MOHAMMAD BHAI Vs. WAZIRBI W/O. USMANBHAI

JUDGEMENT

(1.) THE parties are related. The applicants are brothers. The non-applicant is the widow of their deceased brother Usmanbhai. Usmanbhai died on 29th October 1941. Before his death he dedicated field No. 11 118, area 12. 24 acres, rental Rs. 31, in mauza Anji, by way of wakf for the benefit of the mosque at Anji. He was the founder and he worked as a mutwalli during his life-time. On 27th August 1943, the applicants filed an application in the Court of the District Judge, Wardha, for the appointment of a mutwalli. They claimed that they should be appointed mutwallis and urged that the non-applicant was not appointed the mutwalli and could not manage the affairs as she was a pardanashin lady. The non-applicant contended that the Court had no power to appoint a mutwalli and that the deceased had left direction at the time of his death that the non-applicant should manage the field for the mosque and the income derived therefrom was to be utilised for the mosque. On the issues framed, the applicants examined three witnesses but the non-applicant did not go into the witness-box. The District Court by the order dated the 8th January 1944 in Miscellaneous Judicial Case No. 36 of 1943, held that the wakf was created by Usmanbhai, that he was the mutwalli of the mosque till his death, and that he had power to appoint a successor but that he had not nominated his successor. The Court dismissed the application on the ground that it had no jurisdiction to make an appointment on an application and that the remedy of applicants was by way of a separate suit under Section 92, of the Civil Procedure Code. It is against this order that the present revision application has been filed.

(2.) THE learned Counsel for the non-applicant raised a preliminary objection as regards the competency of the revision application. The first reason urged by him was that the order of the District Judge was an administrative order and not a judicial one and the second objection was that no revision lies against the exercise of discretion by the District Judge.

(3.) IN that case, however, no appointment was made on an application as on the allegations made in that application the reliefs claimed could only be granted under Section 92, Civil P.S. The lower Court has not followed this decision on the ground that every appointment of mutwalli involves a direction for the administration of the trust and falls within the scope of Section 92. In that case Suhrawardy J., pointed out that the appointment of a mutwalli is not such a direction as is contemplated by Section 92, and, as I agree with his decision, I do not re-state the reasons for coming to that conclusion. In Ambalavana Thambiran v. Vageesam Pillai A.I.R. 1930 Mad. 226 it was held that a District Court had power of appointing a mutwalli on an application without recourse to Section 92, Civil P.C. In Elahi Bukhsh v. Md. Ghauns A.I.R. 1933 Lah. 27 it was stated that a suit under a, 92, Civil P.C., was not absolutely necessary in all cases for appointing a mutwalli. In Bibi Johra v. Bibi Habibunnessa A.I.R. 1940 Pat. 9 the case-law on the subject of the appointment of a mutwalli was reviewed and the propositions stated in the previous paragraphs were affirmed. The same view was taken in Abdul Hasan Khan v. Jafar Husain and as the appointment of a mutwalli was held to involve removal of persons who were working as mutwallis it was held that the remedy was by way of a suit and not by way of an application.