SYED SIBTE RASUL Vs. MSIBTE NABI

JUDGEMENT

(1.) This appeal arises out of a suit which was instituted, in the first instance, by three plaintiffs, Sibte Nabi, Abdul Bab and Nisar Ali, against Sibte Rasul who is admittedly the mutwalli of a waqf created in or about the year 1760 by Mir Asad Ullah otherwise known as Mir Kallu, a Sunni Muslim. Mir Asad Ullah had built a mosque and a school in the town of Amroha and it is admitted that he dedicated the village of Jhiran with the intention of ensuring the upkeep of these buildings or institutions. The parties agree that he himself was the first mutwalli and that the mutwallis succeeding him were, in order, Saadat Ullah, Nijabat Ullah, Siyadat Ullah and Sibte Rasul. Each mutwalli was the son of his predecessor. Either Nijabat Ullah, as asserted by the defendant, or Siyadat Ullah, as asserted by the plaintiffs, became a Shia and Sibte Rasul is a Shia too.

(2.) The plaintiffs claimed the reliefs that the Court should declare that the mosque and school were founded solely for the benefit of Sunnis and that the mutwalli should be removed and a committee of management, composed entirely of Sunnis, should be appointed to manage the waqf under a scheme drawn up by the Court. They also demanded that the mutwalli should furnish accounts and that a decree should be passed against him in favour of the committee of management for any sum which might be found due from him to the wakf. Their allegations were-- (1) that Mir Asad Ullah intended that the mosque and school should be used by Sunnis alone and that Sibte Rasul as a Shia was not a fit person to manage the waqf ; (2) that Sibte Rasul spent the greater part of the income of the wakf property on himself and his family spending only a nominal sum on the mosque and school and nothing at all on the other objects of the waqf which, according to them, included the maintenance of learned and holy men and students and the supply of refreshment to travellers ; (3) that the mutwalli had not kept any accounts nor filed them in Court under the provisions of the Mussalman Waqf Act (42 of 1923) ; (i) that he had not paid the dues of the superior proprietor of the village of Jhiran, that he had taken possession of all the best land to cultivate himself as his sir and khudkasht and that the property of the waqf was being wasted and was in danger of dissipation ; (5) that the mutwalli was very seriously involved in debt ; and (6) that he was virtually claiming the property as his own contrary to the interests of the waqf.

(3.) The learned Judge found that the mosque and school were intended mainly for the use of Sunnis but that Shias were entitled to pray in the mosque, if they wished to do so, and that their children might be educated in the school. He held that there was no reason why the mutwalli should be removed merely upon the ground that he was a Shia. On the second point, his conclusion was that Sibte Rasul was spending about four-fifths of the income from the village upon himself, as indeed was admitted, and that the mosque and school were not in a sufficiently good state of repair, were not adequately furnished and were in a dirty condition. On the third point his finding was that Sibte Rasul had not kept the accounts of the waqf and had not filed them. He referred, however, to an application made by Sibte Rasul to the District Judge asking for a direction whether he was required to file accounts and to the order of the District Judge that it was unnecessary for him to do so because the waqf was to all intents and purposes a waqf alal-aulad which did not come within the provisions of the Act. The learned Judge very naturally considered that Sibte Rasul, in these circumstances, could not be blamed for not filing the accounts in Court, but he said at the same time that he had no justification for not keeping accounts and producing them when required to do so.