Succession To Mutawalliship By Descendant Through Female Line Not Barred: SC [Read Judgment]

The Supreme Court has held that there is no legal bar on cognatic heirs of the waqif from succeeding to mutawalliship.

The bench comprising Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Ajay Rastogi reiterated that in order to establish a claim of hereditary succession to mutawalli-ship, 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.

In this case [Md. Abrar vs. Meghalaya Board of Wakf], the Gauhati High Court affirmed the order of Wakf Tribunal which concluded that since the applicant to Mutawalliship is a descendant through the female line, he could not be regarded as a direct lineal descendant, and hence was not eligible for appointment as mutawalli.

Referring to Principles of Mahomedan Law (Mulla) and some High Court judgments on the subject, the bench observed:

"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."

Perusing the Wakf deed, the bench said that, in this case, 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 mutawalli-ship 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, it held while allowing the appeal. 

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