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Joygunnessa Bibi Vs. Majilullah Mamed Promanik and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1924Cal1016
AppellantJoygunnessa Bibi
RespondentMajilullah Mamed Promanik and ors.
Cases ReferredRaja of Kalahasti v. Ganapati
Excerpt:
- .....june, 1898, by sawy ali and joygunnessa bibi. the former became the first mutwali and continued to hold office till his death which took place on the 28th april, 1903. the latter thereupon became the mutwali. it is alleged that during her time the wakf estate has practically disappeared, the properties included in the estate have been treated as secular properties not dedicated for charitable purposes, and have actually been partitioned. the lands have also f. been sold for the personal debt of the mutwali. the performance of religious, charitable and educational acts enjoined by the wakfnama has ceased, the mosque has fallen into decay and the madrassa and fakirkhana no longer exist. in view of these facts, which have been established by the evidence, the district judge has directed.....
Judgment:

1. This is an appeal against a decree for the removal of a mutwali in a suit instituted under Section 92, C.P.C. The wakf was created on the 10th June, 1898, by Sawy Ali and Joygunnessa Bibi. The former became the first mutwali and continued to hold office till his death which took place on the 28th April, 1903. The latter thereupon became the mutwali. It is alleged that during her time the wakf estate has practically disappeared, the properties included in the estate have been treated as secular properties not dedicated for charitable purposes, and have actually been partitioned. The lands have also f. been sold for the personal debt of the mutwali. The performance of religious, charitable and educational acts enjoined by the wakfnama has ceased, the mosque has fallen into decay and the Madrassa and Fakirkhana no longer exist. In view of these facts, which have been established by the evidence, the District Judge has directed that the mutwali be removed and he has also appointed new mutwalis. The evidence has been placed before us and we have come to the conclusion that the order for removal must be maintained.

2. The appellant is one of the joint founders of the endowment and it has been urged that out of considerations for her feelings, the Court should be reluctant to remove her from the office during her lifetime. There is some force in this contention; but it is plain that on account of her age she is no longer able to conduct the management of the wakf properties. The fact is that the management has in effect vested in the relations of the appellant who are not particularly anxious to maintain the wakf. In these circumstances, we see no escape from the conclusion that the interest of the endowment, founded by the appellant herself, requires her removal. It cannot be disputed that a mutwali should not be fallowed to continue in office if her management of the institution is detrimental to the interest of the endowment. This is not a case of errors and irregularities but rather of gross mismanagement, the principles applicable in cases of this class were explained in Azizur Rahaman v. Ahidannessa : AIR1928Cal225 . The Court will be guided solely by considerations of I the welfare of the trust, and will not hesitate to remove a trustee who has purchased he trust property or concurred in a breach of trust, Exp. Reynolds (1800) 8 Ves. 707 and Moore v. M'Glynn (1824) 1 Irish Rep. 74, or has wrongfully alienated trust property, Srinath v. Radha Nath (1883) 12 C.L.R. 370 or has been guilty of wanton waste and neglect of duty, In the goods of James Powell (1873) 6 N.W.P. 54, Ganapati Ayyan v. Savithri Ammal (1897) Mad. 10, Mayor etc. of Coventry v. Attorney-General (1720) 7 Brown, P.C. 235 and Buckerridge v. Glasse (1840-41) Cr. & Ph. 126, or shows a total lack of capacity to manage, Raja of Kalahasti v. Ganapati (1918) Cr. & Ph. 126. The decree of the District Judge for the removal of the Appellant must consequently be confirmed.

3. We are, however, not satisfied that the persons who have been appointed mutwalis are really qualified to hold that office. After enquiry we have come to the conclusion that, in the interest of the endowment, the office of mutwali should be vested in two persons, namely, Khasmuddin Pradhan and Abdul Majid Basania who are accordingly appointed mutwalis. These gentlemen have expressed their willingness to undertake the management of the endowment, to hold the office of mutwali, and forthwith to institute suits for the recovery of the trust estate. They have offered to furnish security to the satisfaction of the District Judge to the extent of Rs. 1,000, such security to be furnished within six weeks from this date in the meanwhile, they will be allowed to institute suits lest any question of limitation should arise There will be no order for the costs of this appeal.


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