ABDUL MAJID Vs. AKHTAR NABI

JUDGEMENT

(1.) This is an appeal from the decision of the District Judge of Dacca dated 21 April 1932, by which he dismissed the suit brought by the plaintiffs under Section 92, Civil P.C., in the following circumstances: It appears that the plaintiffs who are the appellants before us brought a suit under Section 92, Civil P.C., with the necessary sanction against the two defendants. The allegation against defendant 1 was that he was the sole mutwalli of the wakf property in question and he began to treat wakf property as his own and he did not properly look to the interest of the wakf. It was further stated that defendant 1 after having assumed the position of the, sole mutwalli mortgaged the wakf property and raised money for his own use in contravention of the terms of the wakfnama and against the directions and practices of the former mutwalli. In para. 13 of the plaint it was stated that defendant 1 in collusion with defendant 2 transferred the wakf property to defendant 2 most wrongfully and illegally. In para. 14 an allegation was made to the effect that defendant 2 procured the said defendant 1 to do various wrongful and unconscionable things with reference to the wakf property with full knowledge of the fact that the properties had been permanently dedicated to the mosque referred to in the earlier part of the plaint. In para. 17 of the plaint it is stated that defendant 2 has been in possession of the wakf property and that rent, profits and income of the wakf properties are now being entitled for their own benefit and the mosque has thus been deprived of them. In para. 19 a very important statement is made to which prominent attention should be drawn for the purpose of determining the controversy raised in the present appeal. That statement is this: That defendant 2 knowingly and fraudulently took possession of the wakf properties and has been utilising the income thereof in collusion with defendant 1 and hence both of them are liable to accounting as trustees do son tort.

(2.) An equally important statement or allegation is made in para. 20 of the plaint which runs to the following effect: That defendant 2 is not a bona fide purchaser for value without notice and as such is a constructive trustee of the wakf properties in his possession and is therefore legally liable to restore the possession of the said properties to the legally appointed mutwallis.

(3.) On these relevant statements in the plaint relief was asked for as against defendant 1 alleging as against him that he had been guilty of several breaches of trust which are enumerated in para. 22 of the plaint, vide pp. 7 and 8 of the paper book. Plaintiffs prayers are contained in para. 25 of the plaint and it is necessary to refer to prayers (a) and (b). Prayer (a) is to the following effect: That the defendants may be removed from position of trustees or mutwalliship de jure or de son tort or constructive.