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Sahebzada Faridun Seko Vs. Sahebzadi Jehanara Begum - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal382,101Ind.Cas.104
AppellantSahebzada Faridun Seko
RespondentSahebzadi Jehanara Begum
Cases ReferredSyed Imdad Hossain v. Mahomed Ali Khan
Excerpt:
- .....her right to the mutwalliship by having acquiesced in the appointment and continuance of faridnn seko asmutwalli. in view of this attitude taken up by the petitioner before the learned judge i do not feel disposed to allow the petitioner to urge this contention at this stage, but i must not be understood as expressing any opinion one way or the other as to the merits of this contention. i am of opinion that the question is of very little importance now, because after all it is the liability or otherwise of the petitioner to render accounts to the court with which we are concerned, and it does not really matter whether that liability has been declared at the instance of a parson who has or has not a locus standi to move the court for that purpose.14. the second ground upon which this.....
Judgment:

Mukerji, J.

1. Zuhura Begum, one of the wives of Tipoo Sultan, by a deed, dated 1255 B.S. (1848), founded a wakf, to which the proceedings which form the subject-matter of this Rule relate. By this deed one Haider Seko was appointed the first mutwalli and he was to remain in possession of the endowed property naslan bad naslan. Haider Seko was succeeded in the office of mutwalli by his son Mahomed Seko and then by his granddaughter Rowshan Jehan Begum. In 4909 one Fakir Mahomed and another, person instituted a suit (No. 37 of 1909) for removing Rowshan Jehan Begum from the mutwalliship. Daring the pendency of this suit, and in January 1910, Rowshan Jahan Begum died leaving an infant daughter Jehanara Begum by her first husband and cousin Asab Seko. The said Jehanara Begum is the opposite party in this Rule. Rowshan Jehan Begum had been married a second time on the death of her first husband to Faridun Seko who is the petitioner before us. On the death of Rowshan Jehan, Begum, Suit No. 37. of 1909 was dismissed, on the 1st, February 1910 as being no longer maintainable. Several proceedings then arose in connexion with this wakf of which mention need be made here of the following.

2. One Mirza Mahomed Ali Noki applied to be appointed mutwalli alleging that Jehanara Begum was a minor and so ineligible to be appointed. To this objections wore put forward by one Abbas Ali and one Ahmed Seko respectively, each of them also claiming to be appointed mutwalli in his own right. The opposite party Jehanara liegi in represented by her stepfather Faridun Seko, the petitioner, also objected to the appointment of Mirza Mahomed Ali Noki and put forward her own right to the mutwalliship. Aga Abbas Ali and Faridun Seko also filed independent applications under Act 8 of 1890 to be appointed guardian of the person and property of the minor Jehanara Begum. On the 10th August 1910 the District Judge of 24 Parganaas made an order by which it was directed that in the event of the appointment of Jehanara Begum as mutwalli, Faridun Seko would be appointed guardian of the person and property of the minor on his furnishing substantial security. Subsequently all the aforesaid proceedings came up for final decision before Mr. Richardson, as he then was, the Dictrict Judge of 24 Pargannas.

3. On the 21st December 1910 by an order which is remarkable for the anxious and punctilious care with which the interests of the endowment as also of the minor were meant to be safeguarded - a characteristic of all orders in similar matters which used to ha passed by that learned Judge - the learned Judge disposed of all the said proceedings. He held that the applications of Mirza Mahomed Noki, Aga Abbas Ali and Ahmed Seko to be appointed mutwalli, in so far as they purported to claim the office of mutwalli in supersession of Jehanara Begum, all failed and were to be dismissed. He held that as he was not going to appoint Jehanara Begum, as mutwalli at the moment, the condition mentioned in his ' predecessor's order, dated the 10th August 1910, under which Paridun Seko was to he appointed guardian of Jehanara Begum on his furnishing sufficient security, was not fulfilled and that order became inoperative. He then proceeded to say this:

But inasmuch as I expressly recognize and declare the right of Jehanara Begum to succeed to the office when she attains her majority, the position is very much the position, which my predecessor contemplated and I am opt prepared definitely to select any person other than Faridun Seko to discharge the duties of the office during the period of minority. In other words, I think that it would be a hardship possibly contrary to the spirit of the foundation deed not to give him an opportunity to show his fitness to discharge those duties. But I do not select him finally.

