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Appeal froth Appellate Decree No. 174 of 1943, decided an 9th November 1949, against decree of Additional District Judge of Zillah Dacca dated 23rd day of July .1942 in Title Appeal No. 97 of 1942 confirming decree of Subordinate judge of the 2nd Court of Dacca dated 20th day of February 1942.
Wakf‑Whether wakif can alter arrangement as to appointment or removal of Mutwalli.
F, by two wakfnamas, made wakf of 2/3 of certain property owned 'by .him: According to the two deeds F made himself Mutwalli during his lifetime, and after his death, W, one of his sons, was to be the Mutwalli. The deeds also empowered. W to nominate his successor and indicated the class of persons from whom W was to nominate his successor. After the death of F, W along with three others (sons and a grandson of F) execut ed a wakfnama by means of which they disposed of the‑ re maining-i‑share of the properties of F left over after the earlier wakfs. and constituted themselves joint Mutwallis in respect of all the properties of F : if one of these joint Mutwallis died his . survivors or survivor were to be the Mutwalli.
Held, that even a Wakif, after he has created a Wakf and made provision for the appointment of Mutwalli has no power, td alter the arrangement and remove the Mutwalli appointed by him, unless he reserves such powers at the time he creates the Wakf. Much less can a successor of the Wakif do the same.
49 C W N 311 referred to.
Wakf‑Whether a Mutwalli transfers his office to another.
A Mutwalli has no power to transfer his office to another person, unless such power is expressly conferred upon by him by the Wakif but he may appoint a deputy to assist him in1 the management of the Wakf property.
37 Cal. 263 referred to.
Birendra Kumar De. for Hemendra Ch. Sets, o Appellants.
Jitendra Nath Guha f or S. P. Ghosh, for Respondents.
Bhupendra Nath Roy Choudhnry, Deputy Registrar.
This appeal on behalf of the defendants Nos. 1 and 4 arises out of a suit for partition of certain ejmali Wakf. properties. The facts may be briefly stated as follows:-- One Fazil Bhuia who was the owner of the properties in suit by two Wakfnamas dated the 26th Sravan 1321 B. S., correspond ins to the 11th August 1914, and the second Sravan 1326 B. S. corresponding to the 18th July 1919, respectively, made Wakf of his 2/3rd interest in certain properties covered by a tenure called Mirash Dsngari Kaibarta. According to these two deeds Fazil Bhuiai made himself Mutwalli duping his life-time, and after his death the plaintiff was to be Mutwalli of the Wakf properties. The deeds also empowered the plaintiff to nominate his successor and also indicated the class of persons from whom the plaintiff was to nominate his successor. Fazil Bhuia died in 127 B. S. corres ponding to 1920, leaving three sons, namely, one Wasil Bhuia, the plaintiff (Miutwalli) who is also; defendant No. 2 (in personal capacity). One Abdus Sobhan Bhuia, defendant No. 1 appellant and one Ishaque Bhuia defendant No. 3 and also one Abdul Ali Bhuia, his grandson by predeceased son. who is defendant No. 4, After the death of Fazil Bhuia all the four defendants and also the. plaintiff executed a Wakfnama date the 20th Kartick, 1328 B. S. corresponding to the 16th November 1921 which is Exh. A, by means of which they amicably disposed of the remaining I/3rd share of the properties of late Fail Bhuia left over after the Wakfnamas of Fazil Bbuia, according to which all the four defendants were to be joint Mutwallis in respect of all the pro perties of Fazil Bhuia, and if one of these. 4 joint Mutwallis died his survivors or his survivor would be the Mutwalli.
The plaintiff's case is that the executants of the deed of 1328 B. S. had never intended to dedicate these properties to God; that they all along treated their shares as their personal property ; that under the Wakfnamas of the plaintiff's father the plaintiff had no power to make defendants Nos. 1, 3 and 4 his co‑Mutwallis and therefore the Wakfnamas of 1328 B. S. was void ; further that because the joint possession of all the properties in suit is incon venient and is a source of trouble among the relations, the plaintiff demanded the partition of the 2/3rd share of the ejmali property of late F azil Bhuia ai' made Wakf of by the late Wakif, Fazil Bhuia by the two Wakfnamas dated 1321 B. S. and 1326 B. S. but as the defendants did pot agree to such a partition the present suit has been filed. The defendant No. 3 did not contest the suit. Defendants Nos. 1 and 4 contested the plaintiffs claim for parti tion and at the trial various issues were raised, one of them being, whether the present suit was maintainable by the plaintiff as sole Mutwalli. Both the Courts below have held that the Wakfnama of 1328 B. S., was not a valid and operative document and that the plaintiff was entitled to institute the present suit as the sole Mutwalli of the Wakf properties. Hence the present second appeal.
Mr. Birendra Kr. De, the learned Advocate for the defendants appellants has argued before us that the Courts below ought to have held that inasmuch as the other defendants are the three co Mutwallis of the plaintiff according to the Wakfnarna of 1328 B. S , the plaintiff alone was not competent to file the present suit for partition. It is true that the plaintiff himself along with the other defendants is a party to the Wakfnama of 1328 B. S. by means of which the number of Mutwallis was amicably increased to four and the parties acted on this Wakfnama for a number of years; but the question is whether the Muhammadan Law allows such alteration of the number and personnel of Mutwallis in violation of the original Wakffnamas of 1328 B. S. and 1326 B. S. made by the Wakif, Fazil Bhuia. It may be that according to Fazil Bhuia's Wakfnamas plaintiff was empowered to nominate his successor; but he was not empowered to appoint co‑ Mutwallis. The nomination of his successor is quite different from appointing co‑Mutwallis. According to the Wakif the‑ plaintiff was the sole Mutwalli and he did not empower the plaintiff to add to the number of Mutwallis; nor did he anywhere in his Wakfnama stated that after his death the plaintiff could appoint three persons as co‑Mutwallis. So this deed of Wakf of 1328 B. S. is clearly contrary to the intention of the Wakif. Apart from this, it is now a settled law that even a Wakif, after he has created a Wakf and made provision for the appointment of Mutwalli has no power to filter the arrangement and remove the Mutwalli appointed by him, unless he reserves such powers at the time he creates the Wakf. Vide the case of Siddiq Ahmed Chaudhlury v. Sayed Ahmed Chaudhury reported in 49 C. W. N. page 311. . So much. less can a successor of the Wakif, in this case, the plaintiff Mutwalli and has heirs, do the same has also been held that a Mutwal4i has no power to transfer another person, unless such power‑'it. Expressly upon by him by the Wakif but he may appoint a deputy to assist him in the management of the Wakf property. Vide case of Khajah Salimullah v. Abdul Khair. M. Mustafv reported in 37 Calcutta, page 263. In the present case the persons appointed by the Wakfnama of 1328 B.S. are not appointed as deputies to assist the plaintiff Mutwalli, but are admittedly appointed co‑Mutwallis which the plaintiff Mutwalli had no right to do according to the Wakfnamas of his father. , The result, therefore, is that this Appeal is dismissed with costs.
The question of the substitution of the eldest son Of late Wasin Bhuya alone instead of all his heirs need not be gone into in this appeal. We, therefore, pass no order on the application in this connection. .
A. R. Appeal dismissed.
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