High Court · 2025 on 30 May 2025

Judgment

1. Heard Sri Munawwar Sultan and Sri Mohd. Mansoor, learned counsel for the revisionist, Sri Farhan Habib, learned counsel for the respondent nos. 2 to 4 and Syed Aftab Ahmad, learned counsel for the respondent no. 5.

2. The instant revision under Section 83 (9) of the Waqf Act, 1995 has been instituted by the revisionist being aggrieved against the order dated 02.08.2019 passed by the Waqf Tribunal, U.P. in Case No. 63 of 2018 whereby the Waqf Tribunal has confirmed the order dated

27.02.2018 passed by the Waqf Board and its consequential office memorandum dated 09.03.2018 whereby the application of the revisionist for his appointment as Mutawalli of the Waqf in question has been rejected.

3. Certain brief facts giving rise to the instant petition are being noticed hereinafter:-

4. Sri Khan Sahab Abdul Ghafoor along with his daughter Ameena Khatun and his two sons Abdul Ali Khan and Abdul Jaleel Khan created a Waqf Alal Aulad by means of a registered deed dated

04.07.1931. The said Waqf came to be registered in the office of U.P. Shia Central Waqf Board as Waqf No. 10-exempted-II-Aligarh. - 2 -

5. In the Waqf deed of 1931, the creator of the Waqf had also laid down a line of Tauliyat to the office of Mutawalli.

6. After the partition in the country, many persons belonging to the pedigree of Abdul Ghafoor Khan, Abdul Jaleel Khan and Ameena Khatun had migrated to Pakistan.

7. It is only the family of Abdul Ali Khan who remained in the country and for the said reason, after the death of Abdul Ghafoor Khan, his eldest son Abdul Ali Khan became the Mutawalli. Upon his death, his eldest son Al Muzaffar Khan became the Mutawalli and after his death in the year 2007, a claim was made by the private respondent no. 5 who being the daughter of Al Muzaffar Khan sought her appointment as Mutawalli.

8. After the death of Al Muzaffar Khan, certain disputes arose between the private respondent no. 5 and Al Tariq Abul Ghafoor Khan wherein both claimed their rights for Tauliyat, however, the same came to be rejected by the Board.

9. At that point of time, the revisionist and the private respondent no. 5 contested the order dated 09.04.2008 passed by the Board whereby Al Tariq Abdul Ghafoor Khan was appointed as Mutawalli. The application of the revisionist was rejected while the respondent no. 5 was appointed as the Mutawalli vide order dated 09.03.2009.

10. This order dated 09.03.2009 was assailed by the present revisionist in a writ petition bearing No. 3020 (MB) of 2009 which

was disposed of by the Division Bench of this Court remanding the matter to the Waqf Board to decide the rival claims as put forth by the revisionist and the respondent no. 5.

11. significantly, the mother of the revisionist namely Smt. Atia Hashmat had also made an application on 31.10.2008 and 11.11.2008 for appointment of the revisionist as Mutawalli.

12. Despite the same, the Board upheld the order dated 09.04.2008 - 3 - whereby Al Tariq Abdul Ghafoor Khan was appointed as the Mutawalli. This order dated 01.06.2009 by which the earlier order dated 09.04.2008 was affirmed was again put to challenge by filing a writ petition before this Court which came to be dismissed as abated after the death of Al Tariq Abdul Ghafoor.

13. The revisionist made complaints to the Board indicating that the father of the respondent no. 5 namely Al Muzaffar Khan and later even the respondent no. 5 had dissipated the property of the Waqf by executing the sale deeds in favour of several private individuals and as such it was not appropriate to keep the respondent no. 5 as Mutawalli and that she be removed and the revisionist be appointed as the Mutawalli.

14. The Board by means of its order dated 27.02.2018 rejected the contentions of the revisionist and appointed the respondent no. 5 as Mutawalli. In furtherance thereof, office memorandum was issued on

09.03.2018 and both of these orders were further assailed by the revisionist before the Waqf Tribunal who also rejected the same by means of order dated 02.08.2019 which has given rise to the instant revision.

