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2009 DIGILAW 60 (GAU)

Md. Abrar v. Meghalaya Board of Wakf

2009-01-28

TINLIANTHANG VAIPHEI

body2009
JUDGMENT T. Vaiphei, J. 1. Whether a person claiming through the female descendant of a deceased wakif is entitled to be appointed as a mutawalli, or a joint mulawalli, of a wakf property, is the moot point in this revision petition. To appreciate the rival contentions of the parties, the material facts of the case, as pleaded by the petitioner, may be noticed at the very outset. Sometime in the year 1936, one Haji Elahi Baksh had executed a registered Deed of Wakf bearing dated 9.11.1936 constituting Wakf for several properties belonging to himself, his son, Md. Shafi, and his son-in-law-cum-nephew, Haji Kammu Mia. The petitioner is the grandson of the said Haji Kammu Mia through his daughter, the late Sabra Khatoon. Incidentally, the petitioner is also the son of one Md. Ayub, who, in turn, is the son of one Makhdum Baksh, the brother of the said Haji Kammu Mia. Clauses 1, 2, 3 and 5 of the Wakf-Deed are important for our enquiry, and are reproduced below: 1. The settlor's son, Md. Shan and son-in-law Kammu Mia, son of late Gajnu shall be joint mutawallis during their lifetime. 2. On the death of either of the joint mutawallis, the survivor shall be the sole mutawalli for the time being and shall have power to nominate his successor from the family line of the settler. 3. Each successive mutawalli thereafter shall have the right to nominate his successor from the family line of the settler. 4. Should a mutawalli die without nominating a successor the senior most member among the lineal descendant of the said Md. Shafi and Kammu Mia, if otherwise competent, shall be entitled to hold the office of mutawalli. 2. It would appear that one of the joint mutawalli i.e., the said Md. Shafi died on 20.12.1960 whereupon the surviving joint mutawalli, namely, Haji Kammu Mia, became the sole mutawalli. According to the petitioner, the sole surviving Mutawalli was required to appoint a successor of the deceased mutawalli in terms of Clause 2 of the Wakf Peed. However, the said Kammu Mia failed to comply with the requirement of Clause 2 of the Wakf Deed which prompted Md. Sulaiman, son of the late Md. Shafi, to approach the Assam Board of Wakf (as it then was under the undivided Assam) for his appointment as Joint Mutawalli together with the said Kammu Mia. However, the said Kammu Mia failed to comply with the requirement of Clause 2 of the Wakf Deed which prompted Md. Sulaiman, son of the late Md. Shafi, to approach the Assam Board of Wakf (as it then was under the undivided Assam) for his appointment as Joint Mutawalli together with the said Kammu Mia. The Assam Board, after purportedly making an enquiry, by the order dated 4.3.1973 appointed Md. Sulaiman as joint mutawalli. Md. Sulaiman thereafter acted as joint mutawalli till 2.2.1980 when Haji Kammu Mia died. On the death of the said Haji Kammu Mia, Md. Sulaiman became the sole mutawalli. According to the petitioner, Md. Sulaiman also neglected to appoint a joint mutawalli from the family line of the deceased, Haji Kamoo Mia, with a view to usurp the office of mutawalli and manage the wakf property at his sweet will. It would appear that the late Haji Kammu Mia during his lifetime by the Deed of Appointment dated 19.2.1973 had nominated his own grandson, namely, Md. Taiyab as his successor instead of nominating the successor of Md. Shafi as the sole mutawalli and communicated the same to the Assam Wakf Board. This arrangement was challenged before the Wakf Tribunal, Shillong in Wakf Case No. 1 of 2002, and was set aside by the order dated 19.7.2006. It may be noted that during the pendency of Wakf Case No. 1 of 2002, Md. Zakaria, the grandson of Haji Kammu Mia, intervened in the case and prayed for his appointment as joint mutawalli but the same was rejected on the ground that there was no provision for joint mutawalli in the Wakf Deed. 3. Aggrieved by the said order of the Wakf Tribunal, the said Md. Taiyab filed a writ petition being WP(C) No. 184(SH) of 2006 before this Court. Md. Zakaria also filed a revision petition being CR(P) No. 26(SH) of 2006 before this Court challenging the same order. Both the writ petition and revision petitiqn were heard together and were finally disposed of by this Court on 2&7.2007 by rejecting the claim of both the petitioners therein. While disposing of the two cases, this Court made an observation at para 17 of the judgment to the following effect: In view of my findings given in the preceding paragraphs, I hold that no