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Habibar Rahman Vs. Saidannessa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1924Cal473
AppellantHabibar Rahman
RespondentSaidannessa Bibi and ors.
Cases ReferredLiverpool and Manchester Aerated Bread Co. v. Firth
Excerpt:
- .....judge in favour of two mutwallis of a mohammadan wakf, authorising them to grant a lease of the wakf property. the petitioner before us who is another mutwalli, preferred an objection, but did not appear to support it, with the result that an order in favour of the applicants was made ex paste. the petitioner thereupon appealed to this court; but the appeal was dismissed as incompetent; habibar rahman v. syedunnessa bibi : air1924cal327 . the petitioner now assails the order of the district judge as made without jurisdiction, because he dealt with the matter on the basis of an application and not of a plaint.2. it is well-settled that the district judge has jurisdiction to authorise dealings with wakf property in the same way as a qazi might have done under the mohammadan law; see the.....
Judgment:

1. We are invited in this Rule to consider the legality of an order made by the District Judge in favour of two mutwallis of a Mohammadan wakf, authorising them to grant a lease of the wakf property. The petitioner before us who is another mutwalli, preferred an objection, but did not appear to support it, with the result that an order in favour of the applicants was made ex Paste. The petitioner thereupon appealed to this Court; but the appeal was dismissed as incompetent; Habibar Rahman v. Syedunnessa Bibi : AIR1924Cal327 . The petitioner now assails the order of the District Judge as made without jurisdiction, because he dealt with the matter on the basis of an application and not of a plaint.

2. It is well-Settled that the District Judge has jurisdiction to authorise dealings with wakf property in the same way as a Qazi might have done under the Mohammadan Law; see the judgment of Amir Ali and Pratt, JJ., in Syama Charan v. Abdul Kabir [1898] 3 C.W.N. 158. This was followed by Woodroffe J., in Re Woozatunnessa Bibi [1909] 36 Cal. 21 where it was mentioned that a similar view had been taken by Stepen, J., on the 2nd July 1906, in an unreported case : In the matter of a Wakfnama. Two years later, however, Pugh, J., declined, in Re Halima Khatun [1910] 37 Cal. 370, to assume jurisdiction as extensive as that of the kazi, and held that in the absence of statutory authority, a sanction to sell wakf property could be obtained by a mutwalli only by means of a suit. This case stands by itself and does not appear to have been followed. On the other hand, in the decision in Nimaichand v. Gulam Hussain [1910] 37 Cal. 179 and Atimannessa v. Abdul Sobhan [1916] 43 Cal. 467 where the powers of a kazi were fully examined, the view taken in Shamacharan v. Abdul Kabir [1898] 3 C.W.N. 158 and Re Woozatunnessa [1909] 36 Cal. 21, was followed as correct. A similar view appears to have been incidentally adopted by the Judicial Committee in Mohomed Ismail Arif v. Ahmedmulla Dawood A.I.R. 1916 P.C. 132 where it was stated by Mr. Amir Ali that the place of the kazi in the British Indian system is taken by the Civil Court. The decision in Jamila Khatun v. Abdul Jalil [1918] 23 C.W.N. 138 is not really opposed, to this view, as that was not a case of a mutwalli seeking sanction to deal with wakf property. There it was ruled that if a person desires to be appointed a mutwalli of a public wakf, he should proceed preferably by a suit. On the other hand, in Fakrunnessa v. District Judge of 24 Parganas [1920] 47 Cal. 592, it was pointed out that the powers of the Qazi are ordinarily exercised by the District Judge and this sanction given by him on an application by the mutwalli is sufficient authority for the mutwalli for letting out the property. Reference was made to the view of Mr. Amir Ali as set out in his work on Mahomedan Law, 4th Ed., Vol. I, page 480 : 'The application for sanction should be made to the District Judge if the property is situated in the mofussil or to the Judge on the Original Side of the High Court, if it is within a Presidency town. It is not necessary to bring a suit for obtaining such sanction; it will be granted upon a proper application being made by the mutwalli.' This appears to be in agreement with the view adopted by West, J., in Re Kahandas (1880) 5 Bom. 154 though a doubt appears to have been suggested in Muhamad Haji Zakeria v. Aharnad Bhau [1901] 25 Bom. 327. Consequently, the position is that, so far as the Courts of this Presidency are concerned, with the solitary exception of the dissentient note sounded by Pugh, J. in Re Halima Khatun [1910] 37 Cal. 870 it has been uniformly held for at least a quarter of a century that the requisite sanction of the District Judge may be obtained on an application to him by a mutwalli who finds it necessary to make an alienation of the wakf property. No substantial reason has been assigned why we should depart from this well-established rule and direct that in future all such sanctions should be obtained by recourse to the expensive and dilatory machinery of a regular suit. We are not now called upon to consider whether a convenient method would not be to introduce in the Subordinate Courts the procedure by originating summons, more or less on the lines prescribed by the Rules of the Supreme Court in England and the Rules of this Court on the Original Side. But it may be pointed out that even if such a new procedure were introduced, it is at least doubtful whether the Court would enquire into questions of fact in addition to questions of law : Lewis Green [1905] 2 Ch. 340. This, however, is only be way of parenthesis.

