MOHAMMAD ABDUL GANI FAKIR Vs. MTKULSAN NESSA BIBI

JUDGEMENT

(1.) We have before us an application to set aside abatement in a second appeal and also the appeal itself. The facts out of which the application and the appeal arise, in so far as they are material, may be briefly stated. One Mohammad Golamuddin Fakir made a wakf of his properties. He had more than one wife. Mohammed Abdul Gani Fakir, the present appellant, was a son of the first wife, and one Kader Ali was one of the sons of Golamuddin Fakir's third wife. The wakf deed gave certain annuities to the sons and nephews of Golamuddin. It is said that included in the properties which were covered by the wakf were some properties which really belonged to Golamuddin's brother Majibuddin. After Golamuddin's death, Abdul Gani became the mutwalli in August 1924, Thereafter, there was litigation as a result of which some of the annuitants obtained decrees for arrears of their annuities against the mutwalli. In 1929 a Receiver was appointed in certain execution proceedings which were taken in connexion with those decrees. Then a succession of Receivers followed, of whom Kader Ali was the last. He was appointed in 1936 but was removed from the receivership in the year 1944. Meanwhile, in the year 1940, the present suit was instituted by some of the annuitants for the removal of the present appellant Abdul Gani Fakir from the mutwalliship. The trial Court dismissed the suit, finding that no circumstances had been established which would justify the removal of the mutwalli. The lower appellate Court has set aside that decree and has directed the removal of the appellant from the mutwalliship. The appeal is against the decision of that Court.

(2.) Nuruddin Fakir, one of the plaintiffs-respondents, died during the pendency of the appeal in this Court. It is alleged that the appellant wrote to the advocate who was representing him in this Court regarding the death of Nuruddin and asking the advocate to take the necessary steps for substitution of Nuruddin's heirs. Apparently, no such steps were taken. On 14 July 1943, the Registrar of this Court recorded that the appeal had abated as against Nuruddin's heirs. It is contended that this order was never communicated to the appellant. Unfortunately, the appellant's advocate, Mr. Syed Farhat Ali, died in November 1943, and this Court is, therefore, deprived of his version of the facts relating to any communication which may have been sent to him regarding the death of Nuruddin. On the materials placed before us, we are not satisfied that the death of Nuruddin was in fact communicated to the late Mr. Syed Farhat Ali as suggested. We are further of the opinion that even assuming that the appellant was not guilty of laches in communicating with his advocate, no circumstance has been established which would justify the application of Section 5, Limitation Act, so as to condone the failure of the deceased advocate to take necessary steps in time. The application to set aside abatement as against the heirs of Nuruddin must, therefore, be refused. This does not mean that the appeal as a whole has abated. The cause of action of each of the plaintiffs who are annuitants is a separate cause of action. The appeal must, therefore, be considered in so far as it relates to the parties other than the heirs of Nuruddin.

(3.) Both the Courts below have decided that the learned Subordinate Judge, in whose Court the suit was instituted, was competent to entertain it. Two objections have been overruled both by the trial Court and by the Court of appeal below. In the first instance, the Courts have held, rightly in our opinion, that the suit did not require the consent of the Commissioner of Wakfs, and their finding of law on this point has indeed not been seriously challenged before us. The second objection which both the Courts below repelled was that the Subordinate Judge had no jurisdiction to entertain this suit, because under the Mahomedan law control over matters relating to wakfs was vested in the chief kazi. The argument is that the office of kazi having been abolished, the duties of chief kazi now devolve upon the District Judge, as is sufficiently indicated in Section 92, Civil P. C., which requires suits in respect of trusts created for public purposes of a charitable and religious nature to be brought in the principal civil Court of original jurisdiction or in any other Court empowered in that behalf by the Local Government. It is contended that the learned Subordinate Judge was not the principal civil Court of original jurisdiction, and that he was not specially empowered by the Local Government to deal with wakfs.