1. On 8th September 1930, Nawab Iqbal Ud-Daula Moqin Ali Khan created a wakf alal-aulad and nominated his wife, Mt. Razia Bani Sultana Begam, as the mutawalli. There was a provision in the deed of wakf that this lady should appoint her successor but she died on 17th August 1935, without doing so. There remained surviving four sons of the creator of the wakf, namely Muhammad Ali Khan, Ahmad Ali Khan, Qaim Ali Khan and Baqar Ali Khan. Muhammad Ali Khan made an application, purporting to be under Section 74, Trusts Act, 1882, praying that he should be appointed as mutawalli by the District Judge. The other three brothers supported the application and the District Judge appointed Muhammad Ali Khan. Three years later, on 30th August 1938, two of the brothers Ahmad Ali Khan and Baqar Ali Khan made an application to the District Judge complaining that the mutawalli was mismanaging the wakf property and misappropriating its income. They requested that Muhammad Ali Khan should be removed and that one of the applicants should be appointed as mutawalli in his place or in the alternative that a Receiver should be appointed to manage the property. Muhammad Ali Khan urged in reply that the questions raised were 'much too grave' and could not be disposed of in summary proceedings on the basis of an application. The learned Judge overruled this objection by an order passed on 21st January 1939 and held that he had jurisdiction to remove the mutawalli and make a new appointment under the provisions of Sections 73 and 74, Trusts Act, 1882. He then proceeded so remove Muhammad Ali Khan and to appoint Ahmad Ali Khan in his stead. This is an application in revision based on the allegation that the order of the learned District Judge was without jurisdiction. In my judgment, the application must succeed. I think it is necessary only to refer to the provisions of Section 1, Trusts Act, 1882, that nothing contained in the Act
affects the rules of Mahomedan law as to wakf...or applies to public or private religious or charitable endowments...
There can be no doubt that provision for a man's offsprings or descendants is a charitable object according to Muslim ideas and a wakf-alalaulad would not be valid as a wakf if it was not created for charitable purposes. It follows that the provisions of the Trusts Act, 1882, do not apply to the wakf which is the subject of these proceedings and that the order of the learned District Judge was, on the face of it, without jurisdiction. It seems clear that] any beneficiary who objects to the management of the wakf has a remedy by way of a suit under the provisions of Section 9, Civil P.C. It has been urged on the other side that the District Judge as the superior Court in the district exercises the functions of a Qazi under the Muslim law and that a Qazi had power to remove the mutwalli of a wakf and appoint some other suitable person in his place. It is true that the District Judge exercises the functions of a Qazi where such functions must be exercised by some authority under the provisions of the Muslim law and where no other provision is made by statute for the exercise of those functions, but it does not follow that the District Judge can exercise all 'the functions of a Qazi, administrative as well as judicial, or that he is absolved from following the procedure which is laid down for civil Courts by the Code of Civil Procedure or any other statutes which may from time to time be in force. Learned Counsel for the opposite party has referred us to a number of rulings, which, I do not think, it is necessary for me to deal with in any detail. There is one case in which it was held that the District Judge was entitled to certify the repudiation of her marriage by a woman when she attained the age of puberty and there are a series of rulings in which it has been held that the District Judge is the authority which can sanction the transfer of wakf property if it is necessary in the interests of a wakf that the property should be transferred. These are matters however for which no other provision is made and which are not in their nature necessarily contentious. In the matter of the repudiation of a marriage, the District Judge is merely to record the fact that the marriage has been repudiated and is not required to make any decision. In the matter of transfers, it is by no means necessary that there should be a contention between two parties which could be the subject of a suit. In my opinion, the rulings do not lead to the conclusion that the District Judge can remove a mutawalli and appoint a successor when there is provision under the law that the result can be obtained, if necessary, by the institution of a regular suit. It has been held in some cases that a District Judge may make an appointment where there is no mutawalli at all but that matter again may not give rise to any contention between hostile parties. Where allegations of mismanagement and misappropriation are made there must be a serious dispute between the person making the allegations and the mutawalli. It seems obvious that in cases of that kind there should be a formal and regular proceeding as in a suit and not a mere summary inquiry on the basis of an application. To allow a District Judge to act on an application would be to deprive the mutwalli of his right of appeal and this would be a serious injustice to him. I would, therefore, hold that the order of the learned District Judge was without jurisdiction and should be set aside.
