ATIMANNESSA BIBI Vs. ABDUL SOBHAN

JUDGEMENT

(1.) The subject-matter of the litigation which has culminated in this appeal consists of immoveable property dedicated as wakf in or about the year 1836 by a Muhammadan named Azimuddin Mistri. A mosque was erected by the founder on a portion of the land and income for its maintenance is derived from the remainder, which is in the occupation of tenants. Azimuddin constituted himself the first mutwalli and acted as such so long as he was alive. He appointed his grandson Imamuddin as the next mutwalli; the latter executed a tawliatnama on the 13th March 1854 whereby he appointed one Sekandar as his successor in the office of mutwalli with authority to appoint a successor. On the 1st December 1892, Sekandar, in exercise of the power vested in him, appointed his daughter Sobran Bibi as mutwalli; she performed the duties of the office for over seven years and died in the year 1900 without appointing anyone as mutwalli. Two brothers of Sobran, Yakub, Yasin by name, however, took possession of the wakf properties and administered them for a term of seven years. On the 22nd February 1907, Yakub and Yasin executed a deed of relinquishment in favour of the plaintiff Atimannessa Bibi, daughter of Imamuddin, the grandson of Azimuddin. In this deed they admitted that as the sole surviving descendant of the founder she had a preferential claim to the office of mutwalli. Immediately after this, there was a scramble for the possession of the wakf properties and on the 22nd July 1907, a suit was instituted with the consent of the Advocate-General, under Section 539 of the Civil Procedure Code of 1882, in the Court of the District Judge by persons who claimed to be interested in the due administration of this religious trust. The assistance of the Court was sought, as it could only have been sought, on the allegation that the trust had been created for public purposes. The three sons of Sekandar were originally joined as defendants. The present plaintiff subsequently applied to be made a defendant, but as she alleged that the wakf constituted a private trust not affected by Section 539, her application was refused on the authority of the decision in Budh Singh Dudhuria v. Niradharan Roy 2 C.L.J. 431. As the original defendants did not deny that the trust was a public one within the meaning of Section 539, the suit as against them was tried in due course, and one Abdus Sobhan who had married the daughter of Kariman; a son of Sekandar, was appointed mutwalli on the 28th May 1908. The District Judge, however, expressed the opinion that he had a very strong suspicion that the suit was purely collusive and had been brought to defeat Atimannessa. On the 16th March 1910 she commenced this suit for declaration of her title as mutwalli of this trust which, she alleged, was a private wakf, and also for an injunction to restrain the defendants (in which category she included Abdus Sobhan) from interfering with her possession of the endowed properties. The Subordinate Judge held, that the wakf constituted a public trust, contrary to the allegations of the plaintiff, but that as the sole surviving descendant of the founder she had established a claim to the office of mutwalli superior to that of any stranger; in this view, he decreed the suit. On appeal, the District Judge affirmed the view of the trial Court as to the public nature of the wakf, but dismissed the suit on the ground that so long as the decree in the suit under Section 539 remained in force, no relief could be awarded to the plaintiff. The plaintiff has now appealed to this Court. On an analysis of the elaborate arguments addressed to the Court on both sides, the following two points emerge for consideration, namely, first, did the plaintiff as the sole surviving descendant of the founder become mutwalli by operation of law when the last mutwalli died without appointing a successor; and secondly, can the plaintiff be appointed mutwalli in this suit instituted in the Court of the Subordinate Judge and relief granted to her on the basis of such appointment?

