ABDUR RAHIM Vs. SYED ABU MAHOMED BARKAT ALI SHAH

JUDGEMENT

(1.) This litigation arises in connection with an ancient mosque standing on a portion of Holding No. 221 in the Government Khas Mahal of Dihi Panchannagram, near Calcutta. In a proceeding under Reg. II of 1819 between the Government of India as plaintiff and one Syed Miron Munshi of Kalinga as defendant, the whole holding, then 3 bighas, 11 eottas and 3 chhataka in area (a portion has since been acquired under the Land Acquisition Act), was declared by the Revenue Authorities to be revenue-free as property dedicated long ago to religious uses, i. e., a wake, of which the said Miron Munshi was the then mutwali. The mosque stood on a portion of this area and the rest of it was let out to tenants, the rents being appropriated for the expenses of the mosque.

(2.) Mir Miran or Miron Munshi continued to hold this area of land as mutwali of the mosque until his death about seventy years ago, and after him his son, Sheikh Mahommad Jan, succeeded him as mutwali. Mahommad Jan died about fifty years ago, and thereafter his widow Rukia Bibi, assumed the office of mutwali. On October 27, 1802, she executed a deed whereby she purported to nominate herson Mr. Ramjan Ali as her successor in the mutwaliship.

(3.) Disputes having arisen, the heirs of Mahommad Jan instituted in 1907 a Suit No. 78 of 1907 in the Court of the Subordinate Judge of 24 Parganas, on the basis that Holding No. 221 was the secular property of Mahommad Jan and asking for partition thereof. A preliminary decree for partition was actually made in that suit in 1908. On July 18, 1910, a suit No. 48 of 1910 Mahomed was filed in the Court of the District Judge of 21 Farganas with the sanction of the Advocate General under Section 92 of the Civil P. C. of 1908 by seven Mahomedans as plaintiffs against Rukia Bibi as defendant. It was sought by that suit to obtain the removal of Rukia Bibi from the office of mutwali, for accounts and for settling a scheme for the management of the said properties. The plaint in that suit was subsequently amended on December 15, 1910 :- (1) By the addition of all the heirs of Mahommad Jan as defendants, who, it was alleged, were claiming the property as their personal property; and (2) by adding a prayer for the declaration that the property in suit was wakf property and not the personal property of the defendants.