John Beaumont, Kt., C.J.
1. This is an application by Sirdar Sayedna Taher Saifudin Saheb Mullaji Saheb of the Dawoodi Bohra community asking us to stay the prosecution lodged against him under Section 10 of the Mussal-man Wakf Act, Act XLII of 1923, and now pending before the Chief Presidency Magistrate.
2. The charge against the applicant is that he has not sent the necessary statement and accounts under the Act, and his answer to the charge is that he does not admit the wakf in question. He contends that the property is not wakf property and, therefore, he is not a mutwalli.
3. The first point argued on this application is that the learned Chief Presidency Magistrate has no jurisdiction to determine the question whether the property is wakf property or not. Upon that point I entirely agree with the judgment of the learned Chief Presidency Magistrate who has held that he has jurisdiction to determine whether the property is wakf property. Section 10 of the Wakf Act, under which the prosecution is lodged, provides that any person who is required by or under Section 3 or Section 4 to furnish a statement of particulars or any document relating to a wakf, or who is required by Section 5 to furnish a statement of accounts shall, if he, without reasonable cause, the burden of proving which shall be upon him, fails to furnish such statement or document, as the case may be, be liable to fine. Section 3 provides that every mutwalli shall furnish within six months from the commencement of the Act to the Court within the local limits of whose jurisdiction the property of the wakf of which he is the mutwalli is situated, (and in this case that Court is the Chief Judge of the Small Cause Court), a statement containing certain particulars. Then Section 4 directs the Court to cause those particulars to be published, and enables the Court in certain circumstances to require further particulars to be given. Section 5 requires the mutwalli to render accounts. So that on a prosecution under Section 10 it is clearly necessary in the first place for the prosecution to show that the person charged is a mutwalli of the wakf. If that fact is denied, it seems to me that the Magistrate may hear evidence on the point and determine it in the usual way. If he finds that the person charged is a mutwalli, then the next question is whether there has been default under the Act. If the default is proved or admitted and the person charged says that he had reasonable cause for making default, then the burden of proof of that is upon him. I can see no serious foundation for the argument advanced by Mr. Desai that the Act only applies in cases in which the wakf is admitted. The view I take of the Act is the same as that taken by the Allahabad High Court in Nasrullah Khan v. Wajid Ali I.L.R. (1929) All 165 though that was not a case under Section 10, and the views of the learned Judges on that section are no doubt dicta. On the other hand, Mr. Desai relies on Syed Ali Md. v. Collr. of Bhagalpur : AIR1927Pat189 which again was not a case arising under Section 10. In that case the learned Judge held that the Court referred to in Section 3, that is to say, the Court corresponding with the Chief Judge of the Small Cause Court in this case, had no power to inquire whether the property was wakf property or not. That point does not arise here, but the learned Judge did express an opinion that the Act only applied to cases in which wakf was admitted. I agree with the view of the learned Chief Presidency Magistrate that that expression of opinion is not correct. I have no doubt, therefore, that the learned Chief Presidency Magistrate has jurisdiction to proceed with the inquiry in this case as to whether the property is wakf or not.
4. The next point for consideration is whether we ought to exercise our discretion and stay the prosecution. Now the relevant facts on that point are that the applicant has always denied that he was a mutwalli of this property. He maintains that the property is vested in him absolutely and not as a trustee, and he has started proceedings in this Court to determine that question. No doubt, the civil proceedings were not started till just after the prosecution was commenced. But the applicant had expressed his intention of starting proceedings earlier and had in fact some time before given the necessary notice under Section 80 of the Code of Civil Procedure. We have seen the plaint in that suit (No. 1194 of 1933 on the Original Side), and it would appear that there is a bona fide dispute as to whether the property is wakf or not, and the question appears to turn primarily on the construction of the particular deed and perhaps to some extent on evidence as to the religious views of the donor. These are questions more suitable for determination by a civil Court than by a criminal Court. I think, therefore, that we ought to exercise our discretion to stay the prosecution, but it will only be on terms that the applicant proceeds diligently with the civil suit.
5. We, therefore, grant a stay of the prosecution until judgment in the Civil Suit No. 1194 of 1933 and give liberty to the Public Prosecutor to apply to this Court at any time to remove the stay if he considers that the applicant is not using his best endeavours to bring the case to a speedy trial.