4. Four conditions were laid down for the aforesaid appointment of Faridun Seko: (1) That he should within a month file a complete and detailed list of all the wakf properties stating all charges, incumbrances and liens thereon; (2) that he should within the said time file a scheme of management for the approval of the Court showing the income of the property and how it was to be expended; (3) that the list of properties and scheme of management should be assented to by Mirza Mahomed Ali Noki and Aga Abbas Ali; and (4) that he should give such security as he would be directed to do. He expressly stated in th.3 said order thus:

Lastly as to the appointment of a guardian for Jehanara Begum. As I understand the matter, if some one is appointed to discharge the. duties of mutwalli during her minority, it will not be necessary to appoint a guardian of her property. If Aga Abbas Ali is willing to act as guardian of her person and to give such security as I consider necessary to enure her welfare, I propose to appoint him in chat capacity.

5. On the 27th March 1911 the petitioner furnished the requisite security for Rs. 4,000 to the exact terms of which reference will be made hereafter.

6. This arrangement appears to have been affirmed by this Court on the 80th November 1911 on an appeal which was preferred from the aforesaid order. Thereafter in 1912 a suit being Suit No. 31 of 1912, was instituted under, the provisions of Section 92 of the Civil Procedure Code by the aforesaid Fakir Mahomed Ali Noki praying for a declaration that Mt. Jehanara Begum was not entitled, to be mutwalli, for the removal of the petitioner Faridun Seko from the post of mutwalli that he was then occupying and for other reliefs. A Receiver was appointed in respect of the wakf properties during the pendency, of the said suit. This suit was dismissed by the trial Court on the 23rd March 1916. Mr. Cuming the then District Judge, who tried the same having delivered a scathing judgment disapproving of the conduct of She plaintiffs therein and strongly condemning the motive which actuated the institution thereof. An appeal was taken from this decision to the High Court, and eventually on a compromise being arrived at the suit was withdrawn. The Receiver, who, as I have already mentioned, was appointed in the suit, was discharged on the 11th February 1919. It should be mentioned here that while the Receiver was in charge of the wakf properties, the petitioner Faridun Seko continued to act as mutwalli as before.

7. The proceedings with which we are concerned in the present Rule originated with an application filed by the Opposite party Jehanara Begum in the Court of the District Judge of 24 Pargannas on the 30th June 1926. The opposite party stated in that application that she had attained majority and that after attaining majority she had assumed the office of mutwalli and was acting as such and that she had demanded accounts and papars, etc., that were with the petitioner in order to be acquainted with the state of affairs of the wakf but had not been able to obtain them. She stated further that she had asked the petitioner to render accounts but that 1 he petitioner had put her off again and again. She prayed in this application for the following reliefs:

(b) That the late acting mutwalli be directed to render accounts about the period of his management and to make over the accounts, title-deeds, documents and all other papers relating to the wakf estate with the cash in hand to your petitioner, (c) to piss order for delivery to your petitioner of the accounts and papers relating to the wakf estate during the period the Receiver was in possession as well as the papers and accounts submitted by the opposite party (meaning the petitioner in this Rule) for the amounts drawn by him from the Receiver and also the accounts and papers submitted by him to the Court in connexion with the wakf estate, (d) That if necessary to assign the aforesaid security bond in favour of your petitioner.

8. Prayers (a) and (e) need not be set out. It was not mentioned in this application when according to the applicant she had attained majority but from an affidavit which has been filed in this Court it appears that her contention is that she did so in 1924. This application was opposed by the petitioner Faridun Seko who took various pleas, amongst which may be mentioned the objection that he is not liable to render any accounts, that Jehanara Begum attained majority in 1918 or 1919 and her right to the office of mutwalli was barred, that in point of fact she had not assumed the office and that under the towliutnama of Zohura Begum, the petitioner Faridun Seko is entitled to the office of mutwalli. The District Judge of 24-Pargannas has dealt with these proceedings by an order, dated the 4th August 1926.

9. This order calls upon the petitioner to render accounts for the period commencing from the 11th February 1919, the date on which the Receiver was discharged and ending with the 1st January 1924, which was the date up to which the accounts were pressed for on behalf of the applicant Jehanara Begum. The reason upon which this order is founded is contained in the following passage of the judgment of the learned Judge:

It cannot be disputed that the acting mutwalli Sahebzada Faridun Seko was appointed to act as mutwalli under the orders of this Court, dated the 27th March 1911. In appointing the opposite party (meaning the petitioner in this Rule) the District Judge was presumably acting in his capacity as Kasri and it seems tome that, on the analogy of the Guardians and Wards Act, the District Judge, acting as the Kani, would have the same powers of control over an acting mutwalli appointed by him as the Court has over the guardian of a person appointed under the Guardians and Wards Act of 1890 and therefore has jurisdiction to call upon an acting mutwalli to render accounts. It is admitted that the opposite party (meining the petitioner in this Rule is still in possession of the wakf property, and although he was appointed to act as mutwalli during the terms of the petitioner's (meaning of Jehanara Begum) minority, it does not appear that he has ever been discharged. He is therefore liable to render accounts to the petitioner (meaning Jehanara Begum.)