15. The learned counsel for the revisionist has primarily raised a two fold submission:- (i) in terms of the registered Waqf deed of 1931, the revisionist was the appropriate person to be appointed as the Mutawalli which has not been appropriately considered either by the Board or by the Waqf Tribunal and as such appointing the respondent no. 5 as Mutawalli was against the terms of Tauliyat as mentioned in the Waqf Deed. (ii) The respondent no. 5 was guilty of alienating, misappropriating the property and the funds which disentitled her to be appointed or even remain as the Mutawalli.

16. The learned counsel for the revisionist has also urged that once - 4 - the Waqf deed provided for a detailed line of succession for the office of Mutawalli, primacy is to be attributed to the said wish of the Wakif and in line of succession as provided, it was the revisionist who would be a preferential candidate, however, ignoring the same, the Waqf Board and the Waqf Tribunal have committed an error of law and is a clear case of misreading the recitals of the Waqf Deed.

17. The learned counsel for the revisionist also urged that since the conduct of the respondent no. 5 was such as she had dissipated and misappropriated the funds of the Waqf, hence, she by her own conduct attracted disability as provided in law for her being appointed as the Mutawalli and instead of giving a finding in this regard, the said issue has been brushed aside by the Board while passing the order impugned dated 27.02.2018.

18. Even this issue, when raised before the Tribunal yet it did not give clear finding in this regard and as such the orders passed by the Board as well as the Waqf Tribunal are bad in the eyes of law and suffer from jurisdictional errors, consequently, deserves to be set aside after allowing the present petition.

19. Sri Syed Aftab Ahmad learned counsel for the Respondent No.5 while refuting the aforesaid contentions has pointed out that as per the terms of the registered Waqf Deed of 1931, the Mutawalli was to remain within the family as per the directions of the creator of the Waqf.

20. Admittedly, large number of family members as provided in the lines of succession had migrated to Pakistan and it was only the eldest son of Abdul Ghafoor Khan namely Abdul Ali Khan who remained in the country and after him, his eldest son. Al Muzaffar remained the Mutawalli till 2007 and upon his death, his daughter namely the respondent no. 5 was rightly appointed as the Mutawalli.

21. It is further submitted that even if the contents of the Waqf - 5 - Deed are taken note of, it would still reveal that after the death of Al Muzaffar, son of Abdul Ali Khan, the mother of the revisionist could have raised a claim for being appointed as the Mutawalli but it was not done rather it was the mother of the revisionist who, though, moved applications before the Court but it was for the appointment of her son.

22. Al Muzaffar and Atia Hashmat both were real brother and sister and were children of Abdul Ali Khan. The revisionist being the son of daughter of Abdul Ali Khan could not get the right of being appointed as Mutawalli especially when admittedly upon the death of Abdul Ali Khan, Al Muzaffar was the Mutawalli and once the office of the Mutawalli had been held by Al Muzaffar then the Tauliyat has to go in that branch and cannot revert to the branch of Atia Hashmat as the revisionist is the son of Atia Hashmat, and with him the pedigree would change. Moreover, the respondent no. 5 is admittedly the daughter of Al Muzaffar and she has a right to be appointed as Mutawalli. Thus, it cannot be said that the order passed by the Board or the Waqf Tribunal is against the provisions of the Waqf Deed or the law.

23. It is also submitted that no properties as alleged have been sold and there were mere baseless allegations, hence, in this view the orders impugned cannot be faulted and the revision deserves to be dismissed.

24. The Court has heard the learned counsel for the parties and also perused the material available on record.

25. There is no dispute between the parties that the Waqf was created by Sri Abdul Ghafoor Khan by means of his registered deed dated 04.07.1931. It is also not disputed that apart from Abdul Ali Khan, all the other members of the family of Abdul Ghafoor Khan had migrated to Pakistan and other countries, hence, the dispute, if at all, - 6 - remains is amongst the heirs branching out from Abdul Ali Khan.

