The Commissioner of Wakfs does not have the jurisdiction to appoint a managing mutwalli under the Bengal Wakf Act, as such an appointment would deprive the other mutwallis of their right to participate in the management of the estate and would go against the directions of the wakif.

LAHIRI, J. :- This is a Rule under Art. 227 of the Constitution of India obtained by some of the mutwallis of a big wakf against an order of the Commissioner of Wakfs West Bengal by which he appointed one of the mutwallis as a "managing mutwalli" to the exclusion of others.

It appears that one Munshi Golam Kader created a wakf of his estate on 4-10-1915 and appointed himself the first Mutwalli. On his death in 1328 B.S. (1921-1922) the mutwalliship devolved upon his three sons Munshi Mohammadul Haque (O. P. No. 1), Munshi Fazle Haque (since deceased) and Maulvi Ziaul Haque (Petitioner No. 1) under the terms of the Wakfnarna. On the death of Munshi Fazle Haque his interest devolved upon his four sons, Sk. Md. Sulaiman (Petr. No. 2), Sk. Md. Abu Syed (Petr. No. 3), Mr. Nurul Islam (Petr. No. 4) and Sk. Md. Alia Rakha (O. P. No. 3). The right of mutwalliship thus came to be exercised by six persons.

It is common ground that on account of personal jealousy and rivalry amongst the six mutwallis they could not pull on together with the result that there was considerable mismanagement of the wakf and a large number of legal proceedings were started in respect of it. On 3-12-48 the Commissioner of Wakfs West Bengal served a notice upon the mutwallis directing them to submit accounts, clear arrears of statutory dues, to clear current and arrear dues of all beneficiaries, to create a reserve fund and to show cause why a committee should not be appointed for the better and efficient management of the wakf estate.

In pursuance of the said notice the O. P. No. 1, Munshi Mammadul Haque, filed a petition on 1-2-49 in which he alleged that the wakf in question, was a wakf al-al-aulad, that there was no provision in the wakfnama for the appointment of a committee and that the Commissioner might, if he thought fit, appoint one of the six joint mutwallis as the managing mutwalli. On 19-10-49 the opposite party No. 1 filed a second petition in which he set out in chronological order the various acts of mismanagement committed by the remaining live mutwallis and pointed out how he had been managing the wakf estate alone in spite of the difficulties created by the obstructive attitude of the other mutwallis.

The Commissioner of Wakfs considered these allegations and by an order dated 11-7-53 appointed Opposite Party No. 1 Munshi Mahammadul Haque as the "managing mutwalli" before taking a drastic action in the matter. Ha thought that such an appointment would be conducive to the best interest of the estate.

2. Against this order of the Wakf Commissioner, four out of the remaining five mutwallis moved this Court under Art. 227 of the Constitution and obtained the present Rule. At the outset we ought to state that there is some controversy between the parties to the present Rule as to whether the wakf in dispute is a wakf proper or a wakf-al-al-aulad. The mutwallis assert that it is a wakf-al-al-aulad whereas the Commissioner of Wakfs denies it. The expressions Wakf and Wakf-al-al-aulad have been defined in S. 6 of the Bengal Wakf Act (Act XIII of 1934). Section 46A of the Act provides that the question whether a particular estate is wakf or wakf-al-al-aulad shall be decided by the Commissioner and his decision shall be final until revoked or modified by a competent Court. In the present case there was no enquiry before the Commissioner of Wakfs on this question and even the Wakfnama is not on the record. In these circumstances we are not in a position to express any opinion on this point. Moreover it is impossible to hazard a conclusion on this important question in a summary proceeding under Art. 227 of the Constitution.

3. The really important question that has been argued in this case is whether the Commissioner of Wakfs acting under the provisions of the Bengal Wakf Act has any jurisdiction to select one of the different joint mutwallis as the "managing mutwalli" of the Wakf.

The learned Advocate-General appearing in support of the Rule has arg