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MahomedhusseIn Daudbhai Vs. Collector of Broach and Panchmahals - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 105 of 1943
Judge
Reported inAIR1945Bom157; (1944)46BOMLR925
AppellantMahomedhusseIn Daudbhai
RespondentCollector of Broach and Panchmahals
DispositionApplication allowed
Excerpt:
.....6c(1)(i) -mussulman wakf (bombay amendment) act (xviii of 1935)-dispute as to the existence of wakf-jurisdiction of court to make enquiry.;an inquiry under section 6c(1)(i) of the mussalman wakf act, 1923, [inserted by the mussalman wakf (bombay amendment) act, 1935] is confined to cases where the existence of the wakf is admitted. where the existence of the wakf is disputed, it is not open to the district court to make an enquiry into its existence. case-law prior to amendment considered. - - that view was also endorsed by a full bench of the lahore high court in shia youngmen's association, punjab, lahore v. the chief judge did not accept that contention, and on the failure of the applicant to submit accounts issued a notice for his prosecution under section 10 of the act. thus,..........although each one of them was in the management of a particular property, the property was not a wakf property within the meaning of the act, that he was not the mutawalli, and that according to the religious tenets of the shia dawoodi bohras, the property was owned by and belonged to an institution known as dawati-hadiah of which the absolute head was dai-ul-mutalak, i.e. the mullajisaheb himself. when these statements were put in, the assistant judge passed an order that an inquiry should be held under section 6c of the act which was inserted in the original act of 1923 by bombay act xviii of 1935. he raised an issue as to whether the property was a wakf property, and whether the opponents were bound to render accounts. each case was separately numbered as a separate miscellaneous.....
Judgment:

Rajadhyaksha, J.

1. These applications in revision arise out of an order passed by the District Judge of Broach and Panch Mahals in Miscellaneous Applications Nos. 11 and 13 to 20 of 1940 and raise an important question as regards the jurisdiction of the District Court and the scope of the inquiry to be made under Section 6C of the Musalman Wakf Act (XLII of 1923) as amended by Bombay Act XVIII of 1935. In 1933 the Collector of Broach and Panch Mahals published a Notification, No. M.S.C. 44, dated August 24, 1933, giving a list of wakfs of the Dawoodi Bohfas in the Panch Mahals District. In respect of properties Nos. 17 to 23 in that list situate at Dohad, His Holiness the Mullajisaheb of the Dawoodi Bohras was shown as the mutawalli. Accordingly, notices were issued to him under Section 5 of the Act to submit statements of accounts. The statements of accounts were not, in fact, filed, and when similar notices were issued in 1938, the person who held a power-of-attorney for the Mullajisaheb put in a statement on August 9, 1939, contending that the properties were not wakfs within the meaning of the Act, and that he was not the mutawalli thereof. It was urged that, according to the custom and the religious tenets of the Shia Dawoodi Bohras, the properties belonged to the Mullajisaheb., In that statement the names of persons who actually looked after the different estates were given. Thereupon, notices were issued to those persons to render accounts. All these persons appeared and put in separate statements to the effect that although each one of them was in the management of a particular property, the property was not a wakf property within the meaning of the Act, that he was not the mutawalli, and that according to the religious tenets of the Shia Dawoodi Bohras, the property was owned by and belonged to an institution known as Dawati-Hadiah of which the absolute head was Dai-ul-mutalak, i.e. the Mullajisaheb himself. When these statements were put in, the Assistant Judge passed an order that an inquiry should be held under Section 6C of the Act which was inserted in the original Act of 1923 by Bombay Act XVIII of 1935. He raised an issue as to whether the property was a wakf property, and whether the opponents were bound to render accounts. Each case was separately numbered as a separate miscellaneous application. A notice was ordered to be issued to the Collector of Broach who appeared through the Government Pleader and contended that the properties were wakf properties and that the opponents who were mutawallis thereof were liable to render accounts. When the matter came up for hearing before the learned District Judge, a further contention was taken that the Court had no jurisdiction to hold an inquiry whether the institutions concerned were wakfs or not. The learned Judge held that the Court had jurisdiction to hold an inquiry, that on merits, the property in each application was a wakf property, that the opponents who were admittedly managing the properties were the mutawallis thereof and were, as such, bound to render accounts. Against that order these applications have been filed in revision, and the only point argued before us is as regards the jurisdiction of the Court to hold an inquiry and the scope of that inquiry.

