COMMR OF WAKFS Vs. MOHAMMAD MOSHIN

JUDGEMENT

(1.) The important question that arises in this appeal is whether a wakf of the ward's property created by a guardian appointed under the Guardians and Wards Act with the sanction given by Court under Section 29 of that Act, is valid.

(2.) It appears that Mohammad Moshin, the respondent in this appeal, was born sometime in 1916. He inherited certain properties from his mother who died not very long after his birth. On 25-2-1925 his father Syed Hossain Ali, was appointed the guardian of his person and properties under the Guardians and Wards Act by the District Judge at Alipur. On 9-7-1932 Hossain Ali as such guardian obtained an order from that Court under Section 29 of that Act permitting him to create a wakf alal aulad of Moshin's properties. Pursuant to that permission, on 30-10-1932 Hossain Ali actually executed a deed of wakf whereby he also made a wakf of some of his own properties. The wakf was thereafter duly enrolled as a wakf alal aulad by the Commissioner of Wakfs, under powers contained in the Bengal Wakf Act, 1934. Under that Act this amounted to a decision that the wakf was valid and the decision is final until set aside by a Court. The Act gave the Commissioner certain powers of superintendence over a wakf and a power to the Board of Wakfs to appoint Official Mutawalll appointed under the Act, to be the mutawalli of a wakf. Hossain Ali died on or about 30-8-1937. Under the Deed of Wakf, Moshin was to be the mutawalli after his father's death but he never in fact acted as the mutawalli. Soon after Hosain Ali's death, the Official Mutawalli was appointed the mutawalli of the wakf and he has since been acting as such excepting for a very short period in 1940. On 31-1-1941, Abdul Wahab, Moshin's sister's husband was appointed the manager of his estate and also his guardian, under the Lunacy Act, Moshin having been then found to be an Insane person.

(3.) On 6-9-1945 Moshin through Abdul Wahab as his next friend, filed this suit against the Commissioner for a declaration that the deed of wakf was void and inoperative, for possession of his properties covered by that deed, for accounts and for other connected reliefs. In the plaint Moshin was described as a lunatic but it was not stated when he became one. A point was taken on behalf, of the Commissioner that the plaint was barred by limitation on the face of it. On 7-4-1948 an order was made amending the plaint by inserting a statement that Moshin had become a lunatic before he attained majority and has since been insane. Later on the plaint was again amended by adding the Official Mutawalli as a defendant to the suit.