10. It is the validity of this order which is questioned before us on behalf of the petitioner Faridun Seko in this Rule.

11. The first contention that has been urged on behalf of the petitioner is to the effect that Jehanara Begum had no locus standi to make the application that she did. In support of this contention reliance has been placed upon the terms of the order passed by Mr. Richardson on the 21st November 1910, and especially to the following passage in that order:

I am not prepared definitely to select any person other than Faridun Seko to discharge the duties of the office during the period of minority. In other words, I think that it would be a hardship possibly contrary to the spirit of the foundation deed not to give him an opportunity to show his fitness to discharge those duties. Bat I do not select him finally.

12. The opposite party on the other hand relies upon the passage in the order which runs in these words:

I expressly reoogais9 and declare the right of Jehanara Begum to succeed to the office when she attains her majority.

13. The petitioner has also pointed out that Mr. Caming in his judgment in Suit No. 31 of 1912, dated the 4th March 1916, interpreted the aforesaid order of Mr. Richardson as indicating that 'Mr. Richardson did not appoint her mutwalli. He merely recognized her right to be mutwalli when she came of age.' I find, however, that in the order which is complained of in the present Rule, there is a clear statement that it was admitted before the learned Judge that Jehanara Begum is, as a matter of fact, the legal mutwalli in respect of the wakf property and the contention that was urged before him - 'faintly' as the learned fudge has put it - was that she had lost her right to the mutwalliship by having acquiesced in the appointment and continuance of Faridnn Seko asmutwalli. In view of this attitude taken up by the petitioner before the learned Judge I do not feel disposed to allow the petitioner to urge this contention at this stage, but I must not be understood as expressing any opinion one way or the other as to the merits of this contention. I am of opinion that the question is of very little importance now, because after all it is the liability or otherwise of the petitioner to render accounts to the Court with which we are concerned, and it does not really matter whether that liability has been declared at the instance of a parson who has or has not a locus standi to move the Court for that purpose.

14. The second ground upon which this Rule has been pressed relates to the legality of the order itself, it being urged that the Court has no jurisdiction to call upon the petitioner to render accounts. It is clear to my mind that the liability of the petitioner to render accounts on being called upon by the Court to do so must flow from some statutory or from some contractual obligation. It is necessary then to examine the position from both the aforesaid points of view.

15. The petitioner was appointed to act as mutwalli during the minority of Jehanara Begum. Now, what is the precise position of a mutwalli appointed under such circumstances under the Mahomedan Law? In Ameer Ali's Mahomedau Law. 4th Edition, pages 446-447, the matter is dealt with in this way:

So also in Fatawa-1-Ankariwa, Vol. II, p. 217:

Q. - If the wakif has made a wakt with the condition that its governance shall belong to his children, and among his children are both major and minor, to whom is the towliat to be given?

A. - The Kazi shall appoint somebody in place of the Saghir (the infant) and if he may appoint the adult children as the kaim mukam (deputy) of the minors,

16. And quoting Surrat-ul-Fatawa

If the towliat has been entrusted by the wakif to a boy his towliat will remain in abeyance or ineffective until he attains majority when the trust will be made over to him.

17. And quoting Fatawa-1-Ankaria, Vol. II, p. 217, from the Asaaf

If the wakif appoints as mutwalli a person who is absent the Kazi has the power of nominating in his place another for the time being, and when the mutwalli appointed by the wakif arrives the trust will revert to him.

18. From these passages it seems to follow that the petitioner when he was appointed mutwalli or acting mutwalli was put very much in the position of a trustee to administer the trust during the minority of Jehanara Begum and until she or somebody else came to assume the office of mutwalliship. Of course there is little analogy between the position of a trustee as understood in the English sense of the term and that of a mutwalli in whom no property is vested, but as pointed out by the Judicial Committee in the case of Vidya Varuthi Tirtha v. Balusami Aiyar A.I.R. 1922 P.C. 123 in view of the obligations and duties resting on him he is answerable as a trustee in the general sense for malad minstration. Under the English law a Court of equity interferes in the management and administration of a trust where there is no trustee to carry it on or where the trustee wrongfully declines to act or is acting improperly or where difficulties have arisen which cannot be removed without its assistance or where the decision of the Court on a doubtful question connected with the trust or the proper administration thereof is sought by the trustee or by the cestui que trust, arid the Court orders the trust funds to be paid into Court where it is necessary or expedient for the preservation of the trust estate or the due performance of the trust.

19. Where one of the original trustees is an infant and inconvenience to the trust estate is caused thereby, the Court, may appoint a new trustee in his place, and a new trustee may also be appointed by the Court where the trust property is vested in or stands in the name of a lunatic or a p9rson of unsound mind or in the place of a trustee who is physically incapable or is a lunatic or of unsound mind. Such appointments, under whatever name they are made, either new trustees, judicial trustees, etc., are made under the general power or special authority given by the statute. The intervention of the Court in such and similar matters is obtained by an action or in a suitable case by an originating summons. In proceedings against trustees for wilful default accounts may be directed on proof of a single instance of wilful default, but accounts on the footing of wilful default cannot be obtained on an originating summons.

20. The technicalities of law and procedure under the English law relating to trusts and trustees, no doubt, cannot be said to apply in their entirety to this country, but there is a good deal in common between the appointment of an acting mutwalli during the minority of one who is entitled to the towliat under the foundation deed but happens to be minor at the time and the appointment under the English statute of a new trustee in the place of an infant trustee appointed by a Will. In England the order for the appointment of a new trustee is made without prejudice to an application by an infant on his coming of age to be restored to the trust Re Shelmerdine [1864] 33 L.J. Ch. 474, Re Brunt [1883] W.N. 220 and Re Tallatire [1885] W.N. 191.

21. The Mahomedan law provides that in such case3 the Kazi should appoint some body who should get the office on attaining majority. This power of the Kazi has been judicially recognized in the case of Piran v. Abdool Karim [1892] 19 Cal. 203. Mahomedan jurists maintain that the Court has general powers of supervision over a wakf. In the exercise of such general powers of supervision the Court fixes the remuneration of a mutwalli, removes an incompetent or dishonest mutwalli despite anything to the contrary laid down by the wakif, passes orders authorizing dealings with wakf property if beneficial for the wakf. In the exercise of such general powers of superintendence, and for the purpose of removing the mutwalli or taking action against him, the Court may, perhaps on a proper case being made but, call for his accounts, but we have not been referred to any provision of the law, nor have I been able to discover any under which the Court has the power to order a mutwalli to render accounts on the application of the minor on his attaining majority whereby he seeks to use the machinery of the Court for that end. It doss not seem to ma that the rights and obligations of an acting mutwalli appointed under circumstances such as are disclosed in the present case are in any way different from those of a permanent mutwalli appointed through the intervention of the Court, and in my view the only difference lies in the periods for which they are respectively appointed.

22. There is a case in the books in which a mutwalli was directed to file in Court every six months a true and complete account of his income, expenditure and dealings with the property belonging to the endowment Syed Imdad Hossain v. Mahomed Ali Khan [1974] 23 W.R. 150. The order in that case, however, was made by this Court on an appeal from a decision in a suit in which the mutwalli had been proved to have been guilty of waste, and the order was made as it was considered more convenient to be carried out than the order of inspection that had been originally made therein. In my opinion it would be quite wrong to import into the case the considerations which arise as between a minor and a guardian appointed in respect of his properties under the Guardians and Wards Act 8 of 1890. The property does not, vest in the mutwalli; the ownership in the case of a wakf is extinguished altogether or is vested in the Almighty and the mutwalli is, as the name implies, a mere manager on His behalf. Besides, to impose a liability on the analogy of the provisions of the Guardians and Wards Act, 8 of 1890, in the absence of any provision in Mahomedan law or in any enactment, is, in my opinion, not permissible. It should be remembered that Mr. Richardson expressly declined to appoint the Petitioner as guardian of Jehanara Begum., Turning now to the question of contractual obligation, we have to scrutinize the terms of the bond which was furnished by the petitioner and his surety.

23. The bond runs in these words:

In the Court of the District Judge of 24-Pargannas, Misc. J. Case No. 18 of 1910 (wakf).

