Sk Abdul Latiff v. Commissioner of Wakfs — 1980 DIGILAW 76 (CAL)

ORDER One Sk. Panchkari of village Kaltikuri, Police Station Bhatar, District Burdwan possessed considerable properties. He had by his first wife two daughters, named Raushan Ara Bibi and Masuda Bibi. Both of them were married and with their respective husbands they lived in the household of Sk. Panchkari. On 10th Falgun, 1332 B.S. Sk. Panchkari executed a registered deed creating a wakf of his properties mentioned therein. The said wakf had been enrolled and entered as Wakf-al-al-aulad in Register of Wakfs maintained in the office of the Commissioner of Wakfs, West Bengal. The said wakif appointed himself as the first mutwalli and also gave directions regarding devolution of the said office after his death. The wakif by the said deed directed........ The wakif in several other parts of the wakfnama directed for defraying expenses of. 2. Sk. Panchkari had married second time and the petitioner Sk. Abdul Latif is a son of Sk. Panchkari by his second wife. He was born after the execution of the aforesaid wakfnama by Sk Panchkari. Sk Abdul Gafur, the husband of Masuda Bibi died. Raushan Ara Bibi, the second daughter of Sk. Panchkari also died leaving her husband Ambia Mirza. Subsequently, Masuda Bibi bad second time married the said Ambia Mirza. In the year 1940 sk. Panchkari died. Ambia Mirza acted as the next mutawalli of the said wakf, estate till the death in Shraban, 1362 B.S. 3. After Ambia Mirza's death Masuda Bibi, who was a daughter of Sk. Panchkari and also the Ambia Mirza's widow, had applied for recording her name as the mutawalli in the register maintained in the office of the Commissioner of Wakfs The petitioner, Sk. Abdul Latif, also applied for recording his name as a mutawalli. After hearing the parties the Commissioner of Wakfs by his order dated 3rd January, 1956 had entered the name of the petitioner as mutawalli in the place of deceased Ambia Mirza. The claim of Masuda Bibi was rejected. 4. Thereupon Masuda Bibi had filed Title Suit No. 13 of 1956 in the Third Court of Munsif at Burdwan against the petitioner and others, infer alia, for declaration that she was the mutawalli of the wakf estate of Sk. Panchkari, for setting aside the aforesaid order dated 9th January, 1976 of the Commissioner of Wakfs, etc. The trial Court dismissed said suit. The learned Additional Subordinate Judge, Burdwan dismissed Masuda Bibi’s appeal. Panchkari, for setting aside the aforesaid order dated 9th January, 1976 of the Commissioner of Wakfs, etc. The trial Court dismissed said suit. The learned Additional Subordinate Judge, Burdwan dismissed Masuda Bibi’s appeal. Thereupon, Masuda Bibi had preferred S.A. No. 1451 of 1960 in this Court. On 23rd May, 1969 I had dismissed the said appeal with the observation that the appointment of Sk. Abdul Latif should be deemed to have been made under S 40 of the Bengal Wakf Act. Sk. Abdul Latif has continued to act as the mutawalli of the wakf estate of Sk. Panchkari. 5. The Commissioner of Wakfs by his order dated 6th November, 1977 had removed the petitioner and had appointed Masuda Bibi as a mutwalli of the wakf estate for a period of six months. The petitioner, being aggrieved by the said order, had obtained Civil Rule No. 178(W) of 1977. On 13th May, 1977 the said Rule was made absolute and the order dated 6th January, 1977 was quashed and the Commissioner was directed to pass afresh orders in accordance with law. On 4th October, 1977 the Commissioner of Wakfs rejected the prayer of Masuda Bibi and maintained the petitioner as the mutawalli of the wakf estate of Sk. Panchkari. 6. Thereafter, the Commissioner of Wakfs had served a notice upon the petitioner proposing to review his order dated 4th October, 1977. The petitioner has obtained Civil Rule No. 2876(W) of 1978 against the said proceeding. According to the petitioner, the Commissioner had dropped the proceedings and, therefore, he did not press the said Rule. 7. On 22nd February, 1979, Masuda Bibi filed an application before the Commissioner of Wakfs, West Bengal, inter alia, stating that she as the daughter of Sk. Panchkari was entitled to receive maintenance in terms of the wakfnama executed by her father but since 9th of January, 1956 the petitioner, who was acting as the mutwalli, did not pay anything to her. She claimed that since 9th of February, 1956 she was entitled to receive Rs. 6000/- per annum and the total amount of arrear maintenance payable to her would be Rs. 126000/-. She alleged that the mutwalli was guilty of breaches of trust and misfeascence and prayed that the mutwalli, Sk. Abdul Latif be directed to immediately pay her Rs. 126000/-. 8. 6000/- per annum and the total amount of arrear maintenance payable to her would be Rs. 126000/-. She alleged that the mutwalli was guilty of breaches of trust and misfeascence and prayed that the mutwalli, Sk. Abdul Latif be directed to immediately pay her Rs. 126000/-. 8. The Commissioner of Wakfs by his order dated 22nd February, 1979 enclosed a copy of the said petition of Masuda Bibi and directed the petitioner to make payment of her dues with intimation to his office. The petitioner obtained Civil Rule No. 5302(W) of 1979 challenging the notices issued by the Commissioner of Wakfs by which the petitioner had been ordered to pay the aforesaid amount as maintenance to Masuda Bibi. On 11th September, 1979 I had disposed of the said Rule and had quashed the letters of the Commissioner of Wakfs dated 22nd February, 1979 and 9th May, 1979 and directed the Commissioner to bear the matter afresh and to dispose of Masuda Bibi's application for payment of maintenance to her. 9. After hearing the parties, the Commissioner of Wakfs by his order dated 26th October, 1979 found that Masuda Bibi was a beneficiary in terms of the wakf deed of Sk. Panchkari. The Commissioner, however, accepted the contention of the learned advocate who had appeared for the mutwalli that the other descendants of the wakif were also entitled to beneficiary allowance which was also conceded by the learned advocate appearing on behalf of Masuda Bibi. The Commissioner of Wakf directed to submit the names of all such beneficiaries and their probable share of allowances which they should get. The mutawalli was also directed to submit the full accounts of income and statutory dues of the wakf estate at an early date. 10. The petitioner has filed the present writ application challenging the aforesaid order of the Commissioner of Wakfs dated 26th October, 1979. I have heard this application with notice to the respondent No. 2. Pursuant to the directions issued by this Court, the Commissioner of Wakfs. West Bengal produced the records of the case. 11. The short point in this case is whether or not the Commissioner of Wakfs had committed any error of jurisdiction in holding that the respondent No. 2 Masuda Bibi was a beneficiary in terms of the wokfnama executed by her father, Sk. West Bengal produced the records of the case. 11. The short point in this case is whether or not the Commissioner of Wakfs had committed any error of jurisdiction in holding that the respondent No. 2 Masuda Bibi was a beneficiary in terms of the wokfnama executed by her father, Sk. Panchkari and that she and other descendants of the wakif were entitled to receive beneficiary allowances. The functions of the Commissioner under S. 27 of the Bengal Wakf Act, 1934 include : (a) investigating the nature and extent of wakfs and wakf property etc, (b) ensuring that the income and other properties of the wakfs are applied to the object and for the purpose and for the benefit of any class of persons for which such wakfs are created or intended, (c) giving directions for proper administration of wakfs, (d) keeping particulars and all otter information relating to every wakf, and (e) generally during all such acts as may be necessary for due control, maintenance and administration of wakfs. In my view, these powers of the Commissioner are wide enough to empower the Commissioner to give direction to the mutawalli of the aforesaid wakf estate to properly administer wakf and to apply the income and property of the wakf for the purpose and benefit of the persons for whom Sk. Panchkari had created the aforesaid wakf. 12. The aforesaid wakf estate has been enrolled with the description that it is a Wakf-al-al-Aulad which under S 6(11) of the Bengal Wakf Act means a wakf under which not less than 75 per cent of the net available income is for the time being payable to the wakif for himself or any members of his family or descendants. 