Md. Haider vs Nuran Ahmed

Chittatosh Mookerjee, J.—Nuran Ahmed, who is the opposite party No. 1 in this Rule, brought a suit against the present Petitioner and others as Defendants in the Fourth Court of the Munsif at Alipore inter alia for a decree to have the properties of a private wakf, known as Badan Bibi Kalimuddin Sarkar Wakf Estate, ascertained and administered, for rendition of accounts by the Defendant No. 1 (the present Petitioner), for removal of the Defendant No. 1 from the managing mutwalliship and for appointment of administrator. The suit was valued at Rs. 500. The Defendant No. 1 (the present Petitioner) filed a written statement Contesting the said suit.

The learned Munsif, Fourth Court, Alipore, by his judgment dated August 27, 1974, held that he had no jurisdiction to try the suit, which was inter alia for removal of the Defendant No. 1 from managing mutwalliship. According to the learned Munsif, the learned District judge exercising powers of Kazi alone was competent to try the suit. He directed return of the plaint. The learned Munsif kept the remaining issue in the suit open. The Plaintiff opposite party No. 1 being aggrieved by the said order preferred an appeal. The learned Additional District Judge, Fourth Court, Alipore, by his ex parte judgment dated May 5, 1975, reversed the said decision and set aside the order of the learned Munsif for return of the plaint. He held that a regular suit lies for removal of a mutwalli. The learned Additional District Judge further held that, in view of Section 15 of the Code of Civil Procedure, the learned Munsif was competent to try the suit in question which was valued at Rs. 500. The learned Additional District Judge remanded the suit for decision on other issues and for final disposal of the suit.

The Plaintiff Petitioner being aggrieved by the aforesaid appellate order has obtained this Rule. The revisional application was filed after the expiry of the prescribed period. Therefore, the Plaintiff Petitioner has prayed that the delay of about 51 days in moving this Court may be condoned. The Petitioner has contended that he was not served with notice of the aforesaid Misc. Appeal which was allowed ex parte by the learned Additional District Judge. As he had no knowledge of the appellate order until the date mentioned in his revisional application, he could not file the said revisional application in time. The Rule raises questions about the jurisdiction of the learned Munsif to entertain the aforesaid suit inter alia for removal of a mutwalli. I propose first to examine the said jurisdictional question and then consider whether the Petitioner was prevented by sufficient cause from moving this Court in time against the appellate order.

At the outset it may be pointed out that the Plaintiff opposite party No. 1 brought the aforesaid suit not only for removal of the Plaintiff Petitioner from the office of managing mutwalliship of the aforesaid wakf but also for administration of the properties and rendition of accounts by the Defendant No. 1. Mr. Yusuf, learned Advocate for the Petitioner, did not Contend before me that so far as these prayers for administration of the wakf estate and for accounts were concerned, the suit which was valued at Rs. 500 was not triable by the learned Munsif. The only contention of Mr. Yusuf is that the District Judge, who alone has the powers of a Kazi, can remove a mutwalli of a wakf estate. Therefore, according to Mr. Yusuf, a suit for removal of a mutwalli can be brought only in the Court of the District Judge irrespective of the valuation of such suit.

The Mohammedan Law recognized the power of the Kazi to remove a mutwalli of a wakf estate, both public and private. Mulla on Mohammedan Law (17th ed., para. 213, p. 215) observes that a mutwalli may be removed by the Court on proof of misfeasance or breach of trust or if he is otherwise unfit to hold office. See also Tyabji''s Muslim Law (4th ed., para. 558, pp. 622-24). The question is whether the said power of the Kazi to remove a mutwalli has devolved solely upon the District Judge as the principal civil Court of original jurisdiction or whether the civil Courts of different grades can entertain such suits for removal of mutwalli according to the valuation of the suits.

The District Judge of a district can exercise his jurisdiction under Sections 14 and 18 of the Religious Endowments Act, 1853, in cases of misfeasance, breach of trust or neglect of duty committed by trustees, managers or superintendents etc. of public religious trusts. Section 92 of the CPC provides for institution of suits in the principal civil Court of original jurisdiction or in any other empowered in this behalf for obtaining all or any of the reliefs specified in Clauses. (a) to (h) of Sub-section (1) of Section 92 in respect of public trusts.

But in the present case, the wakf in question is a private one and accordingly, Section 14 of the Religious Endowment Act and Section 92 of the CPC do not apply.

Majority of the reported decisions of this Court are in respect of public wakfs and the earlier reported decisions do not further pronounce whether this power of the removal of a mutwalli now vested upon the District Judge or upon the civil Courts of the different grades. Ameer Ali and Pratt JJ. in Shama Churn Roy and Others Vs. Abdul Kabeer and Others while dealing with a case concerning a public wakf held that the civil Court of superior jurisdiction in the district was vested, generally speaking, with the powers exercised by a Kazi and therefore, a sanction of the Judge was essential for alienation of a wakf property. Ameer Ali J. delivering the opinion of the Judicial Committee in Mahomed Ismail Ariff v. Ahmed Molla Dawood ILR (1916) 43 Cal. 1085 : L.R. 43 L.A. 127 while dealing with the extent of Courts'' power regarding control and administration of a Sunni Jama Masjid dedicated to the worship of the Sunni community of Rangoon had observed as follows:

The Mussulman law like the English law draws a wide discretion between public and private trusts. Generally speaking, in the case of wakf or trust created for specific individuals or a determinate body of individuals the Kazi, whose place in the British Indian system is taken by the Civil Court, has in carrying the trust into execution to give effect so far as possible to the expressed wishes of the founder. With respect, however, to public religious or charitable trusts, of which a public mosque is a common and well-known example, the Kazi�s discretion is very wide. He may not depart from the intentions of the founder or from any rule fixed by him as to the object of the benefaction, but as regards management which must be governed by circumstances he has complete discretion. He may defer to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but his primary duty is to consider the interest of the general body of the public for whose benefit the trust is created. He may in his judicial discretion vary any rule of management which he may find either not practicable or not in the best interest of the institution.

It is significant that Ameer Ali J. in Mahomad Ismail Ariffs case Supra had used the expression civil Court'' in designating the Court winch had assumed Kazi''s powers in respect of wakfs. No doubt, Sir Asutosn Mookerjee and Beach croft JJ. in Alimannessa Bibi v. Abdul Spbhan ILR (1916) 43 Cal. 467 had raised a doubt about the extent of civil Courts in relation to private wakf when they observed as follows:

It follows, accordingly, that a Subordinate Judge, who has not been expressly authorised by the Government to exercise functions in connection with the administrations of wakfs, is not competent to act in that behalf. Whether a District Judge has implied authority to exercise the functions performed by a Qadi under the Mahommedan Law is doubtful. In respect of wakfs which may be described as trusts created for public purposes of a religious nature within the meaning of Sub-section (1) of Section 92 of the Code of Civil Procedure, 1908, the District Judge may be assumed to have been authorised to discharge the functions of a Qadi. The real difficulty arises in the case of private wakfs; it is desirable that to cover such cases the local Government should authorise either District Judge or Subordinate Judge or even Judicial Officers of a lower grade, if it be thought desirable, to exercise the function of a Qadi. When authority has been so conferred, a question may arise whether the assistance of the Court is to be invoked by a suit or by an application.

But these observations in Atimannessa Bibi v. Abdul Sobhan ILR (1916) 43 Cal. 467 were held to be obiter by later reported decisions. Jack and Nag JJ. in Mafizuddin v. Rahema Bibi Supra referred to this decision but preferred to follow earlier decision in Skama Churan Ray''s case Supra. The learned Judges in Mafizuddin Mandal Vs. Rahima. Bibi, did not also finally decide when a suit for removal of a mutwalli should be filed in the District Judge''s Court or in the Court of lowest-grade competent to try such suit. Mitter and Sharpe JJ. in Khan Sahib Abdus Salam Chaudhury v. Hazi Abdul Aziz (Supra) that the above observations in Atimannessa Bibi v. Abdul Sobhan Supra regarding the functions of a Kazi in relation to private wakfs were obiter. The learned Judges further held that Ameer Ali J. in Mahomed Ismail Ariff v. Ahmed Molla Dawood Supra had put it beyond-doubt that the civil Courts in British India occupied the position of Kazi in the administration of wakfs and no distinction was drawn by the Privy Council between one Court and another or between the functions of the Chief Kazi and of other Kazis. Mitter and Sharpe JJ. in Khan Sahib Abdus Salam Chaudhury v. Hazi Abdul Aziz 48 C.W.N. 465 did not consider the further point whether a Subordinate Judge could perform the judicial functions of a Kazi. Khundkar and Biswas JJ. in Mahammed Abdul Gani Fakir v. Musammat Kulsan Nessa Bibi again considered the said question in a second appeal arising out of a suit for removal of a mutwalli of a private wakf which was filed in the Subordinate Judges Court at Bogra. The Division Bench held that the Subordinate Judge was competent to entertain the said suit. Khundkar J. in his judgment held that after abolition of the Hindu and Mohammedan Law Officers by Act XI of 1864, their functions were carried over to the civil Courts which thereupon became vested with them. The limits of the jurisdiction of those Courts in the matter of suits relating to wakfs being clearly matters of procedure were, in the absence of any enactment to the contrary, left to be determined by the rules of the Code of Civil Procedure. The argument that suits in respect of wakfs of a private character must also be brought in the District Judge''s Court and no other was rejected. Khundkar J. referred to the observations of Sir Asutosh Mookerjee J. in Nimai Chand Addya v. Golam Hossain ILR 37 Cal. 179 that the British system of administration of justice differs in so many essential respects from the Mahommedan system that any analogy between the position of a Qadi and that of a District Judge would be more or less farfetched and therefore, a sanction by the Subordinate Judge for mortgage of wakf property was as effectual as a sanction by the District Judge. Biswas J. in his concurring judgment in 49 CWN 27 (Privy Council) also held that after the abolition of Kazis the functions of the Kazis have been transferred collectively to British Indian Courts. Therefore, the question as to the proper Court in which suits for the administration of wakfs, public or private, will have to be instituted, must be determined according to the procedural law now in force in British India. That being so, there can be no doubt that the learned Subordinate Judge was fully competent to entertain the present suit for removal of the mutwaths of a private wakf. The Division Bench on Mahammed Abdul Gani fakir v. Musammat Kulsan Nessa Bibi Supra agreed with the views of Mitter and Sharpe JJ. in Khan Sahib Abdus Salam Chaudhury v. Hazi Abdul Aziz (Supra) that the above quoted observations in Atimannessa Bibi v. Abdul Sobhan (Supra) was obiter. The Division Bench in Mohammed Abdul Gani Fakir v. Musammat Kulsan Nessa Bibi (Supra) has already decided the question mooted in the present case before me. The said decision is binding upon me. Therefore, I respectfully follow this decision.

I hold that the lower appellate Court correctly allowed the appeal of the Plaintiff and remanded the suit for fresh decision on merits. I uphold the decision of the lower appellate Court. On merits the Rule should fail. Therefore, it is not necessary to consider whether the delay in preferring the revisional application should be condoned as prayed for by the Petitioner.

In the above view, I discharge this Rule. There will be mo order as to costs. Let the records be sent down immediately.