P L D 1967 Dacca 216 (PLP)

HASAN, J.‑This appeal is at the instance of the defendant No.

1. It is an admitted fact that one Moqbul Ali Choudhury, the grandfather of the plaintiff and defendant No. 2 created wakf in respect of some properties on 27th July 1912, vide Exh. 1 appointing the Wakif the first Mutawalli and on his death his two sons, namely, Mofzal Ahmed Choudhury and Jabal Ahmed Choudhury, father of the plaintiff and defendant No. 2, joint Mutawallis and on the death of the sons,' his wife and on the death of his wife, his grandsons by his two sons Jabal Ahmad Choudhury and Mofzal Ahmed Choudhury. Thereafter another Wakf was. created by Jabal Ahmed, Bide Exh, 1(a) in respect of some properties. By the document Jabal's lather, namely, Maqbul Ali Choudhury was appointed the first Mutawalli who was to be succeeded as indicated in Exh.

1. Mofzal predeceased Maqbul Ali, Choudhury and after the death of Maqbul Ali Choudury, his son Jabal Ahmed became the Mutawalli in terms of the wakf deed. During his Mutawalli-ship his mother; namely, the wife of Maqbul Ali Choudhury died that is predeceased her son Jabal Ahmed. Consequently on the death of Jabal Ahmed on the 17th November 1947, the plaintiff and the defendant No. 2 became the joint Mutawallis in terms of the Wakfnama. But as they were minor at the time when their father died, some interested persons intervened claiming to be the proper persons to be appointed as Mutawallis during the minority of the plaintiff and defendant No. 2 and accordingly Civil Suit No. 3 of 1948 was started at the instance of the defendant No. 1 as plaintiff. In that suit one Hafez Md. Abdul Karim, Dalilur Rahman and 5 otters were made defendants. Ultimately on the 27th August 1949, the suit was disposed of with the following findings: "I feel no hesitation in coming to this conclusion that of three candidates plaintiff is the most desirable person for being appointed as Mutawalli during the minority of the sons of Jabal Ahmed. Hence that plaintiff be appointed as Mutawalli of Maqbul Chowdhury's Estate on furnising security to the extent of Rs.10,

000. He will meet the maintenance expenses of the minors and also submit account of receipt and disbursements." The plaintiff, after attaining majority approached the Commissioner of Wakfs as well as the District Judge. It appears that the Commissioner of Wakf was in some disadvantageous position, as though under the provision of the Bengal Wakf Act he was the proper person to look to the grievances of the plaintiff but as there was an order passed already by the District Judge on the 27th August 1949 in Civil Suit No. 3 of 1948, he referred the matter to the District Judge for proper remedies. An application was also filed before the District Judge by the plaintiff to remove the defendant No. 1 from the possession of the Wakf properties and put the plaintiff in possession thereof as according to him by that time he had attained majority, as in accordance with the terms of the Wakfnama the plaintiff was the Mutawalli and also in accordance with the order passed in Civil Suit No. 3 of 1918 on 27th August 1949, he was entitled to be put to possession of the Wakf properties. It was most unfortunate for the plaintiff inasmuch as the learned District Judge could not appreciate the order passed on the 27th August 1949 and accordingly rejected the application on the view that he could not entertain the application. Being frustrated both before the Commissioner of Wakf and the District Judge in his attempts, the plaintiff as a last resort instituted the suit giving rise to this appeal on the 23rd January 1961 for the following reliefs: "(a) Let it be declared that the plaintiff is the Mutawalli of Wakf Estates of late Maqbul Ali Choudhury and Mofzal Ahmed Chowdhury and be put into charge of the Estates as such. (b) Let the defendant be removed from the post of the Mutawalli and be directed to render accounts from 27‑8‑49 till removal. (c) Let a decree be passed for the amount found due from the defendant on plaintiff paying the court‑fees after ascertain ment of the amount. (d) Let the cost of the suit be decreed against the defendant. (e) Let such other relief as is appropriate be given to the plaintiff." The suit was contested by the defendant No. 1 on the ground that the plaintiff was neither fit nor had attained majority to be put in charge of the Wakf properties and that the plaintiff had mismanaged and sold some properties appertaining to the Wakf Estates. It was also contended that the defendant No. 2 another son of Jabal Ahmed was the fit person to be the Mutawalli. Defendant No. 2 did not support defendant No.

