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Abdul Khair and anr. Vs. Nazir HossaIn and ors. and Other Cause - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata High Court
Decided On
Case NumberSuit Nos. 1444 and 1488 of 1942
Judge
Reported inAIR1960Cal631
ActsCode of Civil Procedure (CPC) , 1908 - Section 92
AppellantAbdul Khair and anr.
RespondentNazir HossaIn and ors. and Other Cause
Appellant AdvocateP. Chatterjee, Adv. and ;B.C. Dutt, Adv. for Plaintiff No. 2;P.K. Chatterjee, Attorney
Respondent AdvocateS.A. Masud, Adv. for ;Khadem Hossain, Adv.
Cases ReferredMunshi Md. Ishaque v. Kazi Md. Moin
Excerpt:
- p.c. mallick, j. 1. this proceeding relates to a very old wakf. it was created by one md. mukim sarkar by three wakf deeds, the first is of 1843, the second of 1844 and the third of 1846. by these deeds several calcutta properties and others were made wakf. it is not necessary to give in detail the contents of these wakf deeds. suffice it to note that it is a public wakf for the benefit of a mosque erected by the wakif and for various objects recognised as religious and charitable by the mahomedan law. there has been litigations in the past relating to the wakf estate. one such litigation was started in 1929 being suit no. 92 of 1929 to set aside a lease granted by the then mutwalli which was ultimately decreed in 1940 whereby the lease was cancelled. subsequently two other suits were.....
Judgment:

P.C. Mallick, J.

1. This proceeding relates to a very old wakf. It was created by one Md. Mukim Sarkar by three wakf deeds, the first is of 1843, the second of 1844 and the third of 1846. By these deeds several Calcutta properties and others were made wakf. It is not necessary to give in detail the contents of these wakf deeds. Suffice it to note that it is a public wakf for the benefit of a mosque erected by the wakif and for various objects recognised as religious and charitable by the Mahomedan Law. There has been litigations in the past relating to the wakf estate. One such litigation was started in 1929 being Suit No. 92 of 1929 to set aside a lease granted by the then Mutwalli which was ultimately decreed in 1940 whereby the lease was cancelled. Subsequently two other suits were instituted being Suit No. 1444 of 1942 and Suit No. 1448 of 1944 which were subsequently consolidated and a decree was passed on 31-8-1944, whereby this Court framed a scheme for the management of the wakf properties and generally to carry out the purpose of the wakfs. The scheme provided for the appointment of one S. Kadem Hossain as Mutwalli, the acting Mutwalli Nazir Hossain having retired. The Mutwalli was to get a salary of Rs. 60/- per month but no residence. Future mutwallis were to be appointed by the Judge in Chambers. The Mutwalli was to manage the wakf estate subject to the supervision of two Nazirs. The Nazirs appointed were Moulvi Abdul Khair and Mr. Azizul Islam, Advocate. The scheme provides further:

'A system of business management approved by the Nazirs shall be adopted including a provision for the banking of the reserves and drawing against it only by joint signatures of the Mutwalli and one Nazir and also the banking of the receipts.

The Mutwalli is to retain a sum of not more than Rs. 50/- for petty expenses'.

There is a note in the Scheme which reads as follows:

'The Gariahat land though valuable is not developed and has to be reduced into actual possession by suit in Alipur. The new Mutwalli will be substituted. The cost of the Alipur Suit may be paid out of capital'.

The Scheme provides for the payment of costs, of the amount of expenditures to be incurred under various categories, allowances to be paid to the wife and son of the outgoing Mutwalli and a scholarship to one Parok Jha. The last Clause in the Scheme reads as follows:

'There is a general liberty to apply and all matters arising out of or relating to the scheme and the administration of the wakf will be dealt with by the Judge in Chambers'.