2. We are given to understand that Ahmad Ali Khan has taken possession of the property on the basis of the District Judge's order of appointment and the question arises whether we should take any steps to remove him or to put the property in the charge of a receiver. I think we should leave the parties to such remedies as are open to them under the ordinary law. Having held that the learned District Judge was not properly seized of this matter we must hold, I think, that we are not seized, of it either. If Ahmad Ali Khan is in possession he can be removed only by due process of law. We might possibly undo the effect of the order which we have held to be without jurisdiction and restore the original position, but there is at least some reason for thinking that Muhamad Ali Khan may have been an unsatisfactory mutwalli and we have no evidence before us to justify us in the conclusion that Ahmad Ali Khan has not managed the property in a proper way. The difficulty in the way of appointing a receiver is that there are no proceedings before us in the course of which one could be appointed. It will be open to Ahamad Ali Khan to institute a suit in order to obtain a decree that Muhammad Ali Khan should be formally removed from the position of mutwalli and he or somebody else should be appointed in his place. On the other hand, if Ahmad Ali Khan retains possession, Muhammad Ali Khan may bring a suit for possession against him. In either case, if the circumstances demand it, the plaintiff can obtain an order from the Court in which the suit has been instituted that a Receiver should take possession of the property till the suit is decided. If there is any danger of any party taking the law into his own hands, it is always open to the Magistrate to take proceedings under the provisions of Section 145, Criminal P.C. I think it will be sufficient for us to set aside the order of the learned District Judge and to leave the parties to take such action as may seem to them appropriate.
3. I agree that this application in revision must be allowed, and the order of the learned District Judge, dated 5th April 1940 removing the applicant Mohammad Ali Khan, as mutawalli and appointing the respondent, Ahmad Ali Khan in his place, discharged. In my view, for the reasons explained in the judgment of my learned brother, Allsop J. the District Judge had no jurisdiction to make these orders on petition under Sections 73 and 74, Trusts Act, 1882. That the Court had jurisdiction, however, in properly instituted proceedings to remove a mutawalli for misconduct of breach of trust, and subject to the provisions of the wakf instrument, to appoint another in his place, I do not doubt. But it is clear for obvious reasons, that contentious litigation between hostile parties involving a serious controversy of fact could only be properly dealt with in a regular suit and could not be satisfactorily disposed of in a summary form on petition. This is, I believe, as much the accepted practice in India in contentious cases involving the removal and appointment of trustees, as it is under English practice : see In re Dove's Will Trust; Hedley v. Dove (1939) 1939 W.N. 230.
4. In my opinion, however, it would not be right merely to discharge the learned Judge's order of 5th April 1940. The effect would be automatically to reconstitute the applicant, Mohammad Ali Khan, as the de jure mut-walli leaving the respondent, Ahmad Ali Khan de facto in possession of the wakf property, and, in the absence of any further orders in the position of a mere trespasser. The respondent, Ahmad Ali Khan owing to the undue delay in the hearing of this application in revision has been in possession of the wakf property for close on five years under the order of 1940 which we are now discharging and has been as far as we know a satisfactory de facto mutwalli. On the other hand, though the learned District Judge's order of 5th April 1940 is to be set aside and the facts alleged against the late mutwalli cannot be said to have been proved, I cannot altogether close my eyes to the grounds on which the order was made. Moreover, we do not know how long it may take for fresh proceedings to be instituted by the respondent, if indeed he does so at all. In the meantime, the position must necessarily be unsatisfactory. For these reasons, I do not think that it would be right merely to leave the matter with an order setting aside the proceedings of 1940. With deference, I do not share the view that this Court, in this or any other matter involving the administration and care of assets, has no sufficient seisin of the subject-matter of a dispute which is once before it, to enable it to make such provision as is proper for the protection of the estate. I do not think that the fact that the application on which the 1940 order was made was misconceived affects the matter. Jurisdiction to protect property pending the ascertainment of rights is inherent in any Court which once has cognizance in any form of a dispute involving the execution of a trust or the administration of assets; and I think the Court has not merely jurisdiction but a duty to safeguard them. This the learned advocate appearing for the respondent has asked us to do by the appointment of a receiver pending the disposal of the matter in issue.
5. In my opinion, the proper order to be made would be on these lines. This application in revision should be allowed and the order of the learned District Judge of Benares dated 5th April 1940 discharged. The respondent, Ahmad Ali Khan should be appointed Receiver and Manager, without security of the property of the wakf as from this date under Order 40, Rule 1 of the Schedule to the Civil, Procedure Code, on the terms, (1) that, should no fresh proceedings for the removal of the applicant, Mohammad Ali Khan as mutwalli and for the appointment of a new mutwalli in his place be begun within three months from the date of this order, such order appointing him Receiver and Manager is to be discharged; or (2) that if any such fresh proceedings are begun within such period, then the order appointing him Receiver and Manager is to be without prejudice to the power of the Court in which such proceedings are begun, on the application of any party, to discharge such Receiver and Manager and to make such further or other orders in relation to the property of the wakf, pending the disposal of the proceedings as it shall think fit and proper to be made. The effect of this will be, I think, to give three months, during which the property will be protected, in which the parties can make up their minds either to compose their differences, as I hope may be the case, or to launch such further proceedings as are necessary. It will, moreover, preclude all possible bickering as to possession of the property, and the receipt of rents and profits in the meantime and will keep the property under, the control of the Court. On the other hand, if nothing is done within three months, it may safely be supposed that the removal of the applicant Mohammad Ali Khan as mutwalli is no longer necessary. And I think that there should be liberty to any party to apply in the Court of the District Judge of Benares as to any of the matters aforesaid and generally.
Wali Ullah, J.
6. I agree that this application must be allowed and the order of the learned District Judge should be set aside. The relevant facts are set out in the judgment of my learned brother Allsop. J., and it is not necessary to reproduce them here. In my view, the learned District Judge had no jurisdiction to pass the order removing Mohammad Ali Khan under Section 73, Trusts Act, and appointing Ahmad Ali Khan in his place as mutwalli of the waqf in question under Section 74 of the Act. It seems to me that the proceedings under Sections 73 and 74, Trusts Act, were entirely misconceived. As has been repeatedly, held, a mutwalli is not a trustee in the strict sense of the word and the waqf property does not vest in him, Reference might be made to Vidya Varuthi v. Balu Sami Aiyar ('22) 9 A.I.R. 1922 P.C. 123, Abdur Rahim v. Narayan Das Aurora ('23) 10 A.I.R. 1923 P.C. 44 and Saadat Kamel v. Attorney General Palestin ('39) 26 A.I.R. 1939 P.C. 185. It is for this reason that Section 1, Trusts Act, inter alia, provides:
But nothing herein contained affects the rules of Mahomedan law as to waqf or...or applies to public or private religious and charitable endowments...
7. In the present case, we are concerned with a waqf-alal-aulad which was created on 8th September 1930, and, in view of the provisions of the Trusts Act mentioned above, this waqf is not governed by the provisions of the Trusts Act. With regard to the powers of the civil Court in the matters of 'removal' and 'appointment' of mutwallis it is well to remember that Section 92, Civil P.C. gives powers to the District Judge as the principal Court of original civil jurisdiction, in a suit instituted under the provisions of that section to remove a mutwalli and appoint a new one. Similarly, in regard to waqfs which come under the purview of the Religious Endowments Act of 1863, the civil Court has power, in a suit instituted with the leave of the Court, to remove the mutawalli (or the trustee). It is obvious that the statutory provisions referred to above, apply only to religious and charitable trusts of a public nature and they would, therefore, not govern a waqf-alal-aulad like the present. The position therefore is that there is no statutory provision vesting a District Judge, or any other civil Court with the power of appointing or removing a mutwalli in a case of a private trust like a waqf-alal-aulad. As observed by their Lordships of the Privy Council in Mahomed Ismail Arif v. Ahmad Moolla Dawood ('16) 3 A.I.R. 1916 P.C. 132
the Mussulman law, like the English law, draws a wide distinction between public and private trusts. Generally speaking, in the case of a waqf or trust created for specific individuals, or a determinate body of individuals the Kazi, whose place in the British Indian system is taken by the civil Court, has in carrying the trust into execution to give effect so far as possible to the expressed wishes of the founder. With respect however to public religious or charitable trusts, of which a public mosque is a common and well-known example the Kazi's discretion is very wide. He may not depart from the intentions of the founder or from any rule fixed by him as to the objects of the benefaction; but as regards management which must be governed by circumstances he has complete discretion. He may defer to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but his primary duty is to consider the interests of the general body of the public for whose benefit the trust is created.
