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CALCUTTA HIGH COURT
Teunon, J., Newbould, J.
Abdul Foatim Mohamed - Appellant
Versus
Ijjatannessa Khatun & Ors. - Respondent
Decided On : 12-04-1920
Wakf - Validity of Wakf - Indian Trusts Act Sections 73 and 74 - Musalman Wakf Validating Act 1913
Fact of the Case:
The case involves a dispute over the removal of the mutwalli (trustee) of a Wakf and the appointment of a new trustee. The District Judge had made an order removing the previous trustee and appointing a new one, on the ground that the Wakf was not valid.
Finding of the Court:
The High Court held that the Wakf in question was not valid, as it was made in favor of the family of the settler without any ultimate substantial trust for charitable purposes. The High Court set aside the orders of the District Judge, and held that the matter should be investigated in a properly framed suit.
Issues: Whether the Wakf in question was valid, and whether the District Judge's orders removing the previous trustee and appointing a new one could be justified under Sections 73 and 74 of the Indian Trusts Act.
Ratio Decidendi: The Wakf was not valid, as it was made in favor of the family of the settler without any ultimate substantial trust for charitable purposes. The Indian Trusts Act Sections 73 and 74 could not be invoked to justify the District Judge's orders, as the Wakf was created before the enactment of the Musalman Wakf Validating Act of 1913 and was therefore illegal as a trust.
Final Decision: The High Court set aside the orders of the District Judge and held that the matter should be investigated in a properly framed suit.
JUDGMENT
1. This Rule is directed against an order by which on the 27th November 1919 the District Judge of Sylhet made or confirmed an order removing the mutwalli of a certain Wakf and appointing in his place one of the beneficiaries who is the opposite party before us. From the judgment delivered by the District Judge it appears that he was of opinion that the dedication in question was not a valid Wakf or a grant for religious and charitable purposes.
2. It is common ground before us that as a matter of fact this Wakfnama is not a valid Wakf, being one made in favour of the family of descendants of the settler without any ultimate substantial trust for charitable purposes. But the opposite party has endeavoured to support the order that has been made by reference to Sections 73 and 74 of the Indian Trusts Act of 1882. It should be mentioned here that the order of the District Judge was one not made in a suit but one made on a petition, and it is suggested by the opposite party that the discharge of the previous trustee and the appointment of a new trustee can be justified under Sections 73 and 74 of the Indian Trusts Act. This contention, however, overlooks the fact that this Wakf having been created before the enactment of the Musalman Wakf Validating Act of 1913, being invalid as a Wakf, is also illegal as a trust, the creation of a succession of maintenance allowances from generation to generation in favour of unborn persons apart from a scheme of valid Wakf not being recognized by Muhammad an Law.
3. That being so, this Rule must be made absolute and the orders of the District Judge made on the 17th September and 27th November 1919 set aside, The matter in controversy between the parties must obviously be investigated, if investigation be desired by them, in a suit properly framed for the purpose.
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