Mohamedan Law - Women can act as mutawalli of a wakf.

There is no prohibition for a woman acting as Mutawalli of the Wakf.             (para. 28)

AIR 1934 Mad. 692; AIR 1942 Mad. 485;

AIR 1953 Mad. 958; AIR 1947 Nag. 31 &

AIR 1948 Cal. 312                                                                                  Referred to

K.M. Vatsala                                                                                           For Appellant

A. Sivaji                                                                                                   For Respondents

JUDGMENT

S.S. Subramani, J.

(Paras 1 to 15 omitted being narration of facts. - Ed.)

16.  From a reading of this document it is clear that the charities could be performed or could be entrusted to others to see that it is performed.  Further it is clear from the document that the main purpose is only to give food during the birth and death anniversary

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of two persons mentioned in the document.  No religious function is directed to be performed and it is only charity was feeding the poor, was directed to be performed under the document.  On the basis of document, for the purpose mentioned above, we have to consider whether females could be excluded from acting as mutawalli.

17.  Asaf A.A. Fysee is his book Outlines of Muhammedan Law (3rd Edition 1964) at page 304 of the text has stated thus:

"It may be said generally that every sane adult is entitled to be a mutawalli, unless there is a specific bar.  It is well-settled that the following can legally act as mutawallis; (i) the founder himself (wakf) (ii) his children, (iii) women (iv) non-muslims; (v) sunniites in a shiite wakf and    vice versa.

Minority and unsoundness of mind are positive disqualifications; in Pakistan it has been held that a minor can be appointed a mutawalli, if the office is declared to be hereditary, and as regards, women, their Lordships of the Privy Council have ruled that sex is no bar in case where no religious duties have to be performed but aliter, if religious duties or spiritual functions are part of the duties of a mutawalli, and in such cases, a female or a non-muslim cannot act as a Sajjada-nashin, kahatib, mujawar of a dargah, or an imam of a mosque".

18.  Mulla on Principles of Mohammedan Law, (18th Edition, 1977) at page 228 considered this question of lineal descendant.  Learned author says thus:

"In Shahar Banoo v. Aga Mohomed, the founder was a Shia and his lineal descendant, who claimed to be appointed mutawalli was a female of the Babi sect.  The trial Judge appointed her a mutawalli, but the High Court set aside the appointment and appointed another person.  This was not on the ground that she was not qualified, but because as a female she would have to perform many of her duties by deputy, and as a Babi she might not take zealous interest in carrying out the religious observances of the shia school for which the trust was founded.  This decision was upheld by the Privy Council on appeal.  In considering the authorities the Lo rdships said, "the authorities seem to their Lordships to fall far short of establishing the absolute right to the lineal descendants of the founder of the endowment, in a case like the present, in which that founder has not prescribed any line of devolution.  "If the line of devolution is prescribed from generation to generation it does not follow that a female, or persons claiming through females are excluded though it may not be desirable to appoint a female owing to their habits and seclusion.  In a case where the founder of the wakf was a Mohamedan lady who had appointed herself first mutawalli and directed that the succession should be to the legal heirs of the second mutawalli it was held that female heirs were not excluded.  Where the wakif appointed his son as mutawalli and provided that the descendants (be Farzandan) should succeed as mutawallis, it was held that the words be farzandan did not exclude the daugthers of male descendants, but excluded the children of daughters."

19.  Tyabji on Muslim Law (4th Edition), at page 580 has held thus:

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"(9) When the office of mutawalli entails the performance of religious or spiritual duties which cannot be performed by females or minors or non-muslims, they are disqualified from acting as mutawalli or Sajjadanashin?"  But where females are excluded, it does not necessarily imply that the male descendants of female members of the family of the Wakf, or of the last mutawalli will also be excluded.

(10 ) If the primary object of a grant is maintenance of the proper services at the mosque- viz., Khijmat (sic. for khidmat service viz., at the mosque) Imamat = preaching, being a priest, moujani (Strictly mu'adhdhin, in English musszin, therefore mueszine) = calling to prayers khitabat reading sermon at the masjid, - Females will be excluded from holding these offices and getting the duties performed vicariously especially where there are male members of the family qualified for the discharging of the duties."

