P.B. Chakravartti, J. - (1.) This appeal raises two questions of some importance under two sections of the Bengal Wakf Act. The facts are as follows. There Jived at one time one Muslim Peer or holy man of the name of Syed Shah Ali Abdul Quader alias Syed Shah Morshed Ali, who was highly venerated by a large section of the people of the Islamic faith. His tomb, which is situated at a place called Mirza Bazar in the town of Midnapur, has come to be known as Mazar Shareef and become a shrine. After the Peer, his descendants also have been functioning as spiritual preceptors and they have acquired a large body of disciples; who now form a religious Order, acknowledging the Peer as its Patron Saint.
(2.) On the 9th August, 1931, a pious Muslim of the name of Asraf Ali Khan Choudhuri made a wakf of his share of a house in Calcutta, namely, Premises No. 23 Khanka Shariff Lane, for the maintenance of the shrine and on the 24th August, 1933, the remaining co-sharer of the house, one Syed Abdus Salik, made a similar wakf of his share of the same house. The deeds of wakf provided that the first Mutwalli would be one Hazrat Moulana Syed Shah Irshad Ali Al Quadari, referred to in these proceedings by the compendious and convenient term 'Hazrat Sahib' and that after him, whoever among his male descendants might come to be the Sajjadanasheen, would be the Mutwalli. Hazrat Sahib, who was a direct descendant of the Peer and the then Sajjadanasheen of the Order, acted as Mutwalli till his death. He died on the 6th February, 1953, and immediately thereafter the dispute which has given rise to the present appeal commenced in the following way.
(3.) The wakfs are enrolled under the Bengal Wakf Act as a single wakf. Section 47 of that Act provides inter alia that in the case of any change in the management of an enrolled wakf by reason of the death of the Mutwalli, the incoming Mutwalli shall notify the change to the Commissioner on pain of suffering a penalty in the event of his not doing so. On the 13th March, 1953, the eldest surviving son of Hazrat Sahib, Syed Shah Mustarshid Ali Al Quadari, made an application for the substitution of his name as Mutwalli on the ground that he had succeeded his father as Mutwalli, being "his eldest surviving son and Sajjadansheen." The implication was that he had become the Sajjadanasheen by reason of his being eldest surviving male descendant of the last holder of the position and that consequently he had succeeded to the office of Mutwalli under the terms of the deeds of wakf. The application was opposed by Syed Shah Kushaid Ali Al Quadari, the second son of Hazrat Sahib, who wanted the substitution of his own name on the ground that, before his death, Hazrat Sahib had nominated him to be the next Sajjadanasheen by a written Washiatnama. On the 17 April, 1953, a representation, purporting to be a submission from some disciples of Hazrat Sahib and supporting the case of the second son was received in the office of the Commissioner. Confronted with rival claims of two sons of the late Mutwalli, one claiming the office under the rule of primogeniture and the other claiming it on the strength of an alleged nomination, the Commissioner held an enquiry at which the second son examined one witness, but the eldest son examined none. He, however, challenged the Washiatnama as a forgery and appears also to have contended that the devolution of the office of Sajjadanasheen was governed by the rule of primogeniture, nomination of the successor by the outgoing Sajjadanasheen being not permissible or known. The effect of the enquiry held by the Commissioner was to reveal to him that the dispute involved questions which he was not competent to decide, such as the genuineness or otherwise of the alleged Washiatnama and the rule of succession governing the spiritual office of Sajjadanasheen with which he, as the Commissioner of Wakfs, had normally no concern. In that state of the facts, the Commissioner took the view that the parties ought to have recourse to the civil court for a decision as to which of them was entitled to the office and apply to him for necessary action after a decision had been obtained. In the meantime, the administration of the wakf had to be carried on. The Commissioner thought that the case before him presented a situation to which section 40 of the Act applied and that he could appoint a temporary Mutwalli under the provisions of that section. Accordingly, he appointed Syed Shah Rasheed Ali Al-Quadari, the third son of Hazrat Sahib, who had not figured in the conflict and who, the Commissioner thought, was likely to command respect and co-operation from all persons interested in the wakf. The order of the Commissioner was made on the 13th October, 1953. but the actual appointment of the third son was by a subsequent order, dated the 9th November following.;