13. Mr. Bagchi, learned advocate for the petitioner, submitted that Sk. Panchkari by the aforesaid wakf, inter alia, provided for maintenance of his. According to Mr. Bagchi, married daughters of a Mahomedan can not be considered members of his family. Mr. Bagchi further submitted that Sk. Panchkari in his wakfnama had recited that the wakif had already by separate deeds gifted his oher properties in favour of his two sons-in-laws. Therefore, Masuda Bibi, the respondent No. 2 who was no longer living as a member either of the wakif's family or as a member of the family of the present mutawalli was not entitled to receive any maintenance out of the wakf estate. Therefore, Masuda Bibi, the respondent No. 2 who was no longer living as a member either of the wakif's family or as a member of the family of the present mutawalli was not entitled to receive any maintenance out of the wakf estate. Mr. Bagchi in this connection had relied upon the decisions of the Allahabad High Court in Shukrulla & ors. v. Mr. Zuhra Bibi & ors, AIR 1932 All 512 and Abdul Rashid v. Sirojuddin & ors. AIR 1933 All 206 and of the Madras High Court in S.K. Sahul Hamid & anr. v. S.M. Sulthan & ors. AIR 1947 Mad. 287. These decisions, inter alia, lay down that the Mahomedan Law does not recognise a system like Hindu Joint Family and principles on which Hindu joint family system is founded can not be applied to the determination of question relating to devolution of properties among Mahomedans. Mahomedan Law does not recognise a joint family as a legal entity. According to Shukrulla's case (supra), in a so-called Muslim joint family there may be many males and females who have no interest in the joint property and on the other hand, there may be many who have an interest in the joint property but are no part of the family, e.g. married daughters of a deceased male co-owner. In my view, these decisions relating to so-called Muslim joint family and joint property are not at all relevant for deciding whether or not a daughter of the wakif should be considered as a member of his family or his descendant for receiving maintenance out of a Wakf-al-al-Aulad. Such maintenance would be payable according to the intentions of the wakif provided the same is lawful and in other respects in accordance with the provisions of Mussalman Law, 14. The Mussalman Wakf Validating Act, 1913 had declared the right of Mussalmans to make settlements of property by way of wakf in favour of their family, children and descendants. The S. 3 of the Mussalman Wakf Validating Act, 1913 had provided that it shall be lawful for any person professing Mahomedan faith to create a wakf which in all other respects is in accordance with the provisions of Mohomedan Law for the following among other purposes : (d) for maintenance and support wholly are partially of his family, (b) **** 15. In Tayebji's Muslim Law, 4th Edition at page 551-52 a large number of reported decisions have been mentioned in the footnote (10). According to these decisions, the word "family" has been used in this broad sense so as to include all relatives more or less dependant on the settlor. According to the said note, the fact that the rules for the distribution of income under the wakf are contrary to the rules of inheritance does not make the wakf invalid. Mulla in his Principles of Mahomedan Law, 18th Edition in Note (1) at pages 217-18 has referred to the decisions which hold that the word "family" in S. 3(a) has to be given a wide and not a restricted meaning and a person may belong to a family either if he is from a common progenitor or if he is living under the same roof and is being supported and maintained by the settlor. In this connection, it would be sufficient to refer to the Division Bench decision of the Allahabad High Court in Abdul Qavi Khan v. God Almighty through Asaf Ali Khan & ors. AIR 1962 All. 364, which considered a number of reported decisions. According to the case of Abdul Qavi Khan (supra) at page 370 a very wide interpretation has continued to be given by all the High Courts to the word "family". 16. In the above view, there was no legal impediment in the way of Sk. Panchkari in dedicating his properties for himself and the members of his family and descendants including his married daughters Masuda Bibi, respondent No. 2, was under no legal disability to be considered as a member of her father's family. The next question is whether the directions in the wakfnama for maintenance of wakif's included Masuda Bibi, the respondent No. 2. In other words, whether Masuda Bibi should be considered as a member of the said family for the purpose of being maintained out of the wakf properties. 