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Atimannessa Bibi Vs. Abdul Sobhan and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.21
AppellantAtimannessa Bibi
RespondentAbdul Sobhan and ors.
Cases ReferredMuhammad Abdul Majid Khan v. Ahmad Saeed Khan
Excerpt:
muhammadan law - wakf, private and public--mutwalli--sole surviving descendant of founder, right of, to office--religious endowment, succession to--regulation iv of 1793, section 15--qadi, functions of, who can exercise--civil procedure code (act v of 1908), section 92--district judge, whether qadi--subordinate judge, powers of--mutwalli appointed under section 92--suit to be declared mutwalli in subordinate judge's court, maintainability of. - asutosh mookerjee, j.1. the subject-matter of the litigation which has culminated in this appeal consists of immoveable property dedicated as wakf in or about the year 1836 by a muhammadan named azimuddin mistri. a mosque was erected by the founder on a portion of the land and income for its maintenance is derived from the remainder, which is in the occupation of tenants. azimuddin constituted himself the first mutwalli and acted as such so long as he was alive. he appointed his grandson imamuddin as the next mutwalli; the latter executed a tawliatnama on the 13th march 1854 whereby he appointed one sekandar as his successor in the office of mutwalli with authority to appoint a successor. on the 1st december 1892, sekandar, in exercise of the power vested in him, appointed his daughter.....
Judgment:

Asutosh Mookerjee, J.

1. The subject-matter of the litigation which has culminated in this appeal consists of immoveable property dedicated as wakf in or about the year 1836 by a Muhammadan named Azimuddin Mistri. A mosque was erected by the founder on a portion of the land and income for its maintenance is derived from the remainder, which is in the occupation of tenants. Azimuddin constituted himself the first mutwalli and acted as such so long as he was alive. He appointed his grandson Imamuddin as the next mutwalli; the latter executed a tawliatnama on the 13th March 1854 whereby he appointed one Sekandar as his successor in the office of mutwalli with authority to appoint a successor. On the 1st December 1892, Sekandar, in exercise of the power vested in him, appointed his daughter Sobran Bibi as mutwalli; she performed the duties of the office for over seven years and died in the year 1900 without appointing anyone as mutwalli. Two brothers of Sobran, Yakub, Yasin by name, however, took possession of the wakf properties and administered them for a term of seven years. On the 22nd February 1907, Yakub and Yasin executed a deed of relinquishment in favour of the plaintiff Atimannessa Bibi, daughter of Imamuddin, the grandson of Azimuddin. In this deed they admitted that as the sole surviving descendant of the founder she had a preferential claim to the office of mutwalli. Immediately after this, there was a scramble for the possession of the wakf properties and on the 22nd July 1907, a suit was instituted with the consent of the Advocate-General, under Section 539 of the Civil Procedure Code of 1882, in the Court of the District Judge by persons who claimed to be interested in the due administration of this religious trust. The assistance of the Court was sought, as it could only have been sought, on the allegation that the trust had been created for public purposes. The three sons of Sekandar were originally joined as defendants. The present plaintiff subsequently applied to be made a defendant, but as she alleged that the wakf constituted a private trust not affected by Section 539, her application was refused on the authority of the decision in Budh Singh Dudhuria v. Niradharan Roy 2 C.L.J. 431. As the original defendants did not deny that the trust was a public one within the meaning of Section 539, the suit as against them was tried in due course, and one Abdus Sobhan who had married the daughter of Kariman; a son of Sekandar, was appointed mutwalli on the 28th May 1908. The District Judge, however, expressed the opinion that he had a very strong suspicion that the suit was purely collusive and had been brought to defeat Atimannessa. On the 16th March 1910 she commenced this suit for declaration of her title as mutwalli of this trust which, she alleged, was a private wakf, and also for an injunction to restrain the defendants (in which category she included Abdus Sobhan) from interfering with her possession of the endowed properties. The Subordinate Judge held, that the wakf constituted a public trust, contrary to the allegations of the plaintiff, but that as the sole surviving descendant of the founder she had established a claim to the office of mutwalli superior to that of any stranger; in this view, he decreed the suit. On appeal, the District Judge affirmed the view of the trial Court as to the public nature of the wakf, but dismissed the suit on the ground that so long as the decree in the suit under Section 539 remained in force, no relief could be awarded to the plaintiff. The plaintiff has now appealed to this Court. On an analysis of the elaborate arguments addressed to the Court on both sides, the following two points emerge for consideration, namely, first, did the plaintiff as the sole surviving descendant of the founder become mutwalli by operation of law when the last mutwalli died without appointing a successor; and secondly, can the plaintiff be appointed mutwalli in this suit instituted in the Court of the Subordinate Judge and relief granted to her on the basis of such appointment?

