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Mt. Aziza Khatun and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberF.M.A.T. No. 629 of 1983
Judge
Reported inAIR1984Cal326
ActsConstitution of India - Article 226; ;Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 1; ;Bengal Wakf Act, 1934 - Section 40; ;Wakf Act, 1954 - Section 42
AppellantMt. Aziza Khatun and ors.
RespondentState of West Bengal and ors.
Appellant AdvocateGopal Chandra Mukherjee, ;Saktinath Mukherjee, ;Abu Jaffar, ;M.S. Alam and ;Sm. Sephali Mukherjee, Advs.
Respondent AdvocateBhabes Chandra Ghose Roy, ;Sarla Parmar, Advs. for Commissioner of Wakf, ;A.M. Yusuf, ;Tapan Kumar Mukherjee, Advs. for the State, ;Somnath Chatterjee, ;Mukul Gopal Mukherjee and ;Tapendra Nath Basu,
Excerpt:
- .....dated sept. 1. 1919. this wakf has been recorded as ec 690a in the office of the commissioner of wakfs. the applicants claim this wakf to be wakf-al-al-aulad. we are. however, concerned only with the wakf created by abdur rauf which is enrolled as ec 690 in the office of the commissioner of wakfs as the appointment of the said sheikh sahidulla and hafizur rahaman relates only to the said wakf created by abdur rauf and enrolled as e. c. 690 in the office of the commissioner of wakfs. 3. in terms of the line of devolution as laid down bv the said abdur rauf in the deed of wakf in respect of the wakf created by him (ec 690). the office of the mutwalli of the wakf devolved upon musst. anjuman ara, the grandmother of the applicants and the appellants nos. 2 and 3. she disclaimed her right.....
Judgment:

M.M. Dutt, J.

1. This is an application for an injunction. The application was filed by the appellants in the appeal preferred against the order of a learned single Judge of this Court discharging the Rule Nisi issued on the Writ Petition of the appellants. Another application has been filed bv four persons praying for their addition as parties respondents in the appeal. Both these applications have been heard together.

2. The appellants Nos. 1 and 2 are respectively the widow and son of one Professor Abdul Ali deceased and the appellant No. 3 is the son of one Abdul Bari deceased. In the Writ Petition, the appellants challenged the appointment of one Sheikh Sahidulla and Hafizur Rahaman, the respondents Nos. 4 and 8 respectively in the appeal, as joint Mutwal Act by the Commissioner of Wakfs. West Bengal in respect of the wakf estate enrolled as EC 690 in the office of the Commissioner of Wakfs. It appears that one Abdur Rauf the predecessor-in-interest of the appellants and the applicants for addition of parties, hereinafter referred to as the. applicants, by a registered deed of wakf dated Oct. 4. 1899 created a wakf in respect of his khas and tenanted lands of different mouzas in the Sub-division of Basirhat, district 24-Parganas. This wakf is enrolled in the office of the Commissioner of Wakfs as EC 690. Another wakf was created by Sheikh Abdus Sobhan the predecessor-in-interest of the appellants and the applicants by a registered deed of wakf dated Sept. 1. 1919. This wakf has been recorded as EC 690A in the office of the Commissioner of Wakfs. The applicants claim this wakf to be wakf-al-al-aulad. We are. however, concerned only with the wakf created by Abdur Rauf which is enrolled as EC 690 in the office of the Commissioner of Wakfs as the appointment of the said Sheikh Sahidulla and Hafizur Rahaman relates only to the said wakf created by Abdur Rauf and enrolled as E. C. 690 in the office of the Commissioner of Wakfs.

3. In terms of the line of devolution as laid down bv the said Abdur Rauf in the deed of wakf in respect of the wakf created by him (EC 690). the office of the Mutwalli of the wakf devolved upon Musst. Anjuman Ara, the grandmother of the applicants and the appellants Nos. 2 and 3. She disclaimed her right to the office of Mutwalli in favour of her two sons. Professor Abdul Ali. the father of the applicants Nos. 1 and 2 and the appellant No. 2. and in favour of Abdul Bari. the father of the applicants Nos. 3 and 4 and the appellant No. 3. It is not disputed that Abdul Ali and Abdul Bari were the last Mutwallis in respect of both the above wakfs. The said Abdul AH died in 1974 and the said Abdul Bari died in 1979.

4. It is the case of the applicants as also the appellants that the dwelling house, court-yard, tanks, orchard, graveyard etc. are situate in a compact block in mouza Basirhat. on Sir R. N. Mukher-jee Road, within the Municipality of Basirhat. in the said block, there are different settlement plots of land appertaining to the above two wakf estates and also the personal properties of the said Abdul All and Abdul Ban which have devolved upon their respective heirs, namely, the applicants and the appellants.

