1. In or about 1824 one Serajuddin Ali Khan and his wife Musst. Karamunnessa Begum jointly created a Wakf comprising of properties situatedat Entally in the suburbs of Calcutta. They appointed themselves as joint mutawallis in the first instance. After the death of Serajuddin. Musst. Karamunnessa Begum became the sole mutawalli. On the death of Karamunnessa, one Wilayat Hossain became the sole mutawalli. He appointed his wife as his co-mutawalli. Both Wilayat Hossain and his wife were removed by Court in or about 1854. Then Golam Ali and his brother Humayun became joint mutawallis. Thereafter Golam Ali died. Humayun became the sole mutawalli. After the death of Humayun, Hossain Ali became the sole mutawalli. In 1901, Hossain Ali died. His two sons Md. Hossain and Ahmed Hossain became joint mutawallis. In 1905, Md. Hossain died and Ahmed Hossain became the sole mutawalli. In 1908, Warris Ali became joint mutawalli with his brother Ahmed Hossain. In 1935, Ahmed Hossain died and Warris Ali became the sole mutawalli.
2. In 1942, the Commissioner of Wakfs filed this suit for removal of Warris Ali as mutawalli and for framing of a scheme for proper administration of the wakf estate. On January 24, 1946, the Commissioner of Wakfs made an application in the suit for appointment of a mutawalli in regard to the wakf estate. The application was heard by S. R. Das, J. (as he then was). Before the learned Judge there were four claimants for the office S. R. Das, J. considered Mirza Nasir Ali to be a suitable person to be appointed as mutawalli rejecting the claims of the other three claimants. Mirza Nasir Ali was then 17 years of age.
3. One of the three claimants Asraful Alam Shami preferred an appeal against the order of S. R. Das. J. The Court of appeal consisting of the Chief Justice and Mr. Justice Mukherjea appointed Asraful Alam Shami as joint mutawalli with Mirza Nasir Ali. The judgment of the Court was delivered on December 9. 1947 by B. K. Mukherjea, J. (as he then was). The learned Judge in the judgment observed that Mirza Nasir Ali was still a school boy who had to prosecute his studies further. In view of the above matter the learned Judge further observed that although the said course might not be conducive to an absolutely smooth working of the Institution, it was the best that was possible in the circumstances of the case.
4. Since the appointment of joint mutawallis as aforesaid by this Court Mirza Nasir Ali along with Asraful Alam Shami had been managing the wakf in accordance with the provisions of the scheme framed by this Court
5. During the management of the said wakf estate by Mirza Nasir Ali and his co-mutawalli considerable assets wereadded to the wakf estate and income has also been greatly enhanced. Mirza Nasir Ali who was a school boy when he was appointed as one of the joint mutawallis completed his studies. He obtained Master of Arts degree in English as well as as Doctorate in English and is now a lecturer in the department of English. Maulana Azad College, Calcutta. In course of his management of the wakf estate he has acquired experience in the affairs of the said wakf.
6. On February 23, 1974, the said Asraful Alam Shami died leaving a son named Naushad Alam Shami and a married daughter. He also left a brother Dolara Alam Shami. On the death of Asraful Alam Shami, Mirza Nasir Ali (I shall shortly call him Dr. Ali) informed the Commissioner of Wakfs about the death of his co-mutawalli and notified the Commissioner of Wakfs about the change in the management of the wakf estate as required in Section 47 of the Wakfs Act, 1934. Dr. Ali stated that the office of mutawalliship has passed to him as survivor. He has now become the sole mutawalli in accordance with the custom of the said wakf.
7. Naushad Alam, the son of Asraful Alam, also applied to the Commissioner of Wakfs to enroll or substitute his name as one of the joint mutawallis on the ground that his father, prior to his death, by word of mouth appointed him as mutawalli. Hence, this application has been made on March 20, 1974 by Dr. Ali praying for an order that the death of the said Asraful Alam Shami be recorded and that the petitioner Dr. All be appointed as sole mutawalli of the said wakf and be allowed to act as such. It is also prayed that the Commissioner of Wakfs. West Bengal be directed to amend the register of wakfs and to record the name of Dr. Ali as the sole mutawalli of the said Wakf.
8. This application of Dr. Ali is opposed by Naushad Alam Shami (I shall shortly call him Naushad Alam). He has filed an affidavit on April 1, 1974. In his affidavit, he states that his father Asraful Alam Shami appointed him as mutawalli before his death. His father was empowered in terms of the deed of wakf to make such appointment. His case is that he cannot be removed except by a suit for his removal. He says that he is 22 years old. He is a student in a College and he has been running a big business. His case is that his father appointed him in the presence of some respectable persons as his successor on February 18, 1974 and as such he is entitled to act as joint mutawalli with Dr. Ali after the death of his father. Dolara Alam Shami, the brother of Asraful Alam Shami is supporting the case of Naushad Alam.