2. It has been contended by. Mr. Thakor on behalf of the applicants that where as in these casea the existence of the wakfs is denied, it is not competent to the District Court to hold an inquiry into that matter, and that under Section 6C of the Act, the only inquiry that the Court can hold is whether a wakf is a wakf to which the Act applies. His argument was that if the existence of the wakf is disputed, no inquiry can be held by a Court; but if the existence of the wakf is admitted, and the application of the Act to such a wakf is denied, then the Court can proceed to hold an inquiry as to whether such an admitted wakf is a wakf to which the Act applies.

3. The question involves the construction of Section 6C which was inserted by the Bombay Amendment Act XVIII of 1935 and which runs as follows :-

6C. (1) The Court may, either on its own motion or upon the application of any person claiming to have an interest in a wakf, hold an enquiry in the prescribed manner at any time to ascertain-

(i) whether a wakf is a wakf to which this Act applies ;

(ii) whether any property is the property of such wakf and whether the whole or any substantial portion of the subject-matter of such wakf is situate within the local limits of the jurisdiction of the court; and

(iii) who is the mutawalli of such wakf.

In order to ascertain he exact implication of this amendment made by Bombay Act XVIII of 1935 it is necessary to see what the position was under the main Act of 1923, and what the interpretations put by the various Courts on its provisions were. The question was first considered by the Patna High Court in the case of (Syed) Ali Mohammad v. Collector of Btfiagalpur : AIR1927Pat189 . It was held in that case that there was no provision in the Act authorizing the Court, as defined in the' Act to determine as to whether any property which is denied to be a wakf property is a wakf property within the meaning of the Act. In that case also, one of the persons, whose property was included in the list of the wakfs by the Collector of Bhagalpur, contended that the property was not a wakf property, and on a consideration of the various provisions of the main Act, the Court came to the conclusion that if the existence of a wakf was denied, there was no provision in the Act authorizing any Court to determine that question. The learned Judge, Kulwant Sahay J., drew pointed attention to the omission in the Act of a provision similar to that contained in Section 5 of the Charitable and Religious Tnfsts'Act (XIV of 1920), which authorized the Court to make an inquiry if any person appeared at the hearing and denied the existence of the trust or denied that it was a trust to which the Act applied. In Nasrullah Khan v. Wajid Ali I.L.R. (1929) All. 187 the existence of the trust was admitted and accounts were filed. That case, therefore, does not decide the point as to whether when the existence of the wakf is denied, the question can be decided by the Court. In Nasrullah v. Wajid Ali I.L.R. (1932) All. 475 it was held that when, by his compliance,with Section 3, a mutawalli brought himself under the provisions of the Act and established his own liability to furnish a statement of accounts under Section 5, he made himself open to punishment under Section 10 for not doing so. His denial that the property managed by him was a wakf within the meaning of the Act was of no value in view of his own action in complying with the requirements of the Act in the first instance. The question whether, on being required to furnish accounts, a person denied the existence of a wakf, he could be punished under Section 10 of the Act, and whether in such a case, the Court trying the accused could go into the question about the existence of the wakf came up for direct consideration in the case of Wahid Hasan v. Abdul Rahman I.L.R. (1934) All. 754. It was held that there was nothing in the Mussalman Wakf Act of 1923 to show that any power has been conferred on the Court to go into the question as to whether or not the properties, about which an application is made, were wakf properties. The Act was held to be applicable only in those cases in which the existence of the wakf was admitted. The learned Judge held that the Act did not confer jurisdiction on the Court to determine the question as to the existence of a wakf ; and so, if at the outset the existence of a wakf was denied, the Court had no jurisdiction to proceed with the case any further, This view was followed by the Nagpur High Court in the case of Abdul Hussain v. Mohmad Ebrahim Riza [1939] Nag. 564 where the learned Judges held that where the existence of a wakf itself was in dispute, the District Judge had no jurisdiction to enquire under Section 10 of the Mussalman Wakf Act -into its existence. That view was also endorsed by a full bench of the Lahore High Court in Shia Youngmen's Association, Punjab, Lahore v. Faleh Ali Shah I.L.R. (1941) Lah. 395 where it was held that in proceedings under Section 10 of the Mussalman Wakf Act, XLII of 1923, the District Judge had no jurisdiction to hold an enquiry into the nature of the property where the alleged mutawalli denied the existence of the wakf. The Madras High Court also took the same view in Syed Ismail Sahib alias Tahsildar Sahib v. Ethikasha Sarguru alias Syed Chandu Sahib A.I.R. [1941] Mad. 897 wherein it was held that the District Judge had no jurisdiction to hold an enquiry into the nature of the property where the alleged mutawalli denied the existence of the wakf.

