(1.) THIS Rule is directed against an order of the learned District Judge, Burdwan, rescinding an ex parte order, passed by him, appointing the petitioner Munshi Mohammad Ishaque, Mutwali of an ancient Wakf. created by one Munshi Mohammad Muzaffar as far back as 1849. In passing the order, complained of herein, the learned District Judge has proceeded upon a view of the law which the petitioner submits is not correct and his prayer is that even if the opposite party's application for setting aside the ex parte order be allowed, his (petitioner's) application for his appointment as Mutwali should be reheard by the court below and the rival claims of the parties to the Mutwaliship should be decided, if necessary, in accordance with law.
(2.) THE Rule raises some questions of importance and it is necessary to pronounce upon them for the guidance of the court below at the rehearing of the matter which seems to be inevitable in the circumstances of this case. Shortly stated, the relevant facts are as follows: in or about the year 1849, a common ancestor of the parties before us created a Wakf with endowment of considerable properties. Under the deed of Wakfnama the Wakif became the first Mutwali and on his death in 1873 the Mutawaliship devolved upon his eldest son, Modasser, in accordance with the rules laid down in the said deed for devolution of the Mutwaliship. On the death of Modasser his only son Munshi Mohammad Ibrahim became the Mutwali and upon the letter's death it devolved upon his sister, Fatema Bibi. It is the common case of the parties that these devolutions were perfectly valid and quite in accordance with the above rules. Dispute, however, arose on Fatema's death which took place in 1937 and which meant the extinction of Modasser's line. Hazi Md. Ozi, father and predecessor of the contesting opposite party 'kasi' Md. Moin, claimed the Mutwaliship as the son's daughter's son of the Wakif and got his name registered as Mutwali in the office of the Commissioner of Wakfs. Ozi's claim was disputed by the present petitioner and he brought a title suit (Title Suit No. 9 of 1938) in the court of the Subordinate Judge, Burdwan, for declaration of his tile, as the Mutwali, he being the son of the Wakif's son by his second wife. The suit, however, failed in the trial court and the appeal (F. A. No. 20 of 1943) to this court was dismissed upon the finding that "with the extinction of the line of Modasser, the specific rules laid down by the founder for devolution of the office of Mutwali have also come to an end and it is now for the principal Civil Court of the district to make an appointment keeping in view the wishes of the founder and the general principles of Mahomedan law. " Against this decision the present contesting opposite party's brother, Md. Amin, since deceased, who had got himself substituted in place of his father, Kazi Md. Ozi, in the trial court upon the letter's death applied for leave to appeal to the Federal Court (No. 12 of 1948) but that was refused upon the view that the above observations of this court were obiter and did not confer a right of appeal on the applicant, Amin, from the High Court decision which wars in his favour. Thereafter, the present petitioner applied to the learned District Judge for his appointment as Mutwali but that application (Misc. Judl. Case No. 348 of 1948) was thrown out by the court on Amin's objection by its order, dated 3rd November, 1949. Then after Amin's death the present petitioner applied again to the Commissioner of Wakfs for registration of his name as Mutwali but the said application was rejected as the opposite party had already got his name enrolled and registered there as Mutwali under section 40 of the Bengal Wakf Act during the minority of Begum Ekbal Jahan, who according to the Commissioner, was the rightful Mutwali under the Wakfnama after his death. The petitioner then applied to the learned District Judge for his appointment as Mutwali in terms of the observation quoted above from the High Court judgment and this application was eventually allowed by the learned District Judge by his order, dated 4th May, 1955 passed exparte. On November 26, 1955, the opposite party applied for the setting aside of the said ex parte order alleging inter alia that the said order had been obtained on untrue allegations and suppression of material facts and without notice to him and that it was otherwise also had in law. the learned District Judge having no jurisdiction as Kazi to appoint a Mutwali where there was no vacancy in that office and there was a Mutwali already enrolled and registered under the Wakf Act. By his order, dated 8th June. 1956 the learned District Judge allowed this application, set aside his ex parte order, dated 4th May, 1955 and cancelled the petitioner's appointment as Mutwali, virtually also rejecting finally his prayer for the same. It is against this order that the present Rule was obtained by the petitioner and herein the propriety of the said order is challenged by him. In our opinion, this Rule should succeed in part and, while the setting aside of the exparte order should stand, the petitioner's application for his appointment as Mutwali should be reconsidered by the learned District Judge in accordance with law in the presence of the opposite party in the light of certain observations which we shall presently make herein.
