ALI MAHOMED ADAMALLI Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by special leave from a judgment of the High Court of Bombay dated 2nd December 1941, by which the appellant was fined Rs. 1000 for contempt under the Contempt of Courts Act (12 of 1926) in failing to obey an order made by the Acting Chief Judge of the Court of Small Causes at Bombay on 4th September 1939. The order had directed the appellant to furnish a statement of particulars of wakf property under S. 3, Mussulman Wakf Act, 1923 (Act 42 of 1923) as amended by the Mussalman Wakf (Bombay Amendment) Act, 1935 (Bombay Act 18 of 1935). Under that section it is provided that every mutawalli shall furnish to the Court within the local limits of whose jurisdiction the property of which he is mutawalli is situated a statement containing certain particulars. By S. 5 every mutawalli is ordered to prepare and furnish to the Court to which such statement was furnished a full and true statement of accounts containing certain prescribed particulars, within three months after the 31 March next following the date on which the statement referred to in S. 3 had been furnished. Section 6A (1) enacts : "Notwithstanding anything contained in S. 3 it shall be competent to the Court on failure of a mutawalli to furnish a statement as required under the said section to require the mutawalli to furnish within such time as the Court shall fix a statement containing all or any of the particulars referred to in the said section."

(2.) Section 6B contains similar provisions on failure of a mutawalli to furnish a statement of accounts under S. 5. Under the provisions of S. 6C of the Act- "(1) The Court may, either of its own motion or upon the application of any person claiming to have an interest in a wakf, hold an inquiry in the prescribed manner at any time to ascertain- (i) Whether a wakf is a wakf to which this Act applies; (ii) Whether any property is the property of such wakf and whether the whole or any substantial portion of the subject-matter of such wakf is situate within the local limits of the jurisdiction of the Court; and (iii) Who is the mutawalli of such wakf. (4) On completion of the inquiry provided for in sub-s. (1) ..., the Court shall record its finding as to the matters mentioned in the said sub-section...." By S. 6F it is provided that : "The entries made by the Court in the register of wakfs and the findings recorded under 8. 6C shall, subject to the provisions of S. 6C, be final for the purposes of this Act ." By S. 6L of the Act : "(1) There shall be constituted in each district a Wakf Committee to advise and assist the Court in all matters relating to the registration, superintendence, administration and control of wakfs." And by S. 6M : "(1) It shall be competent to the Court to refer at any time to the Wakf Committee or any three or more members thereof, for advice, opinion, enquiry, report or recommendation, ... any matter relating to the registration, superintendence, administration and control of wakfs and in particular any matter relating to (a) the conduct of a mutawalli or a trustee in the administration of a wakf or his fitness to continue as a mutawalli or a trustee ; (b) the settlement, cancellation or alteration of a scheme for the administration of a wakf ; or (c) the application of the funds of a wakf or any surplus thereof." By section 10: "Any person who is required by or under S. 3 ... or S. 6A ... to furnish a statement of particulars ... or who is required by S. 5 or S. 6B to furnish a statement of accounts ... shall if he, without reasonable cause, the burden of proving which shall be upon him, fails to furnish such statement ... be punishable with a fine which may extend to five hundred rupees...." The appellant is a member of the Dawoodi Bohra Community and is alleged to be mutawalli of certain property, said to be wakf property. This property is in fact situate within the jurisdiction of the Court of Small Causes at Bombay.

(3.) On 27 September 1938, the appellant was served with a notice, dated 19 January 1938, issuing out of the Court of Small Causes at Bombay, requiring him to appear before the Chief Judge of the said Court to show cause, if any, why he had failed to furnish statements of particulars and accounts under Ss. 3 and 5 of the Act, respectively, in respect of this property. The appellant resisted the, notice on the grounds that the property in question was not wakf property and that he was not its mutawaili. He said that the property had been donated as a gift by his forefathers to His Holiness the Mullaji Saheb in whom it was now vested. The Chief Judge referred the matter to a Sub-Committee of the Wakf Committee for investigation and report and the Sub-Committee reported that : (a) there was no evidence that the Mullaji Saheb was connected with the property; (B) there was conclusive evidence that the property was managed by the appellant on behalf of his firm for the benefit of the Dawoodi Bohra Jamat without any interference or intervention by the Mullaji Saheb ; (c) there was no recorded instance of accounts having been rendered, and balances paid over, to the Mullaji Saheb; (d) the rents received from the property had been credited, and expenses incurred debited, to a special account opened in the books of the appellant's firm; and (e) there was evidence that the property had been used for charitable purposes for twenty or forty years. The conclusion of the Sub-Committee was that the property in question was a wakf property. On the case coming up again in the Court of Small Causes, before another Judge of that Court, the Judge, by his judgment dated 4 September 1939, found himself in entire agreement with the conclusion of the Sub-Committee and ordered the appellant to furnish within thirty days from the date of the judgment a statement of particulars under S. 3 of the Act (in the form in Sch. D of the Wakf Rules) and a statement of accounts under S. 5 of the Act (in the forms in Schs. A and B of these Rules) in respect of the property, in default of which the sanction required by S. 10B (1) would be given for his prosecution for an offence under S. 10 of the Act. The appellant refused to obey this order, and, therefore, in accordance with its terms, sanction for his prosecution was granted on 9 October 1939. At his prosecution in the Court of the Presidency Magistrate, 4 Court, at Girgaum, Bombay, the appellant pleaded "not guilty," and, in a written statement, denied that the Act applied to the property in question, or that he was its "mutawaili" within the meaning of that word as defined in the Act. By his judgment, dated 9 August 1941, the Magistrate found the appellant guilty and convicted him under S. 10 read with S. 6A of the Act for failing to furnish a statement of particulars of the property in question and sentenced him to pay a fine of Rs. 201, or, in default to suffer two months' simple imprisonment. The Magistrate was of opinion that as the findings of the Judge of the Court of Small Causes had been recorded under S. 6C (4) of the Act, the appellant was precluded by S. 6F thereof, from questioning their validity. Against his conviction and sentence, the appellant appealed to the High Court of Judicature at Bombay. His appeal was heard by a Bench consisting of Beaumont C. J. and Wadia J., who set aside the conviction, ordered refund of the fine imposed (if paid) and remanded the case to the Magistrate for re-trial.