9. Appearing for the petitioner Dr. Ali. Mr. Hiranmoy Dutt submits that it is not necessary for him to challenge the factum of the oral appointment of Naushad Alam for the purpose of this application, as his contention is that his father Asraful Alam Shami had no power to appoint Naushad Alam as his successor and Naushad Alam is not entitled to act as joint mutawalli with Dr. Ali. According to Mr. Dutt, on the death of Asraful Alam Dr. Ali has became the sole mutawalli of the wakf and he should be allowed to act as such.
10. The point which arises for consideration in this application is whether Asraful Alam Shami, the father of Naushad Alam had power to appoint him as his successor and if so, whether he is entitled to act as joint mutawalli with Dr. Ali. In other words, whether on the death of the co-mutawalli Asraful Alam Shami, Dr. Ali should be allowed to continue to act as sole mutawalli. Mr. Dutt, for Dr. Ali submits that the question in this application is a pure question of law and should be decided as such. In view of the argument of Mr. Dutt, it is not necessary for me, in this application, to decide the question of the factum of appointment of Naushad Alam by his father.
11. Now, what is the law on the point? Mr. Dutt has rightly referred to me two Articles in Mulla on Principles of Mahomedan Law, 16th Edition, namely Articles 205 and 205A at pages 205 and 206.
Article 205 reads as follows:
'205. Mutawalli may appoint successor on his death-bed, If the founder and his executor are both dead, and there is no provision in the wakfnama for succession to the office, the mutawalli for the time being may appoint a successor on his death-bed. He cannot however, do so while he is in health, as distinguished from death-illness. Nor if the office goes by hereditary right.'
Article 205A reads as follows;
'205A. Succession where two or more mutawallis are jointly appointed:
Where two or more mutawallis are appointed as joint mutawallis i.e., as joint holders of a single office, and there is no direction, express or implied, given by the wakif and there is no evidence of custom supporting a usage to the contrary, the office of mutawalliship held jointly will pass on the death of one holder to the survivor or survivors.
A, B and C are appointed joint mutawallis of a wakf. There is no direction, in the wakfnama with regard to what is to happen if one of them is to die and there is no evidence of custom. A dies, but before he dies he appoints X as mutawalli to succeed him. X cannot act asmutawalli because on the death of A, the mutawalliship passes to B and C, and A has no power to appoint X as a mutawalli.'
12. In the instant case two mutawallis were appointed as joint mutawallis, or as joint holders of a single office. The office of mutawailiship held jointly will pass on the death of one holder to the survivor, if there is no direction, express or implied in the deed of wakf and there is no evidence of custom supporting the usage to the contrary. Therefore. I have to consider the provisions in the deed of wakf.
13. With regard to the point, Mr. Ghose Roy referred to me Tyabji's Muslim Law, Fourth Edition, Articles 513 and 514. In Article 514 it is stated by Tyab-ji 'subject to Sections 513 and 516 it will generally be presumed that the mutawalli is empowered under the dedication to appoint a successor to himself.' But in Article 513 it is stated: 'In the absence of any express or implied provision in the dedication for the appointment of successive mutawallis.' Thus, according to Tyabji also, the deed of wakf has to be considered.
14. With regard to the law of succession where two mutawallis are jointly appointed, Privy Council in 75 Ind App 172 = (AIR 1948 PC 163) Abdul Razaq v. Ali Baksh at p. 176 (of Ind. aPP.) = (at p. 165 of AIR) observed:
'Their Lordships think that in the absence of any direction, express or implied, given by the wakif or other competent authority, or of any evidence of custom supporting a usage to the contrary, the ordinary rule that an office held jointly will pass on the death of one holder to the survivors or survivor must prevail.'
15. Now, what is the provision in the wakfnama on this point?
16. The provisions of the deed of wakf will appear from the judgment dated December 9, 1947 delivered by Mukherjea, J. The relevant portion of the judgment is quoted below:
'From the wakfnamah it appears that the wakifs appointed themselves joint mutawallis in the first instance and provided that on the death of one of them the survivor shall be the sole mutawalli. They reserved the right of appointing and removing mutawallis; and the further provision which is relevant to the case stands as follows:
'The mutawallis whom we may appoint or any of our relatives akriba of good character, honest conduct, religious manners, good intelligence and respectable lineage whose qualifications may make him entitled shall be vested with these rights and privileges which we have'.'
17. What is the meaning and effect of the aforesaid provision in the Wakfnamah? The two wakifs appointed themselves as the first mutawallis and expressly stated that on the death of any one of them the survivor shall be the sole mutawalli. Then the sentence is: 'they reserved the right of appointing and removing mutawallis'. What does this word 'they' mean in the context, having regard to the former sentence that on the death of the joint mutawallis the survivor shall be the sole mutawalli?