2. As regards the first ground, it is plain that the plaintiff did not by operation of law become the mutwalli by right of inheritance on the death of the last mutwalli. The rule on the subject is thus stated by Neil Baillie in his Treatise on Muhammadan Law (Volume 1, page 593): When the superintendent has died and the appropriator is still alive, the appointment of another belongs to him and not to the Judge; and if the appropriator be dead his executor is preferred to the Judge. But if he has died without naming an executor the appointment of an administrator is with the Judge, In the Asul it is stated that the Judge cannot appoint a stranger to the office of administrator, so long as there are any of the house of the appropriator fit for the office, and if he should not find a fit person among them, and should nominate a stranger, but should subsequently find one who is qualified, he ought to transfer the appointment to him. When the appropriator has made it a condition that the superintendent shall be of his children and children's children, and the Judge appoints another than one of these without any malversation, is the person so appointed the superintendent? Boorhanood Deen has said 'No'.' It is obvious from this statement of the law that though a descendant of the founder has a preferential claim to the office of mutwalli, he does not become mutwalli by right of inheritance but has to be appointed such by the qadi who may supersede him if he is not qualified. This view is confirmed by two texts from works of recognised authority on Muhammadan Law, translated in the judgment of this Court in the case of Salimulla v. Abdul Khayer Mohammed Musta a 3 Ind. Cas. 419 : 37 C. 263 : 14 C.W.N. 497 : 11 C.L.J. 304. One of these texts is from the Isaf of Al-Tarabulusi (Cairo Edition, page 42) and the other is from the Fatawa Alamgiri (Calcutta Edition Volume II, page 507) (see other texts translated by Ameer Ali in his Muhammadan Law, Volume I, 4th Edition, pages 451, 759, 760, 763 and 765. See also Anglo-Muhammadan Law by Sir Ronald Wilson, paragraph 328 and Tyabji on Muhammadan Law, page 414). Indeed it may be taken as a settled doctrine of Muhammadan Law that no right of inheritance attaches to a religious endowment. As Parsons, J., observed, with the concurrence of Sargent, C.J., in Sayad Abdula Edrus v. Sayad Zain 13 B. 555 it is by appointment that one officer succeeds to another appointment, either by the original appropriator or by his successor or executor or by the superintendent for the time being, or failing all these, by the Ruling Power. This is laid down distinctly by Macnaughten in his Muhmamadan Law (Chapter X on Endowments, paragraphs 5 and 6; Precedents of Endowments, Cases IX and X). Consequently, the position cannot be sustained that the plaintiff became by operation of law the mutwalli of his wakf as the sole surviving descendant of the founder when the last mutwalli died without having appointed his successor. This conclusion is in accord with the decision in Moohummud Sadik v. Moohummud Ali (1798) 1 Mac. Sel. Rep. 22 : 6 Ind. Dec, (O.S.) 17 and Shahoo Banoo v. Aga Mohomed Jaffer Bindaneem 34 I.A. 46 : 34 C. 118 (P.C.); 11C.W.N. 297 : 4 A.L.J. 30 : 5 C.L.J. 134 : 9 Bom. L.R. 85 : 17 M.L.J. 52 : 2 M.L.T. 49 : 4 L.B.R. 66. The first contention of the appellant must accordingly be overruled.