5. It appears that after the death of Abdul Bari. who, was the last Mut-walli. the Commissioner of Wakfs directed the appellants Nos. 1 and 2. Abdul Hakim and Abdul Monem. the sons of Abdul Ali and Abdul Bari respectively, to apply to him praying for substitution of their names as Mutwallis in respect of the above Wakf No. EC 690 and Wakf No. EC 690A. The appellants Nos. 1 and 2 did not get themselves substituted as Mutwallis in place of the deceased Mutwallis. Abdul Ali and Abdul Bari. in spite of repeated directions of the Commissioner of Wakfs. The Commissioner of Wakfs by his letter dated Feb. 18. 1982 called upon the appellants Nos. 1 and 2 to show cause why they should not be prosecuted Under Section 57 (1) (i) of the Bengal Wakf Act. 1934. hereinafter referred to as the Act. for non-compliance with the direction of the Commissioner of Wakfs to get themselves substituted as Mutwallis. In his reply to the show cause notice, the appellant No. 1 Abdul Hakim by his letter dated Mar. l. 1982 claimed that the properties in their possession were secular properties and denied the existence of any wakf in respect of the said properties. Thereafter, the Commissioner of Wakfs appointed the said Sheikh Sahidulla and Hafizur Rahaman as Mutwallis of the wakf estate (EC 6901 by his order dated Dec. 23. 1982. Being aggrieved by the said order of appointment of Mutwallis of the Commissioner of Wakfs. the appellants moved a Writ Petition before a learned single Judge of this Court and obtained the Rule Nisi out of which this appeal arises. In the writ petition also, the appellants claimed that the properties covered by the said deeds of wakfs executed by the said Abdur Rouf and Abdus Sobhan were secular properties inasmuch as the same were treated as secular properties by the predecessors of the appellants and recorded as such In the C. Section and R. S. records-of-rights. The . learned Judge, as stated above, discharged the Rule Nisi and hence the appeal.

6. In the application for addition of parties, the case of the applicants is that the Commissioner of Wakfs acted illegally by appointing the said Sheikh Sahidulla and Hafizur Rahaman. who are complete strangers to the family of the wakifs. as Mutwallis of the wakf estate (EC 690). The Commissioner of Wakfs. it is submitted, should have appointed the applicants Nos. 1 and 2 or other members of the family of the wakif as Mutwallis. It is submitted that after the appellants had refused to get themselves substituted as Mutwallis in place of the last Mutwalli. Abdul Bari. deceased, the Commissioner of Wakfs should have taken steps to appoint Mutwallis from among the other members of the family of the wakifs. It is alleged that the Commissioner had not taken any such steps and appointed two strangers, namely, the said Sheikh Sahidulla and Hafizur Rahaman as Mutwallis. Some allegations have been made by the appellants and also by the applicants against the character of Sheikh Sahidulla and Hafizur Rahaman. In paragraph 18 of the application for stay, it has been alleged by the appellants that the said Sheikh Sahidulla and Hafizur Rahaman are involved in a dacoity case and a criminal case being G. R. Case no. 298 of 1980 under Sections 399 and 402 I. P. C. and Sections 25 and 27 of the Arms Act have been started against them before the SDJM. Basirhat. and they are now on bail. In their affidavit-in-opposi-tion affirmed by Sheikh Sahidulla. it has been stated that the deponent, that is, Sheikh Sahidulla. has been falsely implicated in the said G. R. Case No. 298 of 1980. and that the police had already submitted a final report in that case. Further, it has been stated that he was enlarged on anticipatory bail by the order of learned District and Sessions Judge. It has also been alleged that no case has been started against Hafizur Rahaman.

7. The respondents Sheikh Sahidulla and Hafizur Rahaman have both opposed the application for addition of parties and also the application for injunction which has been filed by the appellants. Their case is that the Commissioner of Wakfs after due enquiry and on the failure of the appellants to get themselves substituted as Mutwallis. appointed the said respondents as Mutwallis of the wakf estate (EC 690) Mr. Somenath Chatterjee. learned Counsel appearing on behalf of the respondents Sheikh Sahidulla and Hafizur Rahaman. has vehemently urged that the applicants have failed to make out a case for being added as parties to the appeal. It is contended by him that the applicants have no locus standi to ask for being added as parties to the appeal, and that the appellants having denied the existence of the wakf and/or having set up an independent title to the wakf properties, they are not entitled to challenge the appointment of the respondents Sheikh Sahidulla ana Hafizur Rahaman as made by the Commissioner of Wakfs in the exercise of his discretion. It is submitted that this Court has no jurisdiction to interfere with the impugned order of the Commissioner of Wakfs who is alone entrusted by the Act in the matter of appointment of a temporary Mutwalli. Mr. Ghose Roy. learned Counsel appearing on behalf of the Commissioner of Wakfs. supports the case of the respondents Sheikh Sahidulla and Hafizur Rahaman. He has also produced before us the Enrolment Register for the purpose of showing that the wakf being EC 690A is not a wakf-al-al-aulad. as alleged by the applicants.

