Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Civil Revision No. 80 of 1950 decided on, 3rd May, 1951
, S. 115‑Refusal by Subordinate Judge to substitute petitioner as plaintiff in suit filed by his father‑Failure to exercise jurisdiction vested in Subordinate cludge‑Revision.
The Subordinate judge, on an erroneous interpretation of the Wakfnama, wrongly refused the petitioner to be sub stituted as plaintiff in the suit and in refusing the petitioner the right to prosecute the suit filed by his father, had failed to exercise a jurisdiction vested in him by law.
Revision under section 115 Civil P. C. was, therefore, competent.
Joy Chand Lai Babu v. Kamalaksha Choudhury and others
53CWN562(PC)1DLR46rel.
Nagendra Chandra Choudhury and Tapendra Kumar Pal, for Petitioner.
Syed Modaris Ali and Sabita Ranjan Pal, for Opposite Party No. 1.
Upendra Kumar Roy and Birendra Nath Choudhury, for Opposite Parties Nos. 2 to 5.
---This Rule was issued calling upon the opposite parties to show cause why the order of the learned Subordinate judge, 2nd Court, Sylhet, dated the 26th Novem ber, 1949, should not be set aside and the petitioner should not be substituted in place of the deceased plaintiff in the suit.
The relevant facts are the following :
One Haji Hakim Ulla was the father of the petitioner and opposite party No. 1. He and his brother, Haji Salim Ulla, were joint proprietors of several properties and the latter created a wakf in respect of his 8 annas share in December, 1927. Haji Hakim Ulla also created a wakf by a registered deed on the 27th February, 1930, in respect of his 8 annas share of the properties.
Haji Hakim Ullah, as mutwalli of the wakf created by him filed Title Suit No. 52 of 1949 in the Court of the 2nd Sub ordinate Judge, Sylhet, against opposite parties Nos. 2 to 5 for partition and accounts alleging, inter alia, that he was the mutwalli of the wakf created by him ;that opposite party No. 2 defendant No. 1,. Abdul Hashim, was the present mut walli of the wakf created by Haji Salim Ulla ; that opposite party No. 3 defendant No. 2, Irpan Ulla, son of Haji Salim Ulla, used to manage jointly the two wakf estates and other joint family properties that on his return from Haj, he kept himself aloof from worldly affairs and Irpan Ulla, defendant No. 2, continued to manage the entire properties ; that there were various litigations from 1930 to 1936 regarding properties in suit and the said Irpan Ulla spent large sums of money from the income of the properties and also took large sums of money from him on the plea of meeting expenses of the said litigations.
Haji Hakim Ulla died on the 4th October, 1949, leaving behind him surviving the petitioner, Abdul Rashid, who is his eldest son, Abdul Gani, opposite party No. 1, his second son, and Abdul Motalib, his third son, and two daughters, Sirat Unnessa and Chand Bibi, and widow, Jobeda Bibi, as his legal heirs.
On the 7th November, 1949, the petitioner applied before the learned Subordinate judge to be substituted in place of his deceased father on the ground that under the terms of the registered wakf deed, executed by his father, be became the mutwalli on his father's death the previous mutwalli.
The petitioner's brother, Abdul Gani, opposite party No. 1, also applied to the learned Subordinate judge to be substituted as mutwalli in place of his father on the basis of a towliatnama, which was alleged to have been executed by Haji Hakim Ullah on the 8th May, 1949, by which he was alleged to have modified ,the terms of the wakfnama and changed the line of succession to the mutwalliship in his favour.
On the 12th November, 1949, the petitioner filed objection to the application for substitution filed by Abdul Gani stating that the said towliatnama was a forged document and was void and ineffective and that Haji Hakim Ulla had no right what ever to alter the previous wakfnama which contained no reservation to that effect.
By his order, dated the 26th November, 1949, the learned Subordinate Judge did not accept the contention raised by the petitioner and ordered that Abdul Gani be substituted as plain tiff: in the suit. From that order the present rule has been obtained.
On behalf of the petitioner Mr. N. C. Choudhury has advanced only one argument, namely, that under the terms of the wakf deed, dated the 27th February, 1930, Haji Hakim Ulla did not reserve to himself the right to change the line of succession to the mutwalliship and the learned Subordinate judge in rejecting the contentions raised by him, on an erro neous interpretation of the wakfnama in refusing him the right to prosecute the suit, had failed to exercise a jurisdiction vested in‑him by law. Mr. Modaris Ali; appearing for opposite party No. 1, has urged strongly that although the wakif had not expressly reserved to himself such a right in the wakfnama, on a perusal of the same it is clear beyond any doubt that the wakif had, in fact, reserved to himself such a right to be exer cised at any time, whenever occasion arose, during his lifetime. The question, therefore, resolves itself into finding out froth the terms of the wakifnama whether the wakif had or had not reserved to himself such a right.
