Mutawalliship in Waqf Deed Limited to Male Line of Descent: Calcutta High Court Upholds Waqf Tribunal's Decision

On September 13, 2024, the Calcutta High Court delivered a significant ruling in the case of Syed Gholam Ali Alquadri and Anr. Vs The Chief Executive Officer Board of Waqfs and Ors. The court dismissed the plaintiffs' claim for the right to occupy Waqf property, affirming the Waqf Tribunal's decision. The court held that only male descendants of the waqif had the right to be appointed as Mutawalli and to occupy the Waqf property, as per the Waqf deed.

The case originated from a Waqf created by Syed Shah Nazir Hossain Chisty in 1927, with his khankah and dwelling house situated in Kolkata being dedicated as Waqf property. The deed provided a succession plan for Mutawalliship, starting with his third son, Syed Shah Amin Ahmed, and then passing to his fourth son, Syed Shah Farid Ahmed Chisti. Following the death of the first Mutawalli, the defendant (the third son of the first Mutawalli) returned to India and assumed the role of Mutawalli. The plaintiffs, descendants of the waqif through his granddaughter, sought to stay in the Waqf property and challenged their eviction as encroachers.

The key legal questions were whether the plaintiffs had the right to occupy the Waqf property and whether the female descendants could hold Mutawalliship. The court examined the Waqf deed, which outlined the succession of Mutawalliship through the male line. The Waqf Tribunal had earlier rejected the plaintiffs' claim, stating that the right to occupy the Waqf property was reserved for the Mutawalli and that the plaintiffs were not entitled to such rights as per the Waqf deed.

The High Court affirmed the Tribunal's decision, noting that the Waqf deed did not expressly bar female descendants from being appointed as Mutawalli, but also did not provide for their inclusion. The court observed that the deed intended for Mutawalliship to follow the male lineage, specifically the descendants of the waqif's third and fourth sons. It further held that there was no evidence that the plaintiffs' mother had ever approached the Waqf Board for Mutawalliship or that she was ever appointed as such. The court stated, "The right to occupy the Waqf estate was reserved with the Mutawalli from the male line of descendant." Consequently, the plaintiffs were considered encroachers.

The court also upheld the Tribunal's finding that the suit was bad for want of notice under Section 89 of the Waqf Act, 1995, as no evidence was provided to show that such notice was served to the Board before the institution of the suit.

The Calcutta High Court dismissed the Revisional Application, affirming the Waqf Tribunal's judgment. It ruled that the plaintiffs had no lawful authority to occupy the Waqf property, and their status was no better than that of encroachers. The decision underscores the importance of adhering to the terms of a Waqf deed, especially concerning the appointment and rights of Mutawallis.

Date of Decision: September 13, 2024

Syed Gholam Ali Alquadri and Anr. Vs The Chief Executive Officer Board of Waqfs and Ors.