The Commissioner of Wakfs has no jurisdiction to appoint a temporary mutwalli under Section 40 of the Bengal Wakf Act, 1934, where there is no impediment to the appointment of a mutwalli, and the rules framed under the Act cannot grant such power.

( 1 ) THE facts in this case are as follows :

( 2 ) THERE is a Muslim Shrine located at Mirza Bazar in the town of Midnapur, stated to be the 'majar Sharaf or tomb of a Peer or a Muslim Divine of the name of Syed Shah All Abdul Quader alias Syed Shah Morshed All. He and his family are for generations the spiritual preceptors of a Muslim religious order and have numerous disciples in India and Pakistan. Haz-rat Moulana Syed Shah irshad All Al Quadari, since deceased (hereinafter referred to as the 'hazrat Sahib') was a direct descendant of the Peer of Midnapore and was the Sajjadanashin of the said order.

( 3 ) TWO members of this order, Asraf Ali Khan Chaudhuri and Syed Abdus Salik, by two Deeds of Wakfs dated 9-5-1931 and 24-8-1933, respectively, created a wakf of premises No. 23 Khanka Shariff Lane, formerly known as 23 Gardner Lane, for the purpose of upkeep and maintenance of the holy shrine at Midnapur. Hazrat Sahib was to be the first mutwalli of the wakf and on his demise his male descendant who would be the Sajjadanashin of the said order was to be the mutwalli of this wakf. The Hazrat Sahib was also the mutwalli of a masque or Khankha situated at No. 22 Khanka Shariff Lane, but with this we have no direct concern in this application.

( 4 ) THE Hazrat Sahib died on 6-2-1953. The petitioner Syed Shah Mustarshid Al Quadari is his eldest (surviving) son and he claims that according to custom he has become the Sajjadanashin of the sect and that he has been accepted as such by the disciples of Hazrat Sahib. The respondent No. 2 is the second son and he alleges that he has been appointed the Sajjadanashin by a Wasiatnama executed by the deceased. It is not disputed that whoever is the Sajjadanashin, would automatically be the mutwalli of all the wakf properties including premises No. 23 Khanka Shariff Lane. The petitioner applied to the Calcutta Corporation for mutation of his name in respect of the wakf properties. The respondent No. 2 objected thereto, but the Assessor to the Corporation, was not inclined to place reliance upon the Wasiatnama which he found to be undated, un-attested and unregistered and ordered that the name of the petitioner should be substituted in the place of his deceased father. This is the subject-matter of a separate application before me and I need not say anything further about it here.

( 5 ) THE petitioner and respondent no. 2, both applied before the Commissioner of Wakfs for substitution of their respective names as mutwalli. The Commissioner of Wakfs heard the two applications together, upon evidence. There was examination and cross-examination of witnesses. Eventually the Commissioner of Wakfs rightly came to the conclusion that he could not suitably dispose of the matter and that he would not be justified in a summary enquiry to come to a decision on such a serious matter and it would be better if a decision of a competent court of law was obtained first and then an application made to him for necessary action. In his order dated 13-10-1953, he inter alia stated as follows :"coming now to the question as to who should be recorded as the Mutwalli in place and stead of the deceased Mutwalli. The main thing that concerns the Commissioner of Wakfs is the efficient administration of the wakfs pending final decision of the dispute relating to succession to the Sajjadanashin. The family is a highly respectable one, held in veneration by a considerable section of the people over a fairly large locality and it is to be regretted very much if the ruinous conflict be allowed to go on in-spite of the fact that the Murids and Motakids of the House include many prominent citizens of Calcutta and outside. The brothers also should realise the damaging effects of their fratricidal activities on the future of the family and themselves and make up their difference and restore normal conditions. In the meantime I would temporarily appoint under Section 40, Bengal Wakf Act 1934, the third survivin