Fakrrunnessa Begum v. District Judge Of The 24-Pergunnahs

The Judgment of the Court was, as follows:—

The Petitioner before us is the mutwali of a Mahomedan endowment and he applied to the District Judge for sanction to grant a lease of a piece of land comprised in the endowment. The learned District Judge disallowed the application, on the ground that it was necessary for the mutwali to bring a suit under sec. 92 of the Civil Procedure Code with the consent of the Advocate-General.

We do not think it is necessary for the mutwali to institute a suit under sec. 92 of the Code. Under the Mahomedan law, a trustee is not entitled to let out immoveable property for more than one year, or three years in certain cases, without the sanction of the Kazi. The powers of the Kazi are ordinarily exercised by the District Judge in the Mafassil and the sanction given by the District Judge on an application by the mutwali may be sufficient authority for the mutwali for letting out the property. The learned District Judge was of opinion that it was necessary to bring a suit under sec. 92, C.P.C, in a case like this, because sub-sec. 2 of that section provides that “Save as provided by the Religious Endowments Act, 1863, no suit claiming any of the reliefs specified in sub-sec. (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.”

That evidently relates to a suit claiming any of the reliefs specified in sub-sec. (1). But the present application for sanction is not a suit under sub-sec. 1 of sec. 92. We may refer to a passage in Ameer Ali's Mahomedan Law, 4th Edn., p. 480, where the learned author says, “The application for sanction should be made to the District Judge if the property is situated in the Mafassil, or to the Judge on the Original Side of the High Court if it is within a Presidency town. It is not necessary to bring a suit for obtaining such sanction; it will be granted upon a proper application being made by the mutwali. If there are nazirs, their consent should be obtained as a condition precedent to the application. If the wakf is of a public nature, notice should be given to the beneficiaries in any mode the Judge directs either by advertisement in newspapers or by posting it up at the institution to which the wakf property belongs.”

Any application made by the mutwali will of course be inquired into by the District Judge before sanctioning a lease as Kazi and the manner in which the inquiry may be made is indicated above.

We are accordingly of opinion that the order of the Court below must be set aside and the case sent back to the learned District Judge in order that he may inquire into the merits of the application and dispose of it according to law.

Let the record be sent down without delay.

S.C.C