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Habibar Rahaman Vs. Saidannessa Bibi - Court Judgment

LegalCrystal Citation
SubjectTrust and Societies
CourtKolkata
Decided On
Judge
Reported in(1924)ILR51Cal331
AppellantHabibar Rahaman
RespondentSaidannessa Bibi
Cases ReferredLiverpool and Manchester Aerated Bread Co. v. Firth
Excerpt:
mahomedan law - wakf property--application by mutwalli--sanction by district judge to lease wakf property--jurisdiction. - .....judge in favour of two mutwallis of a muhammadan wakf, authorising them to grant a lease of the wakf property. the petitioner before us, who is another mutwalli, preferred an objection but did not appear to support it, with the result that an order in favour of the applicants was made ex parte. the petitioner thereupon appealed to this court; but the appeal was dismissed as incompetent: habibar rahman v. saidannessa bibi (1922) 38 c.l.j. 353. the petitioner now assails the order of the district judge as made without jurisdiction, because he dealt with the matter on the basis of an application and not of a plaint.2. it is well-settled that the district judge has jurisdiction to authorise dealings with wakf property in the same way as a qazi might have done tinder the muhammadan law;.....
Judgment:

Mookerjee and Panton, JJ.

1. We are invited in this Kale to consider the legality of an order made by the District Judge in favour of two mutwallis of a Muhammadan wakf, authorising them to grant a lease of the wakf property. The petitioner before us, who is another mutwalli, preferred an objection but did not appear to support it, with the result that an order in favour of the applicants was made ex parte. The petitioner thereupon appealed to this Court; but the appeal was dismissed as incompetent: Habibar Rahman v. Saidannessa Bibi (1922) 38 C.L.J. 353. The petitioner now assails the order of the District Judge as made without jurisdiction, because he dealt with the matter on the basis of an application and not of a plaint.

2. It is well-settled that the District Judge has jurisdiction to authorise dealings with wakf property in the same way as a Qazi might have done tinder the Muhammadan Law; see the judgment of Ameer Ali and Pratt, JJ., in Syamacharan v. Abdul Kabir (1898) 3 C.W.N. 158. This was followed by Woodroffe J. in Re Woozatunnessa Bibi (1908) I.L.R.R. 36 Calc. 21, where it was mentioned that a similar view had been taken by Stephen J. on the 2nd July, 1906, in an unreported case: In the matter of a Wakfnama Unreported. Two years later, however, Pugh J, declined, in Re Halima Khatun (1910) I.L.R. 37 Calc. 870, to assume jurisdiction as extensive as that of the Qazi, and held that in the absence of statutory authority, a Sanction to sell wakf property could be obtained by a mutwalli only by means of a suit. This case stands by itself and does not appear to have been followed. On the other hand, in the decisions in Nimaichand v. Golam Hossain (1909) I.L.R. 37 Calc. 179, and Atimannessa v. Abdul Sobhan (1915) I.L. It. 43 Calc. 467, where the powers of a Qazi were fully examined, the view taken in Syamacharan v. Abdul Kabir (1898) 3 C.W.N. 158, and Re Woozatunnessa (1908) I.L.R. 36 Calc. 21, was followed as correct. A similar view appears to have been incidentally adopted by the Judicial Committee in Mahomed Ismail Ariff v. Ahmedmoolla Dawood (1916) I.L.R. 43 Calc., 1085, 1100; L.R. 43 I.A. 127, where it was stated by Mr. Ameer Ali that the place of the Qazi in the British Indian system is taken by the Civil Court. The decision in Jamila Khatun v. Abdul Jalil (1918) 23 C.W.N. 138 is not really opposed to this view, as that was not a case of a mutwalli seeking sanction to deal with wakf property. There it was ruled that if a person desires to be appointed a mutwalli of a public wakf, he should proceed preferably by a suit. On the other hand, in Fakrunnessa v. District Judge of 24-Pargonas (1920) 24 C.W.N. 339, it was pointed out that the powers of the Qazi are ordinarily exercised by the District Judge and the sanction given by him on an application by the mutwalli is sufficient authority for the mutwalli for letting out the property. Reference was made to the view of Mr. Ameer Ali as set out in his work on Muhammadan Law, 4th Ed., Vol. I., p. 480: 'The application for sanction should be made to the District Judge if the property is situated in the mufassal or to the Judge on the Original Side of the High Court, if it is within a Presidency Town. It is not necessary to bring a salt for obtaining such sanction; it will be granted upon a proper application being made by the mutwalli.' This appears to be in agreement with the view adopted by West J. in Re Kahandas (1880) I.L.R. 5 Bom. 154 though a doubt appears to have been suggested in Muhamad Hazi Zakaria v. Ahamad Bhai (1900) I.L.R. 25 Bom. 327. Consequently, the position is that, so far as the Courts of this Presidency are concerned, with the solitary exception of the dissentient note sounded by Pugh J. in Re Halima Khatun (1910) I.L.R. 37 Calc. 870 it has been uniformly held for at least a quarter of a century that the requisite sanction of the District Judge may be obtained on an application to him by a mutwalli who finds it necessary to make an alienation of the wakf property. No substantial reason has been assigned why we should depart from this well-established rule and direct that in future all such sanction should be obtained by recourse to the expensive and dilatory machinery of a regular suit. We are not now called upon to consider whether a convenient method would not be to introduce in the Subordinate Courts the procedure by originating summons, more or less on the lines prescribed by the Rules of the Supreme Court in England and the Rules of this Court on the Original Side. But it may be pointed out, that even if such a new procedure were introduced, it is at least doubtful whether the Court would enquire into questions of fact in addition to questions of law; Lewis v. Green [1905] 2 Ch. 340 This, however, is only by way of parenthesis.

