WARES ALI Vs. SHEIKH SHAMSUDDIN ALIAS MUNTAO MIA

JUDGEMENT

(1.) These are appeals preferred by the plaintiffs from the decree and decisions of the Court of the Additional District Judge of Howrah, dated February 29, 1932 a July, 15, 1932. The suit out of which they have arisen was one instituted by six persons as plaintiffs under the provisions of Section 92 of the Civil P. C. with the sanction of the Collector of the District as provided for in Section 93 of the said Code. The prayers in suit were for the removal of amutawalli, for accounts and for other consequential reliefs.

(2.) The wakf in connection with which this suit-was instituted was created by-one Jitan Bibi in 1893. She built a mosque and for defraying the expenses of the mosque and also certain other religious and charitable purposes dedicated all her properties and constituted herself as the first mutawalli. In 1895 she executed a tauliatnamah an which amongst other provisions she laid down a course of succession to the mutawalliship and also directed that on her death two persons--one Sheik Shamsuddin and another Sheikh Monohar Ali would be mutawailis in respect of the wakf. Sheikh Shamsuddin was the son of a foster-son of the lady, and Sheik Monohar AH was the son of a daughter of the lady's husband. So on after the execution of this tauliatnamah the lady died. From the pleadings in the case it would seem that after her death Shamsuddin and Monohar AH acted as mutawailis. In November 1921, Monohar Ali died leaving as his heirs a son and three daughters. The defendant No. 2 is the son: one of the daughters was one Meher Aizoon who was the wife of the plaintiff No. 1 and mother of plaintiffs Nos. 4 and 5 the other two daughters are the defendants Nos. 3 and 4 in this suit. It also appears from the pleadings that -since the death of Monobar Ali, defendants Nos. 2, 3 and 4 with Meher Afzoon, as heirs of Monohar Ali acted with - Shamsuddin as mutawailis and that the plaintiff No. 1 Munshi Abbas AH who happens to be the husband of Meher Afzoon associated himself with them. It is further said in the pleadings that on Meher Afzoon's death the, plaintiff No. 1 stepped into, her place. The aforesaid three plaintiffs together with three other persons, six in all, as I have already stated, instituted the present suit. The other three plaintiffs were plaintiff No. 2 who is the Imam of the mosque, plaintiff No. 3 the Moaszen of the mosque and pi un tiff No. 6 who is a shopkeeper, a member of the Muhammadan public. Defendant No. 1 in the suit is the said Sheikh Shamsuddin.

(3.) Several issues were framed in the suit and those which related to the merits of the case as against the defendant No. 1 were all decided in favour of the plaintiffs by Mr. R.C. Sen-- Additional District Judge of Howrah--by a judgment, dated February 29, 1932. The learned Judge, however, dismissed the suit upon the ground that the first issue which raised the question of validity of the sanction required for a suit under a. 92 of the Code of Civil Procedure had to be decided against the plaintiffs. He held that the sanction that had been accorded to the suit was not enough in view of the decision of the Judicial Committee in the ease of Prem Narain V/s. Ram Gharan . The Public Suits Validation Act of 1932: having been passed, the plaintiffs applied to Mr. S.N. Modak--the successor of Mr. R.C. Sen--to have the suit re-opened for fresh orders. This application was granted and the learned Judge Mr. Modak held that inas much as the suit had to proceed from the stage at which it had been left by his predecessor, all the findings of his pre decessor should be accepted by him as r correct5 and he would only deal with the suit in -so far as new question came to be argued before him. He held that any judgment which he would pass in the suit would have to be regarded as supple mentary to the judgment which had been recorded by his predecessor. He dealt with the suit on this footing and eventually disposed of it by an order which he record ed in these words: It is accordingly ordered that defendants. Nos. 1 and 2 be removed from mutawalliship in respect of the trust property in question, that steps be taken for appointment of one or more trustees, that accounts and enquiries be directed and steps be taken for settling a scheme.