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Newaz Ahmad Khan Vs. HasamaddIn Ahmed and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1936Cal262
AppellantNewaz Ahmad Khan
RespondentHasamaddIn Ahmed and ors.
Cases ReferredMr. Hassem Bibi v. Nur Hussain Shah
Excerpt:
- .....p. c., and succeeded in obtaining a decree for the removal of the defendant, a mutawalli of the wakf property consisting of a mosque, tombs, trees, and outhouses, standing on about 3-1/2 bighas of land, premises nos. 12 and 12/1 mayerpore road, alipore, and granting other incidental and ancillary reliefs claimed in the suit.2. the questions raised in support of this appeal by defendant appellant, was mainly whether the learned district judge in the court below, was right in proceeding, almost entirely, on a previous decision of this court in which it was held that the defendant in the suit had set up his own title to a part of wakf property. the result of the decision was that the mutawalli had set up his personal right to wakf property which was not established on evidence. as has.....
Judgment:

1. The plaintiffs in the suit in which this appeal has arisen prayed for reliefs contemplated by Section 92, Civil P. C., and succeeded in obtaining a decree for the removal of the defendant, a Mutawalli of the Wakf property consisting of a mosque, tombs, trees, and outhouses, standing on about 3-1/2 bighas of land, premises Nos. 12 and 12/1 Mayerpore Road, Alipore, and granting other incidental and ancillary reliefs claimed in the suit.

2. The questions raised in support of this appeal by defendant appellant, was mainly whether the learned District Judge in the Court below, was right in proceeding, almost entirely, on a previous decision of this Court in which it was held that the defendant in the suit had set up his own title to a part of Wakf property. The result of the decision was that the Mutawalli had set up his personal right to Wakf property which was not established on evidence. As has been held by the Judicial Committee of the Privy Council, setting up a title to Wakf property as his personal estate might not by itself be sufficient ground for removal of a Mutawalli from office, if it were established that there was honest administration and management of the Wakf, and upon conformity to, and not in defiance of the trust for which a religious institution was established. A breach of these obligations on the part of the trustee would be a ground for removal from office: see Mr. Hassem Bibi v. Nur Hussain Shah 1928 P C 106 In addition to the position regarding which there cannot be any controversy, in view of the judgment of this Court dated 30th September 1929, in appeal from appellate decree No. 1618 of 1926, that a portion of the wakf property which the mutawalli defendant claimed, in his personal right, was not the personal property of the defendant, and that it was wakf property, the evidence in the case before us, including the evidence of the defendant himself, establishes the fact that the mutawalli has practically no accounts of his management of the wakf property; and the definite evidence in the case coming from the side of the plaintiffsres-pondents, relating to misfeasance, breach of trust and neglect of duty on the part of the mutawalli, as alleged in the plaint, stands unrebutted. In our judgment there cannot be any doubt, on that evidence, that the income of the trust property was being misapplied and misappropriated, and further that the duties imposed by the trust were being persistently neglected.

3. On the materials before us, therefore, in addition to the decision of this Court, clearly establishing the petition that the mutawalli defendant was persistently setting up a title of his own to a portion of the wakf property as his own personal estate, there was ample proof of the allegations as to breach of trust and neglect of duty on the part of the trustee justifying his removal. A question was raised in support of the appeal, that the decision and decree, as passed by the trial Court for accounts, do not mention the period of accounting. The learned Counsel appearing for the plaintiffsres-pondents has no objection to the period of accounting being fixed by this Court, and to that period being limited to six years before the date of institution of the suit. The decree of the Court below is to be varied to that extent, fixing the period of accounting. In the result, with the modification mentioned above, the decision and decree passed by the Court helow are affirmed and the appeal is dismissed. There is no order as to costs in this appeal.


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