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Habibar Rahaman Vs. Saidannessa Bibi and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in77Ind.Cas.949
AppellantHabibar Rahaman
RespondentSaidannessa Bibi and anr.
Cases ReferredLiverpool and Manchester Aerated Bread Co. v. Firth
Excerpt:
muhammadan law - wakf--mutwalli--permission to lease wakf properly--kazi--district judge, powers of--practice of court. - .....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. saidannssa bibi 77 ind. cas. 907 : 38 c.l.j. 358. 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 his jurisdiction to authorise dealings with wakf property in the same way as a kazi might have done under the.....
Judgment:

1. We are invited in this Rule 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. Saidannssa Bibi 77 Ind. Cas. 907 : 38 C.L.J. 358. 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 his jurisdiction to authorise dealings with wakf property in the same way as a kazi might have done under the Muhammadan Law; see the judgment of Ameer Ali and Pratt, JJ., in Shama Churn Roy v. Abdul Kabeer 3 C.W.N. 158. This was followed by Woodroffe, J. in In re Woozatunnessa Bibee 1 Ind. Cas. 312 : 36 C. 21, where it was mentioned that a similar view bad been taken by Stephen, J., on the 2nd July 1906, in an unreported case; In the matter of a Wakfnama. Two years later however, Pugh, J., declined in In re Halima Khaiun 7 Ind. Cas. 33 : 37 C. 870 to assume jurisdiction as extensive as that of the kazi, 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 Nimad Chand v. Mir Golum Hossein 3 Ind. Cas. 353 : 37 C. 179 : 11 C.L.J. 517 : 14 C.W.N. 535 and Atimannessa Bibi v. Abdul Sobhen 32 Ind. Cas. 21 : 43 C. 467 : 23 C.L.J. 577 : 20 C.W.N. 113, where the powers of a kazi were fully examined, the view taken in Shama Churn Roy v. Abdul Kabeer 3 C.W.N. 158 and In re Woozaluunessa Bibee 1 Ind. Cas. 312 : 36 C. 21, was followed as correct. A similar view appears to have been in cidentally adopted by the Judical Committee in Mahomed Ismail Ariff v. Ahmed Moolla Dawood 35 Ind. Cas. 30 : 43 I.A. 127 : 43 C. 1085 : 24 C.L.J. 108 : 14 A.L.J. 741 : : (1016) 1 M.W.N. 460 : 20 C.W.N. 1118 : 20 M.L.T. 110 : 18 Bom. L.R. 611 : 31 M.L.J. 290 : 4 L.W. 269 : 9 Bur. L.T. 141 : 8 L..T. 141 : 8 L.B.R. 517 (P.C.) where it was stated by Mr. Ameer Ali that the place of the kazi in the British Indian system is taken by the Civil Court. The decision in Jamih Khatun v. Abdul Jalil Meah 49 Ind. Cas. 799 : 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 hard, in Fakhrunnessa Begam v. District Judge of the 24-Pargunnas 36 Ind. Cas. 475 : 24 C.W.N. 330 : 47 C. 192 it was 'pointed out that the powers of tie kazi are ordinarily exercised by the District Judge and the sanction given by him en an application by the mutualli is sufficient authority for the mutwalli for lettirg cut the property. Reference was made to the view, of Mr. Ameer Ali as set out in his work on Muhammadan Law, 4th Edition, Volume 1, page 480: 'The application for sanction should be made to the District Judge if the property is situated in the mofassil 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 suit 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 In the matter of Kahandas Narrandas 5 B. 154 : 5 Ind. Jur. 589 : 3 Ind. Dec. (N.S.) 103, though a doubt appears to have been suggested in Mohamad Haji Zakeria v. Ahmadbhai 25 B. 327 : 3 Bom. L.R. 368. Consequently, the position is that, so far as the Courts of this Presidercy are concerned, with the solitary exception of the dissentient note sounded by Pugh, J., in In re Mahma Khalun 7 Ind. Cas. 33 : 37 C. 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 on alienation of the wakf property. No substantial reason has been assigned why we should depart from this well established rule an 1 direct that in future all such sanction should be obtained by recourse to the expensive and dilatory machinery of regular suit. We are not now called upou 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 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) 20 Ch. 340 : 74 L.J. Ch. 682 : 93 L.T. 303 : 54 W.R. 93. This, however, is only by way of parenthesis.

3. In this connection it may be usefully re-called 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 five 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 his 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 lends 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 re-call the famous maxim of Coke. C.J., in Burrowes v. High Commission Court (1701) 3 Bulst. 48 at p. 53 : 81 E.R. 42, 'Cursus curiae est lex curiae', the practice of the Coast is the law of the Court; or, as we have it in the words attributed to Tindal, C.J., by Cresswell, J., 'the course of the Court is the practice of the Court': Freeman v. Tranah (1852) 12 C.B. 406 at p. 414 : 92 R.R. 754 : 21 L.J.P.C. 214 : 16 Jur. 1141 : 138 E.R. 964. 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. & S. 23 at p. 25 : 1 Rose 155 : 105 E.R. 291, and of Lord Campbell in Edwards v. Martyn (1851) 17 Q.B. 693 : 21 L.J.Q.B. 86 : 117 E.R. 1148. As Lord Abinger said in Jacobs v. Layborn (1843) 11 M. & W. 685 at p. 690 : 1 D & L. 352 : 12 L.J. Ex. 427 : 7 Jur. 56 : 152 E.R. 980, 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 no (sic) for the sake of novelty without the warrant of any principle, precedent or authority: Ex parte Overseers of Tollerton (18), Cowan v. Duke of Bucclsuch (1876) 2 App. Cas. 344, Attorney-General v. Marquis of Ailesbury (1887) 12 App. Cas. 672 : 57 L.J.Q.B. 83 : 58 L.T. 192 : 36 W.R. 737, Ex parte James Bell Cox (1888) 20 Q.B.D. 1 at p. 10 : 57 L.J.Q.B. 103 : 58 L.T. 323 : 36 W.R. 213 : 52 J.P. 484, Liverpool and Manchester Aerated Bread Co. v. Firth (1891) 1 Ch. 367 : 60 L.J. Ch. 153 : L.T. 677 : 39 W.R. 269.

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 the appeal which has been dismissed with costs.


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