Know all men by these presents that we, Faridun Shekoh, son of late Shahebzada Mahomed Safdur Shekoh of Tollygunge, Thana Tollygunge Sudder, principal, and Rup Chand Ghose, son of late Becharam Ghose, by caste Gope, by profession landholder and contractor of 12 and 13, Joynuddi Mistri's Lane, Chetla, Thana Alipur, surety, are held and firmly bound on to the District' Judge of 24-Pargannas and his successor in office for the time being in penal sum of Rs. 4,000 four thousand only to be paid to the said District Judge of 24-Pargannas or his successor in office, for which payment we bind ourselves, our heirs, executors and administrators only and every one of them jointly by these presents,

(Sd.) Md. Faridun Shekoh,

Principal.

(Sd.) Rup Chand Ghose,

Surety.

Whereas the said District Judge of 24-Pargannas has directed in the above case by an order, dated the 27th March 1911, the said principal to furnish a security in sum of Rs. 4,000 four thousand only for due discharge of duties as mutwalli of the wakf estate endowed by the late Shahebzada Zurra alias Zohra Begum, widow of Tipoo Sultan, and whereas the said Faridun Shekoh in consideration of such appointment has engaged for due collection, getting in and management of the said wakf estate. Now the condition of the above written obligation is such that if the said Faridun Shekoh shall duly collect, get in and manage the said wakf estate and shall do all things necessary and required by law in order to the due collection, getting in and managing the said wakf estate, the above written obligation shall be void and of no effect; or else shall remain in full force and effect till his mutwalliship, dated the 29th March 1911.

(Sd.) Faridun Shekoh,

Principal,

(Sd.) Rup Chand Ghose,

Surety.

24. The bond, it will be seen, closely follows that prescribed under Section 34 of the Guardians and Wards Act 8 of 1890, but the stipulation that if the person appointed:

do and shall justly and truly account whenever called upon to do so, for what he may receive in respect of the property and do and carefully observe, perform, and keep all orders and directions of the said Court of the District Judge touching or concerning the estates and effects of the said minor and his property and touching and concerning all such moneys and estates as he shall receive as such guardian as aforesaid and in all things conduct himself properly, then the above Written bond or obligation shall be void and of no effect, otherwise the same shall remain in full force and virtue

25. is absent in it. Instead of this stipulation, the liability is confined only to 'due collection, getting in and management of the wakf,' and an obligation to render accounts to the Court and a reservation of the power in the Court to call for accounts cannot, in my opinion, be inferred from the 'terms. The omission and modification to which I have referred, in my opinion, seem to be deliberate. To add to it there is the significant fact that during the long years that have elapsed the petitioner was never asked by the Court to submit his accounts nor did he as a matter of fact submit any. He from time to time made applications for obtaining the sanction of the Court to validate alienations or transfers and in support of such applications only showed the then existing state of the finances in the shape of statements which, however, can in no sense be regarded as submission of accounts to the Court.

26. I am accordingly of opinion that whatever other remedies the opposite party may have against the petitioner, the proceedings to which she has resorted in the present case are wholly inappropriate and the learned Judge's order was without jurisdiction, and that order must be discharged.

27. The rule is accordingly made absolute with costs three gold mohurs.

Graham, J.

28. I concur, though not without some degree of hesitation, The main question involved in the case is whether the acting mutwalli, the petitioner before us, is liable to render accounts to the District Judge by whom he was appointed in that capacity, and whether the learned District Judge had jurisdiction to make the order demanding accounts.

29. There cannot be any doubt, nor has it been disputed, that the District Judge had by virtue of his powers as Kazi jurisdiction to make the appointment. The facts are that the petitioner was appointed acting mutwalli so far back as the 27th March 1911. He acquiesced in the appointment, has been managing the wakf properties ever since, and from time to time submitted some sort of accounts to the Court on occasions when he sought permission to effect transfers or leases of the, properties. In these circumstances it might be thought that the Court, which had the power to make the appointment, would have power to make orders incidental thereto and arising therefrom, e.g., to call for the submission of accounts.

30. It is noteworthy, however, that in this particular instance no stipulation was made by the Court for the rendering of accounts; the security bond is silent on the point, nor have accounts ever been called for, and it seems probable that the omission to make any such order was not due to inadvertence on the part of the learned District Judge, but to a correct appreciation of his powers. As my learned brother has pointed out, we have not been referred to any authority in support of the proposition that the Court can in a case like this demand the submission of accounts. Such accounts could not be demanded from a mutwalli appointed by the Court, and the position of the Court can hardly be stronger in the case of an acting mutwalli than in the case of a mutwalli. If there had been allegations of malfeasance, the position would no doubt have been different. But that is not the case here.

31. On the whole, therefore, I agree with my learned brother that the rule must be made absolute.


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