B.D. Agarwal, J.
1. Two aspirants to the office of the joint Mutawallis in Wakf Trust created by late Haji Elahi Baksh have filed these applications under Article 227 of the Constitution of India read with Section 83(9) of the Wakf Act, 1995 challenging the judgment and order dated 19.7.2006 passed by the learned Presiding Officer, Wakf Tribunal, Shillong. By this impugned order, the learned Presiding Officer of the tribunal has held that both the petitioners are not entitled to inherit/succeed the Mutawalliship on the death of founder Mutawallis. Being aggrieved with this order, the aforesaid writ petition and the revision application have been filed. Since the cases are arising out of the same order and since the subject matter is one and the same, both the revision applications were heard analogously and are being disposed of by this common judgment.
2. I have heard Shri Ranjit Kar, learned Counsel representing Md. Taiyab, Mr. D.K. Thapa, learned Counsel for the petitioner, Md. Zakaria, Shri K.S. Kynjing, learned Counsel for the Meghalaya Wakf Board, the respondent No. 1 and Shri H. Ahmed, learned senior counsel assisted by K. Khan, learned Counsel for the petitioner, Md. Sulaiman.
3. In these revision applications, broadly, the following points are to be examined by this Court:
(i) What is the scope and ambit of the High Court to interfere with an order of Wakf Tribunal under Section 83(9) of the Wakf Act, 1995?
(ii) Whether the impugned order suffers from any illegality? and
(iii) Whether the revision petitioners are entitled to be appointed as Joint Mutawallis?
4. Before addressing the issues involved in the aforesaid cases, it would be just and proper to have a glance over the relevant clauses of Wakf Deed (Ext. I); factual matrix and the grounds for staking claim to the office of the Mutawalliship by the revision petitioners.
4.1. The trust was created by late Hazi Elahi Baksh (the Settlor) on 9.11.1936. The relevant recitations of the trust deed are reproduced below for ready reference:
Whereas Hazi Elahi Baksh, son of late Madda Choudhuri of Village Kokaran Bazar, Rae-Barelly, at present residing at Bara Bazar Road, Shillong (hereinafter called the Settlor), is the sole proprietor of the firm in Bara Bazar Road, in the town of Shillong, known as S. Mohd. Shafi & Kammoo Mia, together with all properties, movable or immovable, and all funds, investments and profits belonging or appertaining thereto, as well as of the properties in whomsoever's name standing, described in the schedules hereto.
*** *** ***
1. The Settlor's son Md. Shafi and son-in-law Kammoo Mia, son of late Sk. Gaznu, shall be joint matwalis during their life-time.
2. On the death of either of the joint matwalis, the survivor shall be the sole matwali for the time being, and shall have power to nominate his successor from the family line of the Settlor.
3 to 4 *** *** ***
5. Should a matwali die without nominating a successor, the seniormost member among the lineal descendants of the said Md. Shafi and Kammoo Mia, if otherwise competent, shall be entitled to hold the office of matwali.
5. Facts leading to the filing of the revision applications are as follows:
The first Mutawalli, Md. Shafi died on 20.12.1960 and the second Mutawalli, Md. Kammoo Mia died on 02.02.1980. On the death of Md. Shafi, the second Mutawalli nominated Md. Taiyab to succeed Md. Shafi to the office of the Joint Mutawalli vide his letter dated 19.2.1973 to the Assam Wakf Board (which had territorial jurisdiction over Meghalaya Wakf Board as well). However, the Wakf Board did not recognize Md. Taiyab as joint Mutawalli and instead appointed Md. Sulaiman as joint Mutawalli vide order dated 4.3.1973. After the death of Haji Md. Kammoo Mia on 02.02.1980, the Meghalaya Wakf Board appointed Md. Sulaiman as the sole Mutawalli vide order dated 7.2.1980. The Board rejected the claim of Md. Taiyab to the said office on the ground that he does not belong to the family line of the Settlors.
