2018 AIR CC 1900 (KER) ::(2018) 3 CivLJ 26 ::(2017) 4 Ker LT 740 ::(2017) 4 Ker LJ 756

Kerala High Court

Hon'ble Judge(s): C. T. Ravikumar, Anil K. Narendran , JJ

(A) Wakf Act (43 of 1995) , S.63— Wakf Act (29 of 1954) , S.42— (Since repealed) - Mutawalli - Hereditary succession to office - As per wakf deed, wakif appointing his son-in-law as first Mutawalli - Further stipulation that after death of first Mutawalli his eldest son shall be Mutawalli - Wakf deed can be said to have provided for hereditary succession to office of Mutawalli. Even though Muslim Law does not reco-gnise any right of inheritance or rule of hereditary succession to office of mutawalli, if waqf is created by deed or instrument, rule of succession to office of mutawalli provided in such deed or instrument should be followed while making appointment to that office. In absence of any such provisions under a deed or instrument, office of mutawalli may become hereditary by custom or usage. Power of appointment of mutawalli by Board, as contemplated by S.42 of Wakf Act, 1954 or S.63 of Waqf Act, 1995 is not a regular appointment of a mutawalli, which power can be exercised only when there is no one to be appointed to that office under terms of deed of waqf or where right of any person to act as mutawalli is disputed. In instant case as per recitals of waqf deed, waqif, appointed son-in-law of his son as first mutawalli with a stipulation that after death of first Mutawalli his eldest son shall be mutawalli. Said fact is admitted in pla....