MIA MOHAMMAD YUSUF Vs. MIA MOHAMAD AYUB

JUDGEMENT

(1.) The petitioner is the mutawali of a religious and charitable endowment created by his father. The dedicated property was charged with various annuities to members of the settlor's family indeed to such an extent as to make it possible to argue that the endowment was a private wakf and not a public one. One of the beneficiaries applied to the District Judge of Purnea to call upon the mutawali to produce the wakf accounts in Court, and to remove him from his office of mutawali. The District Judge has found that the wakf in question is a private trust, so that nothing contained in Section 92, Civil P.C. can affect his jurisdiction; and he then directed that the case should proceed, that is to say the examination of the accounts and the enquiry into the question of whether the mutawali be removed.

(2.) Mr. Khurshed Husnain on behalf of the petitioner argues that the District Judge has no jurisdiction to entertain an application of this kind. Mr. Bose on behalf of the opposite party suggests that the District Judge has power to remove the trustee after a miscellaneous enquiry held under Section 74, Trusts Acticle 2 of 1882; but as the Judicial Committee of the Privy Council pointed out in Vidya Varuthy Thirtha V/s. Balusami Ayyar A.I.R.1922. P.C. 123 a mutawali is not a trustee as defined by the Trusts Act, because he is not the legal owner of the property which he manages; and it is for that reason that it was laid down that nothing contained in the Act should affect the rules of Mahomedan law. If Section 74, Trusts Act, has no application, it is difficult to see how the District Judge can have jurisdiction to entertain an application of this nature. If the learned District Judge had found that the wakf was a public wakf then the provisions of Act 42 of 1923 would apply and the mutawali might have been compelled to furnish accounts under that Act.

(3.) It is suggested that the District Judge has some general power as representing the Qazi to supervise institutions of this nature and some support for this view may possibly be found in the decision of the Calcutta High Court in Abdul Alim Abed v Abir Jan Bibi, . In that case the District Judge had on petition made an appointment to the vacant office of mutawali, a course which was approved by the Calcutta High Court; and it may be said that the District Judge, when an office of this kind has fallen vacant, has power in the proper circumstances to make an appointment to fill the vacancy; but he has no general power to remove the mutawali in miscellaneous proceedings, his powers in this respect being limited and defined by Secs.18 and 14, Religious Endowments Act, 1863 and Section 92, Civil P.C. He has no power to remove the mutawali in miscellaneous proceedings such as those with which we are here concerned; nor has he power in such proceedings to require the mutawali of a private endowment to render accounts.