1. Md. Hatim Choudhury of village Batarashi executed a deed of wakf on 6th Kartic 1328 B.S. At the time of the execution of the deed of wakf his only son Taiyab Ali had disappeared and there was no news about his whereabouts. Under the deed of wakf, he appointed his relation Khan Sahib Abdul Salam Choudhury as the first mutwalli subject to a, condition. The condition was that on the return of his son the latter was to be the mutwalli in the place of Khan Sahib Abdus Salam Choudhury but if he showed signs of abnormality, the Khan Sahib was to continue to be in charge of the management of the wakf properties. After the death of the wakif Md. Hatim Choudhury, Taiyab Ali returned. He was a normal man with the result that the Khan Sahib made over possession of the wakf properties to him. Thereafter, Taiyab Ali died leaving a minor son Mukammil Ali. According to the terms of the wakfnama, Mukammil Ali became the demure mutwalli in the contingency that had happened. In 1939, Taiyab Ali's widow, Sayera Banu, made an application to the District Judge of Sylhet for the appointment of a person to discharge the function of the mutwalli during the minority of her son. That application was numbered Misc. Case No. 3 of 1939. On 6th April 1939, the then District Judge, Mr. Hindley made a consent order. By the consent order, the Khan Sahib was appointed mutwalli for a period of one year with a reservation that he was to continue as mutwalli during the minority of the de jure mutwalli, Mukammil Ali, if he conducted himself well in the management of the wakf properties and in discharging the duties of a mutwalli. The consent Order further provided that if any question of removal arose, the claim of Mukammil Ali's mother to be appointed mutwalli during the minority of her son would receive first consideration. On the appointment so made, the Khan Sahib became mutwalli on furnishing security which he was required to furnish by the aforesaid order.
2. On the expiry of the term of his appointment he continued to discharge the duties of a mutwalli with the sufferance of the District Judge. In 1942, Mukammil Ali's mother made an application to the District Judge for the removal of the Khan Sahib from his office. In that application he charged the Khan Sahib with mismanagement of the wakf properties and misappropriation. That application was opposed by the Khan Sahib on the ground that he was the rightful mutwalli in possession and the District Judge had no jurisdiction to remove him. The matter was heard by Mr. S.K.Haldar, the then District Judge of Sylhet, who had succeeded Mr. Hindley. In his Order No. 42, dated 5th September 1942, he gave effect to the contentions of the Khan Sahib and held that he had no jurisdiction to entertain the said application. The reasons that he gave in his Order were that the wakf in question Was private wakf and in such a case only the Kazi could appoint or dismiss a mutwalli but inasmuch as the Local Government had not appointed either him or any other Judicial Officer to be Kazi.he had no jurisdiction in the matter. In making the last mentioned observation, he quoted with approval the obiter of this Court in Atimannessa Bibi v. Abdul Sobhan ('16) 3 A.I.R. 1916 Cal. 894. Thereafter Mukammil Ali's mother made an application before the District Judge for being appointed the guardian of the person and property of her minor son. This application was under the Guardianship Act. On 22nd December 1942, the learned District Judge appointed her guardian of the person and property of her minor son Mukammil Ali. After that, she made another application in Misc. Case No. 3 of 1939 to the District Judge for removing the Khan Sahib from office of mutwalli. This application was heard by Mr. Ispahanl' who is now the District Judge of Sylhet. It was disposed of by Order No. 49 dated 7th August 1943. The learned District Judge took the view that the appointment, of Sayera Banu, the mother of Mukammil Ali, as guardian of the person and property of her minor son on 22nd November 1942 had washed out all previous orders including the Order by which the Khan Sahib had been appointed mutwalli by Mr. Hindley. The Khan Sahib was, therefore, according to him not the mutwalli. He directed the Khan Sahib to make over all account books and other papers connected with the wakf estate through Court to Sayera Banu, the guardian of the minor. This is one of the orders which is sought to be revised by this Court by the Khan Sahib who is the petitioner before us. Later on, the Khan Sahib applied to the learned District Judge for re-consideration of the aforesaid Order but he failed. By an Order dated 17th September 1943, the learned District Judge directed the Khan Sahib to comply with the directions contained in his Order of 7th August 1943 at once. The Khan Sahib, however, did not put in all the papers and account books in pursuance of the orders passed by the Court with the result that on the application of Sayera Banu, the learned District Judge fined him Rs. 100 for not obeying his orders regarding the production in Court of the account-books and other papers concerning the wakf estate. This Order is Order No. 58 dated 25th September 1943. This Order is also the subject-matter of this revision case.