18. Mr. Hiranmoy Dutt submits that here the word 'they' indicates any one of the survivor mutawallis. I think Mr. Dutt is right in his submission. The intention of the two wakifs who appointed themselves as joint mutawallis is that on the death of one of them the power to appoint is reserved to the survivor mutawalli. The two mutawallis did not know who will die first. But their intention is clear that on the death of any one of the joint mutawallis the other will be the sole mutawalli. But what will happen when both will die? Therefore, they said that they reserved the right to themselves to appoint or nominate mutawallis. Therefore, the survivor of the two joint mutawallis will become the sole mutawalli and he or she can appoint a successor.
19. Why power of dismissal is also reserved? Because, mutawalli so appointed may betray the settlor or misbehave. So the power not only to appoint hut to dismiss a mutawalli during their lifetime is also reserved.
20. Mr. Bhabesh Chandra Ghose Roy, the learned advocate for Naushad Alam submitted that both the mutawallis reserved the power of appointing mutawalli. If I accept the contention of Mr. Ghose Roy on this point what will follow? The mutawalli appointed by one of the joint mutawallis during the lifetime of the other cannot hold office so long as both of them are alive. He also cannot hold office so long as one of them is alive. The effect of such appointment by one of the joint mutawallis during the lifetime of the other will be that the mutawalli so appointed by one of them will only hold office when both the mutawallis will die. Therefore, it seems to me that the intention of the wakifs was that the power of appointment will be exercised by the sole surviving mutawalli after the death of one of the joint mutawallis. Even if I accept the interpretation of Mr. Ghose Roy, the mutawallis appointed by either of the joint mutawallis cannot hold office till the death of both.
21. Mr. Ghose Roy then contended that the provision in the deed of wakf that on the death of one of the wakifs the survivor shall be the sole mutawalliapplies only in the case of wakifs who appointed themselves as the first mutawallis. I cannot agree to this submission made by Mr. Ghose Roy. Because, the rights and privileges which have been given to the wakifs who were appointed at, first mutawallis would also vest in the successor mutawallis. This is clear from the following words in the wakfnamah, namely, 'the mutawallis whom we may appoint or any one of our relatives......... whose qualifications may make him entitled shall be vested with those rights and privileges which we have'. In my view, the words 'those rights and privileges' mean 'the right of appointing or removing the mutawallis and the privilege of any of the joint mutawallis to act as sole mutawalli on the death of the other'. Thus, in my view, the rights and privileges given to the wakifs who appointed themselves as first mutawallis also vested with the successor mutawallis.
22. Now, the question is whether there is any custom to the contrary. It is submitted before me by Mr. Ghose Roy that he is not making any case as to custom to the contrary. Therefore, on the facts and in the circumstances of this case and for reasons stated by me Asraful Alam Shami had no power to appoint Naushad Alam Shami. Even if he had such power as argued by Mr. Ghose Roy, Naushad Alam cannot act as joint mutawalli so long as Dr. Ali is alive.
23. With regard to the custom it appears from the history of the wakf before the institution of the suit that the sole mutawalli has been appointed in the past on several occasions when one of the joint mutawallis died.
24. Mr. Ghose Roy referred to me a decision of the Supreme Court reported in : 1SCR1309 (Radha Sundar Dutta v. Mohd. Jahadur Rahim) and relied on the observation of the Supreme Court at page 29 which runs thus:
'Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim 'ut resmagis valeat quam pereat'.'
This observation of the Supreme Court also does not, in my view, support the contention of Mr. Ghose Roy, because, the first clause in the deed of wakfnamah is that on the death of one of the joint mutawallis, the survivor shall be the sole mutawalli.
25. Mr. Ghose Roy lastly argued that this application is not maintainable and the petitioner should have filed a suit for removal of his client NaushadAlam. I do not agree to this submission. In the judgment of B. K. Mukherjea J. it is provided: 'if in future any changes are necessary it is open to the interested parties certainly to come and seek for proper relief in Court' In the instant case, the Court appointed joint mutawallis in this suit and on the death of one, the survivor mutawalli has made this application in the suit seeking for proper relief. Therefore, this application is maintainable.
26. Appearing for Dolara Alam Shami, Mr. N. Roy, more or less, adopted the same argument as made by Mr. Ghose Roy.
27. Miss S. Parmar, the learned Advocate for the Commissioner of Wakfs did not advance any argument on the point involved, but left the matter to Court.
28. It may be stated that Mr. Ghose Roy admitted before me that this is not a case of death-bed appointment by Asraful Alam Shami. It also appears to me that in the instant case the deed of wakf does not expressly or impliedly say that there must be joint mutawallis in every case.
29. In view of the above matter, the petitioner Dr. Ali should be appointed as the sole mutawalli and should be allowed to act as such sole mutawalli. He is also fit and proper person to act as such.
30. In the premises, there will be order in terms of prayers (a), (b) and (c) of the petition. The petitioner will retain and pay the costs of this application out of the funds of the wakf estate. The Commissioner of Wakfs will also get his costs out of the wakf estate. The Commissioner of Wakfs to act on the signed copy of the minutes on the undertaking of the petitioner's solicitor to draw up, complete and file the order.