3. As regards the second ground, the question arises whether in the present suit, instituted in the Court of the Subordinate Judge, the plaintiff can be appointed mutwalli of the wakf. As is obvious from the texts already mentioned, where, as here, the appropriator is dead and has not left an executor, the power of appointment rests with the qadi. The problem thus requires solution, who is the judicial officer in the British Indian system of law who corresponds to the qadi under the Muhammadan Law and can exercise his functions in relation to wakfs. The question has never been fully investigated, but it was assumed in the cases of Shama Churn Roy v. Abdul Kabeer 3 C.W.N. 158, In the matter of Woozatunnessa Bibee 1 Ind. Cas. 512 : 36 C. 21 and In re Halima Khatun 7 Ind. Cas. 33 : 37 C. 870 that the Civil Court of superior jurisdiction, in the locality where the wakf properties are situated, is vested, generally speaking, with the powers exercised by the qadi under the Muhammadan regime. On the other hand, in Nemai Chand v. Golam Hossein 3 Ind. Cas. 353 : 37 C. 179 at p, 187 : 14 C.W.N.535;11 C.L.J. 317, it was observed that if a District Judge or a Judge of this Court in its original jurisdiction could exercise the functions of a qadi, there was no apparent reason why a Subordinate Judge who has jurisdiction over the wakf property should not be deemed equally competent to discharge those functions. As the question is of paramount importance, I have investigated the position of a qadi under the Muhammadan Law, a problem which, so far as I am aware, has been treated historically only in the valuable lectures on the History of Moslem Legal Institutions delivered by Dr. Abdullah-al-Mamun Suhrawardy as Tagore Professor of Law in the University of Calcutta. No assistance in the solution of this question has been derived from an examination of the legislative enactments and judicial decisions relating to the powers and duties of a qadi appointed under the Anglo-Indian system of law. Amongst these may be mentioned Bombay Regulation XXVI of 1827 repealed by Act XI of 1864 (Act XII of 1880; Harrington's Analysis of the Bengal Regulations, Volume I, 2nd Edition, pages 67, 219, 223; Colebrooke's Supplement of Digest of Regulations, pages 1, 14, 19; Morley's Digest, Introduction, pages 30, 31, 34, and title Kazi; Muhammad Yusub v. Sayad Ahmed 1 B.H.C.R. Ap. 18, Jamal v. Jamal 1 B. 633, Daudsha v. Ismalsha 3 B. 72, Baba Kakaji Shet Shimpi v. Nassaruddin 18 B. 103. (14),18 B. 401, Advocate- General of Bombay v. Abdul Kadir (14). It is necessary, therefore, to examine the original texts on the subject. The following texts illustrate the position of the qadi under the Muhammadan Law.

(Translation of Text I.)

4. If the executor or the mutwalli is appointed by the Judge (hakim), the safest course is that he (the Judge should write in the judicial records and registers that he (the executor) is the executor appointed by a Judge possessing the authority of appointing the executor and the mutwalli. For if he (the Judge limits himself to his statement and he is the executor appointed by the Judge,' he (the executor) may sometimes happen to be (appointed) by a Judge not possessing the authority of appointing the executor and the mutwalli. For the qadi does not possess the power of appointing the executor and the mutwalli, except when mention of the administration of wakf properties and orphans is expressly made in the Royal Letters Patent (Manshur of his (qadi's) appointment. Thus it becomes like the rule regarding the deputy qadi (naib qadi, for it is indispensable therein to mention that qadi so and so is permitted to have a deputy to guard against this notion supposition, doubt Jami-al-Fusulayn by Shaykh Mahmud C. Ismail, better known as Ibn Qadi Samawah, Cairo Edition, Volume II, page 15).

(Translation of Text II.)

