MOHAMMAD ALI KHAN Vs. AHMAD ALI KHAN

JUDGEMENT

(1.) On 8 September 1930, Nawab Iqbal Ud-Daula Moqin Ali Khan created a wakf alal-aulad and nominated his wife, Mt. Razia Bani Sultana Begam, as the mutawalli. There was a provision in the deed of wakf that this lady should appoint her successor but she died on 17 August 1935, without doing so. There remained surviving four sons of the creator of the wakf, namely Muhammad Ali Khan, Ahmad Ali Khan, Qaim Ali Khan and Baqar Ali Khan. Muhammad Ali Khan made an application, purporting to be under Section 74, Trusts Act, 1882, praying that he should be appointed as mutawalli by the District Judge. The other three brothers supported the application and the District Judge appointed Muhammad Ali Khan. Three years later, on 30 August 1938, two of the brothers Ahmad Ali Khan and Baqar Ali Khan made an application to the District Judge complaining that the mutawalli was mismanaging the wakf property and misappropriating its income. They requested that Muhammad Ali Khan should be removed and that one of the applicants should be appointed as mutawalli in his place or in the alternative that a Receiver should be appointed to manage the property. Muhammad Ali Khan urged in reply that the questions raised were much too grave and could not be disposed of in summary proceedings on the basis of an application. The learned Judge overruled this objection by an order passed on 21 January 1939 and held that he had jurisdiction to remove the mutawalli and make a new appointment under the provisions of Secs.73 and 74, Trusts Act, 1882. He then proceeded so remove Muhammad Ali Khan and to appoint Ahmad Ali Khan in his stead. This is an application in revision based on the allegation that the order of the learned District Judge was without jurisdiction. In my judgment, the application must succeed. I think it is necessary only to refer to the provisions of Section 1, Trusts Act, 1882, that nothing contained in the Act affects the rules of Mahomedan law as to wakf...or applies to public or private religious or charitable endowments... There can be no doubt that provision for a man's offsprings or descendants is a charitable object according to Muslim ideas and a wakf- alalaulad would not be valid as a wakf if it was not created for charitable purposes. It follows that the provisions of the Trusts Act, 1882, do not apply to the wakf which is the subject of these proceedings and that the order of the learned District Judge was, on the face of it, without jurisdiction. It seems clear that] any beneficiary who objects to the management of the wakf has a remedy by way of a suit under the provisions of Section 9, Civil P.C. It has been urged on the other side that the District Judge as the superior Court in the district exercises the functions of a Qazi under the Muslim law and that a Qazi had power to remove the mutwalli of a wakf and appoint some other suitable person in his place. It is true that the District Judge exercises the functions of a Qazi where such functions must be exercised by some authority under the provisions of the Muslim law and where no other provision is made by statute for the exercise of those functions, but it does not follow that the District Judge can exercise all the functions of a Qazi, administrative as well as judicial, or that he is absolved from following the procedure which is laid down for civil Courts by the Civil P. C. or any other statutes which may from time to time be in force. Learned Counsel for the opposite party has referred us to a number of rulings, which, I do not think, it is necessary for me to deal with in any detail. There is one case in which it was held that the District Judge was entitled to certify the repudiation of her marriage by a woman when she attained the age of puberty and there are a series of rulings in which it has been held that the District Judge is the authority which can sanction the transfer of wakf property if it is necessary in the interests of a wakf that the property should be transferred. These are matters however for which no other provision is made and which are not in their nature necessarily contentious. In the matter of the repudiation of a marriage, the District Judge is merely to record the fact that the marriage has been repudiated and is not required to make any decision. In the matter of transfers, it is by no means necessary that there should be a contention between two parties which could be the subject of a suit. In my opinion, the rulings do not lead to the conclusion that the District Judge can remove a mutawalli and appoint a successor when there is provision under the law that the result can be obtained, if necessary, by the institution of a regular suit. It has been held in some cases that a District Judge may make an appointment where there is no mutawalli at all but that matter again may not give rise to any contention between hostile parties. Where allegations of mismanagement and misappropriation are made there must be a serious dispute between the person making the allegations and the mutawalli. It seems obvious that in cases of that kind there should be a formal and regular proceeding as in a suit and not a mere summary inquiry on the basis of an application. To allow a District Judge to act on an application would be to deprive the mutwalli of his right of appeal and this would be a serious injustice to him. I would, therefore, hold that the order of the learned District Judge was without jurisdiction and should be set aside.

(2.) We are given to understand that Ahmad Ali Khan has taken possession of the property on the basis of the District Judge's order of appointment and the question arises whether we should take any steps to remove him or to put the property in the charge of a receiver. I think we should leave the parties to such remedies as are open to them under the ordinary law. Having held that the learned District Judge was not properly seized of this matter we must hold, I think, that we are not seized, of it either. If Ahmad Ali Khan is in possession he can be removed only by due process of law. We might possibly undo the effect of the order which we have held to be without jurisdiction and restore the original position, but there is at least some reason for thinking that Muhamad Ali Khan may have been an unsatisfactory mutwalli and we have no evidence before us to justify us in the conclusion that Ahmad Ali Khan has not managed the property in a proper way. The difficulty in the way of appointing a receiver is that there are no proceedings before us in the course of which one could be appointed. It will be open to Ahamad Ali Khan to institute a suit in order to obtain a decree that Muhammad Ali Khan should be formally removed from the position of mutwalli and he or somebody else should be appointed in his place. On the other hand, if Ahmad Ali Khan retains possession, Muhammad Ali Khan may bring a suit for possession against him. In either case, if the circumstances demand it, the plaintiff can obtain an order from the Court in which the suit has been instituted that a Receiver should take possession of the property till the suit is decided. If there is any danger of any party taking the law into his own hands, it is always open to the Magistrate to take proceedings under the provisions of Section 145, Criminal P.C. I think it will be sufficient for us to set aside the order of the learned District Judge and to leave the parties to take such action as may seem to them appropriate. Braund, J.

(3.) I agree that this application in revision must be allowed, and the order of the learned District Judge, dated 5 April 1940 removing the applicant Mohammad Ali Khan, as mutawalli and appointing the respondent, Ahmad Ali Khan in his place, discharged. In my view, for the reasons explained in the judgment of my learned brother, <JGN>Allsop</JGN> J. the District Judge had no jurisdiction to make these orders on petition under Secs.73 and 74, Trusts Act, 1882. That the Court had jurisdiction, however, in properly instituted proceedings to remove a mutawalli for misconduct of breach of trust, and subject to the provisions of the wakf instrument, to appoint another in his place, I do not doubt. But it is clear for obvious reasons, that contentious litigation between hostile parties involving a serious controversy of fact could only be properly dealt with in a regular suit and could not be satisfactorily disposed of in a summary form on petition. This is, I believe, as much the accepted practice in India in contentious cases involving the removal and appointment of trustees, as it is under English practice : see In re Dove's Will Trust; Hedley V/s. Dove (1939) 1939 W.N. 230.