GERI BIBI Vs. SARASAMED MEER SAHEB

JUDGEMENT

(1.) This was a suit under Section 92, Civil Procedure Code, for framing a scheme for the management of a certain Muhammadan Dargah which is said to have been founded as long ago as 1742 by the then Nawab of Chicacole. The defendants are distant descendants of Jaina Bibi who got possession of the property about 65 years before the institution of the suit. The 2nd defendant is said to be a sister's daughter of Jaina Bibi and the exact relationship of the 1 defendant who is also a lady is somewhat obscure. The written statement of the 2nd defendant sets out that after the death of Jaina Bibi her sister and heir, Kulsam Bibi, succeeded to the management of the Dargah as mutawalli and that on her death Kuleam Bibi appointed the husband of the 2nd. defendant, one Abdul Gaffar Sahib, as her successor in the mutawallsship. See Ex. II. The written statement proceeds to set out that this person is now in possession and management of the Dargah and that he is a necessary party to the suit. Certain issues were framed and the fifth issue runs as follows: Did Kulsam Bibi appoint Mahomed Abdul Gaffar as mutawalli of Dargah and is he in possession of Dargah and its properties.

(2.) The Subordinate Judge before whom the suit originally came held it was unnecessary to decide this and certain other issues as there had been no defects in the management of the Dargah and accordingly dismissed the suit. On appeal the District Judge found that a charitable school had not been maintained in accordance with the terms of the wakf and remanded the suit to the Subordinate Judge for framing a scheme of management under Section 92 and appointing trustees, therefor.

(3.) Now the objection raised in second appeal and this suit was instituted in 1917 or eight years ago is that the mutawalli, the husband of the 2nd defendant is a necessary party and that that has not been considered by either of the Courts. There appears authority for the position, for instance in Vaithilingam V/s. Ramalingam 38 Ind. Cas. l33 : 6 L.W. 9 : (1917) M.W.N 550 and Rama Das V/s. Hanumantha Rao 12 Ind. Cas. 449 : 36 M. 364 : 21 M.L.J. 952 : 10. M.L.T. 356 : (1911) 2 M.W.N. 387, and the reason for those decisions appear to be this that once a scheme is framed, no private individual has any right to question it and, therefore, if a private individual who is prima fade interested in the property in question or its management is not represented or has not a chance of being so, the Court must assume that his rights have been denied him and must interfere in order that he may be made a party. For the respondents-plaintiffs it is attempted to be said that one mutawalli cannot appoint a successor and that, therefore, the husband of the 2nd defendant is in no batter position than a trespasser. That point seems to me to be open to great doubt. It is expressed as an opinion by Mr. Tyabji in his book but, on the other hand, Wilson in's 329 and Ameer Ali, Vol. 1, page 450 says that the last mutawalli has the power of nominating his successor only if the wakf has made no provision regarding the office. We do not know here that the wakf made any such provision. It is extremely unfortunate that this appeal, which has bean pending for so long in consequence of a dismissal for default and subsequent restoration, should have to be Bent down. I do not propose to send it down to the Subordinate Judge but to send it to the District Judge who decreed the framing of a scheme. Notice must be sent to Mahomed Abdul Gaffar Sahib who will be formally made a party and the District Judge will hear what he has to say and if necessary take his evidence and return a finding as to whether on that evidence there is, in his opinion, any necessity to modify the decision at which he has already arrived,