8. We shall first of all deal with the question whether the applicants should be added parties to the appeal. Admittedly they are the heirs of the last Mutwallis. namely. Abdul Ali and Abdul Bari. According to the line of devolution of the office of Mutwallis as laid down, in the wakf deeds dated Oct. 4. 1899 and Sept. 1. 1919. the office of Mutwallis in respect of both the said Wakfs have devolved upon the applicants Nos. 1 and 2 and the appellants Nos. 2 and 3. It cannot, therefore, be said that they are not interested in the appeal or in the result of the appeal. If the impugned order of the Commissioner of Wakfs appointing the respondents Sheikh Sahidulla and Hafizur Rahaman is upheld or. in other words, the appeal is dismissed, the applicants will be greately prejudiced. We are. therefore, unable to accept the contention of the respondents Sheikh Sahidulla and Hafizur Rahaman and of the Commissioner of Wakfs that the applicants have no locus standi for being added as parties to the appeal. We are also unable to accept the contention of Mr. Chatteriee that to add the applicants as parties to the appeal would be to allow them and the appellants to make out a new case in the appeal which is not the case of the appellants in their Writ petition. This contention of Mr. Chatterjee is unsound, whenever person claims that he should be added a party to the appeal, the Court is to consider whether any order that may be passed in the appeal will affect the interest of such person. Such consideration can be made by the Court only on the case that such person puts forward before the Court in support of his prayer for adding him a party. The case may be a new case for the parties already on record, but that cannot be a ground for refusing such a person to be added as a party in the appeal, even though the Court comes to the finding that the dismissal of the appeal will seriously prejudice and affect the interest of the person claiming to be added as partyIn the circumstances, we allow the application of the applicants, and add them as parties respondents to the appeal.

9. It is the case of the applicants that they were not aware of the appointment of the respondents Sheikh Sahidulla and Hafizur Rahaman as Mutwallis of the wakf estate (EC 690) bv the Commissioner of Wakfs. After they came to know of such appointment, this application for being added as parties to the appeal was filed by them. It is not disputed that the Commissioner of Wakfs did no give them any opportunity of being substituted as Mutwallis in place of the last Mutwalli. Abdul Ali, deceased, after the refusal by the appellants Nos. 2 and 3 to comply with the direction of the Commissioner of Wakfs to get themselves substituted as Mutwallis. It is now an established principle of law that the Commissioner of Wakfs. in making an appointment Under Section 40 of the Act shall try to give effect to the wishes of the wakif and appoint Mutwallis from amongst the members of the family of the wakif. It is true that the Commissioner of Wakfs had repeatedly asked the appellants Nos 2 and 3 to get themselves substituted as Mutwallis of the wakf estate (EC 690). But after their refusal, it was the duty of the Commissioner to enquire whether there was any other member of the family of the wakif who could be appointed a Mutwalli of the wakf estate. If none was available from the family of the wakif or the last holder of the office of the Mutwalli. The Commissioner might appoint Independent and disinterested persons to the office of Mutwalli. In the instant case. we find that the applicants Nos. l and 2 are the sons of the late Abdul Ali who was the last Mutwalli, The Commissioner should have considered their case for appointment as Mutwallis. A stranger is not at all desirable to be introduced into a wakf estate consisting of the family dwelling house, tanks, orchard etc., although it is disputed whether the family dwelling house is comprised within the wakf-al-al-aulad. Be that as it may, we are of the view that the Commissioner of Wakfs has not acted prudently by appointing the respondents Sheikh Sahidulla and Hafizur Rahaman who are complete strangers to the family of the wakif or the last holders of the offices of Mutwallis.

10. As the disposal of the applications will virtually dispose of the appeal and when elaborate arguments have been made by the parties, it will be useless to keep the appeal pending. Further, if the impugned order of the Commissioner is stayed pending the disposal of the appeal, there will be no Mutwalli in respect of the wakf estate concerned, which is not desirable. Accordingly, we treat the appeal as on day's list for disposal.

11. The impugned order dated Dec. 23, 1982 of the Commissioner of Wakfs, West Bengal appointing the said respondents. Sheikh Sahidulla and Hafizur Rahaman is quashed. The said respondents are restrained from in any manner exercising any act of possession of the wakf estate and from interfering with the possession of the applicants and the appellants. The Commissioner of Wakfs, West Bengal is directed to appoint Mutwallis in accordance with the provisions of the wakf deed dated Oct. 4, 1899. In making such appointment in the office of Mutwalli, the Commissioner shall also consider the case of the applicants Nos. l and 2 for being appointed or substituted as Mutwallis in respect of the wakf estate (EC 690). As members of the family of the wakif are available, the Commissioner shall not appoint any stranger to the office of the Mutwalli of the said wakf estate. Further, the Commissioner is directed to make the appointment within four weeks from date.

12. The appeal an the application of the appellants are disposed of as above. There will, however, be no order as to costs.

13. Mr. Mukul Gopal Mukherjee, learned Advocate appearing on behalf of respondents Nos. 4 and 8 prays for a Certificate for appeal to the Supreme Court under Article 134A of the Constitution. In our opinion no question of law of general importance is involved in this case and, as such, the prayer for a Certificate is disallowed.

14. The prayer for stay of the operation of this judgment is also disallowed.

C.K. Banerji, J.

15. I agree.


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