4. As against the views of all these High Courts, there is a decision of the full bench of the Oudh Court in Mohammad Baqar v. S. Mohammad Casim A.I.R. [1932] Oudh 210. The majority of the Judges, viz., Wazir Hasan C.J. and Raza J., held that the Court of the District Judge has jurisdiction under the Mussalman Wakf Act, 1923, to take proceedings under the same Act when the alleged wakf was not admitted or was denied by the alleged mutawalli. Srivastava J., on the other hand, took the view that the Court had no such jurisdiction where the existence of the wakf was denied. There is also a dictum of this Court in In re Taher Saifudin (1933) 36 Bom. L.R. 311. In that case, when directed to file the accounts, the applicant who was the spiritual head of the Bohra community contended before the Chief Judge of the Small Causes Court that the property was not a wakf property and that he was not bound to file any accounts. The Chief Judge did not accept that contention, and on the failure of the applicant to submit accounts issued a notice for his prosecution under Section 10 of the Act. The question then arose whether the Magistrate before whom the case came up for trial had jurisdiction under that section to determine the question whether the property was a wakf property or not. And this Court held that the question could be gone into ; and although admittedly the point did not arise for decision, the learned Chief Justice expressed the opinion that the view of the learned Chief Judge of the Small Causes Court that the Act applied only to cases where the wakf was admitted was not correct. Thus, the view of all the High Courts, except that of the Chief Court of Oudh, on the interpretation of the main Act, clearly was that under the Act of 1923, the Court had no jurisdiction to make an inquiry when the existence of the wakf was denied ; and before the amendment of the main Act by Bombay Act XVIII of 1935, this Court expressed the view that it was competent to the Magistrate to enquire into the existence of the wakf, and that the main Act did not apply only to those cases where the existence of the wakf was admitted.

