Manashnath Roy, J. - (1.) This application was moved with notice to the Board of Wakfs and the Commissioner of Wakfs. On such notice M. Mitter being assisted by Miss Mukherjee appeared for those Respondents. It should be noted that one Golam Rasul, who was not initially impleaded as a p y Respondent, was added with the leave of the Court as Respondent No. 4 and Mr. Kaffir appeared for him. This application was directed against an order dated 25th June 1982, passed by the Commissioner of Wakfs, West Bengal, removing the petitioners from their office of mutwalliship which they claimed to be a permanent one and appointing one Md. Ashrat Ali. Respondent No. 3 as temporary mutwalli under Section 40 the Bengal Wakf Act, 1934 (herein-after referred to as the said Act) and thereby rejecting the petitioners' application for recording their names in the Register of Wakfs.
(2.) The petitioners have claimed to be permanent mutwallis of Hafiz Jamaluddin Wakf Estate (hereinafter referred to as the said Estate), which was created by Hafiz Jamaluddin who died in 1886 and on his death, it terms of the Wakf deed, his two sons Hafiz Abdur Rahaman and Haliz Abdul Aziz became joint mutwallis of the said Estate. Hafiz Abdul Rahaman died in 1892 and the death of Abdul Aziz took place in 1921. None of the said mutuwallis, viz, two sons of the Wakif appointed anybody a mutwalli, although in the deed of wakf. power was given to surviving joint mutwalli to appoint another joint mutwalli from amongst the descendants of the wakif.
(3.) It has been stated by the petitioners that after the death of the last joint mutwalli Abdul Aziz, in 1921. Khurshed Ahmed, great grandson of the wakif Hafiz Jamaluddin instituted Suit No. 1686 of 1923 in this Court and in such suit in 1926, this Court had appointed the said Kurshed Ahmed and Hafiz Sirajuddin, as joint mutwallis of the said Estate. It is needless to point out that both the mutwallis were descendants of the Wakf's first son Hafiz Abdur Rahaman. One of the joint mutwallis viz Hafiz Sirajuddin died in 1931 and thereafter, the surviving mutwalli Md Khurshed Ahmed managed the said estate alone upto 1931 and as he was advancing in age, he considered it to he necessary and convenient for appointing another joint mutwalli and as such, on 1st June 1939, he appointed bis brother Md Mazhar, as another joint mutwalli as he had trust and reliance in him Thereafter, one Golam Rasul, the eldest son of the erstwhile Md. Hafiz Sirajuddin and brother of petitioner No. 3 Md Khalil, filed an application on 22nd May 1939, before the Commissioner of Wakfs. Respondent No. 1, for appointing him as the other joint mutwalli and contending that under tie provisions of the concerned deed, as he was the eldest son of Hafiz Sirajuddin, he was entitled to be appointed as one of the joint mutwallis and that, under the deed in question, Khurhed Ahmed, the existing mutwalli had an obligation to appoint him as one of such mutwallis.;