QUADER NOWAZ Vs. COMMISSIONER OF WAKFS

JUDGEMENT

(1.) It appears that a Wakf was created by one Janab Ashraf Ali Khan Choudhury by a registered deed dated the 9th August, 1931, and one Syed Abdus Slek by a registered deed dated the 24th August, 1933. The said Wakf was enrolled with the office of the Commissioner of Wakf as a single wakf estate on the basis of an enrolment application in 1936. After appointment of Mutwallis, both the deeds provided that after the death of the first Mutwalli or in his absence the next Mutwalli will be as follows : and in his absence His Male decendant, who will be his Sajjadanashin in his place will be in the absence of that Mutwalli his male decendants who will be his Sajjadanashin in His place, will be the Mutwalli and in this manner the succeeding Sajjadanashin will be successing Mutwalli.

(2.) On or about the 6th February, 1953, the first Mutwalli Syed Shah Ershad Ali Alquadri died. He left three sons, namely, Syed Shah Mustarshid Ali Alquadri, the respondent no. 3 herein, Syed Shah Rushid Alquadri, and Syed Shah Rashad Ali Alquadri, the respondent No. 4 herein. The eldest son applied in or about the 13th March, 1953 to the Commissioner of Wakfs for mutation of his name as Mutwalli in the place of his late father, the outgoing Mutwalli. His claim was that he being the surviving eldest son of the last Sajjadanashin, automatically became the Sajjadanashin and consequently the Mutwalli in place of his late father under the century-old usage, custom and practice prevailing in his Holy family. His second son, who is since dead and in support of whose claim the present application has been made, applied on the 30th December, 1953 for mutation on the ground that his father had nominated him as Sajjadanashin by Wasiatnama. The third son, namely, Syed Shah Rashad Ali Alquadri, the respondent No. 4 herein, however did not put forward any claim for Mutwalliship. Both the contesting claimants filed documents before the Commissioner at the hearing of the matter. The second son filed documents before the Commissioner at the hearing of the matter. The second son filed an alleged Photostat copy of the alleged Wasiatnama. The first son prayed for impounding it and also for taking the photograph for examination by an expert. Thereafter, on or about the 9th November, 1953, the Commissioner of Wakfs appointed the respondent No. 4 as a temporary Mutwalli fro two years. The respondent no. 3, being the first son and the claimant, on the 17th November, 1953, moved this Court under article 226 of the Constitution challenging the said order under section 40 of the Bengal Wakf Act, 1934, passed by the Commissioner. A rule nisi was issued in the Matter No. 100 of 1953. The rule nisi came up for hearing before Mr. Justice D.N. Sinha, as the learned Judge then was, and the rule was made absolute on the 11th March, 1954. (Hazrat Syed Shah v. Commr. of Wakfs, A.I.R. 1961 Cal. 436) I would have occasion to refer to certain observation in the decision of Mr. Justice Sinha in dealing with the contentions raised in this case. The Commissioner of Wakfs, however, being dissatisfied preferred an appeal. The appeal come up for hearing before Chief Justice Chakraborti and Mr. Justice Lahiri and the appeal was allowed and the judgment and decision of Mr. Justice Sinha was set aside. There was a further appeal to the Supreme Court and the Supreme Court on or about the 6th February, 1961 dismissed the appeal. The decision of the Supreme Court on or about the 6th February, 1961 dismissed the appeal. The decision of the Supreme Court on or about the 6th February, 1961 dismissed the appeal. The decision of the Supreme Court will be referred to in connection with the power of the Commissioner of Wakfs to make an appointment of Mutwalli. It appears that thereafter there had been successive orders under section 40 of Bengal Wakf Act, 1934 and by the said orders the third son, being the respondent No. 4, herein, had from time to time been appointed temporary Mutwalli. The said orders were successively challenged by the first son, being the respondent No. 3 herein. But before the rules could come up for hearing these became infructuous, because the impugned orders would have spent their force by efflux of time. Thereafter, on or about the 1st September m 1970, on the expiry of the immediately last appointment under section 40 of the Bengal Wakf Act, 1934, the first son again applied to the Commissioner for mutation of his name as the Mutwalli. The Commissioner made an appointment of the third son again as the temporary Mutwalli. The first son, being the respondent No. 3, alleged that the said appointment was made without giving the others any hearing. He accordingly moved this Court under article 226 of the Constitution and obtained a rule nisi in Matter No. 554 of 1970. It is stated that before Mr. Justice P.K. Banerjee, the third son appeared but none else did. The second son, who was also a claimant for the Mutwalliship though he had been made a party, did not appear. The challenge to that order was on the ground that the Commissioner could not make any order extending the life of the Mutwalli by 5 years without hearing the petitioner in that application, being the respondent No. 3 in the present application. Mr. Justice P. K. Banerjee by his judgment dated the 25th July, 1972 held that such an appointment could not be made without hearing the respondent No. 3 The learned Judge observed that the order of extension of appointment in favour of the respondent No. 4 make by the Commissioner of Wakfs must be held to be invalid as the extension had been made without giving the petitioner therein, being the respondent No. 4 herein, any opportunity to show cause why the Mutwalli should not be continued or terms thereof should not be extended. Mr. Justice Banerjee noted that it was contended on behalf of the petitioner in that application before the learned Judge, that at that moment there was no impediment for recording a permanent Mutwalli. It was urged that the respondent No. 3 in that application had not raised any dispute in so far as the appointment of the petitioner was concerned, as Mutwalli. His Lordship in those circumstances made the rule nisi absolute and directed, interalia, as follows : ?The impugned order dated 18th September, 1970 is set aside and there will be no order as to costs. The respondent Wakf Commissioner may however rehear the matter after giving the party an opportunity of being heard and thereafter decide about the question of the right of the parties to the Mutwalliship of the Wakf property. There will be no order as to costs.?