2. There are two applications now before me. The first is a summons taken out by Md. Ariff and Yakub Hossain Bham inter alia for removing the present Mutwalli, for appointment of a new Mutwalli and for framing a scheme. This summons is taken out in the two suits of 1942 and 1944 consolidated as aforesaid and in which the decree was passed on 31-8-1944. Mr. B.C. Dutt appears in support of this summons and stated that both the present petitioners were parties to the suits above referred to. Mr. Mahsud opposed the application on behalf of the Mutwalli sought to be removed. The Commissioner of Wakfs has also appeared. The summons was not originally served on him but subsequently served pursuant to my orders. The second is a Notice of Motion taken out by Abu Sayeed Md. Khaliquar Rahman and Abdul Khair Mahomed Mohibur Rahman. They describe themselves as 'new plaintiffs' both suing for selves and on behalf of persons interested in the public wakfs created by the three Indentures above referred to. This Notice also is taken out in the two suits of 1942 and 1944 in which a decree was passed framing a scheme. The reliefs claimed inter alia are for the removal of the existing mutwalli and appointment of new mutwalli, for the framing of a scheme and administration of the wakf. Both the applications, it appears, claim substantially the same reliefs. The allegations made in both the applications are substantially the same. It is alleged that the administration of the wakf estate is not carried on in terms of the scheme framed by the decree of this Court. One of the Nazirs appointed named Janab Azizul Islam never acted and/or was prevented from acting as the Nazir and after he left for Pakistan, no step has been taken for having a Nazir appointed. The result is this--the Mutwalli is administering the wakf estate in his own way without any supervision. So also the Mutwalli has not adopted the method of business management laid down in the scheme. There is no banking account, no maintenance of the reserve, no proper account of the receipts and disbursements. It is alleged that municipal rates and taxes are not being paid regularly. The mosque has no Imam or Moazzin. In consequence, no prayers are held and no light is lit in terms of the wakf deed. The family burial ground is not properly looked after and cleaned. No Moulvi or Kazi employed to read the holy-Koran. In- violation of the directions in the Wakfnama and the decree, the mutwalli has granted a long lease of about 3 bighas of land out of premises No. 17, Gariahat Road except 8 cottahs of graveyard land to one Prodip Bose for 50 years certain with an option of further 25 years on a salami of Rs. 20,000/- and a rent of Rs. 200/- per month. It is alleged that the graveyard consists of 15 cottahs and not 8 cottahs as wrongly stated in the petition of the Mutwalli made to the Commissioner of Wakfs. These are roughly the allegations made in the petition and the reliefs claimed are not merely the removal of the Mutwalli and the appointment of a new Mutwalli but also for framing a scheme and for administration. The allegations in support of the prayer for framing a scheme and administration seems to be that the scheme framed is not workable and in the light of present experience a new scheme should be framed.

3. In the affidavit filed by Mutwalli Khadem Hossain, all allegations of mismanagement and devastavit have been denied. It is alleged that he is doing everything to augment the income of the wakf estate. He is doing everything to give facilities to the worshippers in the mosque. In fact he has purchased a small strip of land adjoining the musjid at 29, Collin Street to provide facilities to the worshippers. It is further alleged that in terms of the decree, he as mutwalli always consulted the Nazirs. The step for the appointment of another Nazir after one of them left for Pakistan was the duty and responsibility of the other Nazir and not that of the Mutwalli under the Scheme. The Nazir who has left for Pakistan has not yet tendered his resignation. It is denied that no bank account was opened. In fact an account has been opened and is still maintained. But as the cost of litigation and other expenses have become very high it became practically futile to operate it normally. It is alleged that accounts are properly kept, taxes are being paid and arrears, if any, with respect to the different properties are very small and attributable to the nonpayment or default on the part of tenants to pay rents regularly. It is stated in the petition that there were great difficulties in getting possession of the Gariahata land under the existing law from Riajuddin and others who are claiming tenancy, In the face of this difficulty, the Mutwalli granted the lease after obtaining the approval and consent of the Commissioner of Wakfs as also of Nazir Abdul Khair both of whom approved of the terms. The other Nazir having left, his approval could not be obtained. The lease is not prohibited by the Wakfnama and, in fact, the lease has been held to be valid even by the High Court. It is alleged that the present application is inspired by the tenants evicted who were all along assisted by one of the petitioners, namely, Md. Ariff. It is further contended that the application is not maintainable, that the petition does not lie either for removal of the Mutwalli or for framing a scheme. Very much disputed questions of fact have been raised which can only be decided in a suit under Section 92 of the Code of Civil Procedure.

