ALI AHMAD Vs. DEPUTY CUSTODIAN OF EVACUEE PROPERTY

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution by one Ali Ahmad. The prayer is that this Court may issue to the Deputy Custodian and the Additional Custodian of Evacuee Properties a direction or order or a writ in the nature of certiorari and prohibition forbearing them from dispossessing or in any manner interfering with the applicant's right to manage the waqf properties or grant such other and further relief as this Court may deem fit. The relevant facts are as follows:

(2.) On the 12th March 1913 one Srimati Mariana Begam, widow of Syed Niaz Ali, brother of the applicant's grand-father, Wajid Ali, executed a deed of waqf-alal-aulad and appointed two minors as co-mutwallis under the guardianship of their mother, Srimati Sardar Dulhan. One of these mutwallis was the applicant and the other was his brother, Ali Asghar. The waqf was in respect of certain Zamindari shares in two villages. The applicant attained majority in the year 1918 and was appointed a lambardar in respect of the said property. The applicant's younger brother, Syed Ali Asghar, entered military service and does not appear to have taken any interest in the manage, ment of the waqf property. The Deputy Custodian of the Evacuee Properties treating the property in dispute as evacuee property attached it on the ground that Syed Ali Asghar had opted for Pakistan and was living there. The applicant filed an objection contending that the management of the waqf property could not be taken out of his hands. The objection was dismissed by the Deputy Custodian. The applicant appealed to the Custodian. The appeal was decided by the Additional Custodian of Evacuee Property. The order of the Deputy Custodian was upheld.

(3.) Sri Prem Mohan Varma, learned counsel for the applicant, contends that the Administration of Evacuee Property Act, 1950, makes no provision for the contingency which has arisen in the present case. He refers to Sub-section (2) of section 11 and argues that the Custodian can take over the management of a property which is the subject-matter of a waqf alal-auled only when there is a sole mutwalli and he is an evacuee, or where there are more than one mutwalli and all of them have become evacuees; but the Act does not make any provision where one of the mutwallis is an evacuee and the other is a non-evacuee. It is contended that in such a case the right of management vests solely in the non-evacuee mutwalli and the Custodian has no right of management. He concedes that, so far as the interest of Syed Ali Asghar as a beneficiary is concerned, the Custodian has a right to it and the applicant is willing to give half of the income of the property in dispute to the Custodian.