3. The petitioner before us urges that the learned District Judge had no jurisdiction to pass the Order of 7th August 1943 concerning the mutwalliship. He urges that he could be removed by a proper Court in a suit only. He challenges the Order by which fine has been imposed upon him on the ground that it is an irregular Order passed in his absence and without any notice to him. We will deal with his contentions in the Order indicated above. According to the Mahomedan law, a minor cannot act as mutwalli. If the office of mutwalli devolves upon a minor a person must be appointed by the Kazi to discharge the functions of the mutwalli during the minority of the de jure mutwalli. Two questions arise: (1) 'Who is the Kazi when the wakf is a private wakf; and (2) assuming that the Kazi is the District Judge what procedure must be followed to have an appointment of a person who is to discharge the functions of a mutwalli during the minority of the de jure mutwalli. In a number of cases before 1915 it was assumed by this Court that the District Judge was the Kazi. The question, however, was considered in some detail by Mookerjee and Beachcroft JJ. in Atimannessa Bibi v. Abdul Sobhan ('16) 3 A.I.R. 1916 Cal. 894. After an examination of the Arabic texts, the learned Judges came to the conclusion that in Mahomedan States it was only the chief Kazi who could control the administration of wakf properties. They further expressed the view that by reason of the provisions of S.92, Civil P.C. the District Judge may be taken to be the chief Kazi in British India where the wakf was a public one. They further expressed the view that in respect of private wakfs, there is no judicial officer who can exercise the functions of a Kazi. They made a suggestion that it was for the Local Government to appoint a judicial officer to discharge the functions of a Kazi in the matter of administration of private wakfs. All these observations of the learned Judges however are obiter. That judgment was pronounced in the year 1915. In 1916, the question was considered by the Judicial Committee in Md. Ismail Arifi v. Ahmed Mola Dawood ('16) 3 A.I.R. 1916 P.C. 132 The judgment of the Board was delivered by the Right Hon'ble Mr. Ameer Ali. That case concerned a mosque and its appurtenances in the city of Rangoon. The question before the Court related to the appointment of a mutwalli. In that case the following observations were made by the Judicial Committee:
4. 'In these circumstances, it seems to their Lordships in the exercise of the discretion which the Mahometan law vests in the kazi, that the Rancheria section of the worshippers all other conditions being equal, are preferably entitled to the mutwalliship of the mosque.' That was the actual decision. In the course of the judgment, they made the further observation: 'Generally speaking, in case of wakf or trust created for specific individuals or a determinate body of individuals, the kazi whose place in the British Indian system is taken by the civil Court, has in carrying the trust into execution to give' effect so far as possible to the expressed wishes of the founder.' The decision in Md. Ismail Arifi v. Ahmed Mola Dawood ('16) 3 A.I.R. 1916 P.C. 132 cited above has put it beyond doubt that the civil Courts in British India occupy the position of Kazi' in the administration of wakfs. The observations made by Mookerjee and Beachcroft JJ. in Atimannessa Bibi v. Abdul Sobhan ('16) 3 A.I.R. 1916 Cal. 894 to the effect that in the case .of a private wakf there is no person in British India to discharge the judicial functions of a Kazi therefore, cannot be taken to be good law. The Local Government in such cases need not appoint any Judicial Officer to discharge the functions of a Kazi, because the-Judges of civil Courts by reason of their office occupy that position. As the District Judge is the principal Judge in a district, he must be taken to be by reason of his office the chief Kazi and would have all the powers of a Kazi in respect of all wakfs. Whether a Subordinate Judge or a Munsif can perform the judicial functions of a Kazi in respect of wakfs is a point which need not be considered by us in this case and we reserve our opinion on that point. The District Judge therefore had jurisdiction to appoint a person to discharge the functions of a mutwalli during the minority of Mukammil Ali, the son of Taiyab Ali who according to the wakfnama is the de jure mutwalli.
5. The second question, namely,what would be the proper procedure to invoke the jurisdiction of the District Judge to make such an appointment is a question which is not material in the case before us. Two points of view can be formulated: (1) That the District Judge can be set in motion (i) by an application, and (ii) by filing a suit. But that is only a question of procedure. In this case, the question does not arise because the Order which Mr. Hindley made was a consent order. So far as the procedure is concerned, it is an established principle of law that by consent the parties can regulate their own procedure in a Court which has a general jurisdiction to decide the subject-matter of a controversy. That position is well-established by the decision in Sadasiva v. Ramlinga ('72) 2 I.A. 219 (P.C.) and Pisani v. Attorney-General, Gibraltar (1874) L. R. 5 P.C. 516 Mr. Hindley's Order to which we have already made reference was therefore a legal order. The Order passed by Mr. S.K. Haldar on 5th September 1942, cannot, in the view we have taken be considered to be a correct order. Mr. Ispahan! who dealt with the matter was confronted with two orders of his predecessors which were inconsistent with each other. We are fortunately not in the same position as Mr. Ispahani. In the view that we have taken of the matter, we hold that the Khan Sahib derived his authority to be the mutwalli of the wakf estate solely by reason of Mr. Hindley's order. The term of his office expired in April 1940. He was suffered to continue. It is not a question of his removal from office. The true position is that there is no person appointed by the Court who can now discharge the functions of a mutwalli during the minority of Mukammil Ali. The appointment of Sayera Banu, the mother of Mukammil Ali as a guardian in the Act VIII case does not make her the mutwalli during the minority of her son. But the learned District Judge has put her in possession and has, by the notice issued in pursuance of his Order dated 17th September 1943, notified to the tenants holding properties under the wakf estate that they are to recognise Sayera Banu as their landlord. In view of this fact, we do not at present wish to disturb the possession of Sayera Banu. Our Order is that she is to continue in possession of the wakf estate as receiver till an appointment is made by the District Judge of a suitable person to act as mutwalli till Mukammil Ali.attains majority according to Mahomedan law.
6. We, therefore, remand the case to the learned District Judge in Order that he may appoint a suitable person to act as mutwalli till Mukammil Ali attains majority according to Mahomedan law on such terms and conditions as he may deem fit. It would be open to the learned District Judge to consider the claims of Sayera Banu as also the claims of the petitioner before us, namely, Khan Sahib Abdus Salam Choudhury and the claims of any other person who may be an applicant for the post. We cannot maintain the Order by which fine has been imposed upon the Khan Sahib, the petitioner before us, as that was an ex parte Order passed at the instance of Sayera Banu on an application of which no notice was given to the Khan Sahib. For this reason and this reason alone, we set aside the said Order and direct the fine which has already been paid to be refunded to the Khan Sahib. There will be no Order for costs in this rule. The learned District Judge is requested to dispose of the matter relating to the appointment of a person to act as mutwalli as early as possible. Let the records be sent down without delay.