doubt, the lineal descendants of second mutawalli, namely, Md. While disposing of the two cases, this Court made an observation at para 17 of the judgment to the following effect: In view of my findings given in the preceding paragraphs, I hold that no doubt, the lineal descendants of second mutawalli, namely, Md. Kammu Mia were entitled to be considered to succeed the office of joint mutawalli. However, I find from the family pedigree that Md. Kammu Mia is not survived by any son. His grandson Md. Taiyab cannot be accepted as direct descendant since he is the grandson through his daughter. Similarly, Md. Zakaria is also not the direct lineal descendant of Md. Kammu Mia. Hence, his claim for appointment as a mutawalli has also been rightly rejected. I am also of the view that if descendants through female line are considered for appointment as mutawallis, it would lead to groping for successors from unending list of claimants which will also not be in the interest of administration of trust property. The judgment of this Court was taken to appeal by both Md. Zakaria and Md. Taiyab as well as the Meghalaya Wakf Board before the Hon'ble Supreme Court by special leave, but the special leave was dismissed by the Apex Court in the order dated 13.12.2007 (Annexure-V) with an observation that "However, question of law, if any, is left open". This prompted the present petitioner, who is another descendant of Kammu Mia, to file Wakf Case No. 1 of 2008 before the Wakf Tribunal to direct the Meghalaya Wakf Board to appoint him as joint mutawalli of the wakf property. The Tribunal by the impugned order dismissed the application holding that the question of mutawalliship as well as joint mutawalliship had already been finally decided by this Court in the judgment dated 25.7.2007 as upheld by the Apex Court. The order of the Tribunal is under challenge in this revision petition. 4. It is the submission of Ms. The Tribunal by the impugned order dismissed the application holding that the question of mutawalliship as well as joint mutawalliship had already been finally decided by this Court in the judgment dated 25.7.2007 as upheld by the Apex Court. The order of the Tribunal is under challenge in this revision petition. 4. It is the submission of Ms. S.A. Pandit, the Learned Counsel for the petitioner that though this Court had decided that someone from the family of Haji Kammu Mia is entitled to succeed as joint mutawalli, it deviated from the principles of Mohammedan Law by importing the concept of "lineal descendant" or "direct descendant" from Section 25 of the Indian Succession Act, 1925, which is not applicable to the Muslims and has in the process illegally excluded the female descendants of Haji Kammu Mia for becoming mutawalli or joint mutawalli. The Learned Counsel for the petitioner further submits that none from the family line of Haji Kammoo Mia is appointed as joint mutawalli, and leaving all the wakf properties under the control of the sole mutawalli will lead to their illegal alienation/transfer at the hand of the respondent No. 2. The Learned Counsel also contends that the Board grossly erred in not considering the various Clauses of the Wakf Deed and in ignoring the illegal acts of the respondent No. 2, which resulted in grave jurisdictional error as well as non-application of mind. She, therefore, strenuously urges this Court to quash the impugned order and direct the Meghalaya Wakf Board to appoint someone from the family line of Kammu Mia as joint mutawalli. Mr. K.S. Kynjing, the learned senior Counsel appearing for the Meghalaya Wakf Board, however, submits that some confusion has crept in due to the contradictory findings of this Court and in the light of the observation of the Apex Court that question of law, if any, was left open, this Court may enunciate the correct position of law concerning the appointment of mutawalli/joint mutawalli from persons claiming through the female descendant of the settler/founder of the wakf. Mr. H. Ahmed, however, vehemently supports the impugned order and submits that following the decision of this Court as affirmed by the Apex Court on the subject-matter, there is no scope for interference by this Court in the impugned order. He points out that Md. Zakaria, Md. Mr. H. Ahmed, however, vehemently supports the impugned order and submits that following the decision of this Court as affirmed by the Apex Court on the subject-matter, there is no scope for interference by this Court in the impugned order. He points out that Md. Zakaria, Md. Taiyab and the petitioner herein belong to the same family of Kammu Mia, and are filing one application after another without reasonable cause with an ulterior motive of disrupting the proper management of the wakf property. He, therefore, prays that the revision petition be dismissed with heavy costs for causing vexation to the respondent No. 2. 5. The question as to whether a person or persons claiming through the female descendant of the wakif can lay claim to appointment as mutawalli or joint mutawalli of wakf property has been confronting various courts of this country from time to time. One such case is Md. Eshaque v. Md. Amin AIR 1948 Cal. 312, which is a judgment of a Division Bench. Though the decision is based on the interpretation of the wakfnama therein drafted in Persian, I have no doubt that the principles deduced therefrom will have material bearing on this case. For better appreciation of the controversy, the relevant facts of that case may be briefly noted. The wakif in that case, namely, Munshi Mahammad Muzatfar, was found to be a man of fairly large means, and was an inhabitant of Kusumgram in the district of Burdwan. Muzaffar married three wives, and had a son by each one of them. Modessar was the eldest of his sons, born of his first wife Osimannessa. The son by his second wife, was Mahamman Ismail and Abdul Ohid was the son by his third wife. It transpired that on 30th July, 1849, Muzaffar executed a wakfnama in Persian language by which he created a public wakf in respect of certain properties included in Mouza No. 5297 of the Burdwan Collectorate which were purchased by him at an auction sale. The wakfnama provided that the wakif himself would remain in charge of the endowment so long as he would remain alive and after his death, his eldest son Modessar would be the mutawalli. The wakfnama provided that the wakif himself would remain in charge of the endowment so long as he would remain alive and after his death, his eldest son Modessar would be the mutawalli. The provision in the deed of wakf, as regards devolution of the office of mutawalli after Modessar runs as follows: the said office shall devolve till the passing of ages (i.e., forever) and repetition of months, as God the merciful wills upon the offspring of my son (ba farzandani - farzandam) from generation to generation (Naslan baad naslin). 6. It would appear that the whole controversy in that case depended upon the meaning to be attached to the Persian words mentioned above within brackets. Muzaffar died in the year 1864, and after his death his eldest son Madassar became the mutawalli and possessed the wakf estate under the terms of the wakfhama. Madassar died in the Bengali year 1280 and thereafter his only son Madassar became the mutawalli Ebrahim died childless in April 1900 and upon his death his widowed sister Fatema laid claim to the office of Mutawalli and filed a petition for registration of her name as mutawalli in respect of the landed properties under the provisions of the Bengal Land Registration Act. Mohammand Ismail and Abdul Ohid, the two surviving sons of Muzaffar opposed the application. Ohid later on abandoned the contest and the Deputy Collector who heard the application granted the prayer of Fatema and directed her name to be registered as mutawalli of the wakf properties. The order was taken to appeal by Ismail but the appellate officer confirmed the order of the Deputy Collector, leaving open the question of title, and directing Ismail to assert his rights in a civil court if he so desired. No civil suit was filed by Ismail, and Fatema acted as mutawalli till her death in November, 1937. After Fatema's death, her son Ojhi, who was the original defendant in the suit, had his name enrolled mutawalli with the Wakf Commissioner, under the Bengal Wakf Act of 1934 and took possession of the properties. Thereupon on 20th April, 1934, the plaintiff, who is the eldest son of Ismail, who died during Fatema's lifetime, applied to the Wakf Commissioner for having his name enrolled as mutawalli after setting aside the previous order made in favour of Ojhi. Thereupon on 20th April, 1934, the plaintiff, who is the eldest son of Ismail, who died during Fatema's lifetime, applied to the Wakf Commissioner for having his name enrolled as mutawalli after setting aside the previous order made in favour of Ojhi. The application was rejected and on 17th June, 1938, the suit was brought. The plaintiff's case as made in the plaint, or rather during trial, was, that on proper construction of the wakfnama the office of the mutawalli should be held to devolve, in the first instances on the male descendants of Madassar, in default whereof, the office would go to other descendants of the wakif and the oldest and most qualified among them should be appointed mutawalli, and no woman could hold the office so long as any male descendents was available. The case of the plaintiff thus was that after the death of Ebrahim, the proper person to hold the office was Ismail, the father of the plaintiff, and Fatema had no legal title to mutawalliship. Now that Fatema was dead, the plaintiff as the senior-moat male descendant of Muzaffar was entitled to the office of mutawalli under the terms of the wakfhama, and Ojhi, the son of Fatema, had no right to it. 7. On contest, the Sub-Judge dismissed the suit. It was held by the learned Judge that under the terms of the wakfhama, mutawalliship would devolve upon Madassar and his descendants and the expression "Farzand" (descendants or progeny) would include female children and descendants through daughters as well. In these circumstances, Fatema was validly appointed a mutawalli, and after her death, her son, and grandsons were entitled to hold the office. The plaintiff although he was senior to Rashid was not entitled to come in as mutawalli so long as Madassar's line was not extinct. The Sub-Judge held further that the plaintiff's claim, if any, was barred by limitation. The plaintiff preferred an appeal against the judgment of the learned Sub-Judge. It may be noted that in the appeal, the Counsel for the plaintiff made submissions somewhat different from the case pleaded in the plaint and contended that though the terms of the document would not exclude the daughters of Madassar's family, it would exclude descendants through daughters who would belong to a different family. It may be noted that in the appeal, the Counsel for the plaintiff made submissions somewhat different from the case pleaded in the plaint and contended that though the terms of the document would not exclude the daughters of Madassar's family, it would exclude descendants through daughters who would belong to a different family. According to the Counsel, Fatema was no usurper and was entitled in law to hold the office as a daughter of Madassar; but her son and grandson would not rank as progeny or descendants of Madassar and would have no claim to mutawalliship. In other words, his contention was that as the line of Madassar had become extinct, the plaintiff as the senior most male descendant of the wakif is entitled to be appointed as mutawalli On 'the other hand, the case of the defendant in substance was that under the terms of the wakfnama, the devolution of the office of mutawalli was to continue in the line of Madassar, and all his descendants through males or females were eligible to hold the office. So long as Madassar's line was not extinct, the plaintiff had no right to come in as mutawalli. 8. In the aforesaid appeal, the most important question which fell for consideration was whether the appellant/plaintiff was right in his contention that the descendants of the daughter of Madassar were excluded from the line of devolution of mutawallship. After considering the views of various Mahomedan jurists, their lordships of the Calcutta held that that with the extinction of the line of Madassar, the specific rule laid down by the founder of the office of mutawalli have also come to an end and that as the deed did not provide a rule under which the mutawalliship was to devolve thereafter, it was for the principal civil court of the District to make appointment having in view the wishes of the founder and the general principles of Mahomedan law. In coming to those conclusions, their lordships took into account the Khizanutool-Mooftieen, quoted in Macnaughten's Principles of Mahomedan Law (332), which said; "If a man appropriates an estate to be enjoyed by his descendents, in perpetuity so long as the race continues, and he leaves children and children of his male children, it will be divided among them equally, and no preference will shown to the males over the female. But the children of females are not reckoned - among the lineal descendants according to the approved doctrine...because the descendants of a man's daughters are not lineal descendants of that man Uncage being derived from the father and, not from the mother." In Macnaughten's Principles and Precedent of Mahomedal Law, a case was discussed where the grant of the office of a mutawalli was made to one Md. Rufeeq, and declared heritable by his Furzumdam or offspring. It was held that the grandson in the female line cannot be enumerated among the "furzundam" or offspring or lineal descendants; because when these terms are applied relating to a person, they mean only those who are the lineal descendants of that person or his descendants in the male line how low severe but a grandson in the female line takes his descent from his own father and not from Md. Rufeeq. The conclusion of their Lordships of the Calcutta High Court are best explained in the following words of the judgment [Page 317]: (emphasis mine) It can safely be held therefore that the preponderance of authorities is clearly in favour of the view that the expression "farzand" or "aulad" would not ordinarily include the descendants of female children, though the daughters themselves would be included in to the law on this point is thus summed up in R. Wilson' Digest of Anglo-Mahomedan Law: Though the daughters themselves are included under such general terms as "child" or "children" their children and remoter descendants are not admitted to share with desecendants in male line unless some special term clear indicating such an intention is employed. (Article 326). (emphasis mine). 9. In my opinion, with due respect, the aforesaid principles enunciated by their lordships of the Calcutta High Court appear to be the correct law in this field; in fact, the decision does not appear to have been overruled or modified in the subsequent decisions of various High Courts including the Apex Court. In the instant case, the petitioner, Md. Abrar, is admittedly the son of Haji Kammu Mia through his daughter, Sabra Khatoon. Kammu Mia is the son-in-law and nephew of the late Haji Elahi Baksh, the wakif, while Md. Taiyab is the grandson of the late Haji Elahi Baksh through his daughter, namely, Narana Bibi, the first wife of Kammu Mia. Likewise, Md. Zakaria is the grandson of Kammu Mia. Kammu Mia is the son-in-law and nephew of the late Haji Elahi Baksh, the wakif, while Md. Taiyab is the grandson of the late Haji Elahi Baksh through his daughter, namely, Narana Bibi, the first wife of Kammu Mia. Likewise, Md. Zakaria is the grandson of Kammu Mia. It is an undisputed fact that the petitioner as well as Md. Taiyab and Md. Zakaria are the sons of the female descendants of the late Haji Elahi Baksh whereas the respondent No, 2 is the son of Md. Shah, who, in turn, is the son of Haji Elahi Baksh and, therefore, the direct descendant of Haji Elahi Baksh in the male line. Thus, in the absence of some special term indicating an intention to the contrary, the petitioner as well as Md. Taiyab and Md. Zakaria are excluded from the line of devolution of the mutawalliship in question so long as the male descendants of Haji Elahi Bakshi are available. The position thus appear to be that the office of mutawalli would not go to the female descendants of Haji Elahi Baksh. In other words, each mutawalli after the death of the wakif would not be a fresh stock of descent. This leads me to examine the terms of the wakfnama executed by Haji Elahi Baksh to determine as to whether there is any provision therein laying down a specific line of devolution contrary to the ordinary rule as recognized in Md. Eshaque case (supra). Clause 1 says that Md. Shafi, son of the settler and his son-in-law, Kammu Mia shall be joint mutawallis during their lifetime. Then, Clause 2 provides for the survivor becoming for the time being the sole mutawalli on the death of either of the joint mutawallis and such sole mutawalli shall have the power to nominate his successor from the family line of the settler. Clause 3 empowers each successive mutawalli thereafter the right to nominate his successor from the same source. Clause 5 provides for a situation in which a mutawalli dies without nominating a successor in which case the senior most member among the lineal descendants of the said Md. Shafi, and Kammu Mia, if otherwise competent, shall be entitled to hold the office of mutawalli. There is no controversy on the operation of Clause 1. It is with respect to Clauses 2, 3 and 5 that the present controversy has arisen. 10. Shafi, and Kammu Mia, if otherwise competent, shall be entitled to hold the office of mutawalli. There is no controversy on the operation of Clause 1. It is with respect to Clauses 2, 3 and 5 that the present controversy has arisen. 10. A critical analysis of Clause 2 of the wafknama will show that where one of the joint mutawallis dies, it is the survivor alone who is entitled to be the sole mutawalli for the time being; that he is empowered to nominate his successor from the family line of the setter and that there is no provision for appointing another joint mutawalli after the death of one of the original joint mutawallis: the sole surviving mutawalli is only empowered to nominate his successor, which is quite different from appointing a joint mutawalli after the death of one of the original joint mutawallis. This view of mind is reinforced by Clause 3 which says that each successive mutawalli thereafter shall have the right to nominate his successor from the same source. In other words, a combined reading of Clause 2 and Clause 3 of the wafknama amply makes it clear that the sole surviving mutawalli has no duty or obligation to appoint another person to be a joint mutawalli. Under Clause 5, even if the mutawalli (not joint mutawalli) dies without nominating his successor, it is the senior most member among the lineal descendants of Md. Shafi and Kammu Mia, if otherwise competent, to become entitled to the office of the mutawalli. On a plain reading of the aforesaid clauses, it is sufficiently clear that the concept of appointment of another joint mutawalli after the death of either of the original joint mutawallis cannot be imported into after the death of either of the joint mutawallis. The petitioner is apparently confused about the difference between the concept of appointment/nomination of a successor by a mutawalli/sole surviving mutawalli and the appointment of Joint mutawalli by the sole surviving mutawalli. As already noticed, the wafknama does not envisage the question of appointing a joint mutawalli by the sole surviving mutawalli: he is merely authorized to nominate his successor for the mutawalliship. The Tribunal rightly held that the concept of joint mutawalliship ceased to have any effect after the death of either of the joint mutawallis. As already noticed, the wafknama does not envisage the question of appointing a joint mutawalli by the sole surviving mutawalli: he is merely authorized to nominate his successor for the mutawalliship. The Tribunal rightly held that the concept of joint mutawalliship ceased to have any effect after the death of either of the joint mutawallis. It is seen that the late Kammu Mia had no male issue and had five daughters only and Masuman Jan, the youngest daughter of Kammia Mia was married to one Md. Yakub and Md. Taiyab was born in such wedlock. On the other hand, the respondent No. 2 (Md. Sulaiman) is the son of late Md. Shafi, i.e., the grandson of the wakif and is, therefore, the direct descendant of the wakif. The Tribunal is correct in its finding that Md. Taiyab is the grandson of late Kammu Mia from the daughter's side and that it is generally understood that when a daughter gets married, she becomes a member of other families and her children cannot be the direct lineal descendant of her father. Similarly, Md. Zakaria, who is the grandson of Kammu Mia, cannot be said to be the direct lineal descendant of the wakif. So is the petitioner, who is admittedly the brother of Md. Zakaria and grandson of Kammu Mia through Sabra Khatoon. So long as the male descendants of the wakif such as the respondent No. 2 are alive, the case of the petitioner, who is the descendant of one of the daughters of the Wakif, for appointment to the office of joint mutawalli, much less the office of the sole mutawalliship, cannot be considered. It is only after the direct lineal descendents of Haji Elahi Baksh are exhausted, the descendants of Kammu Mia such as the petitioner herein can be appointed as mutawalli of the wakf properties. This, I think, appears to be the correct interpretation to be placed on the provision of Clause 5 of the wakfhama. 11. In this connection, it may be apposite to refer to Article 205A of Mulla's Principles of Mahomedan Law, 19th Edn at page 178, which reads thus: 205A. This, I think, appears to be the correct interpretation to be placed on the provision of Clause 5 of the wakfhama. 11. In this connection, it may be apposite to refer to Article 205A of Mulla's Principles of Mahomedan Law, 19th Edn at page 178, which reads thus: 205A. Succession where two or more mutawallis are jointly appointed: Where two or more mutawallis are appointed as joint mutawallis i.e., as joint holders of a single office, and there is no direction, express or implied, given by the wakif and there is no evidence of custom supporting a usage to the contrary, the office of mutawalliship held jointly will pass on the death of one holder to the survivor or survivors. * * * (Deleted) A, B and C are appointed joint mutawallis of a wakf. There is no direction in the wakfnama with regard to what is to happen if one of them is to die and there is no evidence of custom. A dies, but before he dies he appoints X as mutawalli to succeed him. X cannot act as mutawalli because on the death of A, the mutawalliship passes on to B and C, and A has no power to appoint X as a mutawalli. 12. In Commr. of Wakfs v. Asraful Alam AIR 1975 Cal 162 , the question which came up for consideration before the Learned Single Judge of the Calcutta High Court was whether on the death of one of the joint mutawallis, the surviving joint mutawalli should be allowed to continue to act as the sole mutawalli. The controversy arose in the following circumstances. In or about 1824, one Serajuddin Ali Khan and his wife jointly created a wakf comprising of several properties. They also appointed themselves as joint mutawallis in the first instance. After the death of Serajuddin, his wife became the sole mutawalli. On her death, one Wilayat Hossain became the sole mutawalli and appointed his wife as the co-mutawalli, but they were removed by court in or about 1854. Then Golam Ali and his brother Humayun became the joint mutawallis. On the death of Golam Ali, Humayun became the sole mutawalli. After the death of Humayun, Hossain Ali became the sole mutawalli. In 1901, Hossain Ali died whereupon his two sons Md. Hossain and Ahmed Hossai became joint mutawallis. In 1905, Md. Hossai died and Admed Hossain became the sole mutawalli. On the death of Golam Ali, Humayun became the sole mutawalli. After the death of Humayun, Hossain Ali became the sole mutawalli. In 1901, Hossain Ali died whereupon his two sons Md. Hossain and Ahmed Hossai became joint mutawallis. In 1905, Md. Hossai died and Admed Hossain became the sole mutawalli. In 1908, Warris Ali became joint mutawalli with his brother Ahmed Hossai. In 1935, Ahmed Hossain died and Warris Ali became the sole mutawalli. In 1942, the Commissioner of Wakfs filed a suit for removal of Warris Ali as mutawalli and subsequently made an application for appointment of a mutawalli in regard to the wakf estate. The High Court appointed Mirza Nasir Ali, who was then 17 years of age, to be the mutawalli and rejected the three other claimants. One of the claimants Asraful Alam Shami preferred an appeal. The appellate court observing that Mirza Nasir Ali was still a school boy who had to prosecute his studies further appointed Asraful Alam Shami as joint mutawalli with the result that both Mirza Nasir Ali and Asraful Alam Shami came to manage the wakf properties jointly. On February 23, 1974, the said Asraful Alam Shami died leaving behind a son named Naushad Alam Shami and a married daughter. He also left a brother Dorlara Alam Shami. On the death of Asraful Alam Shami, Mirza Nisir Ali ('Dr. Ali') informed the Commissioner of Wakfs about the death of Ashraful Alam Shami and of his becoming the sole mutawalli in accordance with the custom of the said wakf. Naushad Ali the son of Asraful Alam Ali also made a claim for joint mutawallship on the ground that his father, prior to his death, by word of mouth, appointed him as mutawalli. Dr. Ali, therefore, made an application before the High Court for his appointment as the sole mutawalli. The application was opposed by Naushad Alam Shami contending that he was entitled to be so appointed as his father was empowered by the terms of the Deed to make such appointment, and he could not be removed except by a suit for his removal. The question which arose in that case was whether Asraful Alam Shami, father of Naushad Alam Shami, had the power to appoint him as his successor and if so, whether he was entitled to act as joint mutawalli with Dr. The question which arose in that case was whether Asraful Alam Shami, father of Naushad Alam Shami, had the power to appoint him as his successor and if so, whether he was entitled to act as joint mutawalli with Dr. Ali or whether on the death of the co-mutawalli Asraful Alam Shami, Dr. Ali should be allowed to continue to act as sole mutawalli. 13. His Lordship of the Calcutta High Court examined the provisions in the deed of wakf in the light of the following observations of the Privy Council in Abdul Razaq v. Ali Baksh AIR 1948 PC 163: Their lordships think that in the absence of any direction, express or implied, given by the wakif or other competent authority, or of any evidence of custom supporting a usage to the contrary, the ordinary rule that an office held jointly will pass, on the death of one holder, to the survivors or survivor, must prevail. The learned Single Judge was of the view that the intention of the two wakifs who appointed themselves as joint mutawalli was that on the death of one of them, the power to appoint was reserved to the survivor mutawalli; that the two mutawallis did not know who would die first, but their intention was clear that on the death of any one of the joint mutawallis the other would be the sole mutawalli; that when both would die, they reserved the right to themselves to appoint or nominate mutawallis and that the survivor of the two joint mutawallis would, therefore, become the sole mutawalli, who could appoint his/her successor. Paragraphs 21 and 22 of the judgment are instructive, and are reproduced below: 21. Mr. Ghosh Roy then contended that the provision in the deed of wakf that on the death of one of the wakifs the survivor shall be the sole mutawalli applies only in the case of wakifs who appointed themselves as the first mutawallis. I cannot agree to this submission. Because, the rights and privileges which have been given to the wakifs who were appointed as first mutawallis would also vest in the successor mutawalli. This is clear from the following words in the wakfnamah, namely, "the mutawallis whom we may appoint or any one of our relatives...whose qualifications may make him entitled shall be vested with those rights and privileges which we have". This is clear from the following words in the wakfnamah, namely, "the mutawallis whom we may appoint or any one of our relatives...whose qualifications may make him entitled shall be vested with those rights and privileges which we have". In my view, the words "those rights and privileges" mean "the right of appointing or removing the mutawallis and the privilege of any of the joint mutawallis to act as sole mutawalli on the death of the other". Thus, in my view, the rights and privileges given to the wakifs who appointed themselves as first mutawalis also vested with the successor mutawallis." 22. Now, the question is whether there is any custom to the contrary. It is submitted before me by Mr. Ghose Roy that he is not making any case as to custom to the contrary. Therefore, on the facts and in the circumstances of this case and for reasons stated by me, Asraful Alam Shami had no power to appoint Naushad Ali Shami. Even if he had such power as argued by Mr. Ghosh Roy, Naushad Alam cannot act as joint mutawalli on 4.3.1973 so long as Dr. Ali is alive. 14. In the instant case also, there is no direction, express or implied, given by the wakif for appointment of a joint mutawalli after his death: in fact, as already noticed, the language of Clause 3 and Clause 5 militates against such construction. Similarly, the history of the case will show that there is no custom supporting any usage to the contrary. After the death of one of the joint mutawallis, namely, Md. Shafi, the other joint mutawalli Kammu Mia did not appoint the successor of the deceased as joint mutawalli. It was on the intervention of the Assam Wakf Board in the then undivided Assam that Md. Sulaiman, the son of Md. Shafi, was appointed as joint mutawalli on 4.3.1973, but after the death of Haji Kammu Mia in 1980, Md. Shafi did not appoint a joint mutawalli. Haji Kammu Mia, however, had appointed his own grandson Md. Taiyab as the sole mutawalli, but the appointment was set aside by the Wakf Tribunal in its order dated 19.7.2006. In that case, the prayer of Md. Zakaria, who had intervened therein, for his appointment as joint mutawalli was rejected. Both the writ petition and the revision petition filed by the said Md. Taiyab and Md. Taiyab as the sole mutawalli, but the appointment was set aside by the Wakf Tribunal in its order dated 19.7.2006. In that case, the prayer of Md. Zakaria, who had intervened therein, for his appointment as joint mutawalli was rejected. Both the writ petition and the revision petition filed by the said Md. Taiyab and Md. Zakaria before this Court were dismissed by this Court on 25.7.2007. Therefore, the history of the case does not reveal any custom supporting a usage of appointment of joint mutawalli after the death of Md. Shafi and Kammu Mia. Except for the solitary case of appointing Md. Sulaiman as 1973, who, in any case, was the rightful claimant to the office being the direct lineal descendant of the wakif, there is no other appointment of joint mutawalli after Md. Shafi and Kammu. Such a solitary case cannot constitute a usage, which term otherwise signifies continuance and uniform observance for a long time. Thus, in the view that I have taken, the petitioner has miserably failed to make out a case for my interference in the impugned order. 15. For what has been stated in the foregoing, there is no merit in this revision petition, which is hereby dismissed. Considering the feet that the petitioner has raised an important question of law as to succession to the office of mutawalli, the parties are directed to bear their own cost.