MAHOMEDHUSSEIN DAUDBHAI Vs. COLLECTOR OF BROACH AND PANCHMAHALS

JUDGEMENT

(1.) THESE applications in revision arise out of an order passed by the District Judge of Broach and Panch Mahals in Miscellaneous Applications Nos. 11 and 13 to 20 of 1940 and raise an important question as regards the jurisdiction of the District Court and the scope of the inquiry to be made under Section 6C of the Musalman Wakf Act (XLII of 1923) as amended by Bombay Act XVIII of 1935. In 1933 the Collector of Broach and Panch Mahals published a Notification, No. M. S. C. 44, dated August 24, 1933, giving a list of wakfs of the Dawoodi Bohfas in the Panch Mahals District. In respect of properties Nos. 17 to 23 in that list situate at Dohad, His Holiness the Mullajisaheb of the Dawoodi Bohras was shown as the mutawalli. Accordingly, notices were issued to him under Section 5 of the Act to submit statements of accounts. The statements of accounts were not, in fact, filed, and when similar notices were issued in 1938, the person who held a power-of-attorney for the Mullajisaheb put in a statement on August 9, 1939, contending that the properties were not wakfs within the meaning of the Act, and that he was not the mutawalli thereof. It was urged that, according to the custom and the religious tenets of the Shia Dawoodi Bohras, the properties belonged to the Mullajisaheb. , In that statement the names of persons who actually looked after the different estates were given. Thereupon, notices were issued to those persons to render accounts. All these persons appeared and put in separate statements to the effect that although each one of them was in the management of a particular property, the property was not a wakf property within the meaning of the Act, that he was not the mutawalli, and that according to the religious tenets of the Shia Dawoodi Bohras, the property was owned by and belonged to an institution known as Dawati-Hadiah of which the absolute head was Dai-ul-mutalak, i. e. the Mullajisaheb himself. When these statements were put in, the Assistant Judge passed an order that an inquiry should be held under Section 6C of the Act which was inserted in the original Act of 1923 by Bombay Act XVIII of 1935. He raised an issue as to whether the property was a wakf property, and whether the opponents were bound to render accounts. Each case was separately numbered as a separate miscellaneous application. A notice was ordered to be issued to the Collector of Broach who appeared through the Government Pleader and contended that the properties were wakf properties and that the opponents who were mutawallis thereof were liable to render accounts. When the matter came up for hearing before the learned District Judge, a further contention was taken that the Court had no jurisdiction to hold an inquiry whether the institutions concerned were wakfs or not. The learned Judge held that the Court had jurisdiction to hold an inquiry, that on merits, the property in each application was a wakf property, that the opponents who were admittedly managing the properties were the mutawallis thereof and were, as such, bound to render accounts. Against that order these applications have been filed in revision, and the only point argued before us is as regards the jurisdiction of the Court to hold an inquiry and the scope of that inquiry.

(2.) IT has been contended by. Mr. Thakor on behalf of the applicants that where as in these casea the existence of the wakfs is denied, it is not competent to the District Court to hold an inquiry into that matter, and that under Section 6C of the Act, the only inquiry that the Court can hold is whether a wakf is a wakf to which the Act applies. His argument was that if the existence of the wakf is disputed, no inquiry can be held by a Court; but if the existence of the wakf is admitted, and the application of the Act to such a wakf is denied, then the Court can proceed to hold an inquiry as to whether such an admitted wakf is a wakf to which the Act applies.

(3.) THE question now for consideration is, what is the effect of the amendment made by the insertion of Section 6C in the main Act. Sub-section (1)(i) is rather peculiarly worded and authorizes the Court to hold an inquiry whether a wakf is a wakf to which the Act applies. THE argument based on this wording is that it is the admitted existence of the wakf which gives jurisdiction to the Court to inquire whether that wakf is one to which the Act applies, and the scope of the inquiry is confined to that limited question. It is contended that where the existence of the wakf is denied, there is no jurisdiction in the Court to hold an inquiry and to determine whether a wakf exists. If it was the intention of the Legislature, in view of the various decisions of the Courts on the main Act to empower the Court to decide as regards the existence of the wakf, the Sub-section should have read not " whether a wakf is a wakf, to which the Act applies," but " whether there is a wakf. " For, it is to be remembered that the Mussalman Wakf Act of 1923 does not apply to all wakfs. By the definition contained in Section 2, Clause (e), the Act does not apply to wakfs1 such as those described in Section 3 of the Mussalman Wakf Validating Act of 1913, under which any benefit is for the time being claimable for himself by the person by whom the wakf was created or by any of his family or descendants. It is, therefore, possible to argue that what was contemplated by the Legislature in inserting the amendment contained in Section 6C(1)(i) was merely the inquiry when the existence of the wakf is admitted, whether that wakf is one to which the Act applies or is one which is excluded by the definition contained in Section 20) of the main Act. It is only this limited inquiry that is contemplatted when Section 6C(1)(i) says that the Court may hold an inquiry whether a wakf is a wakf to which the Act applies. It has to be remembered that as long ago as 1927, Kulwant Sahay" J. had, in the case quoted above, pointed out that the main Act did not contain provisions similar to those contained in Section 5 of the Charitable and Religious Trusts Act, 1920. It was presumably in order to incorporate the provisions of that type thai; an amendment was sought to be made by the Bill which ultimately became Act XvII of 1935. Sub-section (1) of Section 5 of the Charitable and Religious Trusts Act XIV of 1920 also uses the words "If the Court on making such inquiry as it may consider necessary, is of opinion that the trust to which the petition relates is 9 trust to which this Act applies. " THE Act did not apply to all trusts, but only to charitable and religious trusts. In the course of an inquiry, it was possible for the opponent to take two contentions : (1) that there was, in fact, no trust, or (2): although there was a trust, it was not a charitable or religious trust. THE second contention was clearly within the meaning of the phraseology used in Section 5, Sub-section (1), and it could have been contended, as is being contended in this case, that the phraseology did not contemplate an inquiry into the first contention when the existence of the trust was denied. But there is Sub-section (3) of that section which clearly indicates that a Court can inquire even into the existence of the trust. Sub-section (3) rune as follows : If any person appears at the hearing of the petition and either denies the existence of the trust or denies that it is a trust to which this Act applies, and undertakes tot institute within three months a suit for a declaration to that effect and for any other appropriate relief, the Court shall order a stay of the proceedings and, if such suit is so instituted, shall continue the stay, until the suit is finally decided.