6. Md. Taiyab instituted a Title Suit No. 1(T) of 1983 for his appointment as Mutawalli. The said suit was dismissed for non-compliance of Section 56 of the Wakf Act, 1954, which required prior notice to the Advocate General. In the meanwhile, the new Wakf Act, 1995 came in. Under this new law, the Wakf Tribunal has been constituted to determine any dispute, question or other matters relating to Wakf or Wakf property. The suit of Md. Taiyab was registered as Wakf Case No. 2 of 2002. During the pendency of the suit, the other revision petitioner, Md. Zakaria became an intervenor and he was subsequently impleaded as one of the defendants. Upon hearing all the parties, the suit was dismissed by the impugned order.
7. Learned Counsel for the petitioners submitted that the learned Presiding Officer of the Tribunal has rejected their claim for Mutawalliship on the ground that they are not lineal descendants of Md. Kammoo Mia. According to the learned Counsel, the Settlor of the trust never intended that successor Mutawallis should only be lineal descendants but the Settlor had intended that Mutawallis can be anyone from the family line. According to the learned Counsel, the petitioners are closely related to the deceased Settlor and as such, their claim for Mutawalliship ought to have been considered by the tribunal. One additional contention was also put forward submitting that the trust property also includes some property of late Md. Kammoo Mia and as such, the petitioners are also entitled to the office of Mutawalliship being direct descendants of Md. Kammoo Mia.
8. Shri Thapa, learned Counsel for the Md. Zakaria cited the judgment of Hon'ble Supreme Court rendered in the case of Rashi-ud-ddin Khan v. Nazir-ud-ddin and Ors. AIR 1929 Lah. 721 and submitted that brothers are also members of the same family. Learned Counsel also relied upon another judgment of Allahabad High Court given in the case of Ghazanfar Hussai v. Mt. Ahmadi Bibi and Ors. : AIR1930All169 and submitted that both male and female persons are to be construed in the line of descendants. In both these authorities, the High Courts were examining the import of the word 'family' and not the issue of lineal descendant.
9. On the other hand, Shri Ahmed, learned senior counsel for the respondent No. 2, Md. Sulaiman submitted that neither Md. Kammoo Mia was a Settlor nor he was the owner of the trust property and as such, none of his descendants are entitled to the office of Mutawalliship. It was also contended that both Md. Shafi and Md. Kammoo Mia were appointed as Joint Mutawallis only during their life time and on their death, no person can be appointed as Joint Mutawalli and the office of Mutawalliship should be confined to the lineal descendants of the Settlor alone. The learned Counsel also submitted that the Settlor had intended that the successor Mutawallis should also be from the family line of the Settlor and since the petitioners are not direct descendants of the Settlor they are not entitled to inherit the Mutawalliship. Learned Counsel for the respondent No. 2 also referred to a judgment of the Hon'ble Supreme Court rendered in the case of Abdul Qavi Khan v. God Almighty through Asaf Ali Khan and Ors. : AIR1962All364 to buttress a point that the descendants through female line are not considered as the family members. This authority is arising out of the Mussalman Wakf Validating Act, 1913 to examine whether step-daughter of the Wakfs sister was also entitled to maintenance. However, the case before me is not related to any claim for maintenance. Hence, the authority is not applicable in this case.
10. Shri Ahmed, learned senior counsel for the respondent No. 2 also submitted that this Court cannot examine the merit of rival claimants inasmuch as there is no provision of appeal against the order of Wakf Tribunal. In other words, it was contended by the learned Counsel that any application within the meaning of Section 83(9) is virtually an application under Section 115 of the Code of Civil Procedure, which limits the scrutiny of the impugned judgment only on the ground of non-exercise and illegal exercise of jurisdiction. Learned Counsel for the respondent No. 2 cited the judgments of Gauhati High Court rendered in the case of Manabendu Das Choudhury v. State of Tripura and Ors. (2004) 3 GLR 430 : 2004 Suppl. GLT 877; Ganesh Chetri and Ors. v. Zantsemo Murry and Ors. 2004 Suppl. GLT669 : (2005) 2 GLR 74; Smt. Leena Das v. Presiding Officer, State Transport Appellate Tribunal, Assam (1987) 2 GLR 135; Jogendra Chandra Skill v. Anukul Chandra Shill 2004 (3) GLT 696 : (2005) 2 GLR 128; to draw my attention about the limited powers conferred under Section 115 of the Code of Civil Procedure and under Article 227 of the Constitution of India to interfere with the Tribunal's order.