5. The question now for consideration is, what is the effect of the amendment made by the insertion of Section 6C in the main Act. Sub-section (1)(i) is rather peculiarly worded and authorizes the Court to hold an inquiry whether a wakf is a wakf to which the Act applies. The argument based on this wording is that it is the admitted existence of the wakf which gives jurisdiction to the Court to inquire whether that wakf is one to which the Act applies, and the scope of the inquiry is confined to that limited question. It is contended that where the existence of the wakf is denied, there is no jurisdiction in the Court to hold an inquiry and to determine whether a wakf exists. If it was the intention of the Legislature, in view of the various decisions of the Courts on the main Act to empower the Court to decide as regards the existence of the wakf, the Sub-section should have read not ' whether a wakf is a wakf, to which the Act applies,' but ' whether there is a wakf.' For, it is to be remembered that the Mussalman Wakf Act of 1923 does not apply to all wakfs. By the definition contained in Section 2, Clause (e), the Act does not apply to wakfs1 such as those described in Section 3 of the Mussalman Wakf Validating Act of 1913, under which any benefit is for the time being claimable for himself by the person by whom the wakf was created or by any of his family or descendants. It is, therefore, possible to argue that what was contemplated by the Legislature in inserting the amendment contained in Section 6C(1)(i) was merely the inquiry when the existence of the wakf is admitted, whether that wakf is one to which the Act applies or is one which is excluded by the definition contained in Section 20) of the main Act. It is only this limited inquiry that is contemplatted when Section 6C(1)(i) says that the Court may hold an inquiry whether a wakf is a wakf to which the Act applies. It has to be remembered that as long ago as 1927, Kulwant Sahay' J. had, in the case quoted above, pointed out that the main Act did not contain provisions similar to those contained in Section 5 of the Charitable and Religious Trusts Act, 1920. It was presumably in order to incorporate the provisions of that type thai; an amendment was sought to be made by the Bill which ultimately became Act XvII of 1935. Sub-section (1) of Section 5 of the Charitable and Religious Trusts Act XIV of 1920 also uses the words 'If the Court on making such inquiry as it may consider necessary, is of opinion that the trust to which the petition relates is 9 trust to which this Act applies.' The Act did not apply to all trusts, but only to charitable and religious trusts. In the course of an inquiry, it was possible for the opponent to take two contentions : (1) that there was, in fact, no trust, or (2): although there was a trust, it was not a charitable or religious trust. The second contention was clearly within the meaning of the phraseology used in Section 5, Sub-section (1), and it could have been contended, as is being contended in this case, that the phraseology did not contemplate an inquiry into the first contention when the existence of the trust was denied. But there is Sub-section (3) of that section which clearly indicates that a Court can inquire even into the existence of the trust. Sub-section (3) rune as follows :

If any person appears at the hearing of the petition and either denies the existence of the trust or denies that it is a trust to which this Act applies, and undertakes tot institute within three months a suit for a declaration to that effect and for any other appropriate relief, the Court shall order a stay of the proceedings and, if such suit is so instituted, shall continue the stay, until the suit is finally decided.

6. It is thus clear that the scope of the inquiry under Section 5 of that Act clearly includes an inquiry even into the existence of the trust; and so it was held in Ganga Ram v. Dr. J. N. fmtley A.I.R. [1938] Oudh 262 and Haidarali v. Gulam Mohiuddin : AIR1934Bom343 . It was presumably on these lines that an amendment was sought to be made by Bill No. V of 1935 which ultimately became Act XVIII of 1935. The original clause in the Bill was as follows :

6C.(i) A Court may, either on its own motion or upon the application of any person claiming to have an interest in a wakf, hold an enquiry in the prescribed manner at any time to ascertain-

(i) whether a wakf is a wakf to which this Act applies ;

(ii) whether any property is the property of such wakf and is situate within the local limits of the jurisdiction of the Court; and

(iii) who is the mutawalli of such wakf,

(2) If any person appears at such enquiry and denies the existence of the wakf, or that the property is the property of such wakf, or that the property is situate within the local limits of the jurisdiction of the Court, or that he is the mutawalli of such wakf, and undertakes to institute within three months a suit for a declaration to that effect and for other appropriate relief, the Court shall stay the enquiry, and, if such suit is so instituted, shall continue the stay until the suit is finally decided.

