MAHOMEDHUSSEIN DAUDBHAI Vs. COLLECTOR OF BROACH AND PANCHMAHALS

JUDGEMENT

(1.) These applications in revision arise out of an order passed by the District Judge of Broach and Panch Mahals in Miscellaneous Applications Nos. 11 and 13 to 20 of 1940 and raise an important question as regards the jurisdiction of the District Court and the scope of the inquiry to be made under Section 6C of the Musalman Wakf Act (XLII of 1923) as amended by Bombay Act XVIII of 1935. In 1933 the Collector of Broach and Panch Mahals published a Notification, No. M.S.C. 44, dated August 24, 1933, giving a list of wakfs of the Dawoodi Bohfas in the Panch Mahals District. In respect of properties Nos. 17 to 23 in that list situate at Dohad, His Holiness the Mullajisaheb of the Dawoodi Bohras was shown as the mutawalli. Accordingly, notices were issued to him under Section 5 of the Act to submit statements of accounts. The statements of accounts were not, in fact, filed, and when similar notices were issued in 1938, the person who held a power-of-attorney for the Mullajisaheb put in a statement on August 9, 1939, contending that the properties were not wakfs within the meaning of the Act, and that he was not the mutawalli thereof. It was urged that, according to the custom and the religious tenets of the Shia Dawoodi Bohras, the properties belonged to the Mullajisaheb., In that statement the names of persons who actually looked after the different estates were given. Thereupon, notices were issued to those persons to render accounts. All these persons appeared and put in separate statements to the effect that although each one of them was in the management of a particular property, the property was not a wakf property within the meaning of the Act, that he was not the mutawalli, and that according to the religious tenets of the Shia Dawoodi Bohras, the property was owned by and belonged to an institution known as Dawati-Hadiah of which the absolute head was Dai-ul- mutalak, i.e. the Mullajisaheb himself. When these statements were put in, the Assistant Judge passed an order that an inquiry should be held under Section 6C of the Act which was inserted in the original Act of 1923 by Bombay Act XVIII of 1935. He raised an issue as to whether the property was a wakf property, and whether the opponents were bound to render accounts. Each case was separately numbered as a separate miscellaneous application. A notice was ordered to be issued to the Collector of Broach who appeared through the Government Pleader and contended that the properties were wakf properties and that the opponents who were mutawallis thereof were liable to render accounts. When the matter came up for hearing before the learned District Judge, a further contention was taken that the Court had no jurisdiction to hold an inquiry whether the institutions concerned were wakfs or not. The learned Judge held that the Court had jurisdiction to hold an inquiry, that on merits, the property in each application was a wakf property, that the opponents who were admittedly managing the properties were the mutawallis thereof and were, as such, bound to render accounts. Against that order these applications have been filed in revision, and the only point argued before us is as regards the jurisdiction of the Court to hold an inquiry and the scope of that inquiry.

(2.) It has been contended by. Mr. Thakor on behalf of the applicants that where as in these casea the existence of the wakfs is denied, it is not competent to the District Court to hold an inquiry into that matter, and that under Section 6C of the Act, the only inquiry that the Court can hold is whether a wakf is a wakf to which the Act applies. His argument was that if the existence of the wakf is disputed, no inquiry can be held by a Court; but if the existence of the wakf is admitted, and the application of the Act to such a wakf is denied, then the Court can proceed to hold an inquiry as to whether such an admitted wakf is a wakf to which the Act applies.

(3.) The question involves the construction of Section 6C which was inserted by the Bombay Amendment Act XVIII of 1935 and which runs as follows :- 6C. (1) The Court may, either on its own motion or upon the application of any person claiming to have an interest in a wakf, hold an enquiry in the prescribed manner at any time to ascertain- (i) whether a wakf is a wakf to which this Act applies ; (ii) whether any property is the property of such wakf and whether the whole or any substantial portion of the subject-matter of such wakf is situate within the local limits of the jurisdiction of the court; and (iii) who is the mutawalli of such wakf. In order to ascertain he exact implication of this amendment made by Bombay Act XVIII of 1935 it is necessary to see what the position was under the main Act of 1923, and what the interpretations put by the various Courts on its provisions were. The question was first considered by the Patna High Court in the case of (Syed) Ali Mohammad V/s. Collector of Btfiagalpur [1927] A.I.R. Pat. 189. It was held in that case that there was no provision in the Act authorizing the Court, as defined in the Act to determine as to whether any property which is denied to be a wakf property is a wakf property within the meaning of the Act. In that case also, one of the persons, whose property was included in the list of the wakfs by the Collector of Bhagalpur, contended that the property was not a wakf property, and on a consideration of the various provisions of the main Act, the Court came to the conclusion that if the existence of a wakf was denied, there was no provision in the Act authorizing any Court to determine that question. The learned Judge, Kulwant Sahay J., drew pointed attention to the omission in the Act of a provision similar to that contained in Section 5 of the Charitable and Religious Tnfsts Act (XIV of 1920), which authorized the Court to make an inquiry if any person appeared at the hearing and denied the existence of the trust or denied that it was a trust to which the Act applied. In Nasrullah Khan V/s. Wajid Ali (1929) I.L.R. 52 All. 187 the existence of the trust was admitted and accounts were filed. That case, therefore, does not decide the point as to whether when the existence of the wakf is denied, the question can be decided by the Court. In Nasrullah V/s. Wajid Ali (1932) I.L.R. 54 All. 475 it was held that when, by his compliance,with Section 3, a mutawalli brought himself under the provisions of the Act and established his own liability to furnish a statement of accounts under Section 5, he made himself open to punishment under Section 10 for not doing so. His denial that the property managed by him was a wakf within the meaning of the Act was of no value in view of his own action in complying with the requirements of the Act in the first instance. The question whether, on being required to furnish accounts, a person denied the existence of a wakf, he could be punished under Section 10 of the Act, and whether in such a case, the Court trying the accused could go into the question about the existence of the wakf came up for direct consideration in the case of Wahid Hasan V/s. Abdul Rahman (1934) I.L.R. 57 All. 754. It was held that there was nothing in the Mussalman Wakf Act of 1923 to show that any power has been conferred on the Court to go into the question as to whether or not the properties, about which an application is made, were wakf properties. The Act was held to be applicable only in those cases in which the existence of the wakf was admitted. The learned Judge held that the Act did not confer jurisdiction on the Court to determine the question as to the existence of a wakf ; and so, if at the outset the existence of a wakf was denied, the Court had no jurisdiction to proceed with the case any further, This view was followed by the Nagpur High Court in the case of Abdul Hussain V/s. Mohmad Ebrahim Riza [1939] Nag. 564 where the learned Judges held that where the existence of a wakf itself was in dispute, the District Judge had no jurisdiction to enquire under Section 10 of the Mussalman Wakf Act - into its existence. That view was also endorsed by a full bench of the Lahore High Court in Shia Youngmen's Association, Punjab, Lahore V/s. Faleh Ali Shah (1941) I.L.R. 22 Lah. 395, F.B. where it was held that in proceedings under Section 10 of the Mussalman Wakf Act, XLII of 1923, the District Judge had no jurisdiction to hold an enquiry into the nature of the property where the alleged mutawalli denied the existence of the wakf. The Madras High Court also took the same view in Syed Ismail Sahib alias Tahsildar Sahib V/s. Ethikasha Sarguru alias Syed Chandu Sahib [1941] A.I.R. Mad. 897 wherein it was held that the District Judge had no jurisdiction to hold an enquiry into the nature of the property where the alleged mutawalli denied the existence of the wakf.