1. This appeal is directed against an order of the District Judge of Birbhum refusing to appoint a Receiver pending the disposal of a suit brought by the plaintiffs, now appellants, for the appointment of plaintiff No. 1 as matwalli of a certain wakf estate or in the alternative, for the appointment of both the plaintiffs as matwallis.
2. The facts, so far as they are material for present purposes, may be shortly stated.
3. In the year 1304 B.S. one Molajim Hossain Khan made a disposition of all his properties for religious and pious purposes, and on the 12th Falgun 1304 executed a deed of wakf whereby he appointed himself as matwalli for his own lifetime and made provision for succession to the office after his death. His wife Mataharannessa Bibi was to succeed him as matwalli. On the 3rd Kartik 1309 B.S. Hossain Khan died, his wife having predeceased him on the 28th Bhadra of the same year. The wakfnama contained a provision to the following effect: 'In the absence of my two wives and children the Collector of the District shall be competent to appoint whomsoever of my line (amar bongsher madhye he considers competent and pious as the matwalli', and according to this provision the last matwalli Mostak Hossain Khan was appointed as such. Mostak Hossain, who succeeded as matwalli on the death of Hossain Khan, died in Chaitra 1328 B.S. and the dispute then arose which has led to the institution of this suit. The plaintiffs-appellants claim that under the terms of the wakf deed, the person, who of the settlor's line or family, is fit to be appointed as matwalli should be so appointed. Plaintiff claimed that she is possessed of the necessary qualifications, and in the alternative, asked that both she and the plaintiff No. 2 might be appointed, the plaintiff No. 2 being stated to be an agnatic relation of Molajim Hossain Khan. It appears that after the death of Mostak Hossain an application was made to the Collector of Birbhum to appoint a matwalli in accordance with the provisions of the wakfnama, but the Collector held that he had no jurisdiction and referred the parties to the Civil Court. The plaintiffs thereupon filed their plaint on the 23rd May, 1922. The 1st, 2nd and 3rd defendants are the widows of Mostak Hossain and the 4th defendant is a minor, Syed Istak Hossain, grandson of Mostak Hossain, represented by his grand-father, next friend and; guardian Syed Hossain Ali.
4. On the 7th June, 1923, an application was made by the plaintiffs for the appointment of a Receiver and orders were passed ex parte appointing as Receiver a pleader named Moulvi Nurul Absar. Objection-was subsequently taken on behalf of defendant No. 4 to the appointment and the order was stayed. Eventually on the 31st October, 1922, after hearing the parties the District Judge cancelled the ex parte order previously passed and declined to appoint a Receiver. The plaintiffs then filed this appeal.
5. The sole question is whether in the particular circumstances of this case it is just and convenient that a Receiver should be appointed. The main principles upon which the discretion of the Court should be exercised in making such an appointment are well settled. Such an order will not ordinarily be made at the instance of a plaintiff having merely a shadowy claim where it has the effect of depriving a defendant of de facto possession, since that might cause irreparable wrong It appears to be extremely doubtful here, however, whether the property in dispute is in the exclusive possession of any one of the parties. Syed Hossain Ali, the grandfather and guardian of the defendant No. 4, in his petition dated the 16th June, 1922, claims to be in possession of the wakf estate on behalf of the minor Istak Hossain, but he has not ventured in his affidavit of the 21st July, 1922, to affirm that he is in such possession, and the omission is significant. Then the defendant No. 7, Syed Hossain Tahid, in a petition filed on the 31st October, 1922; also claims to be in possession of the wakf estate.
6. It is by no means clear therefore who is in actual possession, and. in the mean while something like a scramble seams to be going on between those who have claims, or fancied claims, to the office of matwalli. Such a state of affairs cannot but be prejudicial to the interests of the wakf estate. Government revenue has to be paid, rents collected, suits instituted or defended and pious and religious acts performed in accordance with the provisions of the wakf deed. None of these things can be done, or properly done, while a state of confusion prevails. The main object of appointing a Receiver is to protect the properties pending litigation and to preserve them for the benefit of the party lawfully entitled thereto. It is not necessary at the present stage to consider the question whether the plaintiffs can legally be, and ought to be, appointed as matwallis. That is a matter which will have to be decided in the suit. In an application for the appointment of a Receiver it is sufficient if a prima facie title to the property over which the Receiver is sought to be appointed is made out. Having regard to the terms of the wakfnama it can hardly be disputed that a prima facie claim has been made out by the plaintiffs. It cannot at all events be said that their claim is a mere pretence. On the contrary it appears to be a bona fide claim, and that being so, and regard being had to the state of affairs which has been disclosed, the case seems to be a fit one for the appointment of a Receiver. Where property is shown to be in media, i.e., in the enjoyment of no one, the Court can hardly do wrong in taking possession. It is the (common interest of all parties that the Court should prevent a scramble, and as no one seems to be in actual lawful enjoyment of the property no harm can be done to any one by taking it and preserving it for the benefit of the litigant who may prove successful.
7. It is to be observed that the learned District Judge, while holding that the necessity or propriety of appointing a Receiver has not been made out to his satisfaction, has given no reasons for his conclusion. If he had found that anyone of the parties was in exclusive possession of the wakf estate and was duly administering it, the position would have been different. On the particular facts of the case it appears to me to be expedient that a Receiver should be appointed. In the result therefore the appeal must be allowed, the order of the District Judge set aside, and a Receiver will be appointed, it being left to the discretion of the Court below to select a suitable person for such appointment. The costs of this appeal will abide the result of the suit. The hearing fee is assessed at two gold mohurs.
8. I confess that I felt considerable doubt in the course of the argument addressed to us as to whether the plaintiff, putting forward the claim which she puts in this case, is entitled to ask the Court in an interlocutory application to appoint a Receiver. Apart from the Rs. 12 a month, to which she is entitled by virtue of the wakfnama itself and which, it is not suggested to us, is in arrear, her interest seems to be merely a claim that she is entitled to a preferential consideration when the Court appoints a matwalli. As I have already stated I felt considerable doubt yesterday as to whether a claim of this nature was sufficient to justify a Court in appointing a Receiver in an interlocutory application, and I confess that my doubts are not entirely dispelled. The grounds upon which a Court in England and a Court in this country appoint Receivers are practically the same Under the Judicature Act of 1873 a Court can make such an appointment where it considers it just and convenient to do so, that is to say, yon have the same words as appear in the Civil Procedure Code in this country. I took the opportunity last night and this morning of consulting Daniel's Chancery Practice, which deals exhaustively with the appointment of Receivers by a Chancery Court and also Kerr on Receivers. I have not been able to discover any case in which a Receiver has been appointed in an interlocutory application under circumstances in any way resembling the circumstances of this case. I mean where the interest is of so shadowy a nature as in this ease. There always seems to have been some actual interest in the property to be protected to support such an appointment, but my learned brother feels that in the circumstances of this case it is desirable that a Receiver should be appointed and as the learned District Judge in the Court below has left the matter in doubt as to whether the wakf property is without a. custodian or not, I think that we are justified under these circumstances in making the appointment simply for the protection of the property. Although still feeling the doubt which I do, having regard to the nature of the plaintiff's claim, I am not prepared to say that a Receiver should not be appointed in this case, and I concur in the order that has been made.