Allahabad High Court
Dilshad Ali vs Smt. Aqila Jamal And Ors. on 4 December, 2024
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:80676 Court No. - 19 Case :- CIVIL REVISION No. - 70 of 2024 Revisionist :- Dilshad Ali Opposite Party :- Smt. Aqila Jamal And Ors. Counsel for Revisionist :- Syed Aftab Ahmad,Adil Hussain Counsel for Opposite Party :- Najam Zafar,Farhan Habib Hon'ble Manish Mathur,J.
1. Heard Sri Syed Aftab Ahmad, learned counsel for revisionist, Sri Najam Zafar, learned for opposite party No.1 and Sri Farhan Habib, learned counsel for opposite party Nos. 2 & 3.
2. Learned counsel for opposite parties on the basis of instructions submit that they do not intend to file any objection or counter affidavit and the revision may be decided today itself.
3. Revision under Section 83(9) of the Waqf Act, 1995 has been preferred against the order dated 30th May, 2024 passed by the Waqf Tribunal, Lucknow in Case No.71 of 2019, whereby revision preferred by the opposite party No.1 against order passed by the Warq Board, has been allowed.
4. The facts in a nutshell are that the Waqf in question was created by late Sheikh Chhuttan Miyan in the year 1932 through a registered waqf deed indicating the scheme of appointment and devolution of the post of Mutawalli. The waqf deed indicated that waqif would remain Mutawalli of the Waqf during his lifetime, whereafter, it would devolve upon his wife Smt. Mukhtaran whereafter his daughter Baqreedan @ Rani was to be the Mutawalli. The devolution thereafter was also provided in the waqf deed. It was indicated that after Baqreedan, the Mutawalliship would devolve upon the children of Baqreedan and also indicated that preference would be given to the male lineal descendants, generation after generation.
5. It is this clause which has created a dispute between the revisionist and opposite party No.1. The revisionist is grand son of Baqreedan while opposite party No.1 is the daughter of Baqreedan.
6. Learned counsel for revisionist has submitted that from the wordings of the deed itself, intention of Waqif was quite apparent that Mutawalliship would devolve generation after generation with preference being given to the male lineal descendants in each generation and it is only when the male descendants were not available that the Mutawalliship would devolve upon female members of the family. It it thus, submitted that the revisionist being a direct male lineal descendant would have preference over the opposite party No.1. It has also submitted that the wordings of the deed make it evident that such an arrangement of providing preference to male lineal descendants was applicable upon all progenies including sons and daughters of Baqreedan.
7. Learned counsel for opposite party No.1 has refuted submissions advanced by learned counsel for revisionist with the submission that wordings of the deed itself indicate that preference of male lineal descendants would be applicable only as per each generation and not by clubbing all the generations together, and therefore, it is the sons and daughters of Baqreedan, who would have primacy over claim of subsequent generations. It is submitted that since the only son of Baqreedan passed away during her lifetime leaving behind only daughters, of whom only the opposite party No.1 is surviving, preference would devolve upon her and thereafter only, upon the revisionist, in case, he comes in the line of Mutawalliship as per the waqf deed.
8. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that the revisionist has preferred his claim for Mutawalliship of the Waqf claiming preference over the opposite party No.1 being the male lineal descendant of Baqreedan, which claim was allowed by the Waqf Board vide order dated 24 April, 2019. The said order was challenged by the opposite party No.1 before the Waqf Tribunal, which has been allowed by means of the impugned order.
9. A perusal of the waqf deed will make it evident that terms and conditions of appointment of Mutawalli of the Waqf deed has been clearly indicated therein and are as follows:
"????? {1} ?? ?? ?????? ??? ????? ??? ???? ????????/ ?????? ?????? ?? ????? ?? ??? ????? ?? ??????? ??? ???? ???? ?? ????????? ???? ?? ??? ???? ?? ?? ? ????? ??? ???? ??? ????? ?? ???????? ???????? ????? ??? ????? ??? ?? ???? ???? ???, ???????? ???? ?? ???? ?????? ????? ?? ???? ??????? ??? ???????? ???? ?? ???? ???? ?? ?????? ? ????? ??? ???? ??? ????? ? ????? ??? ????? ?? ???????? ?????? ???? ???? ?????? ??? ????? ??? ?? ???? ???? ?? ?? ???????? ???? ?? ?????? ???? ??** (??????) ???????? ?????? ???? ???? ?? ???? ?? ?? ????? ?? ???????? ??? ?????? ????? ???? ???? ? ???? ???? ?? ???? ?? ??? ???? ? ???? ???? ???? ?? ???? ?????? ???????? ???? ?????? ???? ?? ?? ??????? ??????? ???? ??? ???? ? ?????? ??? ?????? ???? ????????? ????? ?? ???? ????? ?? ?? ???? ???????? ?????? ???? ???? ? ???? ???? ??? ??? ???? ???? ????? ?????? ????? ?????????? ????? ?????? ????? ??, ??? ??? ???? ???????? ??????? ? ???? ??? ???? ? ?????? ?????? ???? ???? ??? ??? ???? ? ??? ?? ???????? ?????? ?????? ?????? ???? ?????? ????? ???? ??? ?????"
10 The aforesaid arrangement made in the deed, makes it evident that the Waqif would remain Mutawalli of the Waqf till his lifetime whereafter it would devolve upon his wife and thereafter upon his daughter, Baqreedan. The deed also clearly indicates that after the demise of Baqreedan @ Rani, it is only her sons and daughters, who would succeed to Mutawalliship in accordance with capability with preference being given to the male lineal descendants. The deed also indicates that such preference to the male lineal descendant would be maintained generation after generation.
11. The wordings of the deed itself clearly indicate the intention of the Waqif that after the demise of Baqreedan, Mutawalliship of the Waqf would devolve only upon the sons and daughters of Baqreedan, since in the later part of the paragraph it has been indicated that till the sons and daughters of Baqreedan are alive, no other person would have any claim over Mutawalliship of the Waqf.
12. The aforesaid sentence in the deed would construe that preference to male lineal descendants would be maintained as per each generation and not all the generations clubbed together. Any other meaning being given to the sentence would do violence to the intention of the Waqif as indicated in the deed.
13. In the considered opinion of this Court, for the purposes of establishment or adjudication regarding claim of succession to Mutawalliship, the intention of Waqif as manifested through directions as given in the Waqf deed is of paramount importance. Such directions necessarily require to be construed from the wordings expressed in the Waqf deed itself to ascertain the intention of the Waqif. The aforesaid proportion has also been held by Hon'ble Supreme Court in the case of Md. Abrar vs. Meghalaya Board of Wakf and another as well as by this Court in the case of Waqf Musammat Sharifan Biwi vs. Dr. Prabhu Saran Rajvedi and others.
14. In view of aforesaid, preference given to male lineal descendants would be available only in each successive generation with preference being given to the sons and daughters of Baqreedan.
15. Keeping in view this aspect of the deed, preference would first be giving to the sons and daughters of Baqreedan. Since opposite party No.1 is the only surviving child of Baqreedan, naturally preference for Mutawalliship of the Waqf would devolve upon her and thereafter only, would devolve upon each successive generation with preference being given to male lineal descendants.
16. In view of such an interpretation being given to the waqf deed, this Court does not find any occasion to interfere with the order impugned.
17. The civil revision therefore being devoid of merit is dismissed at the admission stage itself.
18. Parties to bear their own costs.
Order Date :- 4.12.2024 Reena/-
(Manish Mathur,J.)