7. It will be noticed that Sub-clause (2) of the Bill is pan materia in the same terms as Sub-section (3) of Section 5 of the Charitable and Religious Trusts Act; and if that clause had become law' it would have been perfectly clear that, although Section 6C(1)(i) uses the phraseology ' whether a wakf is a wakf to which this Act applied, it was open to any one to appear at such an enquiry and deny the existence of the wakf. In that event the Court could stay the inquiry only if he undertook to institute a suit for a declaration to that effect. For some reason or the other, Sub-clause (2) as it stood in the original Bill was deleted, and in its place we find Sub-section (2) as it now stands in the amending Act. It is possible to argue that in view of the decisions of the various High Courts to the effect that the Mussalman Wakf Act applies only to admitted wakfs and has no application where the existence of the wakf itself is denied, the promoters of the Bill intended to invest the Court with the power to hold an inquiry into the existence of the wakf by adopting the phraseology of the Charitable and Religious Trusts Act of 1920. But as that phraseology was not accepted, one can only infer that it was not the intention of the Legislature to confer such wide powers analogous to that of a civil Court in regular suits on a Court holding a summary inquiry under the Mussalman 'Wakf Act. It is pertinent to note that the Act makes no provision for appeals and revision applications, a provision which would undoubtedly have been made if the Court was to be vested with the jurisdiction to decide these important questions. The leaned Assistant Government Pleader pointed out that even before the amendment brought about by Bombay Act X'VIII of 1935, this Court had held in the case of In re Taker Scdjudin (1933) 36 Bom. L.R. 311 that in a proceeding under Section 10 of the Mussalman Wakf Act, 1923, the Magistrate is entitled to go into the question whether the property in question is wakf or not. And he argued that by the amendment of the Act it could not possibly have been intended that that power should be taken away. We are not impressed by this argument. The ruling referred to above was given on the construction of Section 10 of the Mussalman Wakf Act, XLII of 1923. The clause that we have now to construe is Section 6C(1)(i) which was inserted by the Bombay Amendment Act, and one may legitimately doubt whether the learned Chief Justice who delivered the judgment in that case would have come to the same conclusion if he had before him Section 6C(1)(i) in the form in which it appears in the amending Act. It can also be argued, that the learned Chief Justice having expressed an opinion in that case, that the Act did not apply only to cases in which the wakf was admitted, the Legislature deliberately altered Sub-clause (ii) in the Draft Bill and replaced it by Sub-section (ii) as it now appears, in order to restrict the powers of the Court to hold inquiries only in those cases where the existence of the wakfs is admitted. It is not as if, unless we accept the construction asked to be put upon the clause by the learned Assistant Government Pleader, Section 6C(1)(i) becomes meaningless. As we have pointed out in an earlier part of the judgment, it is not every wakf to which the Mussalman Wakf Act applies. By the very definition of the word 'wakf' certain admitted wakfs such as those under which any benefit is for the time being claimable for himself by the person by whom the wakf was created or by any of his family or descendants and which were validated by Section 3 of the Mussalman Wakf Validating Act, are excluded. So, it is still possible to say that by using the phraseology ' whether a wakf is a wakf to which the Act applies ' the Legislature intended that the Act should apply only to cases where a wakf is an admitted wakf, and the jurisdiction of the Court to hold an inquiry is restricted to the question whether such admitted wakf is one to which the Act applies or is one which is excluded from the purview of the Act.

8. We are, therefore, of opinion that whatever may have been the intention of the promoters of the Bill which ultimately became Act 'XVIII of 1935, the plain meaning of Section 6C(1)(i) is that an inquiry under that clause of the section is confined to cases where the existence of the wakf is admitted. If the intention of the promoters hap not been carried into effect,, perhaps inadvertently, by reason of the substitution of a new clause in place of original Sub-clause (ii), the only remedy is for the Legislature to remedy the defect by making a suitable amendment in the clause. We are, therefore, of opinion that in all these applications, the existence of the wakf having been disputed, it was not open to the learned District Judge to make an inquiry into its existence.

9. We must, therefore, allow all these applications in revision and vacate the order passed by the learned District Judge. The applicants will get their costs both in this Court and in the lower Court from the opponents.


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