Summary
A descendant through a daughter sought appointment as joint mutawalli under a deed providing for representation of two family branches. The Court construed the deed as requiring continuation of joint management and including descendants through the female line. It directed the Wakf Board to select a competent descendant of the deceased joint mutawalli, without declaring the appellant personally entitled to appointment.
Issues
- Whether joint mutawalliship continued after the death of an original joint holder under this deed.
- Whether descendants through the female line were eligible for succession.
Provisions considered
- Section 63, Waqfs Act, 1995The Board’s power to appoint where the right to act as mutawalli is disputed supported the direction to select a competent successor from the relevant family branch. (¶ 13)
Held
- Ordinarily a joint office passes to surviving mutawallis unless the deed expressly or impliedly directs otherwise. Here, the survivor was sole mutawalli only for the time being, and the terms and dedication of both branches’ property indicated an obligation to nominate a successor from the deceased holder’s branch. (¶¶ 8, 9)
- There is no universal legal rule excluding descendants through females from mutawalliship. The founder’s intention, disclosed by the deed or relevant custom, governs the class of eligible heirs. Precedents interpreting differently worded deeds did not establish an absolute exclusion. (¶¶ 10, 11, 12)
- The deed treated descendants of both original joint mutawallis as eligible without preferring one branch. Since one original holder was the founder’s son-in-law, the founder necessarily contemplated succession through the female line. (¶ 12)
- The existence of potentially competing descendants made a declaration of the appellant’s individual entitlement inappropriate. The Board was to choose a competent descendant of Kammu Mia, preserving the appointed successor’s nomination power and future representation of the other branch. (¶ 13)
Result
The appeal was allowed and the High Court judgment set aside. The Board was directed to appoint a competent descendant of Kammu Mia as joint mutawalli. That successor could nominate his own successor and, upon the surviving joint mutawalli’s death, was to nominate a successor from that holder’s family line, including descendants through females.