5. Here there is a point to which attention should be called ( anbih) and which is indispensable and it is--What is meant by the qadi who possesses the power of appointing the executor and the mutwalli and has the supervision of wakf? I say it is the chief qadi (qadi of qadis) and not every qadi, because of what is stated in the 27th Chapter of Jami-al-Fusulayn (Text I is quoted here). There is no doubt that the Sultan's saying 'I appointed the chief qadi' is like expressly mentioning these things in the Letters Patent, as is expressly stated in the Khulasah in connection with the question of the qadi's power of appointing his substitute or successor. According to this, in their (jurists') statement regarding obtaining a loan with the sanction of the qadi, by qadi the chief qadi is meant, and in every place where the qadi is mentioned regarding wakf affairs. This is contrary to their (jurists') statement 'When the order, or judgment of a qadi is brought before him, is referred to him, he executes it,' for this is general, (.i.e., here the word qadi is used in a general sense) (Bahr-al-Raiq, Cairo Edition, Volume V, page 252).

(Translation of Text III.)

6. (He was questioned) regarding a registered wakf set aside by a deputy qadi who relied on the absence of its bindingness according to the Great Imam, 'Has the deputy the power of setting it aside for the reasons mentioned or is the power of setting it aside peculiar to the original qadi'? (He answered): - It is stated in the Bhar-al-Raiq (Text II is quoted here as far as 'wakf affairs'').

7. Thus it (i.e; Bahr-al Raiq) is explicit regarding that the deputy qadi has not the power of setting aside the wakf and that is peculiar to the original (qadi) in whose letter of appointment the Sultan has mentioned the appointment of mutwalis and executors and to whom he has delegated the affairs of wakf. And reliance should be placed upon this although our master Shaykh Muhammad b. Sirajal-Din-al-Hanuti has examined, criticised, discussed it; because of the difference of opinion The author of the Radd-al-Muktar quoting this passage roads the word translated 'difference of opinion' as ikhtital--confusion, disorder, tumult See below Texts IV and V. with regard to the application in an unrestricted sense of the like of it to the deputies in this age.

8. And there is no special text with regard to this question so far as our research goes and similarly so far as the research of our above-mentioned master and that of Shaykh Zayn, author of the Bahr-al-Raiq, goes. And verily he (the author of the Bahr-al-Raiq) deduced it juristically, and God knows best (Fatawa Khayriyah, Volume I, page 118, 2nd Edition, Government Press Gulaq, Cairo).

(Translation of Text IV.)

9. 'Here there is a point, etc.' Al-Ramtif says--I say, in the collection of fatwas of our master Muhammad b. Siraj-al-Din-al-Hanuti there is a question with regard to their (jurists') statement that the istibdal (exchange) can be effected by the qadi when there is no stipulation of the waqf (to that effect). Is the chief qadi meant thereby or it is not peculiar to him, and is it a condition that it should be written in his Letters Patent

