P L D 1960 Dacca 90 (PLP)

AKBAR, J.‑The dispute in this appeal relates to the appointment of a guardian Mutawalli of Itna Wakf Estate. Ijjatunnessa, wife of late Dewan Mohammad Azhar, executed a deed of wakf on 12th April 1903. It is alleged that one Rahimunnessa Bibi of Itna also executed a wakf of her properties on, the same date in identical terms. Both the wakfs which were for public and charitable purposes were called Itna Wakf Estate.

2. Dewan Abdul Alim, who acted as Naib Mutawalli during the lifetime of the wakfs, succeeded them as mutawalli. Under the wakf‑namahs, the elder son of Dewan Abdul Alim was to be the next mutawalli. By a deed executed on 22‑2‑52, Dewan Abdul Alim appointed his minor eldest son Dewan Abdur Rahim as his successor to the office of mutawalli on the following terms: . . . after me, my said eldest son Abdul Faiz Dewan Abdur Rahim shall act as the mutawalli in respect of the Wakf Estate and till such time as the said mutawalli attains his majority my brother Dewan Abdul Munaem shall act as the guardian of the said mutawalli Abdul‑ Faiz Dewan Abdur Rahim." On 19‑3‑53, Dewan Abdul Alim informed the Commissioner of Wakf About the above arrangement. On 6‑5‑56, Dewan Abdul Alim died leaving two sons, Abdur Rahim aged about 11 and Ubaidur Rahim aged about

5. On 20‑6‑56, the Wakf Commis sioner appointed Syed Abdul Awal, maternal uncle of Abdur Rahim, as ad interim guardian mutawalli. On 28‑8‑56, Dewan Abdul Monaem, paternal uncle of the minor, filed an application under the provisions of the Guardian and Wards Act before the District Judge, Mymensingh, for being appointed as guardian of the person and property of the said minor Abdur Rahim and the application was numbered as Act VIII Case No. 140 of 1956. On 10‑9‑56, he filed another application in the said Case No. 140 challenging the appointment of Syed Adul Awal as guardian mutawalli and prayed for being appointed as ad interim guardian or receiver of the wakf property during the pendency 'of the Act VIII case. On that date, the District Judge appointed Abdul Monaem as ad interim guardian of the person and property of the minor Abdur Rahim.

3. As the petitioner felt that he was entitled to get possession of the wakf estate on the strength of the above interim order, the learned Judge clarified the position on 8‑12‑56, as follows: "Be it noted that this Court only appointed an ad interim guardian of the person and property of the minor and did not appoint any new mutawalli. The minor will act through the guardian and manage the properties vested in him. The guardian is directed to maintain the status quo and shall not oust anybody." On 27‑3‑57, the District Judge dismissed the petition, dated 10‑9‑

56. In other words, Abdul Awal continued as ad interim mutawalli. On 20‑8‑57, the Act VIII‑case No. 140 was trans ferred to the Additional District Judge, Mymensingh. The Additional District Judge, who heard the case, passed the following order on 26‑8‑57: "The application is allowed in part on contest. The petitioner (Dewan Abdul Monaem) is appointed temporary mutawalli of the Wakf Estate specified in Schedule Ka to the application during minority of Abul Faiz Dewan Abdur Rahim. The petitioner's prayer for appointment as guardian of the person and personal properties of the three minors is rejected on contest. In the circumstances of this case, parties will bear their own costs of the case." Syed Abdul Awal, maternal uncle of the minor, and Syeda Aquefa Khanam, mother of the minor, are challenging in this appeal the propriety of the above order.

4. Mr. A. B. Mahmud Hossain, the learned Advocate for the appellants, has rightly contended that the learned Judge had no jurisdiction to appoint a guardian mutawalli on an application filed for appointment of a guardian of the person and property of the minor, Mr. De, the learned Advocate for the respondents, has also found it difficult to support the above order of the learned Judge. That the learned Judge realised the difficulty of appoint ing a temporary mutawalli in the absence of any application for that purpose would appear from his following observations: "But the question is if this appointment can be made in the present case when an application under the G. and W. Act has been made in prescribed form for appointment of guardian of the person and property of the minor and of the minor mutawalli. The questions of form and procedure are of far less importance than the interests of a minor mutawalli and of a public wakf. When a Court having jurisdiction, in other words, the proper forum is approached, mere technicalities about form and phraseology should not be allowed to deflect attention from real substance. When the Court has jurisdiction to grant a relief, the Court should not refuse to exercise that jurisdiction for the benefit of a minor and a public charitable and religious trust unless there is any real obstacle in the way of granting the relief. A technical objection can be effective when it has sensible point in it." He however overlooked the fact that he as Additional District Judge was dealing with an Act‑VIII case which had been transferred to him by the District Judge. No application for appointment of a mutawalli was transferred to him. He however thought that he as a Kazi was entitled to appoint a temporary mutawalli suo motu. This he was not entitled to do. Section 8 of the East Bengal Civil Courts Act, 1887, is as follows: "8.‑‑(1) When the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, the Provincial Government may, having consulted the High Court * * *, appoint such Additional Judges as may be requisite. (2) Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them, and, in the discharge of those functions, they shall exercise the same powers as the District Judge."

