1. This is an application against an order of the District Judge of Darbhanga directing that a deputy mutwalli of a wakf be appointed in the manner indicated in the order. The facts are these. One Sheikh Shukrullah, along with one of his wives Zaibunissa, made a wakf of certain properties for religious and charitable purposes. By the wakf deed he appointed himself to be the mutwalli for his life; on his death his wife, Zaibunissa, if she was alive, then, was to be the mutwalli, and after her, Wajihuddin, a son of his from another wife Habibunissa, was to be the mutwalli. In case Zaibunissa died during the lifetime of Shukrullah, Wajihuddin was to be the mutwalli if a major at the time of Shukrullah's death; but if he (Wajihuddin) be a minor at the time, then till he attained majority, Mt. Bibi Zohra, daughter of Sheikh Shukrullah from Zaibunissa was to be the mutwalli, but on his (Wajihuddin's) attaining majority he was to become the mutwalli and the mutwalliship of Bibi Zohra was to terminate. Wajihuddin was given power to nominate the mutwalli after him from among the male members of the family of Shukrullah, and each successive mutwalli thereafter was given a similar power. This was to continue as long as capable and honest male members of the family of Shukrullah were available. In case of extinction of the male descendants of Shukrullah, female members of his family who would be found capable were to be nominated mutwalli in accordance with the aforesaid arrangement, and the power of nominating successors was given to them also. Wajihuddin died during the lifetime of Shukrullah, who continued to work as mutwalli till his death in December 1929. Thereupon Zaibunissa became the mutwalli. Her right to the mutwalliship was disputed by her co-widow Habibunissa who applied to be the mutwalli, but the District Judge in a proceeding (Miscellaneous Case No. 30 of 1930) overruled the objection of Habibunissa. Zaibunissa continued as mutwalli till her death. It appears that towards the end of the year 1935, one Razid Ali applied to the District Judge of Darbhanga for action under Act 14 of 1920 or Act 42 of 1923 calling upon the mutwalli, Mt. Zaibunissa, to submit accounts. Accounts were submitted on 10th February 1936, and they were being examined when Zaibunissa died on 23rd May 1938. Mt. Zohra, the daughter of Shukrullah and Zaibunissa, appeared in that proceeding and intimated to the Court that her mother was dead, and stated that according to the deed of wakf she had succeeded to the mutwalliship of the wakf and had taken charge of it from the mukhtaram, who had rendered all accounts to her. She asked that her name should be substituted in the proceeding in place of the deceased Mt. Zaibunissa. To this Mt. Habibunissa, widow of Sheikh Shukrullah, objected. Her case was that according to the deed of wakf, Abdul Hai, son of Shukrullah from her, was entitled to be the mutwalli after the death of Zaibunissa, and she prayed that the application of Bibi Zohra be rejected and Abdul Hai who was then a minor be recognized as mutwalli. Having on the death of Shukrullah been appointed guardian of the properties of Abdul Hai, Habibunnissa applied to be appointed guardian of the wakf properties also. By an order dated 18th June 1938, the District Judge held that on a true construction of the wakf deed Abdul Hai was the rightful mutwalli, but that as he was a minor aged only about 12 years some deputy mutwalli should be appointed to act in his place during his minority. He called upon both the parties to convene a meeting of the local public interested in the wakf and to place before him by 30th June the opinion of the majority as to who was the most proper person to be appointed deputy mutwalli. On 30th June Mt. Habibunissa filed a petition stating that the meeting was held and by a resolution she was appointed the deputy mutwalli.

2. In the meantime Mt. Zohra filed the present application for revision in this Court. Further proceedings in the lower Court were stayed by an order of this Court dated 29th June 1938; and by another order dated 29th July 1938 the revision application was admitted for hearing and it was ordered that the District Judge when he appointed a deputy mutwalli should appoint that person to be the receiver of the wakf also so that the interest of the wakf property also might be fully safeguarded. This order was to remain in force pending the hearing of the civil revision application. By an order dated 24th August 1938, the District Judge accordingly appointed Maulvi Halim Raza to be the deputy mutwalli and receiver till the disposal of this revision application.

3. Mr. Hasan Jan who has appeared on behalf of the petitioner, Bibi Zohra, has contended that the District Judge had no jurisdiction in a summary proceeding to appoint a deputy mutwalli and the less so when there was de facto mutwalli in the person of Bibi Zohra to whom the estate was made over by Sheikh Abdul Haq, the mukhtar-am of the late mutwalli Bibi Zaibunissa, under instructions from the latter. As regards the powers of a District Judge in such matters it is beyond question that under the Mahomedan law the Kazi has power to appoint a mutwalli when a vacancy occurs and there is none to take office under the terms of a wakf or when the mutwalliship devolves under the deed of wakf upon a minor. But at present there is no officer with the designation of Kazi and the question is how far a District Judge of a British Court has the powers of a Kazi. The District Judge as presiding in the principal Court of original civil jurisdiction, (or the officer presiding in any other Court empowered in that behalf by the Local Government) has been given power under Section 92 of the CPC, in a suit instituted under the provisions of that Section, to remove a mutwalli and appoint a new one. There is similarly with reference to those wakfs that come under the Religious Endowments Act of 1863, the power of the Civil Court, in a suit instituted with the leave of the Court, to remove the trustee; the Act defines the Civil Court as meaning the principal Court of original civil jurisdiction and any other Court empowered in that behalf by the Provincial Government. It has been held in a number of cases that the provisions of this Act apply not only to those endowments which were in existence at the time the Act was passed and had been taken under control by the Board of Bevenue under Begn. 19 of 1810, but also to later institutions which come within its purview: 4 Pat 741,1 11 Pat 594,2 AIR 1930 All 5773 and 38 CWN 1056.4

4. There is no other statutory provision vesting a District Judge or any other Court with the power of appointing or removing a mutwalli; but there is a number of decisions to the effect that the District Judge as a principal Civil Court of original jurisdiction has by virtue of his power as a Kazi, a general power of appointing mutwallis in a summary proceeding which we must now examine. His powers under Section 92 of the CPC, and Section 14 of the Religious Endowments Act of 1863, (as we have already indicated) can only be exercised in a properly framed suit, and the question before us has arisen not in a suit but on an application to be dealt with summarily. In 37 Cal 870,5 Pugh J. sitting in the Original Side of the Calcutta High Court, held that although a Judge of the High Court exercises the functions of a Kazi when administering Mahomedan law; the procedure to be adopted is to be regulated by the Code of Civil Procedure and the rules and orders of the High Court. This was the view taken by the learned Judge on an application by a mutwalli for the sanction of the Court to sell certain wakf properties. This, if we may say so, would prima facie appear to be the correct position so far as statutory provisions are concerned, but a number of decision point the other way.

5. In 43 Cal 4676 the Calcutta High Court had to consider the general powers of a District Judge as a Kazi in respect of wakfs. The plaintiff had instituted the suit in the Court of a Subordinate Judge for a declaration that she was entitled to be the mutwalli of a certain wakf and for recovery of possession of the property. The Subordinate Judge decreed the suit. On appeal the District Judge dismissed it, and there was a second appeal to the High Court. Mookerjee J. after an examination of a number of decided cases and other texts held that under the Mahomedan law that Qadi alone was competent to exercise authority in respect of wakfs, who was so expressly authorized in his Letters Patent. The balance of opinion of Mahomedan jurists (he found) favoured the view that the Chief Qadi should have authority expressly conferred on him in order to enable him to deal with wakfs. It followed, in his opinion, that a Subordinate Judge who was not expressly authorized by the Government to exercise functions in connexion with the administration of wakfs was not competent to deal with wakf cases. He considered it doubtful whether a District Judge had implied authority to exercise the functions of a Kazi under the Mahomedan law. In respect of wakfs for public purposes of a religious nature within sub-s. (1) of Section 92 of the CPC, the District Judge might, in his view, be assumed to have been authorized to discharge the functions of a Kazi, but (the learned Judge observed) “the real difficulty arises in cases of private wakfs.” In an earlier case, 37 Cal 179,7 the same learned Judge (sitting with Vincent J.) had upheld the approval by a Subordinate Judge of a mortgage of wakf property lying within his jurisdiction as no less effectual than a sanction by a District Judge whose position (as he considered) offered only a more or less far fetched analogy to that of a Kazi.

6. In 3 CWN 1588 it was held that a Court of superior jurisdiction in a district and the High Court in a Presidency town is, generally speaking, vested with the powers of a Kazi under the Mahomedan law. This was followed in 36 Cal 21.9 In 55 Cal 128410 it was held (to quote from the placitum) that:

A mutwalli of a wakf under the Mahomedan law can be appointed by application when it does, not involve the removal of an existing mutwalli.

7. It was also held that a District Judge should exercise the powers of a Kazi in connexion with public religious trusts the administration of which is vested in the. Kazi under the Mahomedan law, and that as such it is his duty to appoint a trustee when there is no one to administer the trust. It was further held that sub-cls. (a) and (b) of cl. (1) of Section 92 of the CPC, are correlative and not disjunctive; that is to-say, the power to appoint a new trustee, given by the Section is dependent on the removal of the old. In other words, it was held that when there is a vacancy and no-mutwalli is otherwise available, the District Judge may appoint one on application, but, that he cannot do so in that way if the conditions of Sec. 92 (a Section which is available for the removal of a trustee de son tort also) are satisfied.

8. In a case recently decided in this Court. 19 PLT 934,11 James J. held that when an office of a mutwalli of a wakf falls vacant, the District Judge is entitled under proper circumstances to make an appointment to fill the vacancy, but he has no general power to remove a mutwalli in miscellaneous proceedings, his powers in this respect being limited. In 4 Pat 741, a case already referred to, it was held that a suit for the removal of the trustee by the donor or his heirs cannot be instituted except under the special jurisdiction conferred by the Eeligious Endowments Act, 1863, or Section 92 of the CPC. In 47 Cal 59212 it was held that Section 92 of the CPC, relates to suits claiming any of the reliefs specified in sub-s. (1) thereof and an application by a mutwalli for sanction to grant a lease is not a suit under sub-s. (1) of Sec. 92; and the following passage from Ameer Ali's Mahomedan Law was quoted and followed:

The application for sanction should be made to the District Judge if the property is situated in the mofussil, 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 mutwalli.

9. The learned Judges further observed that any application made by the mutwalli will, of course, be enquired into by the District Judge before sanctioning a lease as Kazi.

10. This case is also an authority for the proposition that the District Judge by virtue of his office is vested with the general powers of a Kazi under the Mahomedan law, and that these powers can be exercised in cases for which no provision has been made in the statutes. We may now refer to the powers of the District Judge under two recent Acts, Act 14 of 1920 which is of general application, and the Mussalman Wakf Act of 1923 (Act 42 of 1923). Under the former Act, the District Judge may on an Application made to him, direct a trustee to furnish the petitioner through the Court with particulars of a trust property and that the accounts of the trust be audited; on the failure of the trustee to furnish information so required, he is to be deemed guilty of breach of trust so as to attract the provisions of Section 92 of the CPC. But if the party complained against undertakes to institute a suit, the proceeding has to be stayed. Under the second Act, which applied to Mussalman wakfs only, the mutwalli is placed under an obligation to furnish particulars relating to the wakf to the Court (inter alia) of the District Judge; these particulars are to be published, and further particulars may be called for, and periodical accounts are to be submitted to the Court. These two Acts thus place wakfs under the control and supervision of the District Judge within the limits indicated.

11. It may be said on these authorities that there is practically a consensus of opinion that when there is a vacancy in the office of a mutwalli the District Judge in his discretion may nominate a mutwalli, but that he has no power in a summary proceeding to appoint another mutwalli in place of one who is in office. This can only be done in a suit instituted either under the Religious Endowments Act of 1863 or under Section 92 of the CPC. When however two persons each claim to be the mutwalli, the dispute between them is one of a civil nature and must be decided in an ordinary civil suit (see Mulla's Civil Procedure Code, pp. 304-305, Edn. 10, and the cases cited there): the vindication of individual rights is not a matter for decision either under Section 92 of the CPC, or under the provisions of the Religious Endowments Act. Now the appointment of a mutwalli by a District Judge in a summary proceeding is not appealable, and according to the trend of the authorities we have already referred to, such appointment should be made in cases of emergency, and by the very nature of it must be subject to the result of any suit which may be instituted by any of the parties who claim adversely to one another to be the mutwalli, or subject to the result of any suit which may be instituted either under Section 92 of the CPC, or under the provisions of the Religious Endowments Act.

12. The next question is whether the appointment of a deputy mutwalli was within the competence of the learned District Judge in the circumstances of the present case. We have already referred to Mr. Hasan Jan's contention that Bibi Zohra was a de facto mutwalli though she may be no more than a trustee de son tort and that the learned Judge had no jurisdiction in this summary proceeding to interfere with her possession. But was Bibi Zohra in actual charge of the trust properties as mutwalli when the learned District Judge intervened in the matter? Mt. Zaibunissa, the last mutwalli, died on 23rd May 1938, as we have already said, and Zohra applied for substitution of her name in the proceeding started under Act 14 of 1920 and Act 42 of 1923 on 28th May. The interval was one of five days only, too short for a definite supposition that Zohra had taken possession of the wakf estate. There was no doubt an application by Abdul Haq, claiming to have been the mukhtar-am of Mt. Zaibunissa, that in accordance with the instructions of Mt. Zaibunissa deceased, he had made over the estate to Zohra. But Mt. Zaibunissa's power of attorney in favour of Abdul Haq ceased to have any effect on her death, and what he claims to have done under it by way of making the estate over to Zohra was plainly unauthorized. Zaibunissa also had no power to nominate a mutwalli under the wakf deed. In view of all these circumstances we are of opinion that Zohra had not really assumed the office of mutwalli and that there was certainly a vacancy in that office.

13. The learned District Judge, had however no jurisdiction in the proceeding before him to decide that under the wakf deed Abdul Hai was to be the mutwalli on the death of Zaibunissa. Such a decision can only be given in a properly constituted suit. His order further that a deputy mutwalli should be appointed during the minority of Abdul Hai was also wrong. A deputy mutwalli presupposes a mutwalli. Even if Abdul Hai be the rightful mutwalli, the Kazi had power to appoint a mutwalli during Abdul Hai's minority and incapacity to perform the duties of mutwalli. The minority makes it impossible for him to depute anybody else to work as the mutwalli. We hold therefore that the decision of the District Judge that Abdul Hai is the mutwalli and his order that a deputy mutwalli should be appointed are without jurisdiction and must be set aside. The fact however remains that the estate is without a mutwalli. It is true that in the wakf deed it was provided that in case Wajihuddin be a minor at the death of Shukrullah, Zohra was to act as mutwalli during his minority. But Zohra, it appears, repudiated the wakf in Miscellaneous Case No. 23 of 1930 in which Habibunissa had applied to be appointed a mutwalli in preference to Zaibunissa. She has thus forfeited any claim (such as it may have been) to be appointed mutwalli even during the minority of Abdul Hai. We accordingly, while setting aside the order of the learned District Judge, direct that Habibunissa be appointed mutwalli. This appointment will hold good during the minority of Abdul Hai and will be subject to the result of any suit which may be instituted for the regular determination of the question who is entitled to be mutwalli. In case no such suit be instituted, Habibunissa will cease to be mutwalli when Abdul Hai attains majority and will then make over the trust property to him. We make no order about costs.

D.S/R.K

14. Order accordingly.