4. Khadem Hossain and Nazir Hossain petitioners in the other application who have described themselves as 'new plaintiffs' are not parties to the suit. There is no prayer in the petition for being added as parties. Mr. Mahsud contended that without being a party to the suit, outsiders are not entitled to intervene and ask for any relief in this suit. The liberty reserved in the decree does not entitle any party to make the present application, far less a Party who is not even a party to the suit or decree.

5. Mr. Mahsud has taken this preliminary point that the reliefs claimed cannot in law be granted in an application in the above suit. A fresh suit is necessary for the purpose under Section 92 of the Code of Civil Procedure. After the scheme has been framed by the Court in the final decree passed, the Court is not empowered in the same suit to frame a new scheme superseding the old. Nor can the Mutwalli be removed in any event by an application. The Mutwalli can only be removed by a suit framed in accordance with the provisions of Section 92 of the Code of Civil Procedure. On a proper construction of the final decree and the scheme framed thereunder, it cannot be held that it was intended that the Mutwalli appointed was liable to be removed on the ground of misconduct by an application. The scheme provided for the appointment of a Mutwalli by the Judge in Chambers only in those cases where the Mutwalli was dead or discharged himself from mutwalliship. It did not cover the case of removal of a Mutwalli on the ground of misconduct, mismanagement or misappropriation of wakf properties. The general liberty reserved in the decree to apply was also not intended to enable an application to be made either for removing the Mutwalli on the ground of mismanagement, misappropriation and misconduct or for scrapping the scheme in the decree to be substituted by a new scheme. In any event, Mr. Mahsud contends that the application raises so many disputed questions of fact, that the Court should not, even if it has the power, dispose of such disputed questions involving examination of witnesses, by an application. It would be both proper and convenient that such questions be disposed of in a suit.

6. Mr. B.C. Dutt, learned counsel appearing in support of the application on the other hand contended that the application is maintainable under both the clauses above referred to. The provision, for the appointment of a mutwalli by the Judge in Chambers is a general provision and is not limited to the cases when the vacancy is caused by death or retirement of the appointed mutwalli. It is also covered by the general liberty to apply reserved in the last clause of the Scheme. This last clause kept the suit alive enabling the parties to apply for any relief as often as necessary. By virtue of this clause the suit is not allowed to the and the administration of the wakf estate is still under the over-riding supervision of this Court. The object in inserting the clause was to prevent new suits and to save costs to the wakf estate. It was contemplated that occasions might arise for Court's interference in respect to the administration of the wakf estate. The scheme framed provided that such directions could always be obtained by the cheap and expeditious means, namely, by an application in the suit itself even after the passing of the final decree. This power reserved to the parties and the Court is a very extensive and beneficial power intended to be exercised by the Court whenever occasions would arise. The Court should not put a limited construction to its own power and relegate the parties to another suit for getting the same reliefs. It would mean delay and much more cost which ultimately would have to be borne by the wakf estate.

7. A number of cases have been cited which may now be considered. In the case of Sarat Chandra v. Administrator-General of Bengal reported in : AIR1937Cal382 , an application was made in 1936 in a suit of 1876 wherein the Court passed a decree for administration of a debutter estate. The original parties were long dead but from time to time there has been substitution of the heirs of the deceased party even after the final decree. The applications were made in the suit pursuant to the 'liberty to apply' clause in the decree. In 1936 after the death of Sarat, one of such substituted parties, an application was made by the heirs of Sarat for substitution and for direction on the Administrator-General to pay to the heirs of Sarat the amount payable to Sarat on account of his pala. Ameer Ali J. made the order which was expressed to be a provisional arrangement subject to the right of the heirs of Sarat which would have to be adjudicated in a competent suit. In making the order the learned Judge made the following observation at page 383:

'A suit, no doubt, is determined by a final decree, but according to our view a decree of the kind in question is not wholly rigid, or incapable of further adaptation. The phrase 'working out the decree', is somewhat equivocal. If it means simply making the decree as passed effective as between parties to the suit existing of course at this stage in a suit like this the decree has long ago been 'worked out'. On the other view the decree theoretically is never worked out. But it is to be remembered that our system cannot be precisely the same as the English system; suits of this nature do not happen in England.

In other words I am not without further consideration going to lay down a rule that in such a case as this, after a decree has been perfected as regards the persons in existence there is no power under a liberty to apply to adapt it to supervening circumstances'.

8. This is an authority for the proposition that even after the passing of the final decree in a suit for administration of debutter trust the suit cannot be said to be altogether dead and an application can be made thereafter under the 'liberty to apply' clause. The tentative manner in which the opinion is expressed must, however, be noted. It however does not lay down or indicate that the Court can pass any order under this clause including the removal of a trustee or shebait or mutwalli or framing a totally new scheme after scrapping the old.

9. In the case of Sadupadhya Uneshananda Ojha v. Ravaneswar Prosad Singh, decided by a Division Bench of this Court consisting of Ashutosh Mookerjee and Beechcroft JJ. reported in AIR 1918 Cal 530 it was held that a Court which sanctioned a scheme for the administration of a charitable trust is competent from time to time to vary the scheme as the exigencies of the case may require. The Court on the application of a party amended the scheme by inserting a clause for the removal of the member of the Committee on the ground of unfitness. In this case the Court was called upon to consider whether the Court had the power to amend the scheme by inserting a new clause. It was not called upon to consider whether the Court is competent to scrap the old scheme and to frame a new scheme on the finding that the old scheme was unworkable in the light of subsequent events. The point as posed by Mr. Mahsud in this suit was not before the Court in that form and the judgment does not give a clear guidance on this point. The learned Judge referred to and followed a number of English decisions. In England, however, under Lord Romilly's Act the procedure for removing a trustee or framing a scheme of a charitable trust is by an application. In our country, however, the Code provides the same relief as would have to be obtained by a suit under Section 92 of the Code of Civil Procedure. This point appears not to have been considered in this case. Nor has any opinion been expressed on the question whether if the point raises disputed questions of fact which can only be determined by taking oral as well as documentary evidence in Court, the matter should be disposed of by an application in the administration suit concluded by a final decree framing a scheme. In the facts of the case the Court was not called upon to decide these questions. It was not a matter in the Original Side of the High Court but from the District Court and, therefore, the question whether the procedure was to take out a summons did not arise. The Court was not required to express an opinion whether such matters could be conveniently disposed of by a Chamber Summons.

10. In the case of Md. Waheb Hossein and others v. Syed Abbas Hossein, decided by a Division Bench of the Patna High Court consisting of Das and Bucknill JJ. and reported in AIR 1923 Pat 420, the Court expressed the opinion that in a suit for the administration of a public trust it is necessary that 'liberty to apply' should be reserved to the parties. The effect of making such a provision is that the suit is kept alive so as to unable the parties to take the direction of the Court from time to time and so often as may be necessary. The Court was not called upon in this case to decide and it did not decide that in exercise of this liberty to apply the Court is competent to remove a trustee by an application in the suit, having regard to the provisions of Section 92 of the Code of Civil Procedure.

11. In the case of Veeraraghavachariar v. Advocate-General reported in AIR 1927 Mad 1073 a Full Bench of the Madras High Court was called upon to decide whether in a scheme settled by the Court, reservation in the decree framing a scheme of a liberty to apply for a relief which will come within Section 92 of the Code of Civil Procedure was ultra vires or not. In the cited case the scheme sanctioned by the Court contained the following clause:

Para. 99. 'It shall be competent to the Advocate-General or the Collector of the District or the dharmakarthas or either of them or any five worshippers to apply to the Court (1) to modify or delete any rule hereby promulgated etc. . .to and relating to the Devasthanam ....'