26. The record indicates that the present revisionist had filed W.P. No. 3020 (MB) of 2009 wherein he had assailed the appointment of the respondent no. 5 as Naib Mutawalli vide order dated 09.05.2008 whereas Al Tariq Abdul Ghafoor was functioning as the Mutawalli. Since the application of recall moved by the respondent no. 5 was rejected, the writ petition came to be filed.

27. The Court considering the contentions of the parties, disposed of the writ petition by means of order dated 30th March, 2019 directing the Waqf Board to take into consideration the plea and the contentions of the respective parties and decide the same in accordance with law noticing the Waqf Deed and the relevant rules in this regard.

28. The Waqf Board by means of its order dated 27.02.2018 found that the allegations made against the respondent no. 5 regarding misappropriation of the waqf properties and its income can be considered by the Board in appropriate proceedings but after concluding the proceedings for appointment of Mutawalli.

29. It further went on to hold that the claim put forward by Ms. Noorin Khan, the respondent no. 5 was covered by the terms of the Waqf Deed, hence, she was appointed as the Mutawalli while rejecting the claim of the revisionist.

30. On the aforesaid issue, the Waqf Tribunal also considered the respective submissions and after considering the terms of the Waqf Deed, it found that after the death of Abdul Ali Khan, his son Al Muzaffar Khan was the Mutawalli and upon his death, his daughter falls within the line of succession as provided in the Waqf Deed. It further held that in presence of Al Muzaffar and thereafter in presence of his daughter as per the Waqf Deed, the office of Tauliyat could not reach Smt. Atia Hashmat, hence, her son i.e. the revisionist cannot be appointed as the Mutawalli. With the aforesaid finding, the reference - 7 - before the Waqf Tribunal was rejected. The issue regarding misappropriation and selling the property of the Waqf did not find favour with the Waqf Tribunal which turned it down too.

31. This Court upon considering the contents of the Waqf deed, finds that the author of the Waqf had provided a detailed line of succession for the purposes of the Tauliyat for the Waqf. As per the Waqf deed, Abdul Ghafoor Khan made himself as the first Mutawalli and upon his death, it was to go to his son Abdul Ali Khan and after his death, it was to go to his other son Abdul Jaleel Khan.

32. It was further provided that after the death of Abdul Jaleel Khan, it would go to Suleman Abdul Ghafoor Khan, provided that Suleman marries the daughter of Abdul Ali. Admittedly, this contingency did not occur and this is a fact admitted to both the parties.

33. Thus, as per the Waqf deed, in absence of this nuptial arrangement which did not occur then after the death of Abdul Jaleel Khan, the eldest male child of Abdul Ali would be the Mutawalli and thereafter generation after generation, it would remain with the eldest male child.

34. This deed further provided that in case if Abdul Ali did not have any male child then the Tauliyat would shift on the eldest daughter of Abdul Ali. Upon the death of the eldest daughter of Abdul Ali, it would again shift to Suleman Abdul Ghafoor and in case if he did not survive by then then to his male child which could then continue generation after generation.

35. It further provided that in case if Suleman died issue-less then the Tauliyat would go to the second male child of Abdul Jaleel. In case of the said contingency, upon the death, it would shift to Ameena Khatoon who would be the Mutawali and in case if she was not alive, the eldest male child would be the Mutawalli. - 8 -

36. This condition was also subject to certain contingency as to the son of Ameena Khatoon having married the daughter of Abdul Ali Khan or Abdul Jalil Khan failing which after Ameena Khatoon, the Tauliyat would again shift and go to the line of eldest female child of Abdul Ali. Many other contingencies have been provided in the deed of 1931.

37. Considering this aspect, this Court finds that a simplicitor finding as given by the Board and the Waqf Tribunal that since Abdul Ali Khan was survived by his son Al Muzaffar who died and thereafter his daughter has been made the Mutawalli may not be sufficient enough without considering the various contingencies as provided in the deed of 1931.

