1. Many points raised in this application have already been discussed by us in our judgment in Nasarullah v. Wajid Ali : AIR1932All362 . There are however two facts in particular which differentiate this case from the one decided by that judgment. In both the cases the District Judge fined persons described as mutawallis of the wakf under Section 10, Act 42 of 1923, but in the other case the mutawalli had himself filed accounts under Section 3 of the Act, and he was fined for failure to file further accounts under Section 5 of the Act. In the present case the person described as mutawalli has never admitted that the property which he manages is a wakf, and he has been fined for failure to comply with the provisions of Section 3 of the Act. We have expressed the view in the former case that to come to a decision under Section 10, Musalman Wakf Act, it is necessary for a Court to decide whether the person who is alleged to be in default is or is not the mutawalli of a wakf within the meaning of the Act. This person, Syed Afzal Husain, had on many previous occasions, described himself as mutawalli and the Judge has given good reasons for holding both that he is the mutawalli and that the wakf managed by him is one which comes within the purview of Act 42 of 1923. It would be clearly impossible to fine any person under Section 10 of the Act for failure to comply with Section 3 of the Act if all he had to do was to deny that he was the mutawalli of a wakf and that is all the applicant in the present case has been able to do. There is ample proof that he is the mutawalli of the wakf and the Court cannot be excluded from considering this question when exercising its jurisdiction under Section 10, Act 42 of 1923.
2. We have also held in the connected case, to which we have already referred, that in our opinion the District Judge is empowered by Section 10 to impose the penalty of fine. Thus the order in this case, in so far as it is an order imposing a fine of Rs. 50 on the applicant, is, in our opinion, a good order, which must be maintained, but no provision is made in the section for imposing a sentence of imprisonment in default of payment, and that part of the order of the District Judge must accordingly be set aside. We are also not of opinion that in a case of this kind any portion of the fine, when realized, should be paid to the informer. We therefore modify the order of the District Judge in this case, upholding the order of fine only, and setting aside the order that in default the-applicant should undergo simple imprisonment for one month and the order-directing that Rs. 25 out of the fine, if realized, should be paid to the applicants.