ORDER This application was moved with notice to the Board of Wakfs and the Commissioner of Wakfs. On such notice M. Mitter being assisted by Miss Mukherjee appeared for those Respondents. It should be noted that one Golam Rasul who was not initially impleated as a party Respondent, was added with the leave of the Court as Respondent No. 4 and Mr. Kabir appeared for him. This application was directed against an order dated 25th June 1982, passed by the Commissioner of Wakfs, West Bengal removing the petitioners from their office of mutwaliship, which they claimed to be a permanent one and appointing one Md. Ashraf Ali Respondent No. 3 as temporary mutwalli under S 40 the Bengal Wakf Act, 1934 (hereinafter referred to as the said Act) and thereby rejecting the petitioners application for recording their names in the Register of Wakfs. 2. The petitioners have claimed to he permanent mutwallis of Hafiz Jamaluddin Wakf Estate thereinafter referred to as the said Estate), which was created by Hafiz Jamaluddin, who did in 1886 and on his death. It terms of the Wakf deed, his two sons Hafiz Abdul Rahaman and Hafiz Abdul Aziz became joint mutwallis of the said Estate. Hafiz Abdul Rahaman died in 1892 and the death of Abdul Aziz took place in 1921. None of the said mutawallis, viz. two sons of the Wakf appointed anybody a mutwalli, although in the deed of wakf power was given to surviving joint mutwalli to appoint another joint mutwalli from amongst the descendants of the wakif. 3. It has been stated by the petitioners that after the death of the last joint mutwalli Abdul Aziz, in 1921, Khurshed Ahmed, great grandson of the wakif Hafiz Jamaluddin instituted Suit No. 1686 of 1923 in this Court and in such suit, in 1926, this Court had appointed the said Kurshed Ahmed and Hafiz Sirajuddin, as joint mutwallis of the said Estate. It is needless to point out that both the mutwallis were descendants of the Wakif’s first son Hafiz Abdur Rahaman. One of the joint mutwallis viz. Hafiz Sirajuddin died in 1931 and thereafter, the surviving mutwalli Md. Khurshed Ahmed managed the said estate alone upto 1931 and as he was advancing in age, he considered it to be necessary and convenient for appointing another joint mutwalli and as such, on 1st June 1939, he appointed his brother Md. One of the joint mutwallis viz. Hafiz Sirajuddin died in 1931 and thereafter, the surviving mutwalli Md. Khurshed Ahmed managed the said estate alone upto 1931 and as he was advancing in age, he considered it to be necessary and convenient for appointing another joint mutwalli and as such, on 1st June 1939, he appointed his brother Md. Mazhar, as another joint mutwalli as he had trust and reliance in him. Thereafter, one Golam Rasul, the eldest son of the erstwhile Md. Hafiz Sirajuddin and brother of petitioner No. 3 Md. Khalil, filed an application on 22nd May 1939, before the Commissioner of Wakfs. Respondent No. 1 for appointing him as the other joint mutwalli and contending the under the provisions of the concerned deed, as he was the eldest son of Hafiz Sirajuddun, he was entitled to be appointed as one of the joint mutwallis and that, under the deed in question, Khurshed Ahmad, the existing mutwallis had an obligation to appoint him as one of such mutwallis. 4. To such proceeding by Golam Rasul, Md. Mazhar filed an application on 24th June 1939, before the Commissioner of Waks stating, inter alia, that the existing mutwallis Kurshed Ahmad was pleased to appoint him as joint mutwalli on the date as mentioned above and since then, he was discharging his duties as such joint mutwalli of the said Estate and in any event, the application Golam Rusul could not be appointed as a mutwalli. As such, a prayer was made for recording the name of Md. Mazhar as joint mutwalli in the record of the Commissioner. It was claimed that such appointment in favour of Md. Mazhar was made by Kurshed Ahmad on and from the date as mentioned above in accordance with the law and in term of the discretion of the Wakfnama. It has been stated that the Assistant Commissioner of Wakf by his latter dated 4th September 1939, rejected Golam Rasul’s application on the ground that he was not appointed by the mnutwalli Khurshed Ahmad and as such he could not be considered to be appointed as a mutwalli by the Commissioner. The Commissioner could not also appoint the said Golam Rasual as a temporary mutwalli under S. 40 of the Act, as there was no vacancy in the office of the mutwalli of the said Estate. But, he also rejected the application of Md. The Commissioner could not also appoint the said Golam Rasual as a temporary mutwalli under S. 40 of the Act, as there was no vacancy in the office of the mutwalli of the said Estate. But, he also rejected the application of Md. Mazhar, for recording his name under S. 47 of the said Act as permanent mutwalli, according to the petitioner on the misconceived ground viz, Md. Mazhar, filed his application for mutwalliship i.e. for appointment as mutwalli by the Commissioner of Wakf, but Golam Rasul was a better