17. Therefore, I may now take up the question whether the Commissioner of Wakfs by his impugned order had committed any error apparent on the face of the record in the matter of interpreting of the aforesaid wakfnama. Sitting in writ jurisdiction, I am not prepared to adjudicate the conflicting rights and claims of the descendants of Sk. 17. Therefore, I may now take up the question whether the Commissioner of Wakfs by his impugned order had committed any error apparent on the face of the record in the matter of interpreting of the aforesaid wakfnama. Sitting in writ jurisdiction, I am not prepared to adjudicate the conflicting rights and claims of the descendants of Sk. Panchkari to receive maintenance out of the properties dedicated by Sk Panchkari for wakf. The Commissioner by his impugned order correctly posed whether Masuda Bibi was a beneficiary or not hinged upon the interpretation of the word. According to the Commissioner, these words literally mean members of a family sharing a common kitchen. The Commissioner also recorded that the learned advocate for the present petitioner did not challenge the statement that Masuda Bibi had been get ling maintenance allowance during his life time of the wakf in spite of having a separate mess of her own. The Commissioner held that in case the word 'common kitchen" was held to include only those descendants of the wakif who share his common kitchen were beneficiaries as per wakf deed, the said provision had already been violated by usage. On the other hand, if the word "common kitchen" are held to mean the kitchen of the mutallis then the position would be absurd under certain circumstances. After giving other reasons the Commissioner concluded that the words in the deed of wakf had been used in a very loose sense to include all descendants of the wakif. The above interpretation of the wakfnama is not palpably absurd and arbitrary. The terms of the wakfnama which embody the intentions and wishes of the wakif may be more fully and satisfactorily determined in a properly constituted judicial proceeding. But, I am not prepared to say that the Commissioner had committed any error apparent on the face of the record warranting interference under the writ jurisdiction. It was open to the Commissioner to interpret the wakfnama consistent with the wishes and intention of the wakif as expressed in the Wakfnama. The Commissioner also did not commit any error of jurisdiction by declining to strictly interpret the expression which might have the effect of excluding the direct descendants of the wakif who belonged to the wakif's family within the meaning of S. 3 of the Mussalman Wakf Validating Act. The Commissioner also did not commit any error of jurisdiction by declining to strictly interpret the expression which might have the effect of excluding the direct descendants of the wakif who belonged to the wakif's family within the meaning of S. 3 of the Mussalman Wakf Validating Act. Therefore the Commissioner did not commit any error apparent on the face of the record when he rejected the contention made on behalf of present petitioner that only the persons living in the same mess with the mutwalli for the time being of the Wakf estate were entitled to receive maintenance under the Wakf deed. Same, if accepted, would mean that the Wakf had delegated the .properties not for the maintenance and support of his own family but for the maintenance and support of the family of the mutwalli for the time being. It may be noted that according to the terms of the wakfnama executed by Sk. Panchkari ordinarily the eldest among his family, if otherwise, eligible would be mutawalli. But, in case competent persons are not available from the wakif's family or such a mutwalli commits breach of his duties, and he is removed, then a mutawalli may be appointed from among the villagers. Therefore, when a stranger could be appointed in the above circumstances as the mutwalli, the Commissioner was entitled to reject the contention that only the persons living in same mess with the mutawalli were eligible to receive maintenance out of the wakf properties. 18. For the foregoing reasons, I am not inclined to interfere with the order of the Commissioner of wakf impugned in the writ petition. The Commissioner would be at liberty to determine who are the beneficiaries under the aforesaid wakf deed and the shares of the allowance payable to them. I, accordingly dismiss this application without any order as to costs. Application dismissed.