(3.) IT is undeniable that the petitioner's application for his appointment as Mutwali suffered from suppression of certain material facts, notably the observation, on which Mr. Amin's application for leave to appeal to the Federal Court was rejected, and the previous order of the District Judge by which his previous application for a similar relict was refused. Admittedly, also, the present opposite party who, on the admitted facts of the present case, ought to have been impleaded in the proceedings, in which the ex parte order in question was made, was not so impleaded, and, although there was a news-paper advertisement by way of notice, no actual notice of the proceedings was issued or served upon him. In these circumstances, the ex parte order of the learned District Judge, appointing Mutwali of the disputed Wakf, cannot stand and the petitioner's application in that behalf should be reconsidered by the court below in accordance with law in the presence of the opposite party after giving him en opportunity to file his objection to the same. The learned district Judge has not adopted this course as, in his view, the opposite party's enrolment and registration as Mutwali under the Wakf Act, which was tantamount to his appointment as such by the Commissioner, ousted the jurisdiction of the District Judge as Kazi to make any such appointment and as such the petitioner's application was bound to fail and needed no further consideration. With this view of the learned District Judge we do not agree. The power of the Commissioner to appoint a Mutwali is derived from Sec. 40 read with Sec. 29 of the Act but this appointment is only for a temporary period and is made only in the exigency of a vacancy or dispute and it is subject to and liable to be superseded by an order of a competent Court as mentioned in Sec. 40. Competent Court is not defined in the Act but. in our opinion, it certainly includes the court of the District Judge which is the principal Civil Court of the district and as such vested with the powers of the Kazi, or rather, the Chief Kazi (the Kazi-ul-Kuzzat ).- in the matter of appointment of Mutwali when there is an absolute vacancy in the office under the terms of the relevant deed. It seems to us that, so far as such appointment is concerned, the District Judge, as Kazi or Chief Kazi as aforesaid, has undoubted jurisdiction and it is, at least, doubtful whether any other Mofussil Court has any such jurisdiction. Nothing, indeed, was placed before us to justify a different conclusion and no case or instance was brought to our notice where any appointment as aforesaid was made in the Mofussil by any court other than the District Judge's. It is now well established that, in the Mofussil, the District Judge as the principal Civil Judge or the principal Civil Court of the district occupies the position of the Chief Kazi and possesses as such all the powers of a Kazi and, at least, in matters, relating to Wakfs, heand probably he aloneis entitled to exercise these powers and discharge the functions of that office (vide Burdhan Mirdha v. Musst. Khodeja Bibi-41 C. V7. N. 3l4 and Khan Sahib Abdus Salam Choudhuri, v. Hazi Abdul Aziz Choudhuri end anr. , 48 C. W N. 465 ). Clearly then, for purposes of appointment as aforesaid, the Court of the District Judge will be a competent Courtif not the sole competent Courtunder Sec. 40 and the appointment made by him will prevail over and supersede the appointment by the Commissioner which, as we have already said, is only temporary and subject to the order of the competent Court including, of course, a final order of appointment of Mutwali. The contrary view of the learned District Judge does not seem to be correct. We do not think, therefore, that the opposite party's appointment as Mutwali under Sec. 40 of the Act is any bar or impediment to the District Judge's making the final appointment to the office and if any such appointment is made the Commissioner's appointment must yield place to it and the right to the office must be according to the order of the District Judge, unless it is superseded in any appropriate proceeding. It must not be understood, however, that the appointment by the District Judge will have the effect of ousting any person from possession of the Wakf estate. For that purpose recourse must be had to the ordinary Civil. Court or any other appropriate authority. That is not disputed by the petitioner and he does not want more than this that the learned District Judge should consider the provisions of the Wakf deed in relation to the facts of this case and, if he comes to the conclusion that the devolution of Mutwaliship, laid down therein, has spent itself, he will appoint a Mutwali and, in that connection, consider the petitioner's claim in that behalf in accordance with law. We do not think that there can be any possible or legitimate objection to this prayer.