SYED ABDUL HADI Vs. ABDUL LATIF

JUDGEMENT

(1.) THE applicant has been fined Rs. 5 by the District Judge, Jubbulpore, under Section 10, Mussalman Wakf Act (42 of 1923). Among other things the applicant had pleaded that the wakf was not one which fell within the definition given in Section 2(e) of the Act, and so the Act did not apply. The wakf, it is said, was one to which Section 3, Mussalman Wakf Validating Act of 1913, was applicable. The learned District Judge after examination of the wakf deed itself decided against this contention. It is now urged in revision that the Judge had no jurisdiction to make this enquiry, and once the plea was taken that the Act was inapplicable the parties should have been referred to a regular suit or to proceedings under other Acts such as the Charitable and Religious Trusts Act or the Religious Endowments Act. The applicant relies on Wahid Hasan v. Abdul Rahman (1985) 22 AIR All 254 and All Mohammad v. Collector of Bhagalpur AIR 1927 Pat 189 pat 189. The first case, which is a pronouncement by a single Judge, holds that the Mussalman Wakf Act is applicable only to those cases in which the existence of the wakf is admitted. In the present case, as pointed out by the lower Court, the existence of a wakf is not denied but its nature is disputed. This latest Allahabad decision does not seem to tally with the previous cases, Nasrullah Khan v. Wajid Ali (1930)17 AIR All 81 and Nasrullah v. Wajid All (1932) 19 AIR All 362. and it seems that the latter of these two cases was not brought to the notice of the Judge who decided Wahid Hasan v. Abdul Rahman (1985) 22 AIR All 254. It is true that in these earlier cases the mutawalli had actually filed accounts, and so admitted the existence of a wakf, but the Judges were clear that "the learned Judge may inquire as to whether the wakf is one to which the Act is applicable." In Nasrullah Khan v. Wajid Ali (1930)17 AIR All 81 at p. 168 and again in Nasrullah v. Wajid Ali (1932) 19 AIR All 362 at p. 476 it is said that the Judge felt that he had to decide the question which was left undecided by this Court, namely whether the wakf was a wakf covered by Act 42 of 1923, before passing an order of fine. In my opinion, he was bound to decide this question. His jurisdiction depended on the fact that the wakf was one under Act 42 of 1923; and until he decided that question he could impose no fine under the Act.

(2.) SO again at p. 480: Whether the character of the property as 'wakf and his own position as 'mutwalli' are admitted or are established by evidence if denied, Section 10 is equally applicable if a mutwalli has failed to comply with Section

(3.) IN the case before us the District Judge found it convenient and desirable to deter-mine the matter on the material before him, and he was correct and within his jurisdiction in doing so. The application is dismissed with costs. Counsel's fee Rs. 25.