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In Re: Wakf, Paramathi, Khazhi MohiuddIn Sheriff Sahib, Khazi of Paramathi - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported in(1945)2MLJ269
AppellantIn Re: Wakf, Paramathi, Khazhi MohiuddIn Sheriff Sahib, Khazi of Paramathi
Cases ReferredNasrullah Khan v. Wajid Ali I.L.R.
Excerpt:
- - kashi mohiuddin sheriff sahib air1933mad533 ,in which it was clearly found that in this wakf 'the profits accruing from the suit property after meeting the expenses of the services were being enjoyed by the trustees and that they have therefore a beneficial interest in the property. under section 10 penalties are prescribed for failure to comply with the requirements of sections 3, 4 and 5. it provides that any person who is required under sections 3,4 or 5 to furnish statements or accounts shall, in default, be liable to a fine......3 of the act should be fulfilled. that section imposed an obligation upon every mutavalli to furnish particulars to the court relating to his wakf. the district judge says that it was in such circumstances, namely, that the section had never been observed, he issued this order calling for the information.4. the act is a short one. section 2 contains definitions, amongst other things, of a wakf. this is defined as the permanent dedication by a person professing the mussalman faith of any property for any purpose recognised by the mussalman law as religious, pious or charitable, but does not include any wakf under which any benefit is for the time being claimable for himself by the person by whom the wakf was created or by any of his family or descendants. prima facie, therefore,.....
Judgment:

Bell, J.

1. This petition is to revise an order of the District Judge of Salem dated 12th September, 1944. By that order the District Judge, purporting to act under the Mussalman Wakf Act, 1923, called upon the mutavalli of a wakf at-Paramathi, Namakkal Taluk, to file certain statements regarding the finances of the trust, including a statement of the portion of the annual income beneficially taken by the mutavalli and other members of his family.

2. The mutavalli petitioned in revision and Mockett, J., made an order requesting the District Judge to furnish a report of the circumstances in which he had come to make his order. He pointed out that it was not clear how such an order could be made in the absence of any application therefor. The report was to state how the matter first arose, whether notice was sent to anyone, and generally under what provisions of law the Court claimed to have jurisdiction. The attention of the learned District Judge was directed to the case of Nasrullah Khan v. Wajid Ali I.L.R.(1929)All. 167.

3. The District Judge has duly submitted his report. In this he states that he found that the Mussalman Wakf Act had not been enforced and had remained a dead letter, in his opinion, so far as his district was concerned. He, therefore, in December 1942, thought it necessary to take action in order that the provisions of Section 3 of the Act should be fulfilled. That section imposed an obligation upon every mutavalli to furnish particulars to the Court relating to his wakf. The District Judge says that it was in such circumstances, namely, that the section had never been observed, he issued this order calling for the information.

4. The Act is a short one. Section 2 contains definitions, amongst other things, of a wakf. This is defined as the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable, but does not include any wakf under which any benefit is for the time being claimable for himself by the person by whom the wakf was created or by any of his family or descendants. Prima facie, therefore, there would appear to be some doubt whether the Act applied at all to this wakf because the learned Judge, by his own order recognised that a portion of the income is beneficially taken up by the mutavalli and other members of his family. Moreover, in his report he refers to Arumugha Pillai v. Kashi Mohiuddin Sheriff Sahib : AIR1933Mad533 , in which it was clearly found that in this wakf 'the profits accruing from the suit property after meeting the expenses of the services were being enjoyed by the trustees and that they have therefore a beneficial interest in the property.' See the judgment of Madhavan Nair, J., as he then was, at page 536.

5. Even if the Act were to be held to apply in that this wakf came within the definition of Section 2, yet in my opinion there is no jurisdiction conferred upon the District Judge to do anything in the nature of what he has done. Section 3, as stated, imposes an obligation to furnish particulars upon the mutavalli within six months from the commencement of the Act, and prescribes the particulars which are to be furnished. Section 4 provides that when such particulars have been given they are to be made public. Thereafter, any person may apply to the Court by a petition in writing for the issue of an order requiring the mutavalli to furnish further particulars or documents. Then, on such application being made, the Court may cause to be served on the mutawalli an order requiring him to furnish such particulars. Sections 5 and 6 deal with the filing and auditing of accounts. Sections 7, 8 and 9 relate to the cost of preparation of the above statements, to their verification and to the preparation of copies. Under Section 10 penalties are prescribed for failure to comply with the requirements of Sections 3, 4 and 5. It provides that any person who is required under Sections 3,4 or 5 to furnish statements or accounts shall, in default, be liable to a fine.

6. There is no provision made for any exercise of powers by the Court of its own accord. Perhaps this is a defect in the Act which, as pointed out in Nasrullah Khan v. Wajid Ali I.L.R.(1929)All. 167 may have unfortunate consequences. In that case a Bench of two Judges both of whom were Muhammadans, held that the District Judge had no authority to pass an order that the mutavalli should file a statement of accounts as contemplated by Section 5. The only power that the District Judge had was to impose a fine upon him for not filing it. He cannot do even this unless some complaint is made to him by a person who is sufficiently interested or public spirited to do so.

7. In short, while the zeal of the learned District Judge to ensure the efficient working of the Act is most commendable, in my opinion, he had no power whatever to make the order which he did. This petition is therefore allowed. There is no contending party and I make no order as to costs.


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