Madras High Court
M.I.Mohamed Khan @ M.I. John vs The Tamil Nadu Waqf Board on 17 June, 2025
Author: Mohammed Shaffiq
Bench: Mohammed Shaffiq
W.P.(MD)No.22769 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 25.02.2025
PRONOUNCED ON : 17.06.2025
CORAM:
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.P.(MD)No.22769 of 2023
and W.M.P.(MD) No.19023 of 2023
M.I.Mohamed Khan @ M.I. John,
Hereditary Mutawalli,
Khabardhar Fackier Thaika Waqf,
Kunathur, Tirunelveli. .. Petitioner
Vs
1.The Tamil Nadu Waqf Board,
Rep. by its Chief Executive Officer,
No.1, Jafer Syrang Street,
Vallalseethakathi Nagar,
Chennai.
2.The Waqf Inspector,
Tuticorin Region,
O/o.The Superintendent of Waqfs,
Tirunelveli Zone,
Tirunelveli.
3.M.Sikkandar,
S/o.Dharvesh Khan,
14, Sikkanadarpuram,
Courtrallam Road,
Tirunelveli Town,
Tirunelveli. .. Respondents
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W.P.(MD)No.22769 of 2023
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for
issuance of a Writ of Certiorarified Mandamus to call for the records relating to the
impugned order made by the 1st respondent in SE.MU.ANAI:15121/22/A1/Thiveli
dated 05.09.2023 and quash the same as illegal and consequently direct the respondents
to approve the petitioner as the Mutawalli of Khabardhar Fackier Thaika Waqf,
Kunathur, Tirunelveli (GS No.613/TNV) within the time that may be stipulated by this
Court.
For Petitioner: Mr.Mahaboob Athiff M.
For Respondents: Mr.D.S.Haroon Rasheed for R1 & R2
Standing Counsel for Tamil Nadu Waqf Board
Mr.R.Mathara Selvam for R3
ORDER
The present writ petition is filed praying for a writ of certiorarified mandamus to quash the impugned order dated 05.09.2023, made by the 1st respondent in SE.MU.ANAI:15121/22/A1/Thiveli and to consequently direct respondents 1 and 2 to approve the petitioner as the Mutawalli of Khabardhar Fackier Thaika Waqf, Kunathur, Tirunelveli.
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2. Brief Facts:
2.1. Khabardhar Fackier Thaika Waqf, Kunathur, Tirunelveli is a notified waqf.
Rule of succession to the office of mutawalli of the subject waqf is hereditary.
2.2. Petitioner's father Late Mr.M.Ismail Khan was mutawalli. Petitioner's father died sometime in 1991. Mr.Ismail Khan was survived by Petitioner, Akbar Khan (petitioner's elder brother) Dharvesh Khan (petitioner's younger brother) and two younger sisters viz., Sherifa Begum and Meharnisha Begum. After the demise of Mr.Ismail Khan, Akbar Khan became mutawalli in terms of Rule of Succession i.e., “hereditary” as provided in the proforma. During mutawalliship of Mr.Akbar Khan, petitioner's younger brother and father of the 3rd respondent, Dharvesh Khan died on 04.01.2021. Petitioner's elder brother Mr.Akbar Khan resigned citing health concerns.
2.3. Petitioner would submit that on resignation by Mr.Akbar Khan, petitioner as the next eldest descendant of Mr.Ismail Khan after Mr.Akbar Khan assumed office of mutawalli to the subject wakf. Importantly, legal heirs of Ismail Khan vide proceedings dated 17.08.2021, unanimously accepted writ petitioner as the mutawalli. Petitioner submitted an application to the wakf board to take on record/file the change in mutawalliship.
2.4. Objections were raised by petitioner's sisters and 3rd respondent. Waqf 3/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/08/2025 05:37:45 pm ) W.P.(MD)No.22769 of 2023 Inspector, Tirunelveli, considering the objections raised by petitioner's sisters and 3rd respondent, summoned all parties for enquiry at the instance of the Chairman of the Board. After recording statements from petitioner's sisters and after holding an enquiry a report was submitted to the 1st respondent Board. In the report it was inter alia observed that, though it may be lawful to appoint petitioner as mutawalli in his capacity as eldest member of the family, however, inasmuch as petitioner is resident of Tuticorin District and 3rd respondent resides in the same locality/village where the waqf is located, 3rd respondent was found better suited to be a mutawalli. In view thereof, recommended the 3rd respondent be appointed as mutawalli of the waqf. Acting on the same, Board by its impugned order dated 05.09.2023 appointed 3rd respondent as mutawalli of subject waqf for the period between 22.08.2023 and 21.08.2026 on the ground that he resides in the same locality/village as Wakf, whereas writ petitioner resides in Eeral, Tuticorin District. Aggrieved by the same, the present writ petition has been filed.