1. He claimed to be a joint Mutawalli along with the plaintiff. This prayer was not opposed by the plaintiff though at some stage in the plaint, it was stated that the defendant No. 2 was a minor and was not fit to be appointed a joint Mutawalli. The following issues were framed and tried: "(1) Is the suit maintainable? (2) Is the suit bad for defect of parties? (3) Is the plaintiff entitled to the declarations prayed for? (4) Is the defendant liable to be removed from Mutawalli-ship and to render accounts? (5) Is the plaintiff entitled to recovery any amount from the defendant? If so, how much? (6) To what relief, if any, is the plaintiff entitled? (7) Are the court‑fees paid sufficient. (8) Is the defendant No. 2 entitled to the Mutawalli-ship of the Wakf Estates in preference to the plaintiff." The parties led evidence in support of their respective cases. The learned Additional District Judge, Chittagong, on consideration of the evidence as of the evidence was of the view that the suit as framed was maintainable and the plaintiff was entitled to get the reliefs claimed. He accordingly appointed the plaintiff Mustafizur Rahman and defendant No. 2, Mahbubar Rahman Choudhury as joint Mutawallis. He also declared them as joint Mutawallis of the Wakf Estate of Maqbul Ali Chowdhury and Mofzal Ahmed Choudhury by removing the defendant No. 1 Sultan Ahmed Chowdhury from the post of the Mutawalli-ship of the said Wakf Estates. He also directed the defendant No. 1 to handover the charge of Mutawalli-ship to the plaintiff and defendant No. 2 together with all documents and papers relating to the estates and put them in charge of the Wakf Estates within 10 days from passing of the order. Defendant No. 1 was further directed to render accounts to the plaintiff and defendant No. 2 from the time of his appointment, that is to say, from the 27th August, 1949 till the date of making over charge. Defendant No, 1 was further directed to submit all copies of accounts from the 27th August 1949 till the date of making over charge to the Court for the satisfaction of the Court within one month from the passing of the order. It is further seen that the defendant No. 1 was given opportunity to apply to the District Judge for transferring the accounts which he said to' have submitted to the District Judge in Suit No. 3 of 1948 to his Court. As against that judgment and decree, the defendant No. 1 has preferred the appeal. Four points have been argued by the learned Advocate for the appellants: (1) for that the learned Additional District Judge has lost his power with regard to non‑contentious matter, namely, removal of Mutawalli from the Wakf property conferred on the District Judge under the Muhammadan Law as Kazi with the promulgation of the Bengal Wakf Act, 1934; (2) for that the District Judge has no power to remove any Mutawalli under the new Ordinance I of 1962 and the Bengal Wakf Act, 1934; (3) for that the judgment is based, on no evidence and (4) for that the judgment is based on inadmissible evidence. We accordingly propose to deal with the grounds seriatim. In support of the first ground it has been argued that in view of the provisions in the Mussalman Wakf Act, 1923, though a District Judge could have appointed a Mutawalli to the Wakf Estate but that having been taken away by the Bengal Wakf Act, 1934, a District Judge or an Additional District Judge has no authority to appoint or remove any Mutawalli. In this connection he has also referred to the Ordinance I of 1962. From section 3 of the Mussalman Wakf Act, 1923, we find the following provision: By subsection (1) every Mutawalli was required to "furnish to the Court within the local limits of whose jurisdiction the property of the Wakf of which he is the Mutawalli is situated or to any one of two or more. such Courts, a statement containing the following particulars, namely:‑ "(a) a description of the Wakf property sufficient for the identification thereof; (b) the gross annual income from such property; (c) the gross amount of such income which has been collected during the five years proceeding the date on which the statement is furnished, or of the period which has elapsed since the creation of the Wakf, whichever period is shorter; (d) the amount of the Government revenue and cesses and all rents, annually payable in respect of the Wakf property; (e) an estimate of the expenses annually incurred in the realisation of the income of the wakf property, based on such details as are available of any such expenses incurred within the period to which the particulars under clause (c) relates; (f) the amount set apart under the wakf for‑ (i) the salary of the Mutawalli and allowances to individuals; (ii) purely