(2.) As regards the first ground, it is plain that the plaintiff did not by operation of law become the mutwalli by right of inheritance on the death of the last mutwalli. The rule on the subject is thus stated by Neil Baillie in his Treatise on Muhammadan Law (Volume 1, page 593): When the superintendent has died and the appropriator is still alive, the appointment of another belongs to him and not to the Judge; and if the appropriator be dead his executor is preferred to the Judge. But if he has died without naming an executor the appointment of an administrator is with the Judge, In the Asul it is stated that the Judge cannot appoint a stranger to the office of administrator, so long as there are any of the house of the appropriator fit for the office, and if he should not find a fit person among them, and should nominate a stranger, but should subsequently find one who is qualified, he ought to transfer the appointment to him. When the appropriator has made it a condition that the superintendent shall be of his children and children s children, and the Judge appoints another than one of these without any malversation, is the person so appointed the superintendent? Boorhanood Deen has said No ." It is obvious from this statement of the law that though a descendant of the founder has a preferential claim to the office of mutwalli, he does not become mutwalli by right of inheritance but has to be appointed such by the qadi who may supersede him if he is not qualified. This view is confirmed by two texts from works of recognised authority on Muhammadan Law, translated in the judgment of this Court in the case of Salimulla v. Abdul Khayer Mohammed Musta a 3 Ind. Cas. 419 : 37 C. 263 : 14 C.W.N. 497 : 11 C.L.J. 304. One of these texts is from the Isaf of Al-Tarabulusi (Cairo Edition, page 42) and the other is from the Fatawa Alamgiri (Calcutta Edition Volume II, page 507) (see other texts translated by Ameer Ali in his Muhammadan Law, Volume I, 4th Edition, pages 451, 759, 760, 763 and 765. See also Anglo-Muhammadan Law by Sir Ronald Wilson, paragraph 328 and Tyabji on Muhammadan Law, page 414). Indeed it may be taken as a settled doctrine of Muhammadan Law that no right of inheritance attaches to a religious endowment. As Parsons, J., observed, with the concurrence of Sargent, C.J., in Sayad Abdula Edrus v. Sayad Zain 13 B. 555 it is by appointment that one officer succeeds to another appointment, either by the original appropriator or by his successor or executor or by the superintendent for the time being, or failing all these, by the Ruling Power. This is laid down distinctly by Macnaughten in his Muhmamadan Law (Chapter X on Endowments, paragraphs 5 and 6; Precedents of Endowments, Cases IX and X). Consequently, the position cannot be sustained that the plaintiff became by operation of law the mutwalli of his wakf as the sole surviving descendant of the founder when the last mutwalli died without having appointed his successor. This conclusion is in accord with the decision in Moohummud Sadik v. Moohummud Ali (1798) 1 Mac. Sel. Rep. 22 : 6 Ind. Dec, (O.S.) 17 and Shahoo Banoo v. Aga Mohomed Jaffer Bindaneem 34 I.A. 46 : 34 C. 118 (P.C.); 11C.W.N. 297 : 4 A.L.J. 30 : 5 C.L.J. 134 : 9 Bom. L.R. 85 : 17 M.L.J. 52 : 2 M.L.T. 49 : 4 L.B.R. 66. The first contention of the appellant must accordingly be overruled.

(3.) As regards the second ground, the question arises whether in the present suit, instituted in the Court of the Subordinate Judge, the plaintiff can be appointed mutwalli of the wakf. As is obvious from the texts already mentioned, where, as here, the appropriator is dead and has not left an executor, the power of appointment rests with the qadi. The problem thus requires solution, who is the judicial officer in the British Indian system of law who corresponds to the qadi under the Muhammadan Law and can exercise his functions in relation to wakfs. The question has never been fully investigated, but it was assumed in the cases of Shama Churn Roy v. Abdul Kabeer 3 C.W.N. 158, In the matter of Woozatunnessa Bibee 1 Ind. Cas. 512 : 36 C. 21 and In re Halima Khatun 7 Ind. Cas. 33 : 37 C. 870 that the Civil Court of superior jurisdiction, in the locality where the wakf properties are situated, is vested, generally speaking, with the powers exercised by the qadi under the Muhammadan regime. On the other hand, in Nemai Chand v. Golam Hossein 3 Ind. Cas. 353 : 37 C. 179 at p, 187 : 14 C.W.N.535;11 C.L.J. 317, it was observed that if a District Judge or a Judge of this Court in its original jurisdiction could exercise the functions of a qadi, there was no apparent reason why a Subordinate Judge who has jurisdiction over the wakf property should not be deemed equally competent to discharge those functions. As the question is of paramount importance, I have investigated the position of a qadi under the Muhammadan Law, a problem which, so far as I am aware, has been treated historically only in the valuable lectures on the History of Moslem Legal Institutions delivered by Dr. Abdullah-al-Mamun Suhrawardy as Tagore Professor of Law in the University of Calcutta. No assistance in the solution of this question has been derived from an examination of the legislative enactments and judicial decisions relating to the powers and duties of a qadi appointed under the Anglo-Indian system of law. Amongst these may be mentioned Bombay Regulation XXVI of 1827 repealed by Act XI of 1864 (Act XII of 1880; Harrington s Analysis of the Bengal Regulations, Volume I, 2nd Edition, pages 67, 219, 223; Colebrooke s Supplement of Digest of Regulations, pages 1, 14, 19; Morley s Digest, Introduction, pages 30, 31, 34, and title Kazi; Muhammad Yusub v. Sayad Ahmed 1 B.H.C.R. Ap. 18, Jamal v. Jamal 1 B. 633, Daudsha v. Ismalsha 3 B. 72, Baba Kakaji Shet Shimpi v. Nassaruddin 18 B. 103. (14),18 B. 401, Advocate- General of Bombay v. Abdul Kadir (14). It is necessary, therefore, to examine the original texts on the subject. The following texts illustrate the position of the qadi under the Muhammadan Law. (Translation of Text I.)