ALKAMA BIBI Vs. SYED ISTAK HOSSAIN

JUDGEMENT

(1.) This appeal is directed against an order of the District Judge of Birbhum refusing to appoint a Receiver pending the disposal of a suit brought by the plaintiffs, now appellants, for the appointment of plaintiff No. 1 as matwalli of a certain wakf estate or in the alternative, for the appointment of both the plaintiffs as matwallis.

(2.) The facts, so far as they are material for present purposes, may be shortly stated.

(3.) In the year 1304 B.S. one Molajim Hossain Khan made a disposition of all his properties for religious and pious purposes, and on the 12 Falgun 1304 executed a deed of wakf whereby he appointed himself as matwalli for his own lifetime and made provision for succession to the office after his death. His wife Mataharannessa Bibi was to succeed him as matwalli. On the 3 Kartik 1309 B.S. Hossain Khan died, his wife having predeceased him on the 28 Bhadra of the same year. The wakfnama contained a provision to the following effect: "In the absence of my two wives and children the Collector of the District shall be competent to appoint whomsoever of my line (amar bongsher madhye he considers competent and pious as the matwalli", and according to this provision the last matwalli Mostak Hossain Khan was appointed as such. Mostak Hossain, who succeeded as matwalli on the death of Hossain Khan, died in Chaitra 1328 B.S. and the dispute then arose which has led to the institution of this suit. The plaintiffs-appellants claim that under the terms of the wakf deed, the person, who of the settlor's line or family, is fit to be appointed as matwalli should be so appointed. Plaintiff claimed that she is possessed of the necessary qualifications, and in the alternative, asked that both she and the plaintiff No. 2 might be appointed, the plaintiff No. 2 being stated to be an agnatic relation of Molajim Hossain Khan. It appears that after the death of Mostak Hossain an application was made to the Collector of Birbhum to appoint a matwalli in accordance with the provisions of the wakfnama, but the Collector held that he had no jurisdiction and referred the parties to the Civil Court. The plaintiffs thereupon filed their plaint on the 23 May, 1922. The 1st, 2nd and 3 defendants are the widows of Mostak Hossain and the 4 defendant is a minor, Syed Istak Hossain, grandson of Mostak Hossain, represented by his grand-father, next friend and; guardian Syed Hossain Ali.