Para. 100. 'It shall be competent to the Advocate-General or the Collector of the District or any five worshippers to apply to the Court for the removal of any dharmakartha who is charged as . ... (2) guilty of misconduct whereby his continuance as dharmakartha will be injurious to the Devasthanam, giving a statement of such misconduct'.

12. The Advocate-General made in the above suit subsequently an application to modify the scheme as there were disputes between the two trustees appointed under it. It was opposed on two grounds:

(1) In a suit for framing a scheme after the final decree the suit becomes dead and no further application for directions can be made in that suit.

(2) When Section 92 of the Code directs that for the settlement of a scheme or other reliefs the sanction of the Advocate-General should be obtained, it would be ultra vires of any Court to assume jurisdiction to insert a clause in the scheme whereby the persons interested in the scheme or others are entitled to apply to the Court for alteration of the scheme.

13. On these questions there were conflicting views. One view was that if there was a provision for altering the scheme or liberty to apply, the suit must be held to be pending all the time so as to enable a party to make an application in the suit long after the decree and long after all the original parties are dead and gone (see the two Calcutta cases and the Patna decision above referred to). There are contrary decisions which held exactly the reverse (see the case of Abdul Hakim Beg v. Md. Burramuddin : AIR1926Mad559 , as also the cases referred to in the Order of Reference to the Full Bench made by Odgers and Krishnan JJ. and in the judgment of the Full Court).

14. The Full Bench after reviewing a number of decisions of the English Court, those of the Judicial Committee and of the different High Courts in India including the Calcutta and Patna Bench decisions recorded their views at page 1077. The opinion was expressed by Phillips Offg. C. J. with which Beasley and Anantakrishna Ayer JJ. agreed. The view of the Full Bench as recorded in page 1077 reads as follows:

'The question of administration very frequently arises and it is for the Court to decide in what manner the administration shall be carried out but it does not follow from that that the Court should assume to itself the administration of the trust, which it in fact does if it makes rules providing for applications to be made by trustees and others interested in the trust for varying or modifying the scheme already framed. If there is leave to apply in such suits, it necessarily implies that the suit is pending and, therefore, once a suit has been filed for settling a scheme and liberty to apply is given in the scheme, the suit should be deemed pending for ever and ever, for it is always possible that some person interested may make an application. This principle, therefore, of reserving liberty to apply in temple suits appears to me to be based on wrong premises. It should only be done when the Court is unable, or for good reasons thinks it advisable, not to finally determine any question arising for its decision, but to leave such decisions for a future date. Unless there is some ground of this sort the decision must necessarily be final and therefore an order that such final decision can be altered by a mere application would seem to be ultra vires. I may observe here that the question put to us is a double question and the answer to the two parts of the question must be different.

The first is: where liberty to apply is reserved ...... to ask for directions as to carrying out the scheme.....

So far as this is concerned this may well be intra vires unless it contravenes the provisions of Section 92 Civil P. C., for the assistance of the Court is asked merely to carry out what it has already ordered and if such assistance can be given without contravening the provisions of Section 92 there can be no objection to such a rule being framed; but when permission is given to apply to the Court for alteration or modification of the scheme it appears to me that this at once offends against Section 92. The scheme having been framed any modification or alteration of it is in effect a new scheme and the power to frame a scheme is given only subject to the conditions specified in Section 92. I will, therefore, answer the question put to us by one joint answer, namely, that the reservation by the Court to a person, or persons to apply for a relief which will coma within Section 92 Civil P. C., is ultra vires, but that it such reservation does not offend in this way or against any other provision of law, it may be useful or advisable for carrying out the provisions of the scheme already framed'.