candidate. That apart, application of Md. Mazhar was rejected on the ground that he and Khurshed were descendents of the wakf’s son Hafiz Abdur Rehman and belong to the same line and not in the line of the second son Hafiz Abdul Aziz. The petitioners have claimed that in making such order, the Commissioner concerned failed to appreciate that Md. Mazhar was rightly and appropriately appointed as a permanent joint mutwalli by the surviving mutwalli Khurshed Ahmad and he was not seeking for his appointment, but he was asking for recording his name in the Wakf Register. It has also been stated by the petitioner that while making the order as aforesaid, the Assistant Commissioner concerned, overlooked that this Court had appointed Kurshid Ahmad and Hafiz Serajuddin, who were descendent of Hafiz Abdur Rehman and was in the same line of descendents of the wakif. 5. The petitioner have claimed that the surviving mutwalli Khurshed Ahmad, in exercise of his power under the wakf deed, appointed Md. Mazhar as joint permanent mutwalli and since he was functioning the managing the said Estate as a rightful permanent mutwalli thereof, non approval of such appointed by the Assistant Commissioner was misconceived, without jurisdiction, ineffective and void ab initio. The apart, the order by the Assistant Commissioner has been claimed to the illegal and wrong, because according to the petitioners, the said Assistant Commissioner, failed to appreciate the correct and relevant law for making any order on the concerned application and he was also not right in holding that under S. 45 of the said Act, it was only the Commissioner who was empowered to maintain the Register of Wakf with the relevant particular about wakf property and names of Mutwalli. It was also claimed, as there was no provision in the said Act, for appointment of any Assistant Commissioner and such designation of Assistant Commissioner does nowhere appear in the said Act. The order as made by the Assistant Commissioner was not only illegal, wrongful and without jurisdiction but the same was not lawful and as such, the refusal to approve to the lawful appointment of Md. Mazhar, as permanent murwalli by Khurshed Ahmad, was improper and without jurisdiction. It was the categorical contentions of the petitioner that such an order by an officer designated as Assistant Commissioner, more particularly when such post was not available under the said Act, was illegal, without jurisdiction and void. 6. It was also the claim and contention of the petitioners that regulating the said Md. Mazhar as removed from his permanent mutwalliship, as a result of such order, was wrong and misconceived and it was claimed further, that one can be removed from his permanent nutwalliship, only by a decree of Civil Court and not by anybody else i.e. neither by any purported Assistant Commissioner or by Commissioner of Wakfs. The petitioner have claimed and contended that as the appointment in question, has not been set aside by a Civil Court, non recording by the Assistant Commissioner of Wakfs, should be set aside and as a result therefore it should be held and observed that Md. Mazhar continued to function as joint mitwalli along with Khurshed Ahmad. It should be noted that the petitioners claimed that Golam Rausal never challenged the concerned appointment before any court. In fact, it has been stated that the case of Golam Rausal was that the mutwalli Khurshed Ahmad had power and jurisdiction to appoint a descendent of the wakif as joint mutwalli but he wrongly appointed his brother Mr. Mazhar and not Golam Rausal, the eldest descendent of the wakif through the son Hafiz Surajuddin. 7. Khurshed Ahmad died in 1971 and before his death, on about 17th February 1971 he applied for recording his name as mutwalli under S. 47 of the said Act inasmuch as he was then the only mutwalli of the said Estate and if his name was not so recorded in the register, there would be inconvenience in filing returns, paying contribution to Wakf fund, realizing rents and in filling suits. It has been stated that inordinate delay was expected and apprehended, and for convenience of management of the said Estate, the said Khurshed Ahmad made an application to the Commissioner of Wakfs for appointing him as the interim mutwalli under S. 40 of the said Act, till the disposal of his application as aforesaid. It was the case of the petitioners that the Commissioner did not record Md. Mazhar and for immediate convenience of administration he did not object to the same as he thought that such appointment under S. 40, was superfluous and would not affect his appointment as permanent mutwalli by Khurshed Ahmad. It has again been reiterated that until and unless such appointment was set aside by the Civil Court or Md. Mazhar would resign from his post, none else had any right to remove him form his permanent mutwalliship. 