This matter came up before the Court once before arid the relevant portion of the wakfnama not having been found to be identical in the copies supplied by the parties, the Court ordered that another certified copy of the same be obtained from the Sub‑Registrar to ascertain which copy was correct. That copy has now been obtained and it tallies with the copy previously supplied by the petitioner. Mr. Modaris Ali has conceded that the word' in dispute is " Athaba " and ‑not "Amora".
The relevant portion is contained in paragraph :3; which when translated is as follows :‑
"So long as I live, I shall remain the mutwalli of the estate. After my death my three sons, Abdul Rashid, Abdul Gani and Abdul Motalib shall each act as a mutwalli, res pectively, for six years by turns. In the event of any one of them becoming unfit for the mutwalliship or if my other two sons think him unfit for the mutwalliship on reasonable grounds for the good of the wakf estate, on his removal from the mutwalliship the next claimant shall be appointed a mutwalli If any of my sons after having accepted the office of the mutwalliship does anything harmful to the estate or fails in its managment and such contingency arises within the lifetime of my other two sons, these other two sons or in absence of any one of the two the surviving one shall be entitled to have the said unfit son removed from the mut walliship on application to the District Judge. In the afore said manner my sons during their lifetime shall continue to act as mutwalli for six years by turns among themselves. On the death of the other two sons the last son shall act as a mutwalli up to the age of 50. After my death no one, aged more than 55 years, shall be entitled to' act as the mutwalli of the wakf estate "
Mr. Choudhury has drawn our attention to the sentence commencing with the words, In the event of" and ending with "shall be appointed a mutivalli" and contends that it is clear that the a Wakif did not reserve to himself the right to change the line of succession to the mutwalliship at any time during his, lifetime. His submission is that in the event of any one of wakif's sons becoming unfit for mutwalliship or if his other sons think him unfit for the mutwalliship, on reasonable grounds for the good of the estate, they and they alone are empowered to remove the mutwalli from office. He has further argued that no question of removal can arise unless and until one of the sons first becomes a mutwalli and then is found to be unfit for various reasons by the other two sons of the wakif. In our opinion, the construction put by Mr. Choudhury must be accepted for no question of removal can ever arise unless and until one of the sons becomes a mutwalli first, and then proves himself to be unfit to hold office. The unfitness mentioned in that sentence twice means unfitness of a physical or mental nature or apostasy or other reasons unconnected with the incompetency (if the mutwalli after he becomes mutwali and the other unfitness refers to the mutwalli's unfitness in the management of the Wakf estate after he takes over the mutwalliship. We are unable to agree with the interpretation put on that sentence by Mr. Modaris Ali and fail to find out where the wakif comes in that sentence. That sentence refers to the removal of the then mutwalli by the other two sons of the wakif and not by the waif for the two kinds of unfitness mentioned therein The learned Subordinate Judge, on an erroneous interpre tation of the wakfnama, wrongly refused the petitioner to be substituted as plaintiff in the suit and in refusing the petitioner the right to prosecute the suit filed by his father, has failed to exercise a jurisdiction vested in him by law. Reference may be made to the case of Joy Chand Lal Babu v. Kamalaksha Choudhury and others 53 C W N 562 (P C)‑1 D L R 46., In that case a Subordinate Court dismissed an application under sections 30 and 36 (a) (ii) of the Bengal Money Lenders Act, 1940 (Act X of 1940), on the view .that the loan in question was a " commercial loan " within the meaning of the Act and the High Court, disagreeing with the lower Court, held that the loan was not a com mercial loan and set aside the aforesaid order: Their Lordships of the. Privy Council held that the High Court had power to interfere in revision under subsection (b)of section 115 of the Code of Civil Procedure, inasmuch as the Subordinate Court invested itself with a jurisdiction which in law it did not possess. Their Lordships held further that although error in a decision of a Subordinate Court does not by itself involve that a Subordinate Court has acted illegally, or with material irregularity so as to justify interference under subsection (c) of section 115, nevertheless, if the erroneous decision results in the Subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under subsection (a) or subsection (b), anal subsection (c) can be ignored.
For the reasons stated above, we must make the Rule absolute and set aside the order of the learned Subordinate judge, dated the 26th November, 1949, and direct that the petitioner Abdul Rashid be substituted as plaintiff in Title Suit No. 52 of 1949, pending in the 2nd Subordinate Judge's Court, Sylhet, in place of the deceased Haji Hakim Ulla.
The petitioner is entitled to his costs in this Court and in the lower Court.
---‑I agree.
A. H. Rule made absolute.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer