S MASSIRAT HOSSAIN Vs. HOSSAIN AHMAD CHOUDHURI

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit instituted under Section 92, Civil PC., for removal of defendant 1 from the post of mutwalli, for appointment of a new mutwalli in his place, and for certain other reliefs. The plaintiffs case is based upon the existence of a wakf which was created by a wakfnama dated 6 Aswin 1305, in accordance with the terms of which defendant 1 is the present mutwalli. Plaintiffs case is that defendant 1 has been neglecting to look after the estates and his duties as mutwalli in breach of terms of the wakfnama and committing acts of misappropriation. Their further case is that defendant 1 has come under the evil influence of defendant 2 who has induced him to come to an arrangement by which the wakf properties have been leased to defendant 2 in return for an annual payment of Rs. 1200 which again defendant 1 has been spending for his personal benefit. Various other acts in breach of the trust are complained of. The plain-tiffs who are three in number allege that they are interested in the trust and they bring the suit praying for reliefs which are specified in para. 22 of the plaint. These reliefs are directed both against defendants 1 and 2. Defendant 1 filed a written statement denying the allegations of malfeasance and misfeasance and con. tending that he has observed all the provisions of the wakfnama and further that he has given an Ijara of the properties to defendant 2 as an arrangement which would benefit the wakf estates in accordance with the provisions of the wakf.

(2.) Defendant 2 filed a written statement admitting the aforesaid Ijara and contending that he is not a trustee and as such he is not a necessary party in the suit, bud that he is only a bona fide lessee for consideration and therefore he should be dismissed from the suit. On 24th February 1934 the Subordinate Judge tried first Issue 5 on the point whether defendant 2 is a necessary party. He held that defendant 2 is not a necessary party. On 14 May 1934, the Subordinate Judge took up the case for hearing and in the result he dismissed it on his finding as to Issue 2 which runs thus : "Is the subject matter of the suit public or private wakf? Is it partly public and partly private? Whether the suit is maintainable in this Court?" The Subordinate Judge held that the subject matter of the suit is substantially a private wakf or at least partly public and partly private and that the suit is not maintainable under Section 92, Civil P.C. In that view he dismissed the suit. Hence this appeal by the plaintiffs. The first question raised in this appeal is whether the Subordinate Judge is right in determining Issue 2, namely that the suit is not liable to be brought under Section 92, Civil P.C. The answer to this will depend upon the view that is to be taken of the character of the wakfnama dated 6th Aswin 1305.

(3.) The document recites that the executant Nasibannessa executed a previous Towliatvnama in order to create "a perpetual wakf in the name of Allah for religious, pious and charitable purposes of all the properties" that she got from her husband excepting some which she had kept for her own personal use and that the wakf of 1305 was executed in order to meet cer- tain legal objections. The document repeats that the intention of the donor is to dedicate the properties "for the pleasure of God and in the interest of religion". She appoints herself as the first mutwalli and makes provision for the appointment of future mutwallis. The first charge on She estate is the allowance of the mutwalli and the naib mutwalli. After meeting these charges, it is provided that the net income that will be left over will be devoted to the performance of the duties specified in schedule Kha. This gives a 1 of four items entailing an expenditure of Rs. 353 annually and there is no dispute that these four items relate to public purposes of charitable or religious nature. There is a further provision that Rs. 300 is to be paid to the wakif's spiritual preceptor, with the proviso that, should the family of the latter become extinct, the allowance will be given to the poor or will be spent on any other item of pious acts specified in the wakfnama. After meeting all these expenses, it is provided that certain allowance will be paid to certain persons who are mentioned in schedule "Ga" "as persons who are poor and deserving of charity for their maintenance." At the same time, power is given to the mutwalli to reduce or discontinue these allowances and there is an express provision that the heirs and descendants of the beneficiaries would be debarred from claiming any right to the allowances as a matter of inheritance. Discretion is given to the mutwalli to distribute these amounts to the poor in certain circumstances. A provision is made that the donor herself will, as mutwalli, be entitled to an allowance of Rs. 30 per month and her brother as naib mutwalli to an allowance of Rs. 5 per month. At the same time there is an express provision that excluding the allowances mentioned "nothing more they will be entitled to on any account either as maintenance or any other allowance".