1. This rule is directed against an order of the District Judge of 24 Parganas dated 6fch November 1927, by which he dismissed an application by the petitioners to appoint them as mutwallis of a wakf estate, The facts are that a wakf was created by the ancestor of petitioner 1. Under the deed of wakfnama, the opposite party would be the present mutwalli and after him the petitioner 1. The petitioner's case is that the opposite party parted with some of the wakf properties treating them as secular and thereupon he brought a suit against them in the local Subordinate Judge's Court and obtained a decree declaring the properties as wakf. On the3e facts he asked the Judge to appoint a mutwalli in the exercise of the powers of a kazi under the Mahomedan law. Opposite party 1, repudiates the wakf and her case is that the alleged wakf was only a paper transaction and that she never acted as mutwalli; on the other hand she treated the properties as her own properties inherited from her ancestor. The learned Judge has held that, in the circumstances of the case, the petitioners' application could not be granted and the only remedy was to have recourse to a suit under Section 92, Civil P.C. The practice of invoking the power of a District 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. Before us it has been contended by the petitioners, that opposite party 1 having repudiated the trust and denied having ever acted as mutwalli, the office of the mutwalli must be treated as vacant and the learned Judge should have exercised his powers as a kazi on an application made to him to appoint a mutwalli. It may be noted here that opposite party 2, who is also a co-mutwalli under the deed of wakf, has supported the petitioner and has expressed his consent to his appointment as a mutwalli. The real fight is between the petitioner and oppasite party 1.
2. It is contended on behalf of the petitioner that in any case in which the power of a Judge is invoked for appointing a mutwalli it'com6S under Section 92, Civil P.C. I am unable to give effect to this broad contention. It is argued that the appointment of a mutwalli even of a wakf estate, in respect of which there is no mutwalli, comes under Section 92, Civil P.C. because that section makes a suit necessary
where direction of the Court is deemed necessary for the administration of wakf.
as has been observed in passing in some of the reported cases on this section and also under sub, Clause (b) of Clause (1) of the section for appointing a new trustee. Now there is no question as has been held in Budreedas v. Chooni Lal  33 Cal. 789, that Section 92 applies to cases where there is an express or constructive trust created for public purposes of a charitable or religious nature and where there is a breach of trust which is not the case here or a direction of the Court is deemed necessary for the administration of such a trust; and thirdly, where the relief claimed is one or other o the reliefs mentioned in the section. If a mutter comes within the provisions of this section it is clear that under Clause (2) of the section, a suit under it is the only remedy open to a party. But in my opinion the words, where the direction of the Court is deemed necessary for the administration of any such trust,
must be interpreted as meaning that where the Court has to give direction in the nature of framing a scheme or otherwise for the administration of the trust. The appointment of a mutwalli is not such a direction as is contemplated by the section. If the appointment of a trustee comes under the words 'where the direction of the Court is necessary,' the oases in which it has been held that the District Judge has the power to grant leases and mortgages of wakf properties on an application must be held to have been decided wrongly for, if the appointment of a trustee can be considered as a direction of the Court for the administration of the trust, granting permission for leases or mortgages, is a fortiori such a direction. The case of Ashraf Ali v. Mahommad Nurojjoma  23 C.W.N. 115 is a case, where the scope of Section 92, Civil P.C., has been considered and the cases of Fakrunnessa Begum v. Dist. Judge of 24 Parganas  47 Cal. 592 and Habibur Rahaman v. Saidennesa Bibi : AIR1924Cal473 are cases where it has been held that the District Judge is empowered to give permission to a trustee to grant leases of a trust property.
3. Now with regard to appointing a new trustee: it seems, considering the history of Section 92, Clause (a) and (b), that by a new trustee is meant a trustee in place of an old trustee. Clause (1), Sub-clause (a) of the Act, of 1908 did not find place in the old Section 539. It was held by some of the High Courts, including this Court, that Section 539 contemplated removing a trustee and appointing a new one in his place. To give effect to this view the legislature has put the two Clauses (a) and (b) in such juxtaposition as to lead one to suppose that appointing a new trustee is dependent on the removing of the old one, or, at any rate, where the appointment of a trustee is necessary in place of a trustee who has either been removed or has ceased to be a trustee. Our attention has been drawn to several cases, Laohman Prosad v. Munia : AIR1925All759 , Netiram Jogiah v. Venkata Charlu  26 Mad. 450, which have been followed in several other Madras cases, where there are observation to the effect that where the Court is invited to appoint a mutwalli the matter comes under Section 92, Civil P.C. But 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 has been held in Badridas v. Chuni Lal  33 Cal. 789, that Section 92 applies as much to cases in which a trustee is sought to be removed as to cases in which a trustee de son tort is sought to be displaced. These ca3es are, therefore, no authority for the bare proposition that where there is no mutwalli in respect of a wakf, the Court has no power to appoint one except in a suit under Section 92. This view has been adopted in Mohiuddin Chowdhury v. Aminuddin Chowdhury : AIR1924Cal441 . In that case the District Judge, on an application, has appointed a mutwalli in respect of a wakf of which there was no mutwalli then acting. The rival candidate applied to this Court to have that appointment set aside on the ground that the Judge could not pass the order he did except under Section 92, Civil P.C. The learned Judges held that he had such a power. The fact that in that case they also referred to the deed of endowment which stated that, in the event of no trustee being in existence at any time the Court will appoint, one does not seem to me to have affected the application of the law. I propose to follow this case and to hold that where there is no mutwalli the Court has power to appoint a mutwalli in respect of 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.
4. Now, in the present case, the petitioner has come to Court with this allegation on his lips, that there is a valid trust and that the opposite party acted as a mutwalli for a short time and thereafter he began to act in various ways in breach of the terms of the to wakfnama and made all sorts of transfers against the provisions of the wakfnama and as the opposite party has thus abandoned his position as mutwalli of the wakf estate the appointment of a mutwalli was immediately necessary for the proper management, preservation and upkeep of the estate. It is true that opposite party 1 does not rely upon the trust and repudiated it, claiming the property as her secular property; but the way in which the Court has been approached in this case brings it within the provisions of Section 92, Civil P.C. I am not sure that in a proper application for the appointment of a trustee in the circumstances that have happened in this case, taking the position adopted by the opposite party into consideration, such appointment cannot be made on an application to the District Judge if a proper case is made out. But the allegations made make me think that the learned Judge is right in saying that it is a matter which comes only under Section 92, Civil P.C., and by Clause (2) or the section, a suit or proceeding otherwise than under that section is barred. In this view this rule must be discharged with costs: two gold mohurs.
5. I agree.