3. In this connection it may be usefully recalled that sanctions are obtained from the District Judge on applications in other classes of cases which may to some extent be regarded as analogous. Under Section 29 of the Guardians and Wards Act, 1890, a transfer of the immoveable property of a ward (except leases for periods shorter than live years) cannot be made without the previous permission of the Court. Under Section 90 of the. Probate and Administration Act, 1891, an administrator may not effect a similar transfer of the estate under Ms charge without the previous permission of the Court. Under Section 75 of the Indian Lunacy Act, 1912, a manager of the estate of a lunatic outside a Presidency Town cannot effect a similar alienation of the estate without the permission of the Court. In these classes of cases, the practice is for the petitioner to obtain the requisite sanction upon an application to the Judge. Reference may also be made to Section 32 of the Land Acquisition Act, 1894, which deals with the question of investment of compensation money awarded in respect of lands belonging to persons incompetent to alienate absolutely. The matters which require adjudication in such a contingency are dealt with on applications.

4. We are consequently of opinion that till a new procedure is introduced by competent authority, the Court should not deviate from its established practice We may usefully recall the famous maxim of Coke C.J., in Burrowes v. High Commission Court 3 Bulst. 48. 53 'Cursus Curiae est Lex Curiae', the practice of the Court is the law of the Court; or, as we have it in the words attributed to Tindal C.J. by Cress-well, J. 'the course of the Court is the practice of the Court;' Freeman v. Tranah (1882) 12 C.B. 414; 92 R.R. 754. From this point of view, it has been maintained by high authorities that where a practice has existed, it is convenient, except in cases of extreme urgency and necessity, to adhere to it, because it is the practice, even though no reason can be assigned for it; see the observations of Lord Ellenborough in Bovill v. Wood (1813) 2 M. & Section 23 and of Lord Campbell in Edwards v. Martin (1851) 17 Q.B. 693. As Lord Abinger said in Jacobs v. Layborn (1843) 11 M. & W. 685; 690 an inveterate practice in the law generally stands upon principles that are founded in justice and convenience; and the Court will not sanction a speculative novelty for the sake of novelty without the warrant of any principle, precedent or authority: Exp. Tollerton Overseers (1842) 3 Q.B. 792, 799, Cowan v. Duke of Buccleugh (1876) 2 App. Cas. 344, 347, A.G. v. Marquess of Ailesbury (1887) 12 App. Cas. 672, Exp. James Bell Cox (1887) 20 Q.B.D. 1, Liverpool and Manchester Aerated Bread Co. v. Firth [1891] 1 Ch. 367.

5. We are of opinion that the order of the District Judge was not made without jurisdiction and the Rule must be discharged. There will be no separate order for costs, as the Rule was taken as an alternative to the appeal which has been dismissed with costs.


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