Phatmabi vs Haji Abdulla Musa Sait

Tyabji, J.—The plaintiff claims mesne profits in respect of certain waqf properties. The real questions involved in the suit and appeal were

the subject of some discussion before us but the issues settled by the District Munsif shew that the contention of the plaintiff was that she

succeeded to the office of Mutawalli of the waqf properties by hereditary devolution, and that she claimed possession of them on that footing as

against the defendant, that the defendant on the other hand set up his own title as Mutawalli on the strength of an appointment by a person calling

himself the Kazi, and also by the members of his community. The real question therefore to be decided by us is whether the plaintiff has made out

that she was the actual and rightful Mutawalli of the waqf properties for three years succeeding 6th August 1905, and not whether the plaintiff has

proved some circumstances which would entitle her claims to bs considered, were the court asked to appoint a Mutawalli of the waqf properties.

The relative qualifications of the plaintiff and the defendant to be appointed Mutawalli need not be considered by us, notwithstanding that as a

defence to the plaintiff''s claim, the defendant claim to be entitled to hold the office of Mutawalli himself. It may be that the defendant is not the

rightful Mutawalli but that would not necessarily entitle the plaintiff to succeed in her suit.

The modes in which a person may come to hold the office of Mutawalli seem to be laid down in Baillie''s Digest of Mahomadan Law (which it

need hardly be said, is a translation merely of the Futwa Alamgiri) on page 693 of the edition of 1865 corresponding to pages 603 and 604 of

edition of 1875. It would seem that there are three sources from which a person may trace his right to be Mutawalli.

(1) Appointment by the waqif (that is the original author of the waqf or by some person expressly authorised by the waqif to appoint ; and in the

absence of any person so authorised,

(2) Appointment by the executor of the waqif, and in the absence of such appointment,

(3) Appointment by the Court.

If the statement given above correctly represents the text of the Futwa Alamgiri then, any title to be a Mutawalli must be derived from one of

two main sources, namely, either the waqif himself, or the Court.

The authority vested in the waqif to appoint Mutawalli may be exercised either by himself directly or through another person, he may delegate

his authority in any manner provided for by him at the time when the property is dedicated by way of waqf; in other words, at the time of the

dedication he may lay down who shall have the power of appointing Mutawallis in future, and in what way the power to appoint must be exercised.

The terms of the dedication, including the provisions relating to the objects of the waqf, and to the management of the property belonging to it

need not be reduced to writing, so that there need not be a waqfnama containing the terms on which the dedication to waqf is made. Where

however the terms of dedications are formally reduced to writing in the shape of a waqfnama it is usual to include therein provisions relating to the

appointment of successive Mutawallis. Hence, it is generally assumed that there must be some such provisions laid down by the waqif where the

original dedication is not in writing, or at any rate where no document containing the terms of the dedication is produced. As a consequence of

these assumptions where there has been a series of appointments of Mutawallis, it is generally assumed that the appointments have been valid,

which implies that such appointments have been made in accordance with the terms of the original dedication relating to the mode in which the

successive appointments have to be made. Thus from the history of previous appointments, the directions contained in the original dedication with

reference to the mode in which the successive Mutawallis are to be appointed may be inferred. This inference, it is obvious, is based on what in a

great number of cases must be recognised to be mere fictions, namely that the original dedication, even though it be oral and informal, contained

specific provisions relating to the mode of appointment and, secondly, that the appointments in the past have been valid and in strict accordance

with the provisions so assumed to be laid down at the time of the original dedication, It must frequently happen that at the time when the dedication

is made there are no provisions laid down with reference to the appointment of successive Mutawallis. Again, it is quite in accordance with

common knowledge that on the death of a person holding an office of such a character as the Mutawalliship of a waqf his descendants or relations

should slide into the office without anyone being concerned to question their right to do so and without any pretence on the part of the new office

holder that; his succession is in accordance with the terms of the original waqfnama, or the expressed or implied desires of the waqif. On such

successive acts of usurpation it is easy to found a claim that the office is hereditary, a claim which, however difficult it may be to resist in Court,

may be quite opposed to the real intentions of the waqif.

Similary a claim to be a Mutawalli may be based on the fact that the last Mutawalli purports to appoint the claimant as his successor. The

recognition of a claim based on such an appointment equally proceeds on the assumption that in the terms of the dedication the waqif empowered

each Mutawalli to nominate his successor. The law does not directly empower the Mutawalli of every waqf to appoint his successor but. if in

regard to any particular waqf it is proved that the Mutawallis have been in the practice of nominating their successors, it is assumed that the

practice had a lawful origin and was founded on some provisions contained in the waqfnama or some oral directions given by the waqif

empowering the Mutawallis to nominate their successors. Provisions in the waqfnama empowering the Mutawallis to nominate their successors, are

so usual that it would perhaps be representing the present state of authorities if it were said that the Courts assume the existence of such a provision

in the dedication, unless the contrary is proved.

