Mohan M. Shantanagoudar, J. - (1.) This appeal arises out of judgment dated 28.01.2009 of the Shillong Bench of the Gauhati High Court. The High Court by the impugned judgment dismissed the appellant's revision petition and confirmed the order of the Wakf Tribunal dated 19.3.2008 dismissing the appellant's application seeking appointment as joint mutawalli, along with Respondent No.2, of his predecessor's waqf property.
(2.) The facts giving rise to this appeal are as follows: One Haji Elahi Baksh ('waqif'), who was resident of Shillong, executed a registered waqf deed dated 9.11.1936 dedicating properties belonging to himself, his son Md. Shafi and his son-in-law cum nephew Haji Kammu Mia to the waqf. The relevant clauses of the waqf deed are reproduced as follows: "1. The settlor's son Md Shafi and son in law Kammu Mia, son of late S.K. Gajnu, shall be joint Mutawallis during their lifetime. 2. On the death of either of the joint mutawallis, the survivor shall be the sole Mutawalli for the time being and shall have power to nominate his successor from the family line of the settlor. 3. Each successive Mutawallis thereafter shall have the right to nominate his successor from the same source. 5. Should a Mutawalli die without nominating a successor, the senior most member among the lineal descendants of the said Md Shafi and Kammu Mia, if otherwise competent shall be entitled to hold the office of Mutawalli." Md. Shafi died on 20.12.1960, whereupon the surviving mutawalli among the joint mutawallis, namely Haji Kammu Mia became the sole mutawalli. However Kammu Mia did not appoint the successor to the deceased Md. Shafi. Hence Respondent No. 2 in the present appeal, Md. Sulaiman, who is the son of the late Md. Shafi, approached the Assam Wakf Board, which had territorial jurisdiction at that time, seeking appointment as joint mutawalli with Kammu Mia. The Assam Wakf Board, by order dated 4.3.1973, found that under Clause 2 of the waqf deed dated 9.11.1936 (supra), the surviving mutawalli from amongst the joint mutawallis was required to nominate the successor of the deceased mutawalli from the waqif's family line. Since the surviving mutawalli Kammu Mia had failed to do so, the Wakf Board, taking note of the fact that Respondent No. 2 was the son of the deceased mutawalli, appointed him as joint mutawalli along with Kammu Mia. It is relevant to note that this order was not challenged by any of the parties herein. Thereafter, Respondent No. 2 Md. Sulaiman acted as the joint mutawalli along with Kammu Mia, till Kammu Mia's death on 2.2.1980, upon which Md. Sulaiman became the sole mutawalli. However, this time it was Md. Sulaiman who failed to nominate a successor to the deceased Kammu Mia. This was even though Kammu Mia during his lifetime; by deed dated 19.2.1973 had nominated his daughter's son Md. Taiyab as his successor, which fact was also communicated to the Assam Wakf Board. In the meantime a separate Wakf Board, i.e. Respondent No.1 was constituted for the State of Meghalaya. Respondent No. 1 by order dated 7.2.1980 recognized Md. Sulaiman as the sole mutawalli. Aggrieved by the same, Md. Taiyab approached Respondent No. 1 seeking appointment as the sole mutawalli; however his application was dismissed on the ground that he does not belong to the waqif's family line. His appeal against the order dated 7.2.1980 was dismissed by orders of the Assistant Deputy Commissioner and Additional Deputy Commissioner of Wakfs respectively. Further, the High Court dismissed Md. Taiyab's suit against Respondent No. 1 due to lack of notice to the Wakf Board as required under Section 56 of the Wakfs Act, 1954.
(3.) Md. Taiyab again served notice on Respondent No. 1 in 2002, after coming into force of the Waqfs Act, 1995 ('1995 Act'). The Wakf Tribunal by order dated 19.7.2006 relied upon Section 25 of the Indian Succession Act, 1925 to interpret the term 'family line of the settlor' as stated in the waqf deed. Section 25 of the Indian Succession Act provides as follows: "25. Lineal consanguinity.-(1) Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great-grandfather, and so upwards in the direct ascending line, or between a man and his son, grandson, great-grandson and so downwards in direct descending line..." Hence the Wakf Tribunal concluded that since Md. Taiyab was Kammu Mia's descendant through the female line, he could not be regarded as a direct lineal descendant, and hence was not eligible for appointment as mutawalli. Additionally, one Md. Zakaria, who was also Kammu Mia's daughter's son, was impleaded before the Tribunal in the same matter seeking appointment as joint mutawalli. The Tribunal rejected Md. Zakaria's claim as well, holding that it was the intent of the wakif that Md. Shafi and Kammu Mia would enjoy joint mutawalli-ship only during their lifetime. Such joint mutawalli-ship was to cease on the death of either of the joint mutawallis, and thereafter the surviving mutawalli and his successors would continue as the sole mutawalli. Md. Zakaria filed a revision petition against the Tribunal's order dated 19.7.2006 under Section 83(9) of the 1995 Act whereas Md. Taiyab filed a writ petition challenging the same order. The High Court by common order dated 25.7.2007 in W.P. No. 184/2006 and C.R.(P) No. 26/2006 dismissed both petitions, affirming the Tribunal's findings. With respect to the issue of joint mutawalli-ship, the High Court found that the trust property included property of the deceased Kammu Mia. Hence the waqif would have definitely intended that one person from Kammu Mia's family should be included in the management of the trust. Therefore Kammu Mia's descendants would be entitled to be appointed as a joint mutawalli along with the descendants of Md. Shafi. However, the Court simultaneously observed that while Part IV of the Indian Succession Act excludes applicability to Muslim persons, in the absence of any definition of lineal descendants in the 1995 Act or any authoritative pronouncement of Mohammedan law in this regard, the definition under Section 25 of the Indian Succession Act could be taken into consideration for interpreting the meaning of the term 'family line'. Since Kammu Mia was not survived by any son, his descendants through the female line could not be considered for the office of joint mutawalli-ship. Further, that allowing the same as a matter of law would lead to additional expansion in the list of claimants which would not be in the interest of administration of the trust property. This Court by order dated 7.9.2007 in SLP (C) No. 15494 of 2007 and by order dated 13.12.2007 in SLP (C) Nos. 24316- 24318 of 2007 declined to grant leave to appeal to Md. Zakaria and Respondent No. 1 Wakf Board respectively, though it observed that 'Question of law, if any, is left open.';