Abdul Khair vs Nazir Hossain - 1960 Supreme(Cal) 56

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1960 Supreme(Cal) 56

HIGH COURT OF CALCUTTA
P. C. MALLICK, J.
Abdul Khair
Versus
Nazir Hossain
Suit Nos. 1444 and 1488 of 1942
Decided On : 29-02-1960

Important Points

The Court does not have the power to scrap an old scheme and substitute it with a new scheme or to remove a Mutwalli on the ground of misconduct, mismanagement, or misappropriation of wakf properties under the liberty to apply clause in a decree embodying a scheme for the administration of a wakf.

Subject

PUBLIC TRUST - SCHEME FRAMED BY COURT

Act Referred

CIVIL PROCEDURE CODE : S.92

Headnote

PUBLIC TRUST - SCHEME FRAMED BY COURT - LIBERTY TO APPLY - REMOVAL OF MUTWALLI - APPOINTMENT OF NEW MUTWALLI - FRAMING OF NEW SCHEME - JURISDICTION OF COURT - PROCEDURE.

Fact of the Case:

A wakf estate was created by three wakf deeds in 1843, 1844, and 1846. In 1944, a scheme was framed by the Court for the management of the wakf properties and the appointment of a Mutwalli. The scheme provided for the appointment of future Mutwallis by the Judge in Chambers and for the removal of the Mutwalli on the ground of unfitness. The scheme also contained a general liberty to apply clause.

Finding of the Court:

The Court held that the suit was not altogether dead after the passing of the final decree and that the Court had the power to give directions and orders to work out the scheme. However, the Court held that the Court did not have the power to scrap the old scheme and substitute it with a new scheme or to remove the Mutwalli on the ground of misconduct, mismanagement, or misappropriation of wakf properties. The Court held that such reliefs could only be obtained by filing a new suit under Section 92 of the Code of Civil Procedure.

Issues: 1. Whether the suit was still pending after the passing of the final decree? 2. Whether the Court had the power to give directions and orders to work out the scheme? 3. Whether the Court had the power to scrap the old scheme and substitute it with a new scheme? 4. Whether the Court had the power to remove the Mutwalli on the ground of misconduct, mismanagement, or misappropriation of wakf properties?

Ratio Decidendi: 1. The Court held that the suit was not altogether dead after the passing of the final decree because the Court had reserved the liberty to apply in the decree. This meant that the parties could apply to the Court for directions and orders to work out the scheme. 2. The Court held that it had the power to give directions and orders to work out the scheme because this was necessary to give effect to the scheme. However, the Court held that it did not have the power to scrap the old scheme and substitute it with a new scheme or to remove the Mutwalli on the ground of misconduct, mismanagement, or misappropriation of wakf properties. 3. The Court held that such reliefs could only be obtained by filing a new suit under Section 92 of the Code of Civil Procedure.

Final Decision: The Court dismissed the application for the removal of the Mutwalli and the framing of a new scheme. The Court held that the parties should be relegated to a suit under Section 92 of the Code of Civil Procedure.

Advocates:
Miss P. Chatterjee, for Applicant; B.C. Dutt, for Plaintiff No. 2; S.A. Masud for Respondent (Khadem Hossain); P.K. Chatterjee (Attorney), for Commr. of Wakfs.

JUDGMENT :- This proceeding relates to a very old wakf. It was created by one Md. Mukim Sarkar by three wakf deeds, the first is of 1843, the second of 1844 and the third of 1846. By these deeds several Calcutta properties and others were made wakf. It is not necessary to give in detail the contents of these wakf deeds. Suffice it to note that it is a public wakf for the benefit of a mosque erected by the wakif and for various objects recognised as religions and charitable by the Mahomedan Law. There has been litigations in the past relating to the wakf estate. One such litigation was started in 1929 being Suit No. 92 of 1929 to set aside a lease granted by the then Mutwalli which was ultimately decreed in 1940 whereby the lease was cancelled. Subsequently two other suits were instituted being Suit No. 1444 of 1942 and Suit No. 1448 of 1944 which were subsequently consolidated and a decree was passed on 31-8-1944, whereby this Court framed a scheme for the management of the wakf properties and generally to carry out the purpose of the wakfs. The scheme provided for the appointment of one S. Kadem Hossain as Mutwalli, the acting Mutwalli Nazir Hossain having retired. The Mutwalli was to get a salary of Rs. 60/- per month but no residence. Future mutwallis were to be appointed by the Judge in Chambers. The Mutwalli was to manage the wakf estate subject to the supervision of two Nazirs. The Nazirs appointed were Moulvi Abdul Khair and Mr. Azizul Islam, Advocate. The scheme provides further :

A system of business management approved by the Nazirs shall be adopted including a provision for the banking of the reserves and drawing against it only by joint signatures of the Mutwalli and one Nazir and also the banking of the receipts.

The Mutwalli is to retain a sum of not more than Rs. 50/- for petty expenses.

There is a note in the Scheme which reads as follows :

The Gariahat land though valuable is not developed and has to be reduced into actual possession by suit in Alipur. The new Mutwalli will be substituted. The cost of the Alipur Suit may be paid out of capital.

The Scheme provides for the payment of costs, of the amount of expenditures to be incurred under various categories, allowances to be paid to the wife and son of the outgoing Mutwalli and a scholarship to one Parok Jha. The last clause in the Scheme reads as follows :

There is a general liberty to apply and all matters arising out of or relating to the scheme and the administration of the wakf will be dealt with by the Judge in Chambers.

2. There are two applications now before me. The first is a summons taken out by Md. Ariff and Yakub Hossain Bham inter alia for removing the present Mutwalli, for appointment of a new Mutwalli and for framing a scheme. This summons is taken out in the two suits of 1942 and 1944 consolidated as aforesaid and in which the decree was passed on 31-8-1944. Mr. B. C. Dutt appears in support of this summons and stated that both the present petitioners were parties to the suits above referred to. Mr. Mahsud opposed the application on behalf of the Mutwalli sought to be removed. The Commissioner of Wakfs has also appeared. The summons was not originally served on him but subsequently served pursuant to my orders. The second is a Notice of Motion taken out by Abu Sayeed Md. Khaliquar Rahman and Abdul Khair Mahomed Mohibur Rahman. They describe themselves as new plaintiffs both suing for selves and on behalf of persons interested in the public wakfs created by the three Indentures above referred to. This Notice also is taken out in the two suits of 1942 and 1944 in which a decree was passed framing a scheme. The reliefs claimed inter alia are for the removal of the existing mutwalli and appointment of new mutwalli, for the framing of a scheme and administration of the wakf. Both the applications, it appears, claim substantially the same reliefs. The allegations made in both the applications are substantially the same. It is alleged that the administrati