P L D 1962 Dacca 665 (PLP)

HASAN, J.‑This appeal is directed against the decree dismis sing the plaintiff's suit for a declaration that the plaintiff is the mutawalli to the wakf estate of Haji Amjad Ali Sarkar, that the appointment of defendant No. 1 as mutawalli on the death of Wakif regarding properties mentioned in schedules 1 and 2 below is invalid and that the said appointment is without force now and that the defendant is incompetent to hold the said office.

2. The properties in dispute originally belonged to one Maju Bepari who died leaving behind 2 sons, Haji Amjad Ali Bepari, Haji Asmat Ali Bepari and a daughter Ayesha Khatun. Defendant No. 1 Abdul Jabbar is the husband of Dud Meher, the only daughter and child of Amjad Ali Bepari. Plaintiff Abdur Rahman and the defendants Abdul Majid and Abdul Aziz are the three sons of Haji Asmat Ali Bepari. The other heirs of Mahju Bepari have not been made parties in this suit. On 2nd of April 1927 the said Amjad Ali Bepari executed a registered Wakfnama (Exh. A) in respect of the properties described in schedule 1 of the plaint which comprises schedule Ka, a mosque attached to the homestead of Amjad Ali Bepari and schedule Kha, some other properties out of whose income amounting to Rs. 182 at the time the Wakiarna executed to be spent for the maintenance of the mosque and other religious rites. By the document the Wakif appointed himself the first mutwalli and he laid down a line of next mutwallis providing that on the death of the Wakif mutwalli, mutwalli will be appointed from the line of his father by the ruatbars and mutwallis. Again on the 28th of March, 1939, the said Haji Amjad Ali Bepari executed another registered Wakfnama (Exh. AI) in respect of the properties described in schedule 2 of the plaint. It has been provided in this Wakfnama that 1/4th of the income should go for the maintenance of the mosque, l/4th as remuneration for the mutwalli, 1/4th for the main tenance of his daughter Dud Meher and on her death for the maintenance of her male children and in their absence the said income of the share shall be spent for the mosque. Out of the remaining 1/4th, 1/3rd of it will go to his fourth wife Mariam Chand Bibi, another 1/3rd to his fifth wife Rahmam Chand Bibi and the remaining 1/3rd shall go to his sister Ayesha Khatun. It has been further laid down that in their absence how the money will be distributed and spent. By this document the Wakif made himself the first mutwalli and on his death Shamsuddin, an adopted son of the Wakif, was made the next mutwalli and thereafter his heirs. It has been further provided that if Shamsuddin goes away from the homestead of the Wakif or he loses his character then mutwalli will be appointed from the heirs of the Wakif. It further appears that there has been a right reserved to alter the terms of the Wakfnama by the registered deed. The Wakif also executed some other documents Exhs. E, El, E.

2. They are registered deeds of gift executed on 20th of July, 1943, first in favour of his two wives stated above, the second in favour of his daughter Dudh Meher and the third in favour of Shamsuddin. Upto this, there is no dispute about the documents executed by said Haji Amjad Ali Bepari amongst the parties. But dispute arises in respect of Exh. B and Exh. 1; Exh. B, a Neogpatra or in other words a deed of appointment of mutwalli was executed on the 13th of November, 1943 by the said Wakif and was registered. By this document Shamsuddin has been removed from the mutwalliship and Abdul Jabbar Mia, defendant No. 1 and in his absence his sons have been appointed mutwalli after the death of the Wakif after giving some reasons. Ext. 1 was executed by the said Wakif on the 4th of December, 1945 removing Abdul Jabbar defendant No. 1 from mutwalliship and re‑appointing Shamsuddin in his place. It is the case of the plaintiff and of the defendant No. 1 that Shamsuddin is not claiming any right under Exh. 1, but unfortunately Sham suddin has not been made any party in the present suit. After the execution of these documents the Wakif died on the 18th of September, 1946 and Abdul Jabbar, defendant No. 1, began to possess the Wakf properties covered by Exhs. A and A (1) and act as mutwalli. Plaintiff's case is that Abdul Jabbar is not a legally appointed mutwalli of the Wakf estate, after the death of Haji Amjad Ali Bepari, the Wakif, and as such he instituted the present suit for the reasons stated above on the 16th of September, 1952 and the written statement by defendant No. 1 was filed on 19th of February, 1953, challenging the plaintiff's case that defendant No. 1 was not the validly appointed mutwalli and that the plaintiff was the mutwalli.

3. The learned Subordinate Judge has dismissed the suit holding that the suit is not maintainable in its present form as the plaintiff has not been appointed mutwalli by the matbars and mutwallis in terms of Exh. A, that the suit is bad for defect of parties as other male descendants of Wakif's father have not been made parties in this suit, that proviso to section 42 of the Specific Relief Act is a bar to the present suit as the plaintiff has not claimed any consequential relief, namely, recovery of the property and that the suit is also barred by the principle of estoppel waiver and acquiescence.

4. Pleadings of the parties, it appears that there is no dis pute as regards the Wakfnamas Exhs. A and A (1) but real dispute centres round Exh. B by which defendant No. 1 has been appoint ed mutwalli. This Exh. B has been challenged by the plaintiff on the ground that this document was obtained by the defendant No. 1 by exercising undue influence when Amjad Ali was insane and was paralised and as such the document was not executed by h 1 understanding the contents of the document. In support of the plaintiff's case the plaintiff has examined 6 witnesses, whereas the defendant No. 1 has examined 4 witnesses. Though there has been a reference by the learned Subordinate Judge, while dealing with the cases of the parties, to the evidence of the witnesses the plaintiff‑appellant did not think it proper to include the deposition of the witnesses in the paper book but on the date of the hearing of the appeal he filed an application with some printed copies of deposition of the witnesses for inclusion of the same in the paper book. We fail to see why he did not include the deposition in the paper book and no satisfactory explanation has been given for the same. The learned Advocate also did not take us through the deposition of the parties and did not challenge that Haji Amjad Ali (Wakif) had no proper sense to execute Exh. B, a deed of appointment by which Abdul Jabbar, defendant No. 1, has been appointed mutwalli in place of Shamsuddin after the death of Wakif, the first mutwalli.

5. But however as a ground has been taken in the memoran dum of appeal presented to this Court and though not urged by the learned Advocate for the appellant for fullness of the case we express our view on the capacity of Amjad Ali in executing Exh. B. Plaintiff, P. W. 1, has deposed in his cross‑examination "Exh. B is the nivogpatra executed by my uncle Amjad Ali in favour of defendant No. 1 Abdul Jabbar. I attested it. I do not remember the name of the scribe. Persons examined therein attested it (names read out). My uncle Ahmed to have executed it by signing. I was present for sometime during execution. At the request of Abdul Jabbar I attested it. I did not enquire from my uncle whether he executed it by signing it. I identified my uncle Amjad Shaheb before the Sub‑Registrar. He did not give any thumb‑impression in my presence. After seeing the signature of Amjad I wrote my name." The above deposition leaves no room for doubt that Exh. B was not executed behind the back of the plaintiff but he was present at the time of the execution, attested the document and identified Amjad Ali before the Sub‑Registrar. No allegation has been made that any fraud was committed on the Registrar. The plaintiff did not protest to the Registrar that Amjad had no capacity to execute Exh. B rather he attested the document and identified him before the Registrar. The plaintiff did not raise a single finger against Exh. B from the date of its execution on 13th November, 1943 up to the death of Amjad Ali on 18th of September, 1946 but waited upto 16th of February, 1953 when the present suit was filed. Further more, the plaintiff has admitted Exhs. E, El and 2 deeds of gift executed by Amjad Ali on the 20th of July, 1943 ; a short time thereafter Exh. B was executed by Amjad Ali on the 13th of November, 1943. For the above reasons and in addition to the reasons given by the learned Subordinate Judge, we upheld his finding that Amjad Ali had full sense and capacity to execute, act and fully understand the contents of the document and out of free‑will executed Exh. B. In the present suit the plaintiff has prayed for the following relief "(a) That a declaration be made to the effect that the plaintiff is the mutwalli to the wakf estate of Haji Amjad Ali Sarkar, that the appointment of defendant No. 1 as mutwalli on the death of wakif regarding properties mentioned in schedules 1 and 2 below is invalid and that the said appoint ment is without force now and that the defendant is incompetent to hold the said office."

6. First schedule properties in dispute are the subject mat ter of Exh. A and the second schedule properties are the subject matter of Exh. A (1). By Exh. A the father's line of Amjad Ali, Wakif, has been made eligible for mutwalliship if any of them satisfied the test as laid down in Exh. A, namely, whoever out of them is found suitable by the matbars and the musullis and removable from the mutwalliship. It is not the plaintiff's case that he has been appointed by the matbars and musullis in terms of Ext. A nor has he claimed the same in presence of all descendants of the father of Amjad Ali, as the plaintiff has admitted in the deposition many other descendants have been left out of the suit.

7. By the document (Exh. A‑1) one Shamsuddin, alleged to have been adopted by Amjad Ali has been made mutwalli after the death of Wakif and the male descendants in succession and if Shamsuddin goes away elsewhere from the house of Amjad Ali then mutwalli shall be selected from amongst the descendants of the Wakif. It is urged on behalf of the appellant that the descendants of Amjad Ali are equivalent to the descendants of the father of Amjad Ali. Dictionary meaning of the word `descen dant' is one who descends as off‑spring from ancestor, namely Amjad Ali. Furthermore, distinction has been made by the Wakif in those two documents by mentioning `from the line of my father' in Exh. A and from my descendant's in Exh. A (1). Hence, we find that the `word descendant' does not include the plaintiff, but he might be called a descendant of an ascendant. So apparently the plaintiff cannot claim to be a mutwalli under the terms of Exh. A (1). Furthermore, his claim, in the absence of' other necessary parties in respect of Schedule 2 properties as pointed out above, is not maintainable. 8. " Barring the above the plaintiff again also cannot get any relief in presence of Exh. B by which Amjad Ali appointed the defendant mutwalli after him removing Shamsuddin from mutwalli ship. The plaintiff's case is that Exh. B was not validly executed which has already been rejected by us. In this connection the further argument of the learned Advocate for the appellant is that appointment of defendant No. 1 Abdul Jabbar and his heirs is in violation of the provisions in Exh. A and A (1). It is contended that no specific reservation has been retained authorising the Wakif to change the line of mutwalliship. The determination of this ques tion involves interpretation of Exhs. A and A (1) which, in our opinion, cannot be done in the absence of Shamsuddin and others not been made party. The plaintiff and the defendant No. 1 have alleged that Shamsuddin has given up his claim though admittedly by Exh. 1 defendant No. 1 has been removed and Shamsuddin has been made mutwalli again after the death of the Wakif. We are not at present concerned with the legality of Exh. 1 but it is clear that the suit cannot proceed in the absence of Shamsuddin and other heirs of Amjad All and of his father.

9. It has been found by the learned Subordinate Judge that the suit is hit by the proviso to section 42 of the Specific Relief Act, as the plaintiff has not claimed for recovery of possession. It is contended by the learned Advocate for the appellant that in a suit by a mutwalli in respect Wakf properties a mere declaration is enough as delivery of possession does necessarily follow as a matter of consequence from the main relief of declaration and that when a suit is instituted in the personal capacity the plaintiff cannot pray for recovery of khas possession before he is declared a mutwalli. For this reliance has been placed on the case of Hussain Khan v. Mirza Muhammad Taqi Khan and others (A I R 1933 Oudh 517), the case of Ram Rup v. Saran Dayal and others (A I R 1936 Lah. 283), the case of Monmohan Haldar and others v. Dibbendu Prosad Roy Choudhury and others (A I R 1949 Cal. 199), and the case of Municipal Board, Benares v. Ram Shahai Gupta (A I R 1933 All. 281). It is further contended that the Court of the Subordinate Judge in which the present suit had been instituted is not competent to entertain a suit for removal and appointment of mutwalli and as such no prayer for recovery is necessary.

10. In our opinion when a person is out of possession and wants a declaration that he is the mutwalli, and the person in the possession of Wakf estate is not the mutwalli, his suit whether instituted in personal capacity or in the capacity of a mutwalli, will be hit by section 42 of the Specific Relief Act in the absence of a prayer for recovery of possession as there is no bar for a prayer B in a suit instituted in personal capacity, first for declaration that the plaintiff is the mutwalli, then for khas possession, and as in the absence of recovery of khas possession mere declaration of a title will be useless in such circumstances. Reference may be made to the case of Haji Yar Ali Khan Chowdhury v. Mobarak All Chowdhury and others ((1955) 7 D L R 6), and the case of Kandaswami Thambiran v. Vagheesam Pillaf (A I R 1941 Mad. 822 (F B)).

11. Next it has been contended that in view of the pro visions of Order I, r. 9 of the Code of Civil Procedure; the suit shall not be defeated by reason of mis-joinder and non‑joinder of parties and the Court may consider it so far as regards the rights of the parties before it, and reliance has been placed on the case of Mt. Rahman and others v. Mt. Baqridan (A I R 1936 Oudh 213 (F B)). In our opinion, a suit can proceed when the rights of an absent party are not affected by a decision. In the present case, if a decision is giver A in the absence of Shamsuddin and other descendants of the Wakif and his father, their right will be affected.

12. Lastly, it has been submitted that under Order I, r, 10 of the Code of Civil Procedure the Court may bring Shamsuddin on the record. We do not think it proper to bring Shamsuddin on the record. From the respective cases of the parties, it is appa rent that Shamsuddin is a necessary party and the plaintiff knew, from the beginning as regards the claim of Shamsuddin. Further more, it has been admitted by the plaintiff that many heirs of the father of Amjad Ali have been left out. Hence we do not find any substance in any of the contentions of the learned Advocate for the appellant and the appeal is accordingly dismissed, but in the facts and circumstances of the case we direct the parties to bear their costs. IDRIS, J.‑I agree. S. B /A. H. Appeal dismissed.