10. The answer: -We have not seen any one restricting it to the condition that it should be in his Letters Patent as they (jurists) have restricted it with regard to the power of giving minor girls in marriage and with regard to (the qadi's power of appointing) his substitute, successor. Therefore, it should be acted upon in an unrestricted general sense. And amongst those which indicate that (the power of effecting) istibdal does not peculiarly belong to the chief qadi but rather it (istibdal) can be as much effected by his deputy as by himself, is the fact that it is not lawful for him to appoint his deputy as his substitute, successor, unless the power of doing so is delegated to him by the Sultan. And when the power of doing so is delegated to him (qadi then the authority of his deputy is based on the permission of the Sultan, and he (the deputy) stands in the stead of the person appointing him his deputy, viz., the chief qadi, as they (jurists) have expressly laid it down regarding the question of appointing a successor. Therefore, what is understood by their (jurists') statement is that when in the Letters Patent of the qadi, the power of giving minor boys and girls is stipulated he (qadi) has that power and then the person appointed by him. So they (jurists) have made the permission of the Sultan to the qadi as to giving in marriage sufficient with regard to his qadi's conducting it as well as (with regard to the person appointed by him (qadi because of his standing in his (qadi's) stead. And when the conducting of marriage is lawful for the deputy with their (jurists') express declaration that it should be stipulated for the qadi in his Letters Patent, then how without it? The text of Ibn-al-Hammam regarding the order of succession of matrimonial guardians is as follows: 'Then the Sultan, then the qadi if the (power of) giving in marriage of minor girls and boys is stipulated in his patent of office, then the person appointed by the qadi.' Thus he (Ibn-al-Hammam) has made the stipulation, I mean, his statement, 'if... stipulated in his patent of office,' refer to the qadi only and not to him and to the persons appointed by him, because he (Ibn-al-Hammam) has not put it (the stipulation) after both of them (i.e., after the word qadi and 'the person appointed by him '). Yes, it is true that in the writings of some of them (jurists) is to be found that he Ibn-al-Hammam) has put the stipulation after the word qadi as well as the person appointed by him.' Thus the text is capable of being made to refer to the quadi as he is the original (incumbent) or to both of them. Finis. But he (Al-Ramti) has stated in the Khayriyah (collection of his fatwas, see. Text III) towards the commencement of the chapter of wakf the text of the Bahr-al-Raiq mentioned here. Then he says. 'Thus it, (i.e., Bahr-al-Raiq) is explicit regarding that the deputy qadi had not the power of setting aside the wakf and that that is peculiar to the original (qadi) in whose letter of appointment the Sultan has mentioned, the appointment of mutwallis and executors, and to whom he has delegated the affairs of wakf. And reliance should be placed upon this, although our master Shaykh Muhammad b. Sirai-al-Din-al-Hanuti has examined, criticised, discussed it; because of the confusion The word translated confusion here is ikhtilal in the original, while in Text III the word used is ikhtilaf, difference of opinion with regard to the application in an unrestricted sense of the like of it to the deputies in this age. And there is no special text with regard to this question so far as our research goes, and similarly so far as the research of our above-mentioned master and that of Shaykh Zayn, author of the Bahr-al-Raiq, goes. And verily he (the author of the Bahr-al-Raiq' deduced it juristically, and God knows best (Manhat-al-Khaliq, marginal gloss on the Bahr-al-Raiq by Ibn Abidin the author of the Radd-al-Muhtar, Volume V, Cairo Edition.)

(Translation of Text V.)

Then the power of appointment is for the qadi.

11. 'For the qadi': In the Bahr-al-Raiq, he has restricted it to the chief qadi, relying in the passage from the Jami-al-Fasulayn quoted by us one leaf back. Then he (the author of the Bahr-al-Raiq) states, 'According to this their (jurists') statement regarding obtaining a loan with the sanction of the qadi, by qadi, the chief qadi is meant and in every place where the qadi is mentioned regarding wakf affairs. This is contrary to their (jurists') statement, when the order or judgment of a qadi is brought before him, is referred to him, he executes it.' For this is general.' It is stated in the Khayriyah, Thus it (i.e., Bahr al-Raiq) is explicit regarding that the Deputy qadi has not the power of setting aside the wakf and that is peculiar to the original (qadi) in whose letter of appointment the Sultan has mentioned the appointment of mutwallis and executors and to whom he has delegated the affairs of wakf. And reliance should be placed upon this although our master Shaykh Muhammad b. Sira-al-Dinal-Hanuti has examined, exercised, discussed it, because of the confusion (ikhtilal) with regard to the application in an unrestricted sense of the like of it to the deputies in this age. And there is no special text with regard to this question so far as our research goes and similarly so far as the research of our above-mentioned master and that of Shaykh Zayn, author of the Bahr-al-Raiq, goes. And verily he (the author of the Bahr-al-Raiq) deduced it juristical]y.' And he (the author of the Fatawa Khayriyah, Khayr-al-Din-al-Ramti) has quoted, in his marginal gloss on the Bahr-al-Raiq, the text of his master al-Hanuti in extenso and has confirmed it (See Text IV). And of it (the text) is--And amongst what indicates that (the power of effecting) istibdal of wakf is not peculiar to the chief qadi but rather is lawful to his deputy as well, is the fact that his deputy is his locum tenens. Therefore, what is understood by their (jurists') statement is that when (the power of) giving minor girls and boys is stipulated in his Letters Patent that (power) belongs to the person appointed by him. The text of Ibn-al-Hammam as to the order of succession of matrimonial guardians is, Then the Sultan, then the qadi if that is stipulated in his patent of office, then the person appointed by the qadi. End of the quotation in substance. (Note) but he (the author of the Arfa-al-Wasail) has stated that the governance of the wakf is for the qadi even though the Sultan has not stipulated it in his investiture and has not ascribed, assigned it to anyone. And this is contrary to what is reported, quoted in the Jami-al-Fasulyan (Radd-al-Muhtar, Volume III, page 635, Edition Constantinople).

