ABI SAGHIR Vs. BIBI ASIA BANO

JUDGEMENT

(1.) The two applications in revision are both directed against a common order dated 16-4-1951 passed by the District Judge of Monghyr in the exercise of his powers given to him under Clause (3) of Section 31, Bihar "Waqfs Act, 1947 -- Act VIII of 1948 --(hereinafter to be called Waqfs Act) modifying a scheme for the management of the Maulanagar Waqf Estate. Civil Revision No. 331 is on behalf of two persons, namely, (1) Syed Abi Saghir, one of the maintenance holders and beneficiaries under the Waqf and (2) Syed Shah Bashid Ahmad, Mutwalli of that estate and the other is on behalf of the Bihar Subai Sunni Majlis .Awkaf herein after to be called Majlis) through its President, Mr. S. Bashiruddin, Bar-at-Law.

(2.) The scheme which was the subject matter of modification under the order in revision was originally framed on 25th February, 1950 by the Majlis in the exercise of its powers given to it under Clause (1) of Section 31 of the Waqfs Act. Subsequently, in accordance with the provision of law laid down in Clause (2) of Section 31, it was published in the Bihar Gazette on 22-3-1950. On its publication, three persons, all claiming themselves as beneficiaries under the Waqf, namely (1) Bibi Saira, (2) Syed Abdul Jabbar and (3) Azim Khan, submitted through an application before the District Judge a number of their objections to the scheme published in the gazette on the ground that certain provisions stipulated therein were ultra vires of the powers and jurisdiction of the Majlis vested in it by the Waqfs Act. The main and substantial objections raised therein were three. First was against the provisions incorporated in rules 16 and 21 of the scheme which related to the allowance and removal of the sajjadanashin. The second objection was against the provisions of Rules 2 and 3 of the scheme reducing the number of members who were to constitute the managing committee from fifteen to eleven and shortening the term of the committee from five to three years. The last objection was against the amount of allowance allowed to the mutwalli under Rule 18 of the scheme and the suggestion was that the allowance of the mutwalli should not, in any case, exceed 15 per cent of the establishment charge. It appears that while the objection petition was still pending for disposal before the District Judge, Most. Bibi Saira died and she was substituted by her representatives in interest, (1) Bibi Asia Bano and (2) Bibi Asma Khatoon. It is the admitted case of the parties that no notice was given of the proceeding then pending before the District Judge to any beneficiary, or even to the mutwalli or as a matter of fact to any person interested in the Waqf save and except the president of the Majlis. The result was that when the matter came up for final hearing before the District Judge, the only persons then present before him were the president of the Majlis and the objectors. The District Judge, therefore, on hearing them alone disposed of the objections on 16-4-1951. By this order, he rejected some of the objections but accepted those directed against the provisions made in the scheme for the allowance and removal of the sajjadanashin and, accordingly, modified the rules 16 and 21 in his own way. As for the allowance of the mutwalli, he came to the conclusion that it should be left to be decided by the managing committee, if and when a mutwalli is appointed.

(3.) It further appears that from his point of view the scheme of the Majlis required modification in some other respects as well though no objection had been raised relating to them by the objectors in their application. He, accordingly, did not confine himself to modifying and varying the scheme to the points raised in the objection but went much beyond them & made many other drastic changes therein. These changes were principally based on two guiding principles. Firstly, that the office of sajjadanashin and mutwalli should be merged from here and now into one and that sajjadanashin alone should, thereafter, discharge the duties of both the offices. Secondly, that the mutwalli even if appointed under certain contingency should always act under the control and direction of the sajjadanashin.