(3.) It appears that thereafter between January, 1974 and March, 1975 the Commissioner of Wakf heard all the brothers at length on as may as 20 occasions and passed his order on the 22nd March, 1975. After setting out the rival contentions an the history of the case and the evidence produced before him, the Commissioner observed that under section 47 of the Bengal Wakf Act, 1934, the Commissioner observed that under section 47 of the Bengal Wakf Act, 1934, the Commissioner had to record the name of the incoming Mutwalli on the death of the recorded Mutwalli. He further noted that the Commissioner was to record the name of such incoming Mutwalli on 'prima facie evidence' of the right or title of such incoming Mutwalli. The Commissioner recognized that he was not competent to decide whether such prima facie right or title was genuine or not. That according to the Commissioner was the function of the Court of law. Thereafter the Commissioner noted that the Mutwalliship in respect of the applicant was dependant upon the question of Sajjadanashin and that question had not been decided by any competent Court of law since 1953. Accordingly, the Commissioner had to take action on the prima facie evidence obtained so far. The Commissioner further observed that the interim Mutwalli appointed by the Commissioner since 1953 had failed to protect or preserve the interest of the Wakf and, therefore, there was little scope for applying, according to the Commissioner, section 40 again. He, therefore, concluded that he had to decide on prima facie evidence the right to Mutwalliship of the contending brothers, namely, the first and the second brother. He then discussed the prima facie evidence and the fact that the first brother seemed to be vitally interested in the protection of Wakf property. He noted that the second brother had not taken step to vindicate his right in any appropriate Court of law and he also noted the observations of Mr. Justice P.K. Banerjee. He held accordingly :- Under the above circumstances, on the basis of prima facie evidence as already cited an in consideration of other facts and circumstances already dealt with, and also in consideration of the above observations of Mr. Justice Banerjee, and in the best interest of the wakf estate I hold that he name of the first son Syed Shah Mustarshid Ali Al-Quaderi should be recorded as Mutwalli of the wakf estate situated at 23, Khanka Sharif Lane, Calcutta, u/s. 47 read with section 46 of the Act, in place and stead of his father Hazarat Syed Shah Ershad Ali Al-Quaderi, the recorded mutwalli since deceased.