, Outlines of Muhammadan Law (5 th
     edn., Tahir Mahmood) at page 249 – referred to.                H
714            SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A                             Case Law Reference
      (1969) 2 SCC 471                    relied on              Para 9
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4045
      of 2010.

B           From the Judgment and Order dated 01.10.2008 of the High
      Court at Calcutta in C. O. No. 936 of 2006.
            Satyam Reddy, Sr. Adv., Vishal Arun and S. K. Mehbub Hossain,
      Advs. for the Appellant.
           Anand, Gautam Misra, Abhijit Sengupta, Ms. Rajeshri N. Reddy
C     and Ms. Manjeet Chawla, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            MOHAN M. SHANTANAGOUDAR, J.
            1. The instant appeal arises out of a decision of the High Court
D     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
E     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
F
      (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
G
      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
H     recorded as the mutawalli of the wakf estate.
   SYEDA NAZIRA KHATOON (D) BY LR. v. SYED ZAHIRUDDIN                        715
    AHMED BAGHDADI [MOHAN M. SHANTANAGOUDAR, J.]

      On 19.11.1992, Syed Badruddin Ahmed died, leaving behind his           A
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
                                                                             B
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.                                          C

       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           D
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       E
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       F
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 mutawalli.
      4. This resolution was challenged by Nazira Khatoon in a writ
application, which was transferred to the Wakf Tribunal, West Bengal
                                                                             G
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.            H
716            SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A           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
B
      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
C
      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
D     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.
E           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
F     (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
G     female descendants to be included within the term “putro poutradi
      korme”. In this regard, he relied on the Bangla-to-English 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)
H     of the original mutawalli. He also relied on Dev’s Bengali-to-English
      SYEDA NAZIRA KHATOON (D) BY LR. v. SYED ZAHIRUDDIN                      717
       AHMED BAGHDADI [MOHAN M. SHANTANAGOUDAR, J.]

Dictionary to argue that “putro poutradi” conjunctively means future          A
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.
                                                                              B
       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
                                                                              C
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    D
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.                                               E
       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.                                                      F
       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,                    G
Calcutta,1 where a 3-Judge 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
1
    (1969) 2 SCC 471                                                          H
718            SUPREME COURT REPORTS                         [2019] 12 S.C.R.


A           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 part thereof unless he is
            expressly empowered by the deed of wakf to do so.”
B
             Thus, it is well-settled 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
C     is relevant in this context:
            Ҥ214: Office of mutawalli not transferable РA mutawalli has
            no power to transfer the office to another, unless such a power
            is expressly conferred upon him by the founder…”

D            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
E     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.
             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
F     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
G           between the appropriator or the waqif who himself becomes the
            first mutawalli and a mutawalli appointed by the waqif for
      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.
H     5
        (2014) 1 KLJ 329.
   SYEDA NAZIRA KHATOON (D) BY LR. v. SYED ZAHIRUDDIN                      719
    AHMED BAGHDADI [MOHAN M. SHANTANAGOUDAR, J.]

      administering the wakf. Although the waqif may resign his office     A
      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     B
      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,   C
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 Syed     D
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         E
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    F
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.                           G
      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.                                                H
720                SUPREME COURT REPORTS                      [2019] 12 S.C.R.


A           12. Different translations of the wakf deed have been produced
      before us. While the translation adduced by the Appellant at Annexure
      P-1 interprets “putro poutradi krome” to mean “through successive
      generations or successors”, the translation adduced by the Respondent
      No.1 at Annexure R-1 interprets it as “sons and grandsons in
      succession”.
B
             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
C     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,
D     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
E     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
F     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
G     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.


      Ankit Gyan                                                  Appeal dismissed.
H