religious purposes; (iii) 'charitable purposes; (iv) any other purposes; and (g) any other particulars which may be prescribed." and it is also seen that the: power that the District Judge as a Kazi under the General Muhammadan. Law could exercise to appoint any person a Mutawalli when there was a contingency or when the Mutawalli was incompetent for the purpose of management on various grounds was taken away from the District Judge and was vested in the Board or the Commissioner of the Wakf by the Bengal Wakf Act, 1934. It is apparent from section 82 of the said Act. Section 82 of the Bengal Wakf Act, 1934, runs: "The Mussalman Wakf Act, 1923, in its application to Bengal is hereby repealed." Section 27 of the Bengal Wakf Act enumerates functions, general powers and duties of the Commissioner of Wakf and the Board. Section 40 of the said Act provides: "In the case of any wakf of which there is no Mutawalli or where there appears to the Board to be an impediment to the appointment of a Mutawalli the Board, subject to any order of a competent Court, may appoint for such period as it thinks fit a person to act as Mutawalli." Section 57 provides for penalties in case the Mutawalli fails to comply with the requirements as per section 57 and according to the provision of section 58. "Notwithstanding anything contained in any other law a Mutawalli may be liable to removal by a suit under sub section (1) of section 73 on the ground that he has been fined more than once under section 57." We are not concerned with all these provisions as there is no contingency for appointment of a Mutawalli, nor there is no Mutawalli; nor there is an impediment to the appointment of a Mutawalli in this case. We are to see whether the instant suit is maintainable. In order to oust the jurisdiction, Mr. A2:iz has at length argued on section 73 of the Bengal Wakf Act. Section 73 runs:‑ "(1) A suit to obtain any of the reliefs mentioned in section 14 of the Religious Endowments Act, 1863 and in section 92 of the Code of Civil Procedure, 1908, relating to any wakf may, notwithstanding anything to the contrary contained in those Acts, be instituted by the Commissioner without obtaining the leave or consent referred to in those Acts. (2) No suit to obtain any of the reliefs referred to in sub section (1) relating to a wakf shall be instituted by any person or authority other than the Commissioner without the consent in writing of the Commissioner." From the above it appears that in order to obtain any of the reliefs mentioned in section 14 of the Religious Endowments Act, 1863 and section 92 of the Code of Civil Procedure, 1908, relating to any wakf, a suit may, notwithstanding anything to the contrary in those Acts, be instituted by the Commissioner without obtaining leave or consent referred to in those Acts. From sub section (2) it appears that any person or authority other than the Commissioner .may also institute a suit to obtain any of the reliefs referred to in subsection (1) relating to a wakf with the consent in writing of .the Commissioner, It is argued relying on this provision of section 73 of the Bengal Wakf Act that as this wakf in question is a public wakf, the plaintiff was to obtain permission from the Advocate- General, as provided by section 92 of the Code of Civil Procedure and also permission in writing from the Commissioner of Wakf. But as in the present case the plaintiff did not obtain any permission previous to the institution of the suit, the suit is not entertainable. We are unable to accept this contention. This suit is not for appointment of Mutawalli but for a declaration that the plaintiff and the defendant No. 2 are the properly constituted Mutawallis under the wakf deeds, vide Exhs. 1 and 1(a). Further more, the wakfs, in question are not public ones. They are nothing but wakfs for making provision for the descendants of the Wakifs, that is, the Wakfs are Wakf‑al‑al‑aulad. The charity which has been mentioned in these deeds, is very nominal and insignificant, rather it is a colourable one but as there has been a provision that on the extinction of the line of the Wakifs, the property will ultimately vest in God, the wakfs are valid Wakf‑al‑al‑aulad. Furthermore the Commissioner of ' Wakfs as well as the District Judge denied to take any steps to redress the grievance of the plaintiff. It may be also observed that the suit is not for the removal of any Mutawalli. The defendant No. 1 cannot and could not be a Mutawalli under the wakf deeds. He stepped into the picture when the plaintiff and the defendant No. 2 were minors and his appointment as per Exh. D was only to continue up to the minority of the plaintiff and defendant No.