11. Learned Counsel for the respondent No. 2 also cited the judgment of Hon'ble Supreme Court rendered in the case of Shyam Sunder Agarwal and Co. v. Union of India reported in : [1996]1SCR245 to argue that where there is no provision for appeal an application assailing any appellate order should be examined as if it is an application under Section 115 of the Code of Civil Procedure. In this cited case, the Additional Deputy Commissioner of Shillong had rejected an application under Section 30 of the Arbitration Act, 1940 in its appellate jurisdiction. This order was challenged before the High Court under Rule 36-A of the Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills, 1937. The High Court held that in absence of any provision for second appeal, the revision application is maintainable. This ratio of the High Court was upheld by the Hon'ble Apex Court. The main purpose for citing this authority is that in absence of any provision for appeal or revision under Wakf Act, 1995 any application challenging the order of Wakf Tribunal has to be construed as an application under Section 115 of the Code of Civil Procedure and such application should be dealt with within the parameters of Section 115 CPC. In my considered opinion, this authority is not applicable inasmuch as proviso to Section 83(9) of the Wakf Act, 1995 has made a provision for reviewing the orders of tribunal. Hence, the situation in the present case is different than what was in the case of Shyam Sunder Agarwal (supra).
12. Mr. K.S. Kynjing, learned Counsel for the respondent No. 1 was of the view that the matter may be remanded back to the Tribunal for fresh hearing inasmuch as the case of Wakf Board was not properly placed before the tribunal since Mr. H. Ahmed, learned senior counsel had represented both Md. Sulaiman as well as Wakf Board.
13. Before adverting to the legal issues, it would also be apposite to see as to how the petitioners and the respondent No. 2 are related to the Settlor of the trust as well as to the founder Mutawallis. Admittedly, Md. Sulaiman is the grand-son of the Settlor and the son of first Mutawalli, namely, Md. Shafi. Hence, he is a direct lineal descendant of the Settlor.
13.1. Md. Taiyab is also the son of second Mutawalli, namely, Haji Kammoo Mia through his first wife Marana Bibi. The said Marana Bibi is the daughter of the Settlor and as such, Md. Kammoo Mia has been referred to as the son-in-law of the Settlor in the Wakf Deed. At the same time, Md. Kammoo Mia is also the nephew of the Settlor inasmuch as the Settlor, Haji Elahi Baksh had four sisters and Md. Kammoo Mia is the son of one of the sisters. In this way, Md. Taiyab is also the great-grandson of the Settlor and grand-son of the second Mutawalli, Md. Kammoo Mia, albeit through female lirie.
13.2. Similarly, Md. Zakaria is also the grand-son of the Md. Kammoo Mia and the great-grandson of the Settlor through female line. These relationships have been admitted by the respondent No. 2 in his show-cause submitted to the tribunal. For better understanding of the relationships, a composite Chart of family pedigree, showing descendency of the petitioners and the respondent No. 2 is enclosed herewith and marked as Annexure-X.
Family line of Haji Elahi Bakshi (Seller) Waklf Leniel Descendant and of Md. Shafi and Hiji Kammu Mia
MADDA CHOWDHURY
_______________________________________________
| |
SON DAUGHTERS
HAJI ELAHI BAKSH |
| _____________________________________
________|_______ | | | |
| | 1) KARIMA 2)NASIBAN 3) RAHIMA 4) FAHIMA
SON ___________ BIBI JAN BIBI BIBI
MD SHAFI |DAUGHTERS| | MARRIED
| 1) MARANA 2) HALIMAN DAUGHTER TO
| BIBI JAN MADAMAJAN GAJNU MIA
| | | |
SON | 1ST WIFE MARANA BIBI | ________________
MD SULAIMA |____________________________ | | |
| |1) HAJI KAMMU MIA SONS
| | 2nd WIFE | 2) MAKHDUM
5th DAUGHTER | MADANIA | BAKSH
MASUMAN JAN | JAN | |
| | | |
2nd SON _______________| |
MD TAIYAB | __________________
| | | |
DAUGHTER MD HANIF MD AYUB |
SABRA KHATOON MOISSUE | ABDUL RAUF
| MARRIED | |
|__________________________________| |
| SONS
SONS FOUR
|
______________________
| | |
1)MD ZAKARIA 2) 3)
14. Point No. (i)
Import of Section 83(9) of the Wakf Act:
For better appreciation of the issue, the provisions of Section 83 (9) are reproduced below:
'83, Constitution of Tribunals, etc.