I have set out in extenso the opinion of the Full Bench in order to appreciate the Madras point of view. In the ease of Shah Zahirul Haque v. Syed Rashid Ahmed and Ors., decided by a Division Bench of the Patna High Court and reported in AIR 1935 Pat 261, it was held that a person who was not a party to the proceedings resulting in the framing of a scheme by the Court and embodied in the final decree was not competent to appeal against the decree. Mr. Masud contended, on the basis of this authority, that without being asked to be added as a party, a stranger is not entitled to make an application under the 'Liberty to apply' clause in an administration decree in a suit relating to public trust. The Patna decision above Cited, however, is no authority for the proposition contended for by Mr. Masud. The Patna ease deals with a right of appeal by a stranger to the suit in which the decree under appeal was passed. It does not follow that a party is incompetent to apply in the suit, provided the suit is still deemed to be pending even after the passing of the final decree. The real difficulty of the stranger petitioner is that the application only lies on the footing that the suit was still pending and if anybody makes an application that he be treated as a new plaintiff and asks for some reliefs in that suit, it would be a new suit so tar as the petitioner is concerned and if this suit relates to a public trust and the reliefs are those stated in Section 92 of the Code, the applicant is clearly hit by the mandatory provisions of Section 92. It does not matter in such cases whether there is a formal prayer for being added and/or substituted as a plaintiff. He is making the application on the basis that he is the new plaintiff and Section 92 must apply in its full force. On this ground. Miss Chatterjee's application must fail and must be dismissed.

15. Mr. Masud also cited and relied on two Calcutta cases in which Section 29 and Section 40 of the Indian Wakf Act have been construed. The cases cited by Mr. Masud are Commissioner of Wakfs, West Bengal v. Hazrat Syed Shah Mustarshid Ali Al-Quadari, reported in 59 Cal WN 436 and the case of Munshi Md. Ishaque v. Kazi Md. Moin, reported in 62 Cal WN 400. Mr. Masud also cited and relied on the judgment of Luxmore, L. J. in the case of In re Doves Will Trust reported in (1939) WN 230 in which the learned Lord Justice held that the procedure by way of originating summons is not the proper procedure to follow in the case of a trustee asking for being excused from a particular conduct under Section 61 of the Trust Act, 1925, when the beneficiaries did not wish that the matter should be disposed of in that way. It is cited in support of the contention of Mr. Musud that when there are disputed questions of fact, the matter ought not to be disposed of by an application; the parties should be relegated to a suit. These are all the cases cited from the Bar.

16. It seems to me that when in an administration suit the Court frames a scheme in the final decree and liberty to apply is reserved, the suit is not altogether dead. I respectfully agree with the view expressed by the Calcutta and Patna High Courts an the cases above noted. The Court while laying down the scheme having felt that it might be necessary to give directions and orders to work out the scheme, gave the parties liberty to apply in the suit itself, even after the final decree is passed. For the limited purpose of giving effect to the scheme the suit is pending, even though it has come to an end by the passing of a final decree. In Sadupadhya's case, reported in AIR 1918 Cal 530, Sir Asutosh Mukherjee held that the Court has further power than giving orders for working out the scheme. The Court is competent even to amend the scheme by adding a clause found to be necessary subsequently. But in my judgment, that is the limit. The Court has no further power under the 'liberty to apply' clause to scrap the old scheme altogether and substitute it by a new scheme and pass an entirely new final decree containing the new Scheme. This can only be done by filing a new suit under Section 92 of the Code. It appears to me that in such a case there is an entirely new cause of action to frame a new scheme and the law contemplates that whether such a new cause of action should be the foundation of a new proceeding has first to be determined by the Advocate-General, before the matter comes to Court. Jurisdiction of the Court is vested to try and determine such a suit only after the sanction of the Advocate-General is obtained. It is true that Section 92 does not apply to applications. That is all the more reason why the Court should not allow a party to ventilate his new grievance by way of an application before the investigation of the Advocate-General. The Advocate-General is the screening authority set up by the Legislature to determine what suits in respect to a Public Trust should be permitted. The Court is not entitled to allow the parties to evade this salutary and beneficial provision by allowing a party to make an application under the 'Liberty to apply' clause in a decree made long before in respect to a new cause of action. What the party is not entitled to do directly should not be allowed to be done indirectly. The applicant wants a new scheme on the averment that the old scheme has proved to be unworkable. It is not a mere amendment of the old scheme, but the total substitution of the old scheme in favour of a new one. That is what the petitioner wants. If that is so, he must file a new suit and must comply with the requirements of Section 92 of the Civil Procedure Code. It cannot be done by an application in this way.

