1. This is an application to revise an order of the learned District Judge of Bulandshahr, dated 3rd March 1928 by which that Judge rejected an application made to him by the petitioner to obtain the Judge's sanction to certain proposed transfers of some property alleged to be wakf. The learned Judge refused the application on the ground that he had no jurisdiction to entertain it.
2. In the Court below the application was opposed by certain creditors of the estate. They are, in this Court represented by Dr. N.C. Vaish. His clients, have filed an affidavit in this Court stating that they are no longer interested in the property and that certain moneys due to them have been realised by two auction sales. The learned Counsel, however, urged that the decision of the Court below was right.
3. We have given the petition in this Court our best consideration and have come to the conclusion that the learned Judge had the jurisdiction to hear the application and should have heard it.
4. It is a piece of substantive Mahomedan Law that a mutwalli whether the wakf be a public or a private one cannot practically speaking, transfer property without the sanction of the Qazi. The mutwalli's power of transfer is Very much limited indeed. Cases may occur in which a transfer of a portion of the wakf property, if timely made, would save the rest from destruction or loss. It is stated in the petition that the present case was like that. If the sanction of the Qazi has to be obtained, under the Mahomedan Law, and, if without a previous sanction being obtained, no purchaser may be forthcoming to purchase the property except at the risk of losing it eventually, it is necessary that the mutwalli should be in a position to obtain that sanction.
5. Then the question is, who is the officer to whom the mutwalli should go. So far as our information goes, in the olden days, the Qazi exercised both civil and criminal functions. In the present day, the civil and criminal functions are separately exercised in British India. The Qazi could sanction transfer of wakf property only while exercising his civil powers. Naturally therefore, in the present day, the mutwalli has to go to a civil Court to obtain the sanction. Now there are several grades of civil Courts namely the District Judge, the Subordinate Judge and the Munsif. The District Judge is theoretically at any rate, the principal Court of original civil jurisdiction. The application may therefore, be properly made to him by the mutwalli.
6. This is the conclusion at which we have arrived on a consideration of the principles involved in the case. As to authority, in numerous decided cases by the Calcutta High Court it has been held that in the mofussil, the District Judge, and in Calcutta proper, a Judge of the Original Side of the High Court are the officers who may be said to have taken the place of the Qazi of the days of old. The latest case on the point is Habibar Rahiman v. Saidannessa Bibi : AIR1924Cal473 . Eminent text-book writers like Amir Ali and Tyabji express the same opinion.
7. We accordingly hold that the Court below has jurisdiction to entertain the application.
8. We allow the application, set aside the order of the Court below and remand the application of the petitioner to the Court below for disposal according to law. Having regard to the fact that the point is a new one, so far as this province is concerned, we direct that the parties shall pay their own costs in this Court. The costs so far incurred in the Court below will be at the discretion of that Court.