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Srimutty Jamila Khatun Vs. Abdul Jalil Meah and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.799
AppellantSrimutty Jamila Khatun
RespondentAbdul Jalil Meah and anr.
Cases ReferredMahomed Ismail v. Ahmed Moolla
Excerpt:
muhammadan law - wakf--district judge, power of, to appoint mutwalli--application, maintainability of--civil procedure code (act v of 1908), section 92. - 1. this rule relate to an application made by the petitioner to the district judge to be appointed mutwalli of an alleged wakf property and to the order of the district judge made thereon dated the 6th august 1917, refusing to deal with the matter on application, on the ground that the petitioner's only course was to proceed by suit under section 92 of the civil procedure code.2. it has been contended on the petitioner's behalf that the district judge had jurisdiction to deal with the matter on application, because he is vested with the powers of a kazi under the muhammadan law we were referred to the practice of this court on the original side, but the case of in re halima khatun (1) shows that the practice is far from being settled3. we were also referred to the case of atimanuessa bibi.....
Judgment:

1. This Rule relate to an application made by the petitioner to the District Judge to be appointed Mutwalli of an alleged Wakf property and to the order of the District Judge made thereon dated the 6th August 1917, refusing to deal with the matter on application, on the ground that the petitioner's only course was to proceed by suit under Section 92 of the Civil Procedure Code.

2. It has been contended on the petitioner's behalf that the District Judge had jurisdiction to deal with the matter on application, because he is vested with the powers of a Kazi under the Muhammadan Law We were referred to the practice of this Court on the original side, but the case of In re Halima Khatun (1) shows that the practice is far from being settled

3. We were also referred to the case of Atimanuessa Bibi v. Abdul Sobhan (2) and the observation of the Privy Council in Mahomed Ismail v. Ahmed Moolla (3).

4. It may well be conceded that the District Judge has the powers of a Kazi but it does not necessarily follow that the petitioner is entitled to proceed by application or that the District Judge has no power to relegate her to a suit.

5. The endowment in the present case is admittedly a publics endowment to which the provisions of Section 92 of the Civil Procedure Code are applicable. It is not disputed that it is open to the petitioner to proceed by suit under Section 92 There is no hardship of which the petitioner can complain. Her application has been dismissed in limine and no considerable expense has so far been incurred. Moreover the deed of endowment which she propounds is dated the year 1858 and her case is that she has only recently come to know of the existence of the deed and of the Wakf properties. Questions may arisewhich cannot be conveniently dealt with in a summary fashion on application.

6. These observations are made without reference to the provision contained in Sub-section (2) of Section 92, the precise effect of which need not on the present occasion be considered.

7. As the petitioner has another remedy we are of opinion, without endorsing all the reasoning of the learned District Judge, that this Rule should be discharged with costs. We assess the hearing fee at three gold mohurs.


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