(1) to (8) *** *** ***
(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for an examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other orders as it may think fit.
15. Since a question has been raised whether the revisional powers conferred under Proviso to Section 83(9) upon the High Court are pari-materia or not to Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India, it is also necessary to reproduce the above provisions of law in this judgment. Additionally, I would also look at the provisions of Section 151 of the Code of Civil Procedure, which are as under:
115. Revision--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) To have exercised a jurisdiction not vested in it by law, or
(b) To have failed to exercise a jurisdiction so vested, or
(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.'
151. Saving of inherent powers of Court --Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.'
Article 227. (1) Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
2 to 4 *** *** ***
16. A bare comparison of the provisions of Section 115 CPC with that of the Proviso to Section 83(9) of the Wakf Act, 1995 would show that while the revisional powers under the Code of Civil Procedure has restricted the authority of the High Court with regard to reversing the impugned order, the provisions of the Wakf Act have unequivocally authorized the High Court to examine the correctness, legality or propriety of the orders of the Wakf Tribunal and while doing so, the High Court can confirm, reverse or modify the orders of the tribunal or pass any such order as it may think fit. In other words, while the proviso to Section 115 of the Code of Civil Procedure starts with a negative language, the proviso to Sub-section (9) to Section 83 of the Wakf Act, 1995 is heavily pregnant with the powers of the High Court. Hence, in my considered view, the revisional powers conferred under the Wakf Act, 1995 cannot be equated with the restrictive and limited powers conferred under Section 115 of the Code of Civil Procedure. The other distinguishing feature is that after the 1999 amendment the contours of Section 115 C.P.C. have been reduced in size and in some way the suo-moto revisional power has now extinguished, whereas Section 83(9) of the Wakf Act still provides wide, unbridled and suo-moto powers of revision. In this way, the parameters of revisional power under the Wakf Act are far greater than the powers conferred under Section 115 C.P.C. The authorities of the Gauhati High Court rendered in the case of Manabendu Das and Ganesh Chetri (supra), cited on behalf of the respondent No. 2, indicating limited powers of High Court Under/Section 115 C.P.C. are not relevant inasmuch as I am now examining applications filed under a special statute. Similarly, in the case of Smti. Leena Das and Jogendra Ch. Shill(supra) their Lordships have no doubt opined that the powers conferred under Article 227 of the Constitution of India should be used sparingly and with circumspection. I agree with this proposition. However, in these cases Their Lordships did not discuss the contours of Article. Hence, these authorities are also not of much help in examining the ambit of Article 227.
17. However, the revisional authority of the High Court and the scope and ambit of proviso to Section 83 (9) of the Wakf Act, 1995 can be equated with Section 151 of the Code of Civil Procedure. It is because under both these provisions, appropriate orders can be passed as the High Court may think fit to prevent miscarriage of justice.
18. Now, I shall turn to the import, scope and ambit of Article 227 of the Constitution of India. In the case of Achutananda Baidya v. Prafullya Kumar Gayen : [1997]3SCR709 , the Hon'ble Supreme Court has held that the powers conferred upon the High Court by Article 227 of the Constitution of India is not confined to administrative superintendence only over courts and tribunals under its jurisdiction but it includes the powers of judicial revision as well. The relevant observation of the Hon'ble Apex Court runs as follows:
10. The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the Courts and Tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior Court, the High Court should not quash the judgment of the subordinate merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with the finding of fact if the subordinate Court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse.
19. Again, in the case of Kishore Kumar Khaitan and Anr. v. Praveen Kumar Singh : AIR2006SC1474 , the Hon'ble Apex Court has spelt out the wider scope of Article 227 of the Constitution of India to correct jurisdictional error committed by the sub-ordinate courts in the following words:
12. The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction.
20. In the case of Baby v. Travancore Devaswom Board and Ors. : AIR1999SC519 , the Hon'ble Supreme Court has also held that even if the High Court may not be entitled to interfere with appellate court's judgment in second appeal on the ground of non-consideration of relevant and material documents, the illegality can still be corrected under Article 227 of the Constitution of India. In this case, the Hon'ble Apex Court has held that this power of the High Court is always in addition to the powers under Section 103 of the Code of Civil Procedure.
21. From the aforesaid survey of few authorities from the Hon'ble Apex Court it can be said that it is difficult to measure the length and breadth of the inherent powers given to the High Courts under Article 227 of the Constitution of India. In my considered opinion, the inherent powers enjoined under Article 227 of the Constitution of India are plenary in nature and akin to inherent powers prescribed under Section 151 of the Code of Civil Procedure. It is true that the revisional powers laid down under Section 83 (9) of the Wakf Act, 1995 cannot be equated with Article 227 of the Constitution of India. Despite this legal position, the revisional powers of the High Court embodied in the Wakf Act, 1995 is no less than the inherent powers laid down under Section 151 of the Code of Civil Procedure and also the revisional powers of the High Court culled out of Article 227 of the Constitution of India. As noted earlier, in both the revision applications, the petitioners have also invoked Article 227 of the Constitution of India along with Section 83 (9) of the Wakf Act, 1995. Hence, I hold that High Court's powers to examine the legality of the impugned order are not fettered with the limitations and restrictions prescribed under Section 115 of the Code of Civil Procedure. I also reiterate that the High Court is competent to reverse or modify the tribunal's orders and pass any other order as it may think fit under proviso to Section 83 (9) of the Wakf Act, 1995.
22. Point No. (if):
Legality and correctness of the findings of the Wakf Tribunal.
In the impugned judgment, the learned Presiding Officer of the Wakf Tribunal has held that Md. Sulaiman is the direct lineal descendant of Wakf and therefore, he has got every right to be appointed as a Mutawalli. I have already mentioned at the outset of the judgment that the said Md. Sulaiman was appointed as joint Mutawalli by the Assam Board of Wakf vide order dated 4.3.1973 and subsequently, he was made the sole Mutawalli of the trust vide order dated 7.2.1980 passed by the Meghalaya Board of Wakf, on the death of Md. Kammoo Mia. In this way, Md. Sulaiman is not only the descendant of the Settlor through female line; he is also the sole lineal descendant of the founder Mutawalli, namely, Md. Shafi. Hence, I do not see any infinnity in the impugned judgment confirming the appointment of Md. Sulaiman as the Mutawalli of the Haji Elahi Baksh Wakf property.
23. The learned Presiding Officer of the Tribunal has rejected the claim of the petitioners for being appointed as Mutawallis on the ground that they are the not lineal descendants of the Settlor of the trust. Learned Counsel for the petitioners emphasized that in Clause (2) of the Wakf Deed, the Settlor had intended to appoint joint Mutawallis from the family line and no restriction was put on the founder Mutawallis to appoint their successors, even through female descendants.
24. I must appreciate that the learned judge of the Tribunal did not travel beyond the terms of the Trust Deed to decide the question of appointment of Mutawallis. I would also examine the findings of tribunal on the basis of various clauses incorporated in the trust deed. Clause (2) of the Deed appears to have been inserted only to make an interim arrangement on the death of either of the joint Mutawallis. This intention of the Settlor can be inferred from the words 'for the time being' used in Clause (2). However, Clause (5) of the Deed appears to be the main provision for appointing Mutawallis, if the founder Mutawallis die sans nominating their successors.
25. In the K.J. Aiyer's Judicial Dictionary (8th Edition, 1980), the phrase 'lineal descendant' has been defined as below:
The term includes all the descendants and is not restricted to male descendants alone; female claimants are also included.
