SUGRA BIBI Vs. HAZI KUMMUMIA

JUDGEMENT

(1.) Late Haji Elahi Bux had one son named Mohammed Shafi and had one daughter. The appellant is the widow of the said Mohammed Shafi. The respondent who is a nephew of Haji Elahi Bux, married his daughter. The said Haji Elahi Bux carried on a shoe business under the name and style of "S. Mohd. Shafi Kammu Mian." He executed a wakf deed dated November 18, 1936 in respect of his property and appointed his son Mohammed Shafi and his son-in-law, the respondent as the joint Mutwallis. According to the terms of the Wakf deed on the death of a joint Mutwalli, the survivor was to be the sole Mutwalli and had the power to nominate his successor from the family line of the settlor. And in case the sole Mutwalli died without nominating his successor, the seniormost member among the lineal descendants of Mohammed Shafi and Kammu Mia, if otherwise competent, was entitled to hold the office of Mutwalli. Mohammed Shafi died on December 20, 1960, and thereafter the respondent became the sole surviving Mutwalli. The appellant filed a suit on July 7, 1961 in the Court of Assistant to the Deputy Commissioner, United Khasi and Jaintia Hills, Shillong, against the respondent for a declaration that the respondent was unfit to continue as Mutwalli of the Wakf estate and that he should be removed from the office of Mutwalli and that Soleman the son of the plaintiff through Mohammed Shafi be declared fit and be appointed as Mutwalli of the Wakf estate and till he attained majority a suitable Receiver should be appointed for the said Wakf estate. The respondent contested the suit on the ground that sanction of the Advocate-General was not obtained under Section 92, Civil Procedure Code and the suit was therefore not competent. By its order dated October 3, 1961, the trial Court decided that the suit was not affected by the provisions of Sec. 92, Civil Procedure Code and held that the suit was competent. The trial Court also ordered the removal of the respondent from the office of the Mutwalli pending disposal of the suit. The respondent filed an appeal in the Court of Deputy Commissioner, United Khasi and Jaintia Hills, Shillong but the appeal was dismissed. The respondent took the matter in revision before the High Court of Assam. By its judgment dated September 3, 1963, the High Court allowed the revision petition and held that the suit was not maintainable in view of the provisions of Section 92, Civil Procedure Code.

(2.) This appeal is brought, by special leave, from the judgment of the Assam High Court dated September 3, 1963 in Civil Revision No. 21 (H) of 1962.

(3.) The sole question to be considered in this appeal is whether the suit of the appellant attracts the provisions of Section 92, Civil Procedure Code and whether the suit can be maintained without the sanction of the Advocate-General under Section 92 of the Civil Procedure Code.