(Translation of Text VI.)

12. 'If the qadi associates with the mutwalli a reliable person.' It is stated in the Bahr-al-Raiq (Text II is quoted here) (Al-Tahawi's commentary on the Durr-al-Mukhtar, Volume II, page 567, Government Press, Gulaq Cairo).

(Translation of Text VII.)

13. He was questioned: Is the qadi's appointment of another person as mutwalli Valid even if he is not the chief qadi Or does it depend upon his being that, and what is meant by the chief qadi?

14. He answered: When the mutwalli dismisses himself, resigns his office before, in the presence of, the chief qadi and he (the chief qadi) appoints another as mutwalli it is valid. Similarly when the (news of) dismissal, resignation, reaches the qadi, he becomes dismissed, otherwise not. By the chief quadi is meant the person who is expressly authorised by his Letters Patent to have the administrations of wakf properties and orphans, or to whom the Sultan says, I have made the chief qadi.' It is stated in the Bahr-al-Raiq (Text II is quoted here) (Fatawa Mahdiya, Volume II, page 575, Cairo Edition.)

(Translation of Text VIII.)

15. When the Sultan says to a man '[made thee a qadi,' he has not the power of appointing a substitute, successor except when he (Sultan) permits him to do that expressly or by implication by saying, 'I made thee chief qadi,' because it is the chief qadi who acts as he pleases respecting qadis as regards investiture or dismissal. Thus it is laid down in the Dhakhirah. (Fatawa Alamgiri, Volume III, page 388, Calcutta Edition.)

(Translation of Text IX.)

16. And the qadi cannot appoint as successor, substitute a deputy except when (the authority to do so) is delegated to him expressly, like, 'appoint whomsoever thou likest;' or implicitly, like, 'I made thee chief qadi.' And here the implication is stronger, for in the explicit stated above, he possesses the power of appointing a successor, not that of dismissal. And in the implicit he possesses both, like his (Sultan's) saying, 'Appoint whomsoever thou likest, supersede (substitute) whomsoever thou likest,' for it is the chief qadi who acts as he pleases respecting them (qadis) as regards investiture or dismissal (Durr-al-Mukhtar, page 529, Edition Calcutta).

(Translation of Text X.)

17. The appointment of a qadi is not valid unless the person appointed combines in himself the conditions of evidence (qualifications of witness) according to the Hidayah, viz., Islam, Taklif, Freedom, etc. (Fatawa Alamgiri, Volume III, page 378 Calcutta Edition.) Cf. Hamilton's Hedayah, Grady's Edition, Book XX, page 334.

(Translation of Text XI.)

18. It is stated in Multaqa And Islam is not a condition in him, i.e., in the Sultan who invests (a person with the office of qadi). Thus it is laid down in the Jatarkhaniyah' (Fatawa Alamgiri, Volume III, page 379, Calcutta Edition)

(Translation of Text XII.)

19. It is valid to accept the investiture of office of qadi from a just Sultan and from a tyrant even though an infidel (it is stated by Miskin and others) except when he prevents him from doing justice, what is right; then it is unlawful (Durr-al-Mukhtar, page 524, Edition Calcutta).