17. The appointment of a Mutwalli is an important part of the scheme framed by the Court for the administration of a wakf. The scheme in the instant case provides for the appointment of future Mutwallis. The need for the appointment of future Mutwalis would arise in the case of death, retirement or removal of the existing Mutwali. The scheme does not provide for the removal of the Mutwali, though it provides for the appointment of new Mutwali in future. There is also a general liberty to apply expressly retained in the scheme. In exercise of this power, the Court can remove an unfit Mutwalli on an application in this suit. If the removal of the Mutwali is necessary for working out or giving effect to the scheme, the Court retains that power, even after the final decree is passed confirming the scheme. In Sadupadhya's case AIR 1918 Cal 530 amendment of the scheme was allowed giving express power to remove a member of the Committee -- an office equivalent to that of a trustee -- on the ground of unfitness, so that the trustee became liable to be removed in the suit itself by an application and the necessity of a separate suit for his removal was obviated. In the Madras Full Bench case, however, it was held that a reservation in the scheme settled by the Court to apply for relief which will come under Section 92 of the Code would be ultra vires. Removal of a trustee and appointment of a new trustee of a Public Trust is one of the reliefs mentioned in Section 92 of the Code. The Madras Full Bench seems to concede that under the 'Liberty to apply' clause, directions and orders to work out the scheme can be given, but that such orders cannot be given in respect to any relief of the nature set out in Section 92. It may, however, be pointed out that the scheme has been framed in a suit under Section 92 and as such the relief of removal comes within the ambit of the suit framed originally under Section 92 of the Code. From this point of view the provision of removal of the trustee or Mutwali by an application in the decree embodying the scheme may not necessarily be ultra vires. The Full Bench decision recognises that the Calcutta view is different from the view expressed by the Full Bench. Whether the Calcutta view is correct or the view expressed by the Madras Full Bench is correct can only be decided by a Court other than this Court. In the view that I have taken, however, in the instant case, it is not necessary to decide that question. In my view, the questions raised in this application cannot be conveniently decided in a Chamber summons. Admittedly, there are some non-compliance with the scheme. The Mutwali has given his reasons for such non-compliance. I cannot reject those reasons as frivolous. The most important ground of removal is the granting of the long lease of the Gariahat property. The lease, however, has been granted after sanction was obtained of the Commissioner of Wakfs. It is alleged by the Mutwalli that the lease has been held to be valid and binding even by the High Court, though in a different proceeding. Proper decision as to propriety or legality of the lease can only be arrived at on a fuller consideration of evidence, oral and documentary, as well as of law. It cannot be conveniently disposed of by a Chamber summons. The parties should be and are relegated to a suit. This procedure has the additional advantage in this that it will involve the prior sanction of the Advocate-General and a determination by the screening authority whether the suit is permissible. In that view of the matter, I make no order on this application. Parties will have liberty, if so advised, to agitate the questions in a proper suit framed under Section 92 of the Code of Civil Procedure.

18. On behalf of the Commissioner of Wakfs a submission is made that a scheme sanctioned by the Court with a 'liberty to apply' clause makes the suit pending at all times. The Wakf thereby comes under the supervision of the Court, in such cases, what are the rights and duties of the Commissioner of Wakfs under the Wakf Act? In my judgment, to the extent the scheme provides for management, the Commissioner of Wakfs has no power to vary that scheme. But the Commissioner has always the right, whenever necessary, to come before the Court for appropriate order. In my judgment, that is the proper procedure for the Commissioner of Wakfs to follow.

19. In the result the notice is dismissed. Parties will bear their own costs. I make no order on the summons as well. But costs of all parties to the summons i.e. those of the Mutwali, the Commissioner as also of the petitioner to come out of the estate. Certified for Counsel.

20. This judgment disposes of both the applications.


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