Female Descendant Cannot Be Mutawalli If Wakif Intended To Exclude Them: SC [Read Judgment]

The Supreme Court has observed that, though women can also hold the office of Mutawalli under Mohammedan law, but if the wakif intended to create the Mutawalliship only in favour of male descendants, a female descendant cannot stake any claim to the Mutawalliship of the wakf estate.

The bench comprising Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Ajay Rastogi observed thus while affirming the cancellation of the appointment of one Nazira Khatoon as the permanent Mutawalli of a wakf estate.

In this case, the Calcutta High Court had observed that the term "putro poutradi krome" in the wakf deed indicated 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.

While affirming this judgment, the Apex Court bench in Syeda Nazira Khatoon (D) vs. Syed Zahiruddin Ahmed Baghdadi also held 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 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 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.

The bench, referring to the wakf deed, further said:

It becomes clear that the original wakf deed did not envisage female descendants to fall within the purview of 12 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.  

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