3. In this connection, it may be usefully recalled that sanctions are obtained from the District Judge on applications in other classes of oases which may to some extent be regarded as analogous. Under Section 29 of the Guardians and Wards Act, 1890, a transfer of the immovable property of a ward except leases for periods shorter than five years cannot be made without the previous permission of the Court. Under Section 90 of the Probate and Administration Act, 1891, an administrator may not effect a similar transfer of the estate under his charge without the previous permission of the Court. Under Section 75 of the Indian Lunacy Act, 1912, a manager of the estate of a lunatic outside a Presidency Town cannot effect a similar alienation of the estate without the permission of the Court. In these classes of cases the practice is for the petitioner to obtain the requisite Sanction upon an application to the Judge. Reference may also be made to Section 32 of the Land Acquisition Act, 1894, which deals with the question of investment of Compensation money awarded in respect of lands belonging to persons incompetent to alienate absolutely. The matters which require adjudication in such a contingency are dealt with on applications.

4. We are consequently of opinion that till a new procedure is introduced by competent authority the Court should not deviate from its established practice. We may usefully recall the famous maxim of Coke, C.J. in Burrowes v. High Commission Court 3 Bulst. 48 (53), Cursus Curae est Lex Curiae, the practice of the Court is the law of the Court; or, as we have it in the words attributed to Tindal, C.J., by Cresswell, J. 'The course of the Court is the practice of the Court' : Freeman v. Tranah [1852] 12 C.B. 414. From this point of view, it has been maintained by high authorities that where a practice has existed, it is convenient, except in cases of extreme urgency and necessity, to adhere to it because it is the practice, even though no reason can be assigned for it; see the observation of Lord Ellenborough in Bovill v. Wood 15 East 226 and of Lord Campbell in Edwards v. Martin [1852] 17 Q.B. 693. As Lord Abinger said in Jacobs v. Layborn (17) an inveterate practice in the law generally stands upon principles that are founded in justice and convenience; and the Court will not sanction a speculative novelty for the sake of novelty without the warrant of any principle, precedent or authority; Exp. Tollerton Overseers [1837] 3 Q.B. 799, Cown v. Duke of Buccleugh [1876] 2 App. Cas. 344 (347), A.G. v. Marquess of Ailesbury [1887] 12 App. Cas. 672, Exp. James Bell Cox 29 Q.B.D. 1, Liverpool and Manchester Aerated Bread Co. v. Firth [1891] 1 Ch. 367.

5. We are of opinion that the order of the District Judge was not made without jurisdiction and the Rule must be discharged. There will be no separate order for Costs, as the Rule was taken as an alternative to the appeal which has been dismissed with costs.


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