It will be seen therefore that a claim based on the allegation either that the office is hereditary or that the Mutawalli nominated the claimant as his

successor must ultimately have reference to the actual or the presumed directions of the waqif at the time when the dedication was made.

The claim made by the plaintiff in this case must, if at all, be supported on considerations which must be brought under one of the various heads

to which I have alluded.

Much reliance was placed by the pleader for the respondent on the observations in the case of Syed Abdulla Edreus v. Syed Zaisi ILR (1889)

B. 555 where it was said that where a custom is alleged "" that the eldest son succeeds by virtue of inheritance that custom being opposed to the

general law, must be supported by strict proof"". It may, no doubt be conceded on the other hand that where the object of the waqf in question is

not to support a public charity but to provide for the maintenance of a family, the Courts might be satisfied with less strict proof in order to hold

that the management of the property devolves hereditarily z on members of the family of the beneficiaries. To this consideration must be added the

fact (which was also alluded to in Syed Abdulla Edreus v. Syed Zairis ILR (1889) B. 555 that the law favours the claim of the members of the

waqif''s family to be Mutawallis and in the Asal it is stated that the judge cannot appoint a stranger to the office of administrator so long as there are

any of the house of the appropriator fit for the office, and if he should not find a fit person among them, and should nominate a stranger, but should

subsequently find one who is qualified he ought to transfer the appointment to him."" (See Baillies Digest (1865) pages 593 to 594 (1875) page

604.

The result of these rules of law so far at present material would seem to be that the question in a case like the present is not merely whether the

succession to the office of Mutawallis has for some time been devolving hereditarily but whether there are sufficient grounds for holding that the

original dedication by way of waqf contained a provision to the effect that the office is to devolve hereditarily. I have already stated that in my

opinion what may be considered sufficient grounds in the case of a waqf of one class may not be sufficient in the case of a waqf of another class.

In the present case there is no allegation, still less any proof, that the '' waqf '' is of a nature which would in the ordinary course be expected to

be administered by a succession of hereditary Mutawallis, chosen from one family. Hence there is no reason to consider the evidence in this case

from an attitude more favourable to the plaintiff than is implied in the decision to which I have referred and it is not alleged or proved that the

plaintiff has been nominated to be Mutawalli by the last office-bearer. Under these circumstances the facts on which the plaintiff relies, namely, that

there have been from some time previous to 1874 three successive Mutawallis from the family to which the plaintiff belongs seem to me to be

totally insufficient for supporting the allegation that in accordance with the terms of the original dedication, the Muta-walliship of the waqf ought to

devolve hereditarily. I do not allude more fully to the various facts in this case on which the respondent relies as tending to throw doubt on the

allegation that the three successive Mutawallis in question rightfully succeeded to that office for it seems that for the purposes of the present appeal

it may be conceded that they were rightful holders of the office, and yet there is nothing to show that they proposed to succeed to the office, not

through some appointment or nomination, but as of right. Even if it were assumed that they purported to succeed by right of inheritance there is

nothing from which a rule of succession can be deduced sufficiently precise or definite for presuming that such a rule was contained in the

waqfnama or the terms of the dedication. Unless all these facts are alleged and proved I am unable to see how the plaintiff can succeed in her

claim, as it has been framed. These reasons for holding that the decision appealed from ought not to be disturbed seem to me to apply with greater

force when it is borne in mind that we are sitting in second appeal and that it is not easy to class some of the questions to which I have alluded as

questions purely of law.

I am therefore of opinion that the appeal should be dismissed with costs.

Sadasiva Aiyar, J.

I entirely agree, and I shall only add that a claim to succeed by hereditary right to a trustee''s office or to a religious office or to any other office

should be looked upon with strong disfavour by Courts, whether the office was created by a Hindu or a Mahomedan or an adherent of any other

creed. The holding of any office should depend upon necessary qualifications, and, while heredity might raise a feeble presumption of fitness to be

considered by Court in arriving at a decision on the question of the successorship to the office, it should not be raised the dignity of a principle

which creates a right of succession to any office, unless the terms of the original foundation of the office constrain the courts to treat heredity as the

factor to be considered in deciding on the right to the office or unless there has been such a pre case and uniform course of descent (by heredity

almost irrespective of any consideration as to the person or post filled for the office) as to raise an irresistible inference as to the intention of the

original creator of the office.