38. Merely to state that the mother of the revisionist did not put forward her claim rather she also wanted her son i.e. the revisionist to be made as the Mutawalli also needs proper scrutiny to the effect that the contents as well as the scheme as devised by Abdul Ghafoor Khan was expressed in his deed of 1931. The issue of Mutawalli in terms of the line of the Tauliyat had to be examined on a larger perspective.

39. Having said that this Court finds that it is not as if only the relationship is to be considered since the author of the Waqf had provided repeatedly using the word ‘Narina’ (referring to a male child). The same had to be considered in the said context.

40. There is another way to look at the entire controversy and i.e. the issue raised by the revisionist which is two fold:- (i) regarding following the order as provided in the Waqf Deed for determining the Tauliyat; (ii) the allegations against the respondent no. 5 for alienating the properties of the Waqf.

41. Both these issues are intertwined. - 9 -

42. To illustrate:- (a) there can be situation where a person may fall directly in the line of Tauliyat as provided by the Author but if such a person is guilty of alienating, misappropriating, the properties/funds of the Waqf then he cannot be treated as an appropriate person to be appointed as the Mutawalli as if he was appointed, this could also be the reason for his removal as provided in Section 64 of the Waqf Act, 1995. (b) There could be another situation where despite being a person within the line of Tauliyat but not otherwise qualified or suffering from certain disabilities or the person having been penalized in terms of Section 61 of the Act of 1995 even then such a person may not be an appropriate choice for being appointed as the Mutawalli. (c) There can yet be another situation where a person, may be in the line of Tauliyat, but lower in the order in terms of preference but more appropriate than a person who may be higher in choice of preference for being appointed as a Mutawalli but suffering from certain disabilities. The reference made by this Court to the word disability is to be considered in context with the grounds upon which a Mutawalli can be removed in terms of Section 64 of the Act of 1995.

43. In this regard, it will be appropriate to take a glance at Section 64 of the Act of 1995 which reads as under:-

64. Removal of mutawalli.—(1) Notwithstanding anything contained in any other law or the deed of [waqf], the Board may remove a mutawalli from his office if such mutawalli— (a) has been convicted more than once of an offence punishable under section 61; or (b) has been convicted of any offence of criminal breach of trust or any other offence involving moral turpitude, and such conviction has not been reversed and he has not been granted full pardon with respect to such offence; or (c) is of unsound mind or is suffering from other mental discharge the duties of a or physical unfit to perform the functions and defect or infirmity which would render - 10 - mutawalli; or (d) is an undischarged insolvent; or (e) is proved to be addicted to drinking liquor or other spirituous preparations, or is addicted to the taking of any narcotic drugs; or (f) is employed as paid legal practitioner on behalf of, or against, the [waqf]; or (g) has failed, without reasonable excuse, to maintain regular accounts for two consecutive years or yearly failed to submit, in two consecutive years, the statement of accounts, as required by sub-section (2) of section 46; or (h) is interested, directly or indirectly, in a subsisting lease in respect of any [waqf] property, or in any being done for, the contract made with, or any work by him [waqf] or is in arrears in respect of any sum due to such 1 [waqf]; or (i) continuously neglects his duties or commits any misfeasance , malfeasance,misapplication of funds or breach of trust in relation to the [waqf] or in respect of any money or other [waqf] property; (j) wilfully and persistently disobeys the lawful orders made by the Central Government, State Government, Board under any provision of this Act or rule or order made thereunder; (k) misappropriates or fraudulently deals with the property of the [waqf]. (2) The removal of a person from the office of the mutawalli shall not affect his personal rights, if any, in respect of the [waqf] property either as a beneficiary or in any other capacity or his right, if any, as a sajjadanashin. (3) No action shall be taken by the Board under sub-section (1), unless it has held an inquiry into the matter in a prescribed manner and the decision has been taken by a majority of not less than two-thirds of the members of the Board. (4) A mutawalli who is aggrieved by an order passed under any of the clauses (c) to (i) of sub-section (1), may, within one month from the date of the receipt by him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final. (5) Where any inquiry under sub-section (3) is proposed, or commenced, against any mutawalli, the Board may, if it is of opinion that it is necessary so to do in the interest of the [waqf], by an order suspend such mutawalli until the conclusion of the inquiry: Provided that no suspension for a period exceeding ten days shall be made except after giving the mutawalli a reasonable opportunity of being heard against the proposed action (6) Where any appeal is filed by the mutawalli to the Tribunal - 11 - under sub-section (4), the Board may make an application to the Tribunal for the appointment of a receiver to manage the [waqf] pending the decision of the appeal, and where such an application is made, the Tribunal shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), appoint a suitable person as receiver to manage the [waqf] and direct the receiver so appointed to ensure that the customary or religious rights of the mutawalli and of the [waqf] are safeguarded. (7) Where a mutawalli has been removed from his office under sub-section (1), the Board may, by order, direct the mutawalli to deliver possession of the [waqf] property to the Board or any officer duly authorised in this behalf or to any person or committee appointed to act as the mutawalli of the [waqf] property. (8) A mutawalli of a [waqf] removed from his office under this section shall not be eligible for re-appointment as a mutawalli of that [waqf] for a period of five years from the date of such removal

44. It is in the aforesaid backdrop if the facts of the instant case are examined, it would reveal that one issue relates to the order of preference and the other relates to the appropriateness of being appointed as a Mutawalli.

45. In the instant case, the Board did not dwell into the question relating to the allegation made by the revisionist against the respondent no. 5 for misappropriating the Waqf properties and funds.

46. The reasoning given by the Board that that issue would be considered later after concluding the proceedings for appointment of the Mutawalli was not appropriate for the reasons as illustrated in the preceding paragraphs.

47. It was for the Board to have examined both the issues together and if it was considered and found that the respondent no. 5 allegedly misappropriated the property of Waqf or fell foul of any of the contingencies made in Section 64 (1) (a) to (k) then also her candidature for being appointed as the Mutawalli could not be allowed.

48. By postponing the determination of the issue regarding misappropriation and going ahead to appoint the respondent no. 5 as - 12 - the Mutawalli was an exercise in haste as for appointment of the Mutawalli. The Board was bound to have considered both the eligibility in terms of the Waqf Deed regarding the order of preference and simultaneously regarding her fitness to hold the office of the Mutawalli.

49. The Waqf Tribunal also proceeded on the same lines as the Board and merely decided the reference on the basis of the issue of Tauliyat as per the order as mentioned in the Waqf Deed but brushed aside the allegation regarding misappropriation of the Waqf properties.

50. In light of the above discussions, this Court is of the view that the impugned order passed by the Waqf Tribunal dated 02.08.2019 is not sustainable. The Tribunal ought to have considered both the issues together and then could have taken a decision regarding the competence of the person to be appointed as the Mutawalli.

51. In order to determine the order of preference as per the Waqf Deed, all the recitals have to be taken into consideration including the intention of the creator of the Waqf especially where repeatedly the word ‘Narina’ has been used indicating the preference to be given to the male child.

52. For the aforesaid reasons, the order dated 02.08.2019 is set aside. The matter shall stand remanded to the Waqf Tribunal where the Tribunal shall after affording full opportunity of hearing to the parties including to lead evidence to substantiate their respective contentions and thereafter the Tribunal shall determine who amongst the two rival contestants is higher in the order of preference as per the Waqf Deed and is also not suffering from any disability as provided in Section 61 and Section 64 of the Act of 1995 and appropriate to be appointed as a Mutawalli.

53. The Tribunal shall endeavour to decide the reference afresh - 13 - keeping the observations made by this Court in mind within a period of six months from the date, a copy of this order is placed before the Tribunal.

54. With the aforesaid, the revision is partly allowed. Costs are made easy. Order Date :- 30th May, 2025 Asheesh (Jaspreet Singh, J) ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench