Skip to content


Tyebhoy Essofalli Thingna Vs. the Collector - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 400 of 1942
Judge
Reported inAIR1944Bom91; (1943)45BOMLR1055
AppellantTyebhoy Essofalli Thingna
RespondentThe Collector
Excerpt:
.....such or der-wakf partly public and partly private-applicability of mussalman wakf act, 1923.;a revision application under section 115 of the civil procedure code, 1908, lies against an order made by a court under section 6c of the mussalman wakf act, 1923, as amended by the mussalman wakf (bombay amendment) act, 1935.;karimmiya hamdumiya v. jafarali bawamiya (1942) 44 bom. l.r. 666, referred to.;where there is a mixed wakf, i.e. one that is partly a public wakf and partly a private wakf, that part which is independent of any family obligation is governed by the mussalman wakf act, 1923, and contribution in respect of it is liable to be paid towards the wakf administration fund.;ali bakhtiyar v. khandkar altaf hossain (1933) i.l.r. 60 cal. 790 and saiyed shabbir hussain v. shaikh..........and benefit of the said 'maskati charitable dispensary and hospitals.'2. on october 16, 1940, the learned district judge of ahmedabad called upon the petitioner to pay a contribution towards the wakf administration fund. the petitioner made an application contending that the wakf was such as is described in section 3 of the mussalman wakf validating act, 1913, and, therefore, the mussalman wakf act of 1923 was not applicable to it, and also that he had already paid the contribution to the wakf administration fund at surat and could not, therefore, be called upon to pay it over again at ahmedabad.3. the learned district judge held an inquiry under section 6c of the mussalman wakf act, 1923, and held that since at least half the income of the trust was independent of any family.....
Judgment:

Lokur, J.

1. This is an application in revision against the order of the District Judge of Ahmedabad passed in an inquiry held under Section 6C of the Mussalman Wakf Act, 1923, as amended by Bombay Act XVIII of 1935. The petitioner is the managing trustee of the Matekati Charitable Properties Trust situated at Ahmedabad and Surat. The trust was created by a deed executed on July 6, 1911. The deed provides that after payment of all taxes, dues and assessments payable in respect of the trust premises and other expenses for repairs, insurance, etc., the trustees appointed by the deed should apply not less than half the net income towards the establishment, continuance and maintenance at Surat of a charitable dispensary, a hospital and a maternity hospital to be named 'The Maskati Charitable Dispensary and Hospitals', and divide the balance of the net income into eight equal shares between the settlor's sons and daughters during their respective lives and after their deaths among their legitimate lineal descendants, provided that in case of failure of descendants of the settlor the whole of the balance of that net income is to be applied for the purposes and benefit of the said 'Maskati Charitable Dispensary and Hospitals.'

2. On October 16, 1940, the learned District Judge of Ahmedabad called upon the petitioner to pay a contribution towards the wakf administration fund. The petitioner made an application contending that the wakf was such as is described in Section 3 of the Mussalman Wakf Validating Act, 1913, and, therefore, the Mussalman Wakf Act of 1923 was not applicable to it, and also that he had already paid the contribution to the wakf administration fund at Surat and could not, therefore, be called upon to pay it over again at Ahmedabad.

3. The learned District Judge held an inquiry under Section 6C of the Mussalman Wakf Act, 1923, and held that since at least half the income of the trust was independent of any family obligation, that part of the wakf was governed by the Act of 1923, and that in respect of that part of the wakf contribution was liable to be paid towards the administration fund. He further ordered that the applicant should apply to the Surat Court for a refund of the amount wrongly paid by him there.

4. The petitioner has now come in revision against that order, and a preliminary objection is raised that since the entries made by the Court in the Register of Wakfs and the findings recorded under Section 6C are final for the purpose of the Act, no revision application is maintainable.

5. Section 6G provides that a civil Court of competent jurisdiction may direct any alteration or amendment in the entries in, the Register of Wakfs, but subject to the decision of a civil Court the entries made in the Register and the findings recorded under Section 6C are final. In view of Sections 6F and 6G it was held in Karimmiya Hamdumiya v. Jafarali Bawamiya : AIR1942Bom279 that an order passed by a Court under Section 6C being final, no appeal lay from it. The learned Chief Justice observed (p. 667) :

Obviously, if we can alter the findings of the District Court, those findings are not final. I am disposed to think, therefore, that the Act forbids an appeal from a finding recorded under Section 6C.

6. But at the same time when the learned advocate for the appellant made a request that the appeal should be treated as an application in revision, the learned Chief Justice observed that in view of the fact that no order had been drawn up, he would not entertain the application as one in revision, meaning thereby that if an order had been drawn up, an application for revision would have been maintainable.

7. Section 115 of the Civil Procedure Code empowers the High Court to call for the record of any case which has been decided by any Court subordinate to it and in which no appeal lies thereto and in the cases mentioned therein it may make such order as it thinks fit. Section 6C of the Mussalman Wakf Act empowers the Court, that is to say the Court of a District Judge, either on its own motion or upon the application of any person claiming to have an interest in a wakf, to hold an inquiry to ascertain whether a wakf is a wakf to which the Act applies, Thus the decision given is the decision of a Court which is subordinate to the High Court and, therefore, a revision application under Section 115 is maintainable.

8. By way of illustration I may refer to Order XXI, Rule 103, of the Civil Procedure Code, 1908, which enacts that an order made under Rule 98, Rule 99 or Rule 101 is conclusive, subject to the result of a suit that may be filed by a party against whom the order is made, and yet an order under Order XXI, Rule 98, Rule 99 or Rule 101 is liable to revision under Section 115, Civil Procedure Code. The preliminary objection against the maintenance of this application must, therefore, fail.

9. On the merits I see no reason to interfere with the order passed by the learned District Judge. It is true that the settlement deed has created a mixed trust, one part of the income of the property being dedicated to charitable purposes and the other part to the relatives of the settlor. Mr. Thakor for the petitioner contends that the wakf is a single wakf and falls within Clause (a) of Section 3 of the Mussalman Wakf Validating Act since its purpose is for the maintenance and support of his family, children and descendants partially. If so, it does not fall within the definition of 'wakf' in Section 2(c) of the Mussalman Wakf Act of 1923. The learned District Judge has held that half the income of the trust is independent of any obligation, and the wording of the deed of settlement is capable of such a construction. As observed by Mitter J. in Ali Bakhtiyar v. Khondkar Altaf Hussain I.L.R. (1933) Cal. 790, Section 3 of the Mussalman Wakf Validating Act, 1913, applies to wakfs, which are in the nature of family settlements pure and simple, where the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character, and the provisions of the Mussalman Wakf Act, 1923, are applicable to a mixed wakf, i.e. one that is partly a public wakf, that is devoted entirely to religious purposes, and partly a private wakf. On that ground he held that an application for an order on the Mutawalli of such a wakf to file a statement of accounts under Section 3 of Act XLII of 1923 would lie before a District Judge.

10. The same view was taken by Wazir Hasan C.J. in Saiyed Shabbir Husain v. Shaikh Ashiq Hussain I.L.R. (1929) Luck. 429. In view of these rulings, the interpretation placed on the settlement deed by the learned District Judge and his finding that at least half the income of the trust does not fall within the scope of Section 3 of the Mussalman Wakf Validating Act, 1913, and that part of the wakf, therefore, comes under the operation of the Mussalman Wakf Act, 1923, is correct, and I see no reason to interfere with that interpretation in revision. The order calling upon the petitioner to pay the contribution and then ask for a refund from the Surat Court is neither illegal nor without jurisdiction, and there is no reason to interfere with the discretion of the learned District Judge.

11. The rule is, therefore, discharged with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //