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Wakf Banam Khudawand Karim Mahal Faiz Mohammad Khan Vs. Mt. Raj Kali - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAllahabad
Decided On
Reported inAIR1938All157
AppellantWakf Banam Khudawand Karim Mahal Faiz Mohammad Khan
RespondentMt. Raj Kali
Excerpt:
- - in the case of a hindu deity the conception of a deity as a juristic person is well known and has been laid down many years ago by their lordships of the privy council. we are of opinion for the reasons already stated that the plain, tiff has a perfect right of pre-emption and that no disability whatever attaches to the juristic rights in the case of a wakf......for the respondent argued and we think correctly that a mutwalli is not the proprietor of the wakf property and that view need not be considered and indeed it has not been put forward on behalf of the appellant. the view put forward for the appellant is that the ownership of this share in the village is held by god almighty under the dedication of a wakfnama and that the mutwalli is the person who is entitled to appear in the courts on behalf of the property. now the appearance by proxy of a person in courts in various cases is dealt with in certain orders of the civil procedure code order 27--suits by or against the government or public officers in their official capacity; order 28--suits by or against military man; order 29--suits by or against corporations; order 30--suits by or.....
Judgment:

Bennet, J.

1. This is a second appeal brought by a plaintiff whose suit was decreed by the trial Court but was dismissed by the lower Appellate Court on I the ground that the plaintiff was not entitled to sue. The suit was one for preemption and the plaintiff is described in the plaint as 'Wakf in the name of God, Mahal Faiz Mohammad Khan, situate in rnouza Tslamnagar under the supervision of Mt. Ghandar Begum, daughter of Faiz Mohammad Khan.' Now it is found by the Court below that Faiz Mohammad Khan made a wakf of his property and in January 1921 on his death, his daughter Mt. Ohnndar Begum succeeded as mutwalli, The Court below has taken the view that the plaintiff is not a person contemplated by Section 4(1), Pre-emption Act, because the plaintiff

is neither a sentient being not a company association nor a body of individuals juristically clothed with legal tights.

2. The Court below has distinguished the case of an idol installed in a temple by stating that the idol is clad with clothes, and fed with food and that such acts do not take place in the case of a wakf. No authority is mentioned by the lower Court for the proposition that a suit for pre-emption cannot be brought on behalf of property owned by a wakf. Learned Counsel for the respondent alluded to the terms of the Agra Pre-emption Act of 1922 of which Section 12 states that persons of the following classes shall be entitled to preempt: 'Class II--Co-sharers in the subdivision of the mahal in which the property is situated'. 'Co-sharer' is defined in Section 4 of the Act as

any person, other than a petty proprietor, entitled as proprietor to any share or part in a mahal or village.

3. Now learned Counsel for the respondent argued and we think correctly that a mutwalli is not the proprietor of the wakf property and that view need not be considered and indeed it has not been put forward on behalf of the appellant. The view put forward for the appellant is that the ownership of this share in the village is held by God Almighty under the dedication of a wakfnama and that the mutwalli is the person who is entitled to appear in the Courts on behalf of the property. Now the appearance by proxy of a person in Courts in various cases is dealt with in certain orders of the Civil Procedure Code Order 27--Suits by or against the Government or public officers in their official capacity; Order 28--Suits by or against Military man; Order 29--Suits by or against Corporations; Order 30--Suits by or against firms and persons carrying on business in names other than their own; Order 31--Suits by or against trustees, executors and administrators; Order 32--Suits by or against minors and persons of unsound mind. So far therefore as the procedure in Courts is concerned the Civil Procedure Code intends by these six orders to cover the cases of suits where the person appears by a representative. For the matter of procedure therefore it appears that in the case of wakf the mutwalli does represent the wakf property and the estate under Order 31. Now the argument is that the substantive ownership of this share is held in some manner preventing a right of pre-emption arising under Sections 4 and 12, Agra Pre-emption Act. Learned Counsel for the respondent has not been able to define exactly what is the defect which would prevent God Almighty from being a juristic person. No ruling has been produced which indicates that there is any legal difficulty in the conception of the deity as a juristic person. In the case of a Hindu deity the conception of a deity as a juristic person is well known and has been laid down many years ago by their Lordships of the Privy Council. We are quite unable to see any defect or difficulty in the conception of the deity as a juristic person in the case of a Mahomedan wakf. We may also point out that in English law the deity can also be considered as a juristic person and suits may be brought or defended by a vostry on behalf of church property. The incidents of the legal dedication of property held by a mutwalli representing the wakf have been shown in various rulings. In Abdul Rahim Khan v. Ramzan : AIR1929All518 , it was held that a mutwalli can sue for arrears of rent, In Mohammad Qamar Shah v. Muhammad Salamat Ali : AIR1933All40 , the mutwalli was held to be a co-sharer for the purpose of the Agra Tenancy Act. Another line of attack has been made on the rights of the plaintiff, appellant based on a certain passage in Baillie's Digest of Mahomedan Law, Edition of 1865, p. 474. In a very brief passage of two lines dealing with the subject of pre-emption under the Mahomedan law it was stated:

When it is said that Akar are proper objects of the right of pre-emption, it is by virtue of a right of milk, or ownership, that they are so. Hence if a mansion were sold by the side of a wakf, the appropriate would have no right of pre-emption; nor tumid the mutwalli or superintendent take it under that right.

4. No authority is quoted for this proposition by Baillie and a footnote merely says 'because he is not the proprietor'. The passage in Baillie does not appear to consider whether the mutwalli cannot claim pre-emption on behalf of the deity. This passage of Baillie has been the subject of judicial decision in the Punjab Chief Court reported in Jindu Ram v. Husssain Bakhsh (1914) A.I.R. Lah. 444. On pages 102 and 103 the Court dealt exhaustively with this passage in Baillie and came to the conclusion that the passage did not prevent a right of pre-emption accruing to a wakf. With the argument set forth there we are in agreement and it is unnecessary to recapitulate it. It is to be noted that that suit was brought under Section 31, Punjab' Pre-emption Act, and the present suit is brought under Section 12, Agra Pre-emption. Act. Now Baillie of course was not dealing with the rights of persons under these-Pre-emption Acts which were passed long after his book was written and his observations, sound or unsound, merely relate to the right of pre-emption under the Mahomedan law. We are of opinion for the reasons already stated that the plain, tiff has a perfect right of pre-emption and that no disability whatever attaches to the juristic rights in the case of a wakf. Learned Counsel for respondent admits that no further point remains in the grounds of appeal which were brought before the lower Appellate Court and that our decision on the point mentioned above-governs the whole case. For these reasons-we allow this appeal with costs through out and we restore the decree of the trial Court. The plaintiff, appellant is allowed1 three months from to-day to deposit the pre-emption money Rs. 4700. If he does-not make the deposit within that period, then the suit will stand dismissed witk costs throughout.


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