20.  Kashi Prasad Saksens on Muslim Law (1963 Edn.) under the chapter "Superintendence of Waqf" has considered this question, learned author said thus:

"...The Waqf may lawfully reserve the tauliat (the management of the trust) for himself, or any person may be nominated, sex or religion will be no bar for competence as regards mutawalliship.  A female or a non-muslim or a society may be validly appointed as such.  The Islamic jurisdprudence does not bar either women or non-Muslim being appointed or acting as trustees or mutawallis for Muslim endowments so far as the management pertains only to the secular administration of the wakf and its properties and does not involve the discharge of duties relating to religious or spiritual services or obligations.  But where the mutawalli has to perform religious duties, or spiritual functions, eg., the duties or spiritual functions eg. the duties of a Sajjadanashin (spiritual superior) or kahatib (one who reads sermons) or m ujawar of dargah or an Imam in a mosque (one who leads the congregation), or a muezzin crier), or a mulla, a female or a non-Muslim is not competent to hold that office and cannot be appointed as such.  But a woman is not incompetent to hold the office of the head mujawar of a platform, on which Moharram ceremonies are performed, or khatibaship.  The Muslim law does not necessarily exclude a female from the office of a khadim or any other religious office, unless the duties of the office cannot be performed by her, or by her deputy, and the onus of proving that she is precluded from holding the office lies on those who plead such exclusion.  Khadim is a mode of describing the peculiar relationship which exists between spiritual preceptor and his disciple.  A woman is not disqualified from holding the office of Asrai Sheriff, as the duties of the office are such as can be performed by a woman.  The muslim law does not exclude a woman from doing the temporal or non religious duties of a mutawalli.  A woman is not precluded from holding the office of mujawar in a mosque, as the religious duties attached to the office can be performed by a substitute.  If the spiritual duties can be detached from the mutawalliship, and can be performed by a deputy, the female or the non-Muslim can remain in the office, performing the secular duties alone".                                                                      (Italics supplied)

21.  B.R. Verma on Islamic Law (6th Edition), at page 699 has held thus:

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"Females are not debarred from acting as mutawalli, when the work does not involve any spiritual duties which could not be discharged in person or by deputy.  Where however spiritual duties cannot be performed by proxy, a female may be excluded, eg., the duties of a Sajjadanashin, spiritual superior, or an imam in a mosque (who leads the congregation) cannot be performed by a female and a female should not therefore hold the office of a mutawalli".

22.  The Muslim Law of India by Dr. Tahir Mahmood has also considered this question in page 291 which reads thus,

"There is no general inhibition against a women acting as a mutawalli.  The courts have held that where the mutawalli has to act also as sajjadanashin, mujawar, imam or khatib, no woman can hold the office since the special duties of these functionaries cannot be performed by a woman".

23.  Syed Abdul Hameed Sahib v. Syed Unnisa Bibi, 67 MLJ 909: AIR 1934 Mad. 692 (1), it is held thus:

"A woman is not disqualified from holding the office of Asarai sheriff where the duties of the office are such as can be performed by a woman".

24.  A Division Bench of our High Court in the decision reported in M.M. Hussain Faroki v. S. Abdul Muq, (1942) 1 MLJ 564: AIR 1942 Mad 482, it is held thus:

"In 41 Mad. 1033, Abdur Rahim and Seshagiri Ayyar, JJ. held that as decided by the Privy Council, there is no general rule of Mohamedan Law prohibiting a woman from holding a religious office and that such a religious office can be held by a woman under the Mohamedan Law unless there are duties of a religious nature attached to the office which she cannot perform in person or by deputy.  The learned judges emphasise that such, a prohibition arises, if at all, from local custom or usage and not by an injunction of Mahomedan religion or law.  They held that the burden of establishing that a woman is precluded from holding a particular office was on these who plead the exclusion, Abdur Rahim, J. seems to have considered that the decision in 3 Mad. 95 did not go beyond the the facts in that particular case and that on the evidence the court must be taken to have held that the woman concerned could not hold that office of Mujawar.  The question whether the office could be performed by a deputy was not discussed.  It seems to me that the decisions of this Court in 41 Mad. 1033 and of the Judicial Committee in 34 Cal. 118 are comprehensive.  It is difficult to think of any religious office which a woman cannot hold if she is permitted to hold it by a deputy.  Neither of the learned counsel was able to give an example of any religious office which could not be performed through the medium of a deputy.  As a matter of a convenience, there is nothing to be said against the notion once it is accepted that religious office descends, because it is obvious that the possibility that the deputy specially nominated by a woman may satisfactorily perform the office is at least equal to the possibility that the person to whom the o ffice decends may be equally qualified.  It will therefore appear to be the law that unless it can be shown by custom or usage that a special office depending upon the personality

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of an individual which cannot be deputized cannot be held by a woman there is no other prohibition upon her.  sSo, far as this Court is concerned the matter is concluded by authority".                                                                                                      (Italics supplied)

25.  A similar view was taken in the decision reported in Shaik Masthan Sahib v. Balarami Reddi, AIR 1953 Mad. 958.

26.  In Mohd. Bhai v. Wazirbi, AIR 1947 Nag. 31, it is held that it is competent for the founder of the wakf to appoint his wife as successor after his death.  In that case, the question came for consideration before Nagpur High Court was that the property has to be managed by the wife and income therefrom was to be utilized for the Mosque.  The question was whether plaintiff can act as Mutawalli.  The learned Judge did not find any disqualification for woman to act as mutawalli.

27.  In Md. Eshaque v. Md. Amin, AIR 1948 Cal. 312, the question came for consideration was while considering the question of descendants, whether the claim of daughters also could be considered.  The Division Bench held that the daughters are also entitled to be considered as Mutawalli and there is no prohibition under Muslim Law for considering their claim.

28.  From the above decisions, it is clear that there is no prohibition for a woman acting as Mutawalli o f the Wakf.

29.  Appellate Court held that the functions are of religious nature and therefore Thaha Beevi was not qualified to act as mutawalli.  I do not find any merit in that finding.  I have already extracted the relevant portion of the document which says that the charity either has to be performed personally or could be performed through others.  As per the Division Bench decision in M.M. Hussain Faroki v. Abdul Huq, AIR 1942 Mad. 485, deputy specially nominated by a woman may satisfactorily perform office is at least equal to the possibility that the person to whom the office descends may be equally qualified.  As per the document, Thaha Beevi can also appoint her elder son as mutawalli during her lifetime and to perform even if there is any religious acts required to be performed.

30.  Trial court held that plaintiff is not even competent to question Ext. B-1 document.  I agree with the finding of trial court.  At the time Ext. B-1 was executed, plaintiff was not even born and document happened to be executed immediately after the death of founder.  Plaintiff is also claiming only under his father as mutawalli.  So any act done by late Mohamed Kasim will also bind plaintiff.  Being a party to the document, it is too much to think that plaintiff's father will act against the terms of the document and appoint his son as mutawalli after his lifetime.  Except for the interested testimony of PW. 1, we have no other evidence to show that plaintiff was appointed as mu tawalli.

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31.  It is admitted in the plaint itself that wakf is registered before Tamil Nadu Wakf Board.  It is that extract is filed Ext. B-2.  Ext. B1 is considered and the line of succession is also provided in Ext. B-2, finding of the lower court that Ext. B-2 is not in accordance with law is a finding on which even plaintiff has no case.

32.  Plaintiff claims that he is mutawalli and injunction was also sought for only in that capacity.  Various documents produced by plaintiff do not show that his father acted continuously for 48 years as alleged by him.  It is the case of appellant that till 1974 Thaha Beevi was managing the affairs and on her death, Mohammed Kasim became the mutawalli.  He was managing the same till 1981.  From 1981, first defendant came in management but before completing the period of 7 years, he left for foreign country seeking employment.  According to him, he entrusted the management of the post also to his elder brother.  That was in 1988.  All documents produced by plaintiff was only from 1988.  If plaintiff's father was in possession of property between 1981-88 documents would have been produced to show that first defendant never acted as mutawalli.

33.  Mohamed Kasim died in the year 1990 and the property was entrusted to first defendant.  Kasim was entitled to continue in possession for 7 years.  But before expiry of the term he died.  According to appellant, because of close relationship, he allowed plaintiff to cont inue in possession till the period expires.  Taking into consideration the provisions in Ext. B-1 to which plaintiff's predecessor and appellant are parties, the entrustment seems to be probable.

34.  Appellant further avers that in 1995 he has taken possession and is managing the affairs.  Exts. B-3 and B-4 supports that case, pleaded by appellant.  Lower appellate court held that the first defendant is not competent to execute lease without the consent of Wakf Board and therefore it is irrelevant.  In this case, we are not concerned about the validity of the lease and only question is whether first defendant is exercising right to administer the wakf.  Again, it is not the case of plaintiff nor of appellant that lease in favour of third party is for more than three years.  Lease could be executed for a period of three years or less.  Lower appellate Court has assumed that plaintiff's father was in possession of property continuously for the period of 48 years.  sThat assumption is only on the basis that Thaha Beevi was not competent to act.  If that assumption is not correct, naturally the conclusion arrived by lower court is to be set aside.

35.  In the result, the judgment and decree in A.S.No.134 of 1997 on the file of Principal Subordinate Judge, Nagercoil is set aside and the judgment and decree in O.S. No. 905 of 1995 on the file of District Court, Nagercoil is restored.  The second appeal is allowed with costs throughout.  Suit filed by plaintiff in O.S. No. 90 5 of 1995 is therefore dismissed.  Consequently C.M.P.No. 18485 of 1999 is closed.