Similarly, in the Chambers Dictionary (New Edition), the word 'lineal' has been defined as below:
Of or belonging to a line or lines, or to one dimension; composed of lines; in the direction of a line; in, of, or transmitted by, direct line of descent or legitimate descent.
26. Apparently, the dictionary meaning of the phrase' 'lineal descendant'' has not defined descendants through male or female line. However, the descendants should come from direct line, somehow indicating descendants through male successors. The learned Pre siding Officer of the Tribunal has observed that ordinarily it is understood that a married woman constitutes an independent family. In my considered opinion, the view taken by the learned Judge cannot be said to be totally misplaced. I approve the aforesaid view on the ground that when the phrase 'lineal de scendants' is construed in legal connotations, it has to be inferred that the person must be descendant through direct or right line with out any deviation as from father to son, etc. In one sense, descendants through female lines like mother to daughter and grand-daughter, etc. are also descendants through the direct line but these lines certainly deviate after the woman gets married to another family. Hence, these descendants cannot be termed to be lineal descendants in legal parlance.
27. The learned Judge of the Tribunal has also taken the assistance of the definition of 'lineal consanguinity' defined in Section 25 of the Indian Succession Act, 1925. Under this law the phrase 'lineal consanguinity' has been defined as below:
25. Lineal consanguinity--(I) Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct from the other, as between a man and his father, grandfather and great-grandfather and so upwards in the direct ascending line; or between a man and his son, grandson, great-grandson and so downwards in the descending line.
(2) to (3) *** *** ***
28. It is true that Part-IV of the Indian Succession Act, 1925 deals with consanguinity and under Section 23 of the said Act, Part-IV has not been made applicable to Muhammadans and also persons of few other faiths. However, in absence of any definition of lineal descendants in the Wakf Act, 1995 or any authoritative pronouncement in this regard under Muhammadan Law, the definition of lineal consanguinity given under the Indian Succession Act can also be taken into consideration in spirit. Hence, I do not find any material perversity in the impugned judgment holding that the petitioners are not lineal descendants of the Settlor.
29. While deciding the additional Issue No. (2), which was framed to examine whether there is any provision to appoint the joint Mutawallis, the learned Judge of the tribunal has held that there is no such scope within the provisions of the Deed of Trust. However, it appears to me that this view has been taken primarily on the basis of Clause (2) of the Wakf Deed. I have already noted earlier that Clause (2) was basically incorporated in the Deed to make a stop-gap arrangement. No such limitation was imposed in Clause (5) or at any other place in the Deed. Contrary to that, the Settlor himself had appointed Md. Shafi and Md. Kammoo Mia as Joint Mutawallis at the inception of the trust. From the citations of the trust deed, it also appears to me that the trust property also consisted of one part of the property owned by Md. Kammoo Mia. The respondent No. 2, Md. Sulaiman himself admitted in the cross-examination that trust property also includes the property of Md. Kammoo Mia. Similar admission is also found in the oral evidence of the Chief Executive Officer of the Wakf Board.
30. From these facts, it can be safely inferred that the Settlor had the intention to involve one person from the family of Md. Kammoo Mia in the management of the trust. Only this part of the findings of the learned Presiding Officer of the tribunal does not appear to be based on evidence on record.
31. Point No. (iii):
Rights of the petitioners for appointment as Mutawallis.
In view of my findings given in the preceding paragraphs, I hold that no doubt, the lineal descendants of second Mutawalli, namely, Md. Kammoo Mia were entitled to be considered to succeed the office of Joint Mutawalli. However, I find from the family pedigree that Md. Kammoo Mia is not survived by any son. His grand-son Md. Taiyab cannot be accepted as direct descendant since he is the grand-son through his daughter. Similarly, Md. Zakaria is also not the direct/lineal descendant of Md. Kammoo 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 the trust property.
32. In the result, I hold that the impugned judgment does not suffer from any material infirmity or illegality warranting interference by this Court. Consequently, both the revision petitions stand dismissed.