A suit for declaration of right to the office of Mutwali and beneficial interest in a wakf estate, where the immovable properties are situate beyond the territorial jurisdiction of the court, is not maintainable.

1. THE plaintiff / appellant challenges in this appeal the original order, dated July 27, 1974, passed by the Learned Judge, 9th bench, City Civil Court at Calcutta in title Suit No. 702 of 1971 whereby the learned judge directed return of the plaint to the filing lawyer on a finding that he had not the territorial jurisdiction to try the suit.

2. PLAINTIFF's case as made in the plaint shortly is that there exists a wakf estate known as Hazrat Molla Ali shah Darga enrolled in the Office of the Commissioner of Wakfs, West Bengal, which is a private wakf or Wakf-al-al-Aulad. The wakf property comprises a mosque and certain immovable properties admittedly situate not within the territorial limits of the City Civil court at Calcutta. The plaintiff claimed that she had 8 as. distinct share in the wakf property and was a co-Mutwali with one Roohul Amin, father of defendants 1 to 3. Roohul Amin by a registered deed surrendered and transferred his beneficial interest in the aforesaid wakf property for valuable consideration in favour of the husband of the plaintiff Mahaboob Alam. Similarly, defendant No. 4 transferred and surrendered his beneficial interest and share in the office of the Mutwali and right to the benefits of offerings and profits of the aforesaid Wakf estate for valuable consideration in favour of mahaboob Alam, husband of the plaintiff. The other two defendants 5 and 6 abandoned their interest in favour of Mahaboob Alam and left for Pakistan. Thus, the plaintiff claimed that she and her husband Mahaboob Alam became the joint Mutwalis and jointly acquired the beneficial interest in the wakf estate as above. Mahaboob Alam being dead and under his nomination the plaintiff alone became the successor-in-interest in the office of Mutwali of the aforesaid estate. But the plaintiff alleged that on an application made by defendant Nos. 1, 2 and 3 the commissioner of Wakfs wrongfully and illegally by an order dated August 18, 1971, recorded the names of the defendants as co-Mutwalis along with the plaintiff. Accordingly, the plaintiff prayed for a declaration that the aforesaid order of the Wakf Commissioner dated August 18, 1971, is malafide, motivated, illegal, biased, malacious and without jurisdiction and not binding on the plaintiff and for a further declaration that the defendant Nos. 1, 2, 3, 4, 5 and 6 have no right, title or interest whatsoever in the aforesaid wakf property. The plaintiff also prayed for a mandatory injunction for expunging the aforesaid illegal order of the Wakf commissioner and for a permanent injunction restraining the defendants from acting upon or in any manner giving effect to the aforesaid order or disturbing the plaintiff in her peaceful possession, enjoyment and management of the wakf estate, as aforesaid, and the properties appertaining thereto.

The defendants on their appearance filed an objection under section 21 of the Civil Procedure Code to the effect that on the reliefs claimed in respect of immovable properties situate beyond the territorial jurisdiction of the court, the suit is not maintainable.

3. ON the objection, as aforesaid, a preliminary issue was raised by the court to the effect "has this court territorial jurisdiction to try the suit?"

4. THE learned judge in the trial court decided the issue against the plaintiff and consequently by the order challenged in this appeal directed the plaint to be returned to the filing lawyer. The learned judge held as such, as according to him, on the plaint the suit was substantially in respect of immovable property situate outside the jurisdiction of the court and the relief which the plaintiff sought in respect of those properties cannot be obtained by mere personal obedience by the defendants to the suit. Hence, this appeal by the plaintiff/appellant.

The learned Advocate General appearing in support of this appeal has strongly assailed the view taken by the learned judge in the trial court. According to the learned advocate Gener