3. Against this background question arises as to whether the impugned order stands vitiated on the premise that it takes into account irrelevant factors namely proximity of residence to wakq while appointing mutawalli. Secondly, when proforma provides that the rule of succession shall be hereditary, whether rule of primogeniture is applicable.
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4. Before proceeding to address the above issues, it is necessary to bear in mind that when Wakf is created, all rights in property pass from wakif or creator to God. Mutawalli is a manager of such property. Mutawalli has no right in property belonging to wakf. Succession to office of mutawalli should be in accordance with intention of wakif and same cannot be subverted contrary to intention of wakif.1 In the instant case, rule of succession to the office of mutawalli in terms of proforma is “hereditary”. It may be relevant to extract the relevant portion of the proforma which reads as under:
“The Rule of Succession to the office of the muthavalli & whether it is under - Hereditary the wakf deed or by custom or by usage”
5. The impugned order appointing the 3rd respondent on the ground of proximity of his residence to the wakf vitiates the proceedings on the ground that it takes into account factors wholly irrelevant. Rule of succession is “hereditary” in terms of Proforma and does not in any way indicate the relevance of proximity of residence in appointing Mutawalli. In that view of the matter, the impugned order appointing the 3 rd respondent on the premise that his residence is closer to the wakq than that of the petitioner stands vitiated inasmuch as it takes into account factors that are wholly irrelevant and extraneous. In this regard, it may be relevant to refer to the following
1. Syeda Nazira Khatoon (Dead) v. Syed Zahiruddin Ahmed Baghdadi and Ors;(2019) 9 SCC 522 5/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/08/2025 05:37:45 pm ) W.P.(MD)No.22769 of 2023 judgments of the Hon'ble Supreme Court wherein it was held that a decision would stand vitiated if it is made taking into account factors which are irrelevant:
i) State of U.P. v. Maharaja Dharmander Prasad Singh reported in (1989) 2 SCC 505:
“62. When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision-making process includes examination, as a matter of law, of the relevance of the factors. In the present case, it is, however, not necessary to go into the merits and relevance of the grounds having regard to the view we propose to take on the point on natural justice.”
ii) V.C. Banaras Hindu University v. Shrikant reported in (2006) 11 SCC 42:
“41......When the statutory authority exercises its statutory powers either in ignorance of the procedure prescribed in law or while deciding the matter takes into consideration irrelevant or extraneous matters not germane therefor, he misdirects himself in law. In such an event, an order of the statutory authority must he held to be vitiated in law. It suffers from an error of law.”
6. From the above discussion, it appears that the impugned order appointing the 3rd respondent as Mutawalli on the premise that residence of 3rd respondent's residence is proximate to the subject Wakf than that of petitioner, stands vitiated inasmuch as proximity of residence to wakf for the purposes of appointing mutawalli is wholly extraneous and irrelevant. More so, when proforma provides Rule of Succession to the office of Mutawalli as “hereditary”.6/14
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/08/2025 05:37:45 pm ) W.P.(MD)No.22769 of 2023 6.1. Now coming to the second contention that rule of succession in terms of proforma being hereditary succession must be by law primogeniture, reliance was placed by petitioner on the judgment of Division Bench of this Court in the case of Secretary of State for India in Council, Represented by the Collector of North Arcot vs. Syed Ahmad Badsha Sahib Bahadur reported in 1921 SCC OnLine Mad 99, in support thereof wherein it was held as under:
“As the office cannot be enjoyed by several heirs in common, it follows in our opinion that succession must be by primogeniture, and in the absence of any evidence to the contrary we think that the succession must be by lineal primogeniture, that is by descent to the eldest son and his son and that a grandson who is the son of an eldest son of the last office holder is entitled to succeed in preference to a junior son, where the eldest son has predeceased his father, or is incapable of succeeding owing to insanity or for any similar reason.” (emphasis supplied)
7. It may be relevant to note that Rule of Succession in terms of proforma is “hereditary”, if so it may not be permissible to substitute/supplant/replace rule of Succession which is expressly provided as “hereditary” with rule of primogeniture. Rule of Succession being hereditary is distinct from Primogeniture. Primogeniture cannot be rule of succession unless it is expressly provided by wakif deed.
7.1. Before proceeding further, it may be necessary to understand the principle of Primogeniture. In this regard, it may be relevant to refer to the judgment of the Hon'ble 7/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/08/2025 05:37:45 pm ) W.P.(MD)No.22769 of 2023 Supreme Court in the case of Annasaheb Bapusaheb Patil v. Balwant, reported in (1995) 2 SCC 543, wherein it was held as under:
“Primogeniture means first born and denotes the preferential rights of the seniormost in age to succeed to the estate, since senior most in age is entitled to succeed to the estate in preference to his younger brother. In an impartible estate though the other rights which a coparcener acquires by birth in joint family property do not exist, right by birth of the senior member to take by survivorship still remains.” 7.2. It is necessary to keep in mind that Primogeniture as a rule of succession is alien to Muslim Personal Law. In this regard, it may be relevant to refer to the judgment of the Hon'ble Apex Court in Faqruddin v. Tajuddin, reported in (2008) 8 SCC 12, wherein it was held as under:
“34. The law of inheritance amongst the Mohammedans is governed by their personal laws. If the properties are wakf properties, the offices of sajjadanashin and mutawalli are to be filled up in accordance with the law or the custom. If the properties are heritable, those who are the “Quranic Heirs” would be entitled to hold the said posts. Indisputably, the law of primogeniture has no application amongst the Mohammedans vis-à-vis their law of inheritance.” 7.3. The above judgment thereafter was considered by the Hon'ble Supreme Court in Hammad Ahmed v. Abdul Majeed, reported in (2019) 14 SCC 1 wherein the above position was reiterated:
“42.The learned Division Bench referred to Faqruddin case that under Personal Law the rule of lineal primogeniture is not appliable as a rule of succession amongst Muslims, is not a ground to overrule its application if a deed (testamentary or otherwise) so 8/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/08/2025 05:37:45 pm ) W.P.(MD)No.22769 of 2023 directs. It is thereafter, the Division Bench has interepreted the amended deed of wakf and also the resolution of 4-7-1995 to hold that lineal male primogeniture is the rule of succession applied to the office of Chief Mutawalli rather than an uncertain collegial ambulatory lineal succession.
43. The rule of primogeniture is not a rule applicable to the Muslims as per the Personal Law as held in Faqruddin case [Faqruddin v. Tajuddin, (2008) 8 SCC 12] . Therefore, the primary question between the parties relating to appointment of Chief Mutawalli has to be decided on the basis of construction of the 1948 Deed and the amendments made in the year 1973 by the Wakif Mutawalli. The 1948 Deed is unambiguous that two brothers Haji Hakim Abdul Hamid and Hakim Mohd. Sayeed shall be trustees and that in case of death of any one of the trustee then the deceased trustee will be replaced by his elder son and in case of death of other trustee he will be replaced by his elder son (Clause 3 as reproduced above). Similarly, Clause 4 of the Deed is that the trustees of the Trust will be appointed from their sons who will be eldest in age and after that from the sons of their sons, the elder son will be appointed as trustee.” 7.4. From a reading of the above judgments, it appears that law of primogeniture has no application under Mohammed Law including rule of succession to the office of Mutawalli, unless expressly provided by wakif that Primogeniture would be Rule of Succession to office of mutawalli.
8. It is pertinent to note that subject wakf deed was made on 03.10.1955 and the Wakf Act, 1995 defines “mutawalli” as under:
“Section 3(i) “mutawalli” means any person appointed, either verbally or under any deed or instrument by which a 1[waqf] has been created, or by a competent authority, to be the mutawalli of a 1[waqf] and includes any person who is a mutawalli of a 1[waqf] by virtue of any custom or who is a naib-9/14
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/08/2025 05:37:45 pm ) W.P.(MD)No.22769 of 2023 mutawalli, khandim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being, managing or administering any [waqf] or [waqf] property:
Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office-bearer of such committee or corporation:
[Provided further that the mutawalli shall be a citizen of India and shall fulfil such other qualifications as may be prescribed:
Provided also that in case a waqf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government;]”
8.1. From a reading of the definition of mutawalli it appears that there is a legislative departure from the earlier position as held by the Division Bench of this Court in the case of Syed Ahmad Badsha referred supra that the office of mutawalli cannot be enjoyed by several heirs in common, inasmuch as Committee or Corporation can also be a mutawalli. In such circumstances, where the wakf deed/proforma, provides that the mode of appointment is hereditary and not Primogeniture or lineal Primogeniture, I would think that the descendants including female descendants of the wakif would be entitled to holding the office of mutawalli. I say so, inasmuch as under
Muslim Personal law, women have a right of inheritance. In this regard, it is apposite to refer to the judgment of the Hon'ble Apex Court in the case of MD.Abrar v.
Meghalaya Board of Wakf and Another, reported in (2020) 20 SCC 144, wherein it was held as under:10/14
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/08/2025 05:37:45 pm ) W.P.(MD)No.22769 of 2023 “27. In an earlier decision of the Calcutta High Court in Wares Ali v. Sk. Shamsuddin [Wares Ali v. Sk. Shamsuddin, (1936) 63 Cal LJ 573] , the High Court found that since the waqif herself had appointed the son of a daughter as mutawalli, the expression “legal heirs” in the waqfnama must be taken to include lineal descendants in both the male and female line...
28. From the above discussion, we may conclude that it cannot be said as a rule of law that cognatic heirs of the waqif have no right to succeed to mutawalliship. As Mulla notes on p. 90 and as observed in Fyzee's Outlines of Muhammedan Law (5th Edn., 2008, Prof. Tahir Mahmood ed., p. 339), daughter's children and their descendants are also included as descendants of the deceased under Muslim law, though they are considered a more distant class of heirs than agnatic heirs. Rather, as we have found in our earlier discussion on the issue of succession to joint mutawalliship mentioned supra, it is the interpretation of the waqf deed which is germane in each case.
29. We may also refer, in this regard, to the recent decision of a two-Judge Bench of this Court, comprising of myself and Rastogi J., where we have held that in order to establish a claim of hereditary succession to mutawalliship, the intention of the waqif, as manifested either through the directions given in the waqf deed or the creation of a custom, is of paramount importance (see Aliyathammuda Beethathebiyyappura Pookoya v. Pattakal Cheriyakoya [Aliyathammuda Beethathebiyyappura Pookoya v. Pattakal Cheriyakoya, (2019) 16 SCC 1 : (2020) 2 SCC (Civ) 435] ). We are of the considered opinion that this principle also applies in determining which class of heirs is included or excluded from mutawalliship.
30.Therefore it has to be seen whether in the present case, having regard to the terms of the waqf deed, the waqif intended to exclude his descendants through the female line from mutawalliship of the waqf. In the present case, Kammu Mia was the husband of the daughter of the waqif Haji Elahi Baksh.
Therefore Kammu Mia's descendants would naturally be Haji Elahi Baksh's descendants through the female line, and the waqif must have been aware of this while drafting the waqf deed. If the waqif had intended to exclude his descendants through the female line from succession to mutawalliship, he would have expressly stated that after the death of either the original joint mutawallis, only Md. Shafi's descendants would be eligible to succeed to mutawalliship. However, the waqf deed dated 9-11-1936 clearly provides that either of the surviving mutawallis may nominate a successor as he thinks fit and that if mutawalli does not nominate a successor, the seniormost member amongst the 11/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/08/2025 05:37:45 pm ) W.P.(MD)No.22769 of 2023 lineal descendants of either Md. Shafi or Kammu Mia would be competent to hold mutawalliship, without any preference given to Md. Shafi's descendants.
.....
32.However, having regard to the fact that there may be several such descendants in the female line who are vying for mutawalliship, we do not wish to make a specific finding in regard to whether the appellant is entitled to the said office. Section 63 of the 1995 Act is useful to refer to at this juncture:
“63.Power to appoint mutawallis in certain cases.—When there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.”
9. When it comes to customs, any attempt by petitioner to suggest by petitioner that there is a custom indicating that the office of mutawalli is governed by rule of primogeniture must be supported by clear evidence/proof to show that such a custom exist/ existed. That does not appear to be the case on hand as it involves only one generation of mutawalli, therefore, the question of custom governing the mode of appointment to the office of Mutawalli may not arise. It is also relevant to note that the rule of Succession merely states “hereditary” and does not refer to Primogeniture, much less lineal Primogeniture.12/14
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10. In that view of the matter, since there is more than one heir in common, a Committee may have to be constituted comprising all the heirs. This would be in compliance with the wakif's intention which assumes primary importance.
11. In the circumstances, impugned order is set aside and the 1st respondent shall pass order afresh keeping in view the above observations. In view thereof, writ petition stands disposed of. No costs. Consequently, connected miscellaneous petition is closed.
17.06.2025 Index: yes/no Speaking order: yes/no Neutral Citation: yes/no spp/mka To:
1.The Chief Executive Officer, Tamil Nadu Waqf Board, No.1, Jafer Syrang Street, Vallalseethakathi Nagar, Chennai.
2.The Waqf Inspector, Tuticorin Region, O/o.The Superintendent of Waqfs, Tirunelveli Zone, Tirunelveli.13/14
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