5. From the above, it is clear that the Additional District Judge is capable of discharging any of the functions of a District Judge which the District Judge might assign to him. In other words, when a case is transferred to him, he can then exercise the functions of the District Judge in dealing with that case. Further more, an Additional District Judge is not empowered by the Local Government to receive direct such an application for appointment of a mutawalli. It is only the "Principal Civil Court", i.e., the District Judge, can entertain such an application for appointment of a mutawalli. If there was such an application, and had the District Judge assigned the said application to the Additional District Judge, then he could have had jurisdiction in a proper case to appoint a mutawalli, either temporarily or permanently. It is, therefore, clear that the Additional District Judge had no jurisdiction to exercise the power of a District Judge suo motu. In other words, he could not act as a Kazi suo motu [see Mahomed Musa and another v. Abdul Hassan Khan and others (18 C W N 612)].

6. The decisions reported in 59 C L J 157, 48 C W N 465 and A I R 1945 All. 261, on which the learned. Judge has relied, have no application here. In all those cases, the District Judge as a Kazi appointed a mutawalli.

7. No doubt the "Principal Civil Court", i.e., the District Judge, can appoint a mutawalli of a public wakf in a proper case. In the case of Mahomed Ismail Ariff v. Ahmed Moola Dawood (43 I A 127), their Lordships of the Privy Council observed. "The Mussalman Law, like the English Law, draws a wide distinction between public and private trusts. Generally speaking, in case of a 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 the objects of the beneficiation; 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 interests of the general body of the public for whose benefit the trust is created." In the case of Mahomedally Adamji Peerbhoy and others v. Akberally Abdul Hussain Adamji Peerbhoy and others (59 C L J 133), the Judicial Committee agreed with the above observations in Ismail Ariff's case. 8. 1n Abdul Alim Abed and another v. Mst. Abir Jan Bibi and another (A I R 1928 Cal. 368), the Couct observed: "The practice of ipv9kiivg the power of a District Judge as a Kazi in connection with matters of public and religious trusts under the Mahomedan Law has become general and it cannot now be doubted that, in a proper case, the Judge should exercise the powers which he does possess." Suhrawardy, J., in the above case at page 370, observed: " . . Where there is no mutawalli, the Court has power to appoint a mutawalli in respect of a wakf. Under the Mahomedan Law, the administration of a religious and public trust is vested in the Kazi and it seems to me that it is the duty of the Kazi, when he finds, as in the present case, that there is no one to administer the trust, to see that it is properly administered, and, for that purpose, it is within his competency and it is proper that he should appoint a trustee to manage the trust property." In Bibi Zohra v. Bibi Habibunnessa (A I R 1940 Pat. 9), the Court observed: " under the Mahomedan Law, the Kazi has power to appoint a mutawalli when a vacancy occurs and there is none to take office under the terms of a wakf or when the mutawalli‑ship devolves under the deed of wakf upon a minor." See also in this connection Mohiuddin Chowdhury v. Aminuddin Chowdhury (A I R 1924 Cal. 441), Elahi Bakhsh and others v. Mohammed Ghaus (A I R 1933 Lah. 27), Amblavana Thimbiram v. Vageesam Pillai and others (A I R 1930 Mad. 226) and Mohammad Ali Khan v. Ahmed Ali Khan and others (A I R 1945 All. 261).

9. It is thus abundantly clear that the District Judge as the "Principal Civil Court" of original jurisdiction has, by virtue of his powers as a Kazi, a general, power of appointing a mutawalli, when there is a vacancy in the office, in a summary proceeding.

10. I might here refer to one point raised by Mr. Mahmud Hossain, the learned Advocate for the appellants, lest it should be thought that I overlooked it. Mr. Mahmud Hossain has argued that, in the instant case; even the District Judge has no power to appoint a mutawalli in a summary proceeding because the Wakf Commissioner has already appointed a mutawalli.

11. It is true that the removal of a mutawalli in office can only be done by means of a suit properly instituted in the Civil Court. Furthermore, if the wakf be of a public, religious or charitable nature, the suit would lie either under section 14 of the Religious Endowments Act or under section 92 of the Civil Procedure Code. Mr. Mahmud Hossain however overlooks the fact that, in the present case, Abdul Awal was appointed an ad interim mutawalli by the Wakf Commissioner. This was apparently made under section 40 of the Bengal Wakf Act. While dealing with the above section, the Court, in Commissioner of Wakfs, West Bengal v. Hazrat Syed Shah Mustarshid Ali Al -Quadari and others (59 C W N 436), observed at page 441: "The object of the Wakf Act is essentially a practical object which is proper administration of wakf properties and section 40 is directed at providing means for the removal of one possible difficulty in the way of a continuously proper administration. The difficulty contemplated is a temporary gap in the succession of mutawallis caused by the absence of a mutawalli entitled to the office in law or a vacancy in the office in fact owing to the rightful mutawalli not being available or no one being available with such a clear title that the Commissioner can accept him on his own responsibility. In a case, where the difficulty arises in one or other of these forms, the administration of the wakf is in jeopardy and section 40 empowers the Board to avert the danger to the proper administration of the wakf by taking a temporary measure of an emergent character and providing an interim mutawalli . . . . . . . ." The Court again observes at page 443: "Again, some persons, otherwise entitled to the office, may be a minor or a lunatic or the question as to what is the rule of succession, or who is entitled to succeed may require an inquiry and decision, so that no immediate appointment can be made and, so far as the actual occupation of the office of a mutawalli is concerned, there is an impediment. In each of the cases I have instanced, there is, to my mind, an impediment to the appointment of a mutawalli, an impediment to the appointing authority, because it cannot proceed straightaway to make an appointment and a impediment to the Board, because it cannot find anyone at the time whose name it can register as the succeeding mutawalli and whose occupation of the office it can recognise. Judged by these principles, it appears to me that when a number of persons are claiming the office of a mutawalli and the claims are such that they require to be adjudged by a competent authority before an appointment can be made or the rightful mutawalli ascertained, there is a clear case where it may properly appear to the Board that there is an impediment to the appointment of a mutawalli." We respectfully agree with the above observations. The very order of the Commissioner shows that this appointment was made as a stopgap arrangement. Hence the appointment of an interim mutawalli by a Wakf Commissioner can be no bar to the exercise of the power by the District Judge to fill up a vacancy and this he can do in a summary proceeding. Furthermore, neither section 92 of the Civil Procedure Code nor section 14 of the Religious Endowments Act would seem to cover the present case. We are, therefore, of opinion that the District Judge is entitled to exercise his power in a summary proceeding to appoint a guardian mutawalli during the minority of Mutawalli Abdur Rahim. The fact, however, remains that the Additional District Judge was not entitled to exercise the said power.

12. For the reasons stated above, this appeal is allowed ; the order of the learned Additional District Judge appointing Dewan Abdul Munaem as temporary mutawalli is set aside. The parties will bear their own costs of the appeal.

13. Before parting with this case, we would like to observe that this public wakf has a very substantial income. It is needless to say that the fight between the two uncles, Abdul Awal and Abdul Munaem, over the guardian mutawalli‑ship is detrimental to the interests of the wakf. The Commissioner of Wakfa is a close relation of the parties. It appears from the record that he is not on good terms with Abdul Munaem. This is also borne out by the fact that he has not only attacked the genuineness of the registered deed, dated 22‑2‑1952, by which Dewan Abdul Alim appointed Dewan Abdul Munaem as ad interim mutawalli but has also challenged the power of Dewan Abdul Alim to make such an appointment. He also pleads in his affidavit‑in‑opposition for continuance of Abdul Awal as ad interim mutawalli. Here we may point out that Abdul Alim after executing the aforesaid deed informed the Commissioner of the said fact. Thereafter the Wakf Commissioner ordered Munaem to render accounts of the wakf. As Abdul Alim was alive, Munaem did not comply with the said order. The Commissioner after the death of Abdul Alim appointed Abdul Awal an interim mutawalli. This appoint ment of a person who permanently resides in the district of Sylhet has been seriously criticised before us. It will suffice to say that there is some substance in this criticism. At one stage, the parties were agreeable to our suggestion that an independent person should act as the guardian mutawalli of the wakf during the minority of the present mutawalli and also submitted names of certain persons. They however could not agree upon any one mentioned in their respective lists. We think that a competent person, preferably a retired Government officer, should be appointed to act as mutawalli during the minority of the present mutawalli. We hope the District Judge as a Kazi will take necessary action, either on an application or suo motu, for proper administration and management of this public wakf.

14. A copy of this judgment should be sent to the District Judge for such action as he may deem fit and proper. KHAN, J.‑I agree. K. B. A. /A. H. Appeal allowed.