Succession to Atiyat Grants Must Follow Lawful Inheritance — Power of Attorney Cannot Confer Hereditary Right: Bombay High Court Quashes Mutawalli Appointment, Orders Fresh Inquiry

“On death of the executor, power of attorney loses effect — succession to Atiyat grant must be established through inheritance, not conferred by mere authorisation” —  In a significant decision that reaffirms the strict hereditary character of Atiyat grants under the Hyderabad Atiyat Inquiries Act, 1952, the Bombay High Court quashed the appointment of a Mutawalli made on the basis of a power of attorney, ruling that succession to such grants cannot be claimed except by lawful inheritance. The Court also set aside the possession and proceeds awarded under the impugned order and directed a fresh inquiry into rival succession claims by the Atiyat Court.

The judgment was delivered by Justice R.M. Joshi in the matter of Sayed Haji s/o Sayed Mustaffa & Others v. State of Maharashtra & Others (Writ Petition No. 3735 of 2014), where the petitioners challenged an order passed by the Additional Collector (Atiyat), Latur, on 07.03.2014. That order had declared Respondent No.4, Syed Hidayatali, as the successor to the Atiyat grant, granted him possession of the resumed land, and directed the disbursement of auction proceeds (Ek Sal Lavani) to him.

The High Court found the Collector's order legally unsustainable, holding that the power of attorney executed in favour of Hidayatali could not operate posthumously, and the entire claim to succession based on such authority was fundamentally flawed.

“Appointment as Mutawalli Cannot Be Made Under the Hyderabad Atiyat Inquiries Act” — Wakf and Atiyat Law Distinguished

Justice Joshi ruled that the Hyderabad Atiyat Inquiries Act does not contemplate the appointment of a Mutawalli, a role exclusively governed by the Wakf Act, 1995. The judgment clarified:

“The term ‘mutawalli’ does not find place in the entire text of the Atiyat enactment… appointment of a mutawalli/manager under the provisions of the Atiyat Act is impermissible.”

The impugned order had wrongly treated the power of attorney as evidence of transfer of Mutawalliship, which was then used as the basis to claim hereditary succession. The Court rejected this reasoning, stating that no right, title, or interest in Atiyat grants can be created or transferred through a power of attorney, especially when the executor is deceased.

The Court held: “On the basis of power of attorney, the right of succession cannot be conferred. Upon death of the executor, the said document ceases to have effect.”

The Court further emphasized that Mutawalli is not a successor to Atiyat property, as he only performs management duties under Wakf law and acquires no proprietary interest in the land.

“Succession to Atiyat Grants Must Be Decided Through Lawful Inheritance and Not By Appointment or Representation”

At the heart of the case was the nature of succession to Atiyat grants, which historically were hereditary royal or religious endowments in the erstwhile Hyderabad State. The High Court noted that the record of succession (Muntakhab) clearly showed that succession to these grants was always granted by inheritance, and not by nomination or delegation.

The Court observed: “Prima facie there is material on record to indicate that the succession to the Atiyat grant is hereditary in nature and could not be transferred by any other mode.”

It also ruled that the Atiyat Court had failed to consider earlier valid orders of succession passed by the competent authority which had attained finality. Justice Joshi held that the Additional Collector committed a serious error in declaring Syed Hidayatali as the successor without proper inquiry and contrary to statutory provisions.

“If Succession Disputes Involve Questions of Personal Law, Civil Court Must Be Approached” — Court Reiterates Section 12(2) of the Act

Referring to Section 12(2) of the Hyderabad Atiyat Inquiries Act, the Court clarified that: “If in the course of any inquiry as to claims to succession, any dispute arises involving question of succession, legitimacy, or personal law, the Atiyat Court shall direct the parties to get the dispute decided in the competent Civil Court.”

Thus, while the Atiyat Court has jurisdiction over inquiries into succession, it must defer to civil courts on questions touching personal laws — such as legitimacy or competing inheritance claims — and cannot declare one claimant as successor without such determination.

The Court found that in the present matter, there were multiple rival claims pending, and yet the Additional Collector acted unilaterally in granting succession to one party, without adjudicating the rights of others.

“Possession Taken During Pendency of Stay Is Improper” — Government to Retain Custody Pending Fresh Inquiry

The Court also disapproved of the manner in which Respondent Hidayatali had taken possession of the disputed land during the pendency of the writ petition. Although the interim stay granted by the High Court had technically lapsed during a brief period, the Court found the conduct of the authorities and the respondent questionable:

“Neither was it proper on the part of the Authorities to hand over possession of the lands, nor was it appropriate on the part of Respondent to take over possession.”

Accordingly, the Court ordered that: “The land stands resumed in favour of the Government and, till the issue of succession is decided, it would be open for the Authorities to auction the same on ‘Ek Sal Lavani’ basis.”

Order Quashed, Possession Reverted, Matter Remanded for Fresh Inquiry

In conclusion, the Bombay High Court quashed the order dated 07.03.2014 passed by the Additional Collector (Atiyat), Latur, and directed a fresh and comprehensive inquiry to be conducted by the Atiyat Court, after hearing all rival claimants.

Justice Joshi stated: “The impugned order cannot sustain and deserves interference… the Atiyat Court is directed to conduct fresh inquiry by giving an opportunity of hearing to all the Petitioners and Syed Hidayatali.”

It was further clarified that the observations in this judgment were prima facie, and should not influence the final determination by the Atiyat Court.

Postscript: Court Grants Six-Week Stay on Its Own Judgment to Allow Appeal

After pronouncement, Respondent’s counsel sought a stay of the judgment to approach the Supreme Court. Although objected to by the petitioners, the Court granted a six-week stay on the operation of its judgment.

“In order to enable the Respondents to move the Hon’ble the Supreme Court… the judgment stands stayed for a period of six (06) weeks from today.”

Power of Attorney Ends With Life of Executor — No Shortcut to Inheriting Atiyat Grants

This judgment stands as a landmark reiteration of statutory fidelity and historical inheritance practices under the Hyderabad Atiyat Inquiries Act. The Bombay High Court has sent a clear signal that religious or historical grants cannot be hijacked through procedural shortcuts or unauthorised appointments, and that succession must follow lawful inheritance and due inquiry.

In doing so, the Court has ensured that religious endowments and historical tenures continue to be administered in accordance with their legal and spiritual character, preserving both the integrity of the legal process and the sanctity of hereditary succession.

Date of Decision: 15 September 2025