8. Under the Mahomedan system the 'Kazi' was the principal Judicial Officer. He was frequently associated with the 'Mufti' who was the juris consult or the principal law officer who gave the Fatwa, or the exposition of the law applicable to cases. The kazi, however, was the officer who gave the actual decision. In addition to his judicial capacity, the kazi was also an important administrative officer. As observed* by the Privy Council in the above mentioned case the place of the kazi in the British Indian system has been taken by the civil Court. There is no doubt whatsoever that the civil Court like the kazi, is fully competent to remove a mutwalli upon misfeasance or breach of trust, and the same is the position in regard to the appointment of a mutwalli. With regard to the procedure, however, which must be followed before the District Judge can exercise his jurisdiction in the matter of removal or appointment of a mutwalli, decisions of various High Courts in India appear to establish the following proposition that the District Judge as a principal civil Court of original jurisdiction has, by virtue of his powers as a kazi, a general power of nominating a mutwalli when there is a' vacancy in the office in a summary proceeding, that is, by means of a mere application, but he has no such power in a summary proceeding to appoint another mutwalli in place of one who is in office. The removal of a mutwalli can only be done by means of a suit properly instituted in the civil Court. If the wakf be of a public, religious or charitable nature the suit would lie either under Sections 14 and 18, Religious Endowments Act of 1863 or under Section 92, Civil P.C. If, however, the wakf be of a private nature, e.g., a wakf-alal-aulad, the proper remedy would 'appear to be a regular civil suit under the general provisions of Section 9, Civil P.C. The relevant cases may be briefly noticed here.
9. In Mohiuddin Chowdhury v. Aminuddin Chowdhury : AIR1924Cal441 , where the deed of endowment provided that a vacancy occurring in the office of mutwalli should be filled by a pious Mahomedan appointed by a competent Court, a Bench of two learned Judges of the Calcutta High Court held that the District Judge has the powers of a kazi under the Mahomedan law in such matters and can make the appointment in accordance with the terms of the deed of endowment on application being made to him and that a suit framed under Section 92, Civil P.C. is not necessary. Again in Abdul Alim v. Mt. Abir Jan Bibi : AIR1928Cal368 , a Bench of two learned Judges of the Calcutta High Court have observed:
The practice of invoking the power of a Distriot Judge as a kazi in connexion with matters of public and religious trusts under the Mahomedan law has become general and it cannot now be doubted that in a proper case, the Judge should exercise the powers which he does possess.
10. Again it was observed by Suhrawardy J., at p. 370:
Where there is no mutwalli, the Court has power to appoint a mutwalli in respect of a wakf. Under the Mahomedan law the administration of a religious and public trust is vested in the kazi and it seems to me that it is the duty of the kazi when he finds, as in the present case, that there is no one to administer the trust, to see that it is properly administered, and for that purpose it is within his competency and it is proper that he should appoint a trustee to manage the trust property.
11. Similarly, in Elahi Bakhsh v. Mohammad Ghauns ('33) 20 A.I.R. 1933 Lah. 27, a learned single Judge of the Lahore High Court held that a suit under Section 92, Civil P.C. was not absolutely necessary in all cases when the question was one of appointment of a mutwalli. The case in : AIR1924Cal441 was followed. Again in Ambalavana Thambiran v. Vageesan Pillai : AIR1930Mad226 which is a decision of two teamed Judges of the Madras High Court it has been laid down that under the Mahomedan law the civil Court has power of appointing a trustee directly without having recourse to Section 92, Civil P.C. In the course of the judgment it was further observed that
if the Kazi Could make the appointment...as the law allowed him to do, so also could the Court.... Nothing which was intra vires of the power of the Kazi could be ultra vires of the power of the civil Court which now exercises his functions.
To the same effect is the decision of the Oudh Chief Court in Allah. Rakhoo v. Nasiruddin ('43) 30 A.I.R. 1943 Oudh 278 which follows the decision of the Madras High Court in Ambalavana Thambiran v. Vageesan Pillai : AIR1930Mad226 . In Mafizuddin Mandal v. Rahima Bibi : AIR1934Cal104 which was a case relating to the repudiation of a marriage by a girl on the attainment of puberty, a Bench of two learned Judges of the Calcutta High Court in the course of their judgment observed as follows:
Under the Mahomedan regime the Judge was the Kazi and the question is whether under the British administration the District Judge has the jurisdiction of the Kazi in this matter. It appears that shortly after Warren Hastings became Governor of Bengal the Bast India Company established civil Courts which took over the powers and duties of the Mahomedan Courts and administered Mahomedan law: vide Cowan's Tagore Law Lectures on Mahomedan Law; and under Section 4, Civil P.C. the civil Courts retain this jurisdiction in the absence of any specific provision to the contrary.
12. Reference was also made in the course of the same judgment, to the case in Shama Churn Roy v. Abdul Kabeer ('99) 3. C.W.N. 158 where it has been laid down that:
The civil Court of superior jurisdiction in the district is vested, generally speaking, with the powers exercised by the Kazi under the Mahomedan regime.
13. In A.I.R. 1940 Pat. 9,13 a Bench of two learned Judges of the Patna High Court after discussing the case-law relating to the powers of a District Judge to appoint mutwallis in summary proceedings have held:
Under the Mahomedan law the Kazi has power to appoint a mutwalli when a vacancy occurs and there is none to take office under the terms of a wakf or when the mutwalliship devolves under the deed of wakf upon a minor.
14. So far as the question of the removal of a mutwalli is concerned, it has been repeatedly held that that can be effected only by means of a regular suit and not in a summary proceeding started by a mere application : vide Bibi Zohra v. Bibi Habibunnissa ('40) 27 A.I.R. 1940 Pat. 9. In Abdul Hasan Khan v. Jafar Husain where certain persons applied for being, appointed trustees of a certain wakf without, however, specifically praying for the removal of the trustees actually working then, it was held that the purpose of the application was nothing but the removal of such persons therefrom and the relief sought for fell within the purview of Section 92(1), Civil P.C. In such a case, though Section 92 does not expressly bar such application, it does so, however, by necessary implication and the Court has no jurisdiction to entertain such application and that the remedy of the applicants was by way of a suit under Section 92. Similarly, in : AIR1928Cal368 , a Bench of two learned Judges of the Calcutta High Court have made observations to the effect that where a Court is invited to appoint a mutwalli after removal of the mutwallis who were acting, the matter comes under Section 92, Civil P.C. and a suit under that section was necessary. Their Lordships have made a pointed reference to the cases in Netirama v. Venkata Charlu ('03) 26 Mad. 450, Laehman Prasad v. Munia : AIR1925All759 and Budreedas v. Chooni Lal ('06) 33 Cal. 789 and have observed that
on an examination of the facts of those cases it would appear that in those cases there were some persons who were claiming to be mutwallis and the applications were for removing them or removing them from the place they occupied and appointing the applicants as mutwallis.
It was, therefore, not correct to say that those cases decided that where a Court is invited to appoint a mutwalli, where there is a vacancy, the matter comes under Section 92, Civil P.C. Again in Natha Bhai v. Waghjibhai Javerbhai ('28) 15 A.I.R. 1928 Bom. 20 two learned Judges of the Bombay High Court have held that the removal of a mutwalli or trustee can be effected only by means of a suit and not by an application (except by a beneficiary under the Trusts Act). They have referred to Lewin on Trusts, 9th Edn. p. 1166:
If there be ground for removing a trustee for misconduct or other cause, the application to the Court should be by suit.
15. It must be noted that this was a case under Trusts Act. Similarly, in Mohammad Sadiq Ali Khan v. Kazim Ali Khan ('34) 21 A.I.R. 1934 Oudh 118 a learned Judge of the Oudh Chief Court has laid down that the relief for removal of a trustee and appointment of the applicant as such cannot be claimed by means of an application. That was a case relating to the Raddimazalim fund which was a wakf partly of a private and partly of a public nature. It was consequently held that a suit under Section 92 was the proper remedy and not an application under Section 34 or Section 74, Trusts Act. Lastly, in Mohammad Yusuf v, Mohammad Ayub ('38) 25 A.I.R. 1938 Pat. 537 which was a decision by a learned single Judge of the Patna High Court, it was held that the District Judge had no power to remove a mutwalli in miscellaneous proceedings by means of an application. He could not, further, require the mutwalli to render accounts. This case related to a private waqf. Reverting to the case which we have to decide, it is clear that the order of the learned District Judge being without jurisdiction must be set aside. The question however remains whether, in view of the peculiar circumstances of this case, this Court should pass any further order with a view to the protection of the wakf property pending the ascertainment of the rights of the parties in subsequent proceedings. The learned Counsel for the opposite party has strongly pressed that we should make some interim arrangement either by appointing a Receiver and Manager or a temporary mutwalli for looking after the management of the trust property till the decision of fresh proceedings regularly instituted hereafter by any of the parties. Regarding this matter however, I find that there is a difference of ' opinion between my learned brothers, Allsop and Braund, JJ. and particularly so on the question whether we have got jurisdiction to pass any such order. I have gone through the two judgments of my learned brothers and have considered their views carefully; in the end I find myself in agreement with the views of my brother Braund J., when he says:
Jurisdiction to protect property pending the ascertainment of rights is inherent in any Court which once has cognisance in any form of a dispute involving the execution of a trust or the administration of assets; and I think the Court has, not merely jurisdiction, but a duty to safeguard them.
16. It is clear from Order 40, Rule 1, Civil P.C. that a Receiver can be appointed in proceedings other than suits. Thus, it has been held that a Receiver may be appointed during the course of the proceedings for the appointment of a guardian under the Guardians and Wards Act: vide Mt. Chandra Wati v. Jagannath Singh ('25) 12 A.I.R. 1925 Lah. 489 and Godubai v. Janabai . Similarly, in Kuppuswami Mudaliar v. Subramaniam Chettiar ('23) 10 A.I.R. 1923 Mad. 224 two learned Judges of the Madras High Court have held that in a suit under Section 92, the Court has power to appoint a Receiver and take the management of the temple out of the hands of the trustees appointed by the temple committee pending the disposal of the suit even though there is no prayer for his removal and though he cannot be removed except on a proper inquiry. Similarly in Balkrishna Odayar v. Jagannada Chariar ('25) 12 A.I.R. 1925 Mad. 820, it was held by a Bench of two learned Judges of the Madras High Court that in a proper case the District Judge in a suit under Section 92, Civil P.C. could appoint an interim receiver for the protection of the trust properties. That was a case where one of the trustees instituted a suit under Section 92 for the removal of other trustees on the ground of mismanagement of the trust properties. It 'appeared to the District Judge that there were constant quarrels among the trustees, and it was necessary to appoint a receiver for the protection of the trust properties pending the disposal of the suit. The learned Judges while upholding the order of the District Judge regarding the appointment of a receiver made the following observations:
We need not go into detail in this matter. It is clear from the statement of both parties that there are internecine quarrels between the trustees each charging the other with mismanagement and suppression of accounts and the issues in the case will entail an investigation of the charges against each. In these circumstances it is undesirable that either party should be left in exclusive control of the account or in exclusive authority over the temple servants. We are not prepared to interfere with the discretion of the lower Court, which considers it just and convenient to appoint a receiver in such circumstances.
Again in Mahadev Heramb De v. Govindrao Krishnarao ('37) 24 A.I.R. 1937 Bom. 124 two learned Judges of the Bombay High Court have held that the appointment of a receiver by the District Judge with a view to the enforcement of a scheme framed in a suit under Section 92, Civil P.C. was not ultra vires. A Bench of two learned Judges of the Calcutta High Court in Fateh Ali Mirza v. Sajjad Hossain : AIR1937Cal740 have held that the Court dealing with a suit under' Section 73 (2), Bengal Wakf Act, 1934, can appoint a receiver pending the hearing of the suit as such a suit is very much like a suit under Section 92, Civil P.C. The learned Judges at p. 741 have made the following observations:.We are of opinion that it was well within the competency of the learned District Judge of the 24-Par-ganas, in the exercise of his discretion to appoint the receiver pending the determination of all the matters in issue between the parties in the suit including the issue as to the competency of the suit. It has been repeatedly held in other High Courts that it is well within the power of a Judge in dealing with a suit under Section 92 of the Code to appoint a receiver pending the hearing of the suit. A suit under the provisions of the Bengal Wakf Act, 1934, is very much the same as a suit under Section 92.
17. It is no doubt true that it has been held by two learned Judges of this Court in Kanhaiya v. Kanhaiya Lal ('24) 11 A.I.R. 1924 All. 376 that the Court has no jurisdiction to appoint a receiver in proceedings under the Succession Certificate Act, but this was so because it was held in that case that the Civil Procedure Code did not apply to proceedings under the Succession Certificate Act which is not analogous to the Guardians and Wards Act to which the general provisions of the Civil Procedure Code have been held to apply. Lastly, in circumstances somewhat similar to those of the present case in Bibi Zohra v. Bibi Habibnussa ('40) 27 A.I.R. 1940 Pat. 9 two learned Judges of the Patna High Court in a case where there were two rival claimants to the mutwalliship found that the order of the District Judge appointing one of them as such mutwalli in a summary proceeding started by an application was without jurisdiction. While setting aside the order of the District Judge they directed that a temporary mutwalli be appointed but that appointment would be subject to the result of any suit which might be instituted within a certain time for the regular determination of the question as to who was entitled to be the mutwalli.
18. Bearing in mind the principles laid down by the authorities mentioned above in cases analogous to the present one, it seems to me that the appointment of a receiver for a short period would be eminently 'just and convenient'; and the Court has ample powers for making such an appointment under Section 94 read with Order 40, Civil P.C. or in the alternative under Section 151, Civil P.C. In any view of the matter, in very exceptional circumstances of the present case, it seems to me that it cannot be said that the Court has no power to pass an order of this nature simply because no express provisions of the Code or reported decision of a Court, exactly on all fours, can be found to meet the requirements of the case. As observed by that eminent Judge, Mahmood J., in Narsingh Das v. Mangal Dubey ('83) 5 All. 163 (F.B.):
The Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle, prohibitions cannot be presumed.
19. In view of the above I am in full agreement with the form of the order proposed by my learned brother Braund J.
20. We allow this application and set aside the order of the District Judge. In accordance with the opinion of the majority, we appoint Ahmad Ali Khan, Receiver and manager, without security of the property of the wakf as from this date under Order 40, Rule 1 of Schedule 1, Civil P.C. on the terms, (1) that should fresh proceedings for the removal of the applicant, Muhammad Ali Khan, as mutwalli and for the appointment of a new mutwalli in his place be begun within three months of the date of this order, such order appointing him Receiver and manager is to be discharged, or (2) that if such fresh proceedings are begun within such period, then the order appointing him Receiver and manager is to be without prejudice to the power of the Court in which such proceedings are begun, on the application of any party, to discharge such Receiver and manager and to make such further order or orders in relation to the property of the wakf, pending the disposal of the proceedings as it shall think fit and proper to be made. The applicant, Muhammad Ali Khan, shall get from the opposite parties his costs of these proceedings in both Courts up to and including the date of this order.