B.K. Mukherji, J.
1. This rule was issued sat the instance of the Commissioner of Wakfs, Bengal, and is directed against an order of the Additional District Judge of Howrah dated 4th May 1936 by which it was held that the petitioner had no right either to appear in a suit relating to certain wakf estate pending before the Judge or to appoint an ad interim mutawalli till a mutawalli was appointed by the Court. The short facts giving rise to this dispute may be stated as follows: One Jitan Bibi created a wakf of certain properties situated in the District of Howrah by a document dated 10th December 1893. In the year 1924, certain persons who are opposite parties Nos. 1 to 6 in this rule instituted a suit against the defendants in the Court of the Additional District Judge, Howrah, under Section 92, Civil P.C., praying inter alia for removal of the existing mutawallis, for the settlement of a scheme for accounts and other reliefs. There was a decree passed by the learned Judge in July 1932 by which the existing mutawallis were ordered to be removed and investigation of accounts and framing of a scheme were directed. There was an appeal against this preliminary decree taken to this Court which was disposed of on 11th December 1935 and the matter went back to the trial Court for carrying out the directions of the preliminary decree mentioned aforesaid. A few months after that, on 1st March 1936, the Bengal Wakfs Act came into force, and on 21st March 1936 the Court ordered issue of notice on the petitioner who is the Commissioner of Wakfs under Section 70, Wakfs Act. The notice was actually served upon the petitioner on 30th April 1936 and on 2nd May following the appeared and represented before the Court that he had a right to intervene in these proceedings and to be added a party under Section 71, Wakf Act. He also claimed the right to appoint an ad interim mutawalli under Section 40 of the Act. Both these rights have been negatived by the learned Judge by his order dated 4th March 1936 and it is against this order that the present rule has been obtained.
2. The learned Judge has held in substance that as the suit was commenced long before the Wakf Act came into force, the Commissioner had no authority to intervene in this case under Section 71 or to appoint a temporary Mutawalli under Section 40 of the Act. Reliance was placed by the learned Additional District Judge in this connexion upon the provision of Section 83, Wakf Act, which expressly exempts certain suits and proceedings from the operation of the Act. This position has been challenged before us on behalf of the petitioner, and Mr. Abul Hossain who appears in support of the rule has strenuously contended that Sections 70 and 71, Wakf Act, are retrospective in operation and apply to suits pending at the time when the Act became law. It is also contended that the saving clauses contained in Section 83 of the Act are of no assistance to the parties inasmuch as the rights in this case accrued after the passing of the preliminary decree and thus the suit was not in respect of any right which had its existence prior to coming into force of the Wakf Act. The plaintiffs and the defendants are both united in opposing this Rule and on their behalf the decision of the Additional District Judge is sought to be supported both on general principles as well as on the express provisions of the Act.
3. Section 70, Wakf Act, provides that in every suit or proceeding in respect of any wakf, the Court shall issue a notice to the Commissioner at the cost of the party instituting the same. There is nothing in the section from which it could be inferred that the section had in view the suits or proceedings pending at the time when the Act came into force. On the other hand, it is quite possible to construe the words as implying that the costs of the notice are to be realized from the party at the time of instituting of the suit and this presupposes that the suit is instituted after the passing of the Act when the Wakf Commissioner has already been appointed Under Section 71, the Commissioner is given the right to intervene and be added a party to any suit or proceeding by or against a stranger to the wakf or any other person if he so chooses. There can be no doubt that this right to intervene and carry on the litigation is a substantive right and not a mere matter of procedure and this is conceded by the learned advocate who appears for the petitioner. That being so, the general principle of law which is applicable to such cases is well established that the law which exists at the date when an action is commenced must decide the rights of the parties to the suit unless the Legislature express a clear intention to the contrary: vide Young v. Hughes (1859) 4 H & N 76, Moon v. Darden (1848) 2 Ex 22, and In re Joseph Suche & Co. (1875) 1 Ch D 48. In the last-mentioned case, a question arose as to the effect of Section 10 of the Judicature Act upon a winding up proceeding which had already commenced and it was said that:
When the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them.
4. All these cases have been noticed in the recent decision of this Court in Kumar Punyendra v. Kumar Jogendra : AIR1936Cal593 Section 83, Wakf Act, in our opinion, simply embodies this well known rule of construction and exempts all suits, even if they are commenced after the Act, provided they are in respect of right which accrued before the Act. Mr. Abdul Hossain does not dispute these principles of law but what he says is this: that the right to have a scheme framed or accounts examined which are the subject matter of the present proceeding really flowed from the preliminary decree, and the suit being earlier than that, it cannot be said to be a suit in respect of a right or obligation which accrued prior to the Act. This argument is, in our opinion, not tenable. The rights accrued before the preliminary decree and originated from facts which constitute the very foundation of the suit itself. The preliminary decree simply recorded the finding of the Court that many of the allegations were true but the rights of the parties could not be said to have originated with the preliminary decree. We are, therefore, of opinion that this suit was in respect of a right or for enforcement of an obligation which was antecedent to the passing of the Wakf Act and as such Section 83(b) saved the suit from the operation of the Act. It was suggested on behalf of some of the opposite parties that Section 71, Wakf Act, applies only to suits against strangers and not against mutawallis and even if the section is retrospective, the Wakf Commissioner has no right to come under that section. This argument may have some force but we are not sure that the words 'any other person' as used in the section are now wide enough to include a mutawalli. Be that as it may, as we have already held that the section has no retrospective operation, it is not necessary to decide the point finally.
5. As regards the right to appoint an act interim mutawalli under Section 40, Wakf Act, it is difficult to see how the section assists the petitioner. The power of appointing a temporary mutawalli can be exercised subject to any order of a competent Court. Here, the Court has appointed a receiver who is in charge of the wakf estate since 1924 and an interference with the management of the receiver by a temporary mutawalli is not considered by the Court to be in any way conducive to the interest of the wakf property. We are not impressed with the argument of Mr. Abul Hossain that the receiver himself may be regarded as a mutawalli under Section 6, Sub-section (6), Wakf Act. If he was already a mutawalli under operation of law, there is no scope for application of Section 40 which can be invoked only if there is no mutawalli. In our opinion, therefore, the contentions urged by the petitioner must fail and this Rule must be discharged with costs; hearing fee one gold mohur. Costs would come out of the estate, and will be divided equally between the appearing sets of opposite parties.
M.C. Ghose, J.
6. I agree,