2. We may quote the relevant portion of the judgment in Civil Suit No. 3 of 1948, though it may be a repetition: "Plaintiff is the most desirable person for being appointed as Mutawalli during the minority of the sons of Jabal Ahmed." So the appointment by the District Judge was not for an indefinite period but he was appointed to manage the properties of the Wakf Estates only during the minority of the sons and Jabal Ahmed, namely, the plaintiff and the defendant No. 2: In the suit none of reliefs sought for is as contemplated in section 14 of the Religious Endowments Act and section 92 of the Code of Civil Procedure. Hence in our opinion, section 73 of the Bengal Wakf Act, 1934, is no bar to the institution of the suit. It has been further argued with reference to Ordinance I of 1962 that by this Ordinance a provision has been made disentitling the District Judge to appoint or dismiss pr remove any Mutawalli. When pointed out that the suit was filed on 23rd January 1961 and whereas the Ordinance came into force in June 1962, it was submitted that the above provision would not apply but as the said Ordinance deals with a procedural matter it would take retrospectively and accordingly unless permission of the Administrator of Wakf is taken in writing the suit cannot be entertained. We are unable to accept this contention. The suit is instituted as in accordance with the law then prevalent. Assuming, that the Ordinance is applicable e to the instant case, merely because on a subsequent date a procedure is challenged, a suit properly instituted cannot be non‑suited. Further a specific provision has been made in section 94 (2)(b) providing: "Notwithstanding the repeal of the Bengal Wakf Act, 1934,‑ (a) any rules made under the said Act, in so far as they are not inconsistent with the provisions of this Ordinance, shall be deemed to have been made under the responding provisions of this Ordinance until they are modified or rescinded; and (b) any order passed or appointment made or anything done or any action taken or any proceedings commenced or deemed to have been passed, made, done taken or commenced under any of the provisions of the said Act, shall continue in force, so far as they are not consistent with the provisions of this Ordinance and shall be deemed to have been passed, made, done, taken or commenced, as the case may be, under the corresponding provisions of this Ordinance." In this connection next ground urged is that the Commissioner of Wakf should have been made a party to the proceeding and if not made; at least a notice should have been issued and served on the Commissioner of Wakf. From Order No. 17 dated 13th September 1961, it appears that the plaintiff filed a petition praying for service of notice of the suit upon the Commissioner of Wakfs. A copy of that petition was also served upon the pleader of the defendant. That prayer for service of notice was allowed and it was directed that the notice to the Commissioner of ' Wakf be served. From Order No. 19, dated 4th October 1961, it appears that the notice upon the Commissioner of Wakf was duly served and Memo. No. 6519 dated 23‑9‑61 from the Commissioner of Wakf was received. So we do not also find any substance in this contention. As to the contention that the District Judge had power only in respect of contentious matter and not in respect of non -contentious matter, in support it has been argued that the defendant No. 1 was appointed Mutawalli on compromise. As contended on the general provision of law, we are unable to accept the submission made. In our opinion; if the contentious matters are entertainable then the non‑contentious matters are also entertainable by the District Judge, provided there is jurisdiction. Now coming to the submission as to fact, it is seen that the appointment of defendant No. 1 by the District Judge in Civil Suit No. 3 of 1948 on 27th August 1949, was a contentious one. It appears from the judgment that several persons, at least two persons, challenged the prayer of the plaintiff in that suit and thereafter on consideration of the materials he was found to be a suitable person and ‑accordingly appointed Mutawalli during the minority of the sons of Jabal Ahmed. So both on facts and on law we do not find any substance in the aforesaid contention. The second ground is that the District Judge has no power to remove the Mutawalli under the new Ordinance and Bengal Wakf Act, 1934. The simple answer is that defendant No. 1 is not a Mutawalli. His Mutawalli-ship or management ceased the moment the plaintiff and the defendant No. 2 attained -majority and furthermore, it may be pointed out that according to the submission of the learned Advocate Mr. Aziz, the District Judge has no authority to appoint and remove any Mutawalli in view of the provisions of the Bengal Wakf Act, 1934, we do fail to understand why the same provisions could and should not apply to the appointment of the defendant No. 1 as Mutawalli. It appears from the Bengal Wakf Act, 1934, that the District Judge had no authority to appoint the defendant No. 1 as a Mutawalli. So his appointment not being in accordance with law or in terms of the Wakfnama cannot be an appointment of a Mutawalli as contemplated in the Act. So we do not find any substance in this contention. Before we go to the other two grounds, another new ground was raised in course of the argument to which Mr. Choudhury, the learned Advocate for the respondents vehemently took objection but that point being a point of law and a nice and C only the relevant one, we allowed. Mr. Aziz to argue at length. The point that was not only made out at the trial but also not taken in the written statement, as well as in the memo. of appeal to this Court is that in view of the provisions of section 15 of .the Code of , Civil Procedure, the District Judge or the Additional District Judge had no authority to entertain the instant suit. It has been argued that the decree having been passed by a` Court not competent to entertain the suit is a nullity. We do not find any substance in this contention also. Section 15 of the Code of Civil Procedure runs: "Every suit shall be instituted in the Court of the lowest grade competent to try it." The earliest case on this point is the case of Nidhi Lal v. Mazhar Husain and another (I L R 7 All. 230). The Fall Bench of the Allahabad High Court held that merely because a suit as not instituted in the Court of the lowest grade, it could not be held that for that the suit was without jurisdiction. It was observed by Mahmood, J. "The question then is:‑Reading section 19 of the Bengal Civil Courts Act with sections 15 and 25 of the present Civil Procedure Code, is there any reason to hold that in suits of less value than Rs. 1,000 the jurisdiction of the Subordinate Judge is ousted, notwithstanding the general terms of section 19 of the Bengal Civil Courts Act? In other words, does the reference made by section 19 to section 6 of Act VIII of 1859; and therefore to sections 15 and 25 the present Code, make the rule contained in sections 15'and 25 a rule of jurisdiction? Now, section 15 says:‑ `Every suit shall be instituted in the Court of the lowest grade competent to try it' and the important word here is competent' . . . . . The language of section 15 seems to me to contemplate that the Court `competent'‑that is having jurisdiction‑to try the suit may be of more than one grade, because the whole object of the section is to provide that the suit should be instituted in the Court `of the lowest grade a phrase which would not have been employed if there were not a higher Court possessing jurisdiction to try the suit, in other words, if the jurisdiction were possessed by only one Court. Now, as to section 25 the section undoubtedly enables the High Court or the District Court to transfer a case of less value than Rs. 1,000 from the Court of a Munsif to that of a Subordinate Judge who would be `competent that is, would have jurisdiction‑to try the suit. It is not that the act of transferring a suit confers jurisdiction; but the existence of jurisdiction with reference to the nature and value of the suit is a condition precedent to the exercise of the power of transfer. If any other view were to be taken of the section, it would follow that the High Court or the District Court could transfer a suit of higher value than Rs. 1,000, from the Court of a Subordinate Judge to that of a Munsif. This of course cannot be done, and the reason is that the Munsif's Court is not `competent'‑that is, has no jurisdiction‑to try suits of higher value than Rs. 1,

000. From this reasoning it follows that on the one hand section 15 of the Civil Procedure Code itself contemplates no disturbance of jurisdiction as provided by the Civil Courts Act; and on the other hand, its provisions, both in section 15 and section 25, proceed upon the implied ground that, whilst the Munsif's Court has no jurisdiction in suits of higher value than Rs. 1,000 `the jurisdiction of a District Judge extends . . . . . to all original suits cognizable by the Civil Courts'." Then it was further observed: Section 15 of the Civil Procedure Code is a rule of procedure, not of jurisdiction; and whilst it lays down that a suit shall be instituted in the Court of the lowest grade, it does not oust the jurisdiction of any Court of a higher grade." The learned Judge further observed: "The trial by a Subordinate Judge of a suit of which the subject‑matter is less than Rs. 1,000 in value, is not an assumption by him of a jurisdiction which he does not possess, but is, at the most an irregularity of procedure on his part, I would not willingly say anything which encouraged people to think that they were at liberty to choose whether they would enforce their remedies in the Munsif's or in the Subordinate Judge's Court. But at the same time I must say that the institution of a suit in a Court of higher grade than the Court which is incompetent to try it, is not a question either as to the jurisdiction or affecting the merits of the case. It is a question of the kind provided for by section 578 of the Civil Procedure Code and the irregularity is not one which affects `the merits of the case or the jurisdiction of the Court,' within the meaning of that section. It only remains for me to and that if the irregularity did affect the jurisdiction of the Court, the plea could, I think, be entertained for the first time at any stage, provided that there were on the record sufficient material to substantiate it." This decision was also followed by the Calcutta High Court in the case of Mohini Mohan Das and others v. Kunja Behari Das and others (47 C W N 720). Reference was made to the case above and the following observation from that judgment of the Full Bench of the Allahabad High Court was quoted with approval: "The word `shall' in section 15 of the Code of Civil Procedure is imperative on the suit. The word is used for the purpose of protecting his suit in the Court of the lowest grade competent to try it. The object of the Legislature is that the Court of the highest grade shall not be overcrowded with suit . . . . . the proviso is for the benefit of the Court of the higher grade and it is not bound to take advantage of it. If it does not try the 'suit, it may refuse to entertain it. If it wishes to retain the suit in its Court, it may do so; it is not bound to refuse to entertain it." Reliance was also placed on the case of Matra Mondal and another v. Hari Mohan Mullick alias Mothura Mohan Mullick (I L R 17 Cal. 155), and it was observed:‑ "Taking the law as laid down above to be correct the position would be that it was in the discretion of the Subordinate Judge in the present case either to retain the suit in his file or to return the plaint for presentation to the Court of the lowest grade. We cannot say that in choosing to exercise the discretion in one particular way and not in the other the learned Subordinate Judge did exercise a jurisdiction which was not vested in him by law or exercised it in an irregular and improper manner." This decision in MON Lal v. Mazhar Husain (I L R 7 All. 230) was also followed in the case of Ratan Sen alias Ratan Lal v. Suraj Bhan and others (A I R 1944 All. 1). We are in full agreement with the view expressed in the above cases and the reasons given in support thereon. In the instant case the appointment of the defendant No. 1 by they District Judge is in question, for this the Commissioner of Wakfs refused to take any steps in this behalf. Hence we are of opinion that the suit is entertainable, and that the defendant No. 1 has not been prejudiced at all. From the judgment of the lower Court it appears that the ground on the question of jurisdiction was to the effect that multifarious causes of action were joined in the suit. But that contention has been rejected. Mr. Aziz further submits that excepting the declaration prayed, the learned Additional District Judge has not considered the prayer in respect of accounting. As to removal and appointment of Mutawalli we do not find any substance in this contention. We have already found that defendant No. 1 is not a Mutawalli and there is no removal of the Mutawalli at all. There will be removal from the management as his period has already run out. As regards his grievance that there is no consideration as regards accounting, that has been rightly left out to be dealt with in subsequent proceed ing. I do not think that the client of Mr. Aziz is aggrieved by that. Though it is the third according to the grounds taken by the defendant at the beginning but in fact it is the fourth and the fourth will be fifth ground. Now coming to the fourth which was the third ground previously the contention of the learned Advocate is that the judgment is based on no evidence. We are unable to accept this contention. We have gone through the evidence, oral and documentary and we find sufficient evidence in support of the judgment delivered. The last ground is that the judgment is based on inadmissible evidence. It has been contended that Exh. 2 is inadmissible inasmuch as it has not been proved in accordance with the provision of the Evidence Act. We do not find that any objection was taken at the time of admission of this document. As to the contention that under the Civil Procedure Code, a Judge is to put something in writing while a document is admitted in evidence, but as the same has not been done, the Exh. 2 is not admissible, it appears that the requirements to be filled up by the Presiding Judge while admitting a document are that he must note on whose behalf the document was produced or whether it was admitted on admission or whether it was opposed or not but nothing appears except that the document is marked as Exh.

2. In support that Exh. 2 accordingly is not admissible he has relied on the case of Sadik Husain Khan v. Hashim Ali Khan and others (43 I A 212). In that case it was observed: "Finally, their Lordships feel bound to criticize adversely a practice followed in these two cases, which is as illegal as it is slovenly and embarrasing. By section 141 of the Civil Procedure Code, 1877, repeated in the Civil Procedure Code, 1882 and practically re‑enacted in Order XIII, rule 4, under the. Code of Civil Procedure, 1908, it is provided that a Presiding Judge shall indorse with his own hand a statement that it (i.e., a document proved or admitted in evidence) was proved against or admitted by the person against whom it was used. That course was in many instances not followed at the hearing of these two cases, with the result that embarrassing and perplexing controversies arose on the hearing of those appeals as to whether or not certain documents, prints of which were bound up in the record, had been given in evidence. There is no possible excuse for the neglect, in this manner, of the duty imposed by the statutes, since so long ago as March 3, 1884, a circular was addressed by the then registrar of the Privy Council to the registrar of the Privy Council to the registrar of the High Court of Calcutta, calling attention to the requirements of the then existing law and the' necessity of observing them. A copy of this circular was sent not only to the High Courts of Madras, Bombay and Allahabad, but, in addition, to the Judicial Commissioner of Oudh and other Judicial Commis sioners. Their Lordships, with a view of insisting on the observance of the wholesome provisions of these statutes, will, in order to prevent injustice, be obliged in future on the hearing of Indian appeals to refuse to read or permit to be used any document not indorsed in the manner required." We are fully conscious of the view expressed as above: The Presiding Judge should be more careful in future; but by not noting as indicated above, the document is not made inadmissible. It is a letter written by the Commissioner of Wakfs to the District Judge, Chittagong intimating about the Wakf Estate, the defendant No. 1, accounts, etc. The judgment is not solely based on this document. In the plaint and the evidence of the plaintiff all the materials were there. Each party understood its own case and led evidence. In this connection it may be further observed that this document was proved by plaintiff's witness No. 1 Mustafizur Rahman, the plaintiff himself, as per order dated 16th June 1965. It also appears from the judgment that this document was properly proved by this witness. Hence we do not find any substance in this contention. The appeal is accordingly dismissed with costs. The defendant No. 1 Sultan Ahmad is personally liable for the costs. Before we part with this case, we may note the tactics adopted by the defendant No.

1. From the evidence it appears that the Court put certain questions and he answered them. We quote the same in toto. "Would you voluntarily give up Mutawalli-ship? How can I give up my property‑the wakf estates." This shows that he wants to grab the whole wakf property; and it may be further pointed out that there was a revenue sale in respect of certain taluk but it does not appear that the defendant No. 1 took any step in time in order to protect the property from revenue sale. He has also made a grievance against the plaintiff' for selling some properties but curiously enough though he claimed to be a Mutawalli, he did not take any step to recover the wakf properties alleged to have been sold by the plaintiff, if any. This shows the character of the defendant No.

1. A. SUBHAN CHOUDHURI, J.‑I agree. K. B. A. Appeal dismissed.