8. It has also been stated by the petitioners that when Mr. Mazhar was meaning the said Estate as a mutwalli, after the death of the said joint mutwalli Khurshed Ahmad in 1971, the abovementioned Golam Rausal again filed an application on 7th February, 1971, before the Commissioner of Wakfs, for appointing him as mutwalli. The application, the petitioners have claimed to be not maintainable, on the ground that Golam Rausal was not appointed as mutwalli by the surviving mutwalli Mr. Mazhar and the Commissioner of Wakfs had no power to appoint a permanent mutwalli nor he could appoint Golam Rausal as a temporary one under S. 40 of the said Act, as Md. Mazhar was already functioning as mutwalli and there was no vacancy in such office. The petitioner have stated that the Commissioner of Wakfs rejected the application of Golam Rausal and for administrative convenience appointed Mr. Mazhar as mutwalli under S. 40 of the said Act temporarily, till his decision on Mr. Mazhar’s application under S. 47 of the said Act, for recording him in the Register of Wakf as a permanent mutwalli, was not dispose of. The said application of Md. Mazhar which was dated 17th February 1971, has been stated, not to have been disposed of as yet. The petitioner have claimed that such application could not be rejected by the Commissioner concerned, because rejection of the same, would be infructuous without Md. The said application of Md. Mazhar which was dated 17th February 1971, has been stated, not to have been disposed of as yet. The petitioner have claimed that such application could not be rejected by the Commissioner concerned, because rejection of the same, would be infructuous without Md. Mazhar removal from permanent mutwalliship, which the Commissioner had or has no jurisdiction to do and any rejection of such application under S. 47 of the said Act in 1939 by the Assistant Commissioner, was wholly bad and void for the reason as mentioned above. Accordingly, to the petitioners, Md. Mazhar’s application under S. 47 of the said Act, remained undisposed by the Commissioner till his death and as such, he continued to be the mutwalli of the said Estate till his death on 15th December 1981. The petitioner have also stated that the appointment of Mr. Mazhar, under S. 40 of the said Act, in the circumstances of this case merely for convenience of administration and for such appointment by the Commissioner, permanent mutwalliship of Md. Mazhar could not be cancelled or cease. Such permanent mutwalliship, according to the petitioners could only be terminated by Civil Court's decree, or by his resignation or by his death. 9. The petitioners have stated that before his death when Md. Mazhar found himself to be the sole mutwalli of the said wakf and he felt that he was going to die soon, he exercised his power for appointing mutwallis of the said Estate and appointed the petitioners as permanent joint mutwallis of the said Estate. Such appointment is called death-bed appointment and according to the petitioners such appointment was made under paragraph 205 of Mula's Mohammedan Law, which lays down that if the founder and his executor are both dead and there is no provision of the wakfnama for succession to the office, the mutwalli for the lime being may appoint a successor on his death-bed. The said section also lays down that such mutwalli cannot however, do so while he is in health, as distinguished from death illness. Nor if the office goes by hereditary right. It was the specific case of the petitioners that such action was taken by Md. Mazhar, as he was critically ill and was apprehending his death. In fact, it has been stated that three days after such death-bed appointment, the said Md. Mazhar died. Nor if the office goes by hereditary right. It was the specific case of the petitioners that such action was taken by Md. Mazhar, as he was critically ill and was apprehending his death. In fact, it has been stated that three days after such death-bed appointment, the said Md. Mazhar died. The petitioners have contended that such death-bed appointment, as was done in this case, would not also be wrong, because all the circumstances necessary for such death-bed appointment, were there. The petitioners have also stated that although in the deed of wakf, succession of mutwalli has been provided for i.e. succession was to be made effective by appointment of succeeding mutwalli by the existing mutwallis and there was no provision for automatic succession of mutwalli in the deed. As such it was contended by the petitioners, that if the dying mutwalli does not appoint any body either in exercise of his power given under the concerned deed or in exercise of powers to make death-bed appointment, according to the Mohammedan Law, succession in terms of the deed of wakf would also cease and there would be no mutwalli after the death of the existing mutwalli. 10. The petitioners have also stated that after the death of Md. Mazhar Golam Rasul made a third application on or about 24th December 1981, praying for recording him as permanent mutwalli or appointing him as temporary mutwalli under S. 40 of the said Act and similarly, the petitioners also made an application on 19th December