(Translation of Text XIII.)

20. And qualified for it (office of qadi) is one who is qualified for being a witness. This is contrary to the statement of al-Zaylai in the (chapter on) Arbitration to the effect that the investiture of an infidel with the office of qadi in order to decide between non-Moslems under Moslem protection (Ahl-al-Dhimmah) is valid' (Durr-al-Mukhtar, page 521, Edition Calcutta)

21. It is clear from an examination of these texts that, under the Muhammadan Law, that qadi alone was competent to exercise authority in respect of wakfs who was so expressly authorised in his Letters Patent. There was some difference of opinion upon the question, whether such express authority was needed when a person was explicitly appointed the chief qadi; but even here the balance of opinion of jurists favours the view that power should be expressly conferred on the chief qadi to validate the administration of wakfs by him. There is also authority to show that the supreme authority in the State, by whom the qadi is appointed, need not be a Muhammadan, and although there is some divergence of opinion, there is also authority to show that the office of qadi may be held by a non-Moslem for the decision of disputes between non-Moslems under Moslem protection. As this is a matter regarding religious usages and institutions within the meaning of Section 15 of Regulation IV of 1793, the rights of the parties must be determined with regard to the provisions of the Muhammadan Law on the subject [per Peacock, C.J., in Kudratulla v. Mohini Mohan Shaha. 4 B.L.R. 13 at p. 169 : 13 W.R. 21]. It follows accordingly that a Subordinate Judge, who has not been expressly authorised by the Government to exercise functions in connection with the administration of wakfs, is not competent to act in that behalf. Whether a District Judge has implied authority to exercise the functions performed by a qadi under the Muhammadan Law is doubtful. In respect of wakfs which may be described as trusts created for public purposes of a religious nature within the meaning of Sub-section (1) of Section 92 of the Civil Procedure Code, 1908, the District Judge may be assumed to have been authorised to discharge the functions of a qadi. The real difficulty arises in the case of private wakfs; it is desirable that to cover such cases the Local Government should authorise either District Judges or Subordinate Judges or even judicial officers of a lower grade, if it be thought desirable, to exercise the function of a qadi. When authority has been so conferred, a question may arise whether the assistance of the Court is to be invoked by a suit or by an application [see Mahamed Haji Zakeria v. Ahmadbhai Habibbhai 25 B. 327 : 3 Bom. L.R. 365]. The case before us, however, is reasonably free from difficulty. The Courts below have concurrently found that the wakf was public and have thus negatived the fundamental allegation of the plaintiff. The District Judge had jurisdiction under Section 539 of the Civil Procedure Code of 1882 to appoint the defendant as mutwalli. The Subordinate Judge had no authority to recall that order and to appoint the plaintiff as mutwalli. [Saiyad Ali v. Ali Jan 18 Ind. Cas. 573 : 35 A. 98 : 11 A.L.J. 25. (18) 20 Ind. Cas. 37 : 11 A.L.J. 673 : 85 A. 459.] It might have been otherwise if the suit had been instituted by a person already appointed mutwalli, for example by a testamentary instrument, Muhammad Abdul Majid Khan v. Ahmad Saeed Khan (18). The remedy of the plaintiff obviously is to proceed under Section 92 of the Code of 1908 and to get herself appointed mutwalli on the ground that she had the preferential right to the office as the sole surviving descendant of the founder at the time of the death of the last mutwalli. In fact, she would have been so appointed in the suit mentioned, if she had not asserted at the time that the wakf was private. It would be open to her now, however, to accept the decision in this suit that the wakf is public and to proceed on that basis under Section 92

22. The inference follows that in the present suit as framed, the plaintiff cannot be appointed mutwalli and the suit has consequently been rightly dismissed. The appeal is accordingly dismissed with costs.

Beachcroft, J.

23. I agree that this appeal must be dismissed for the reasons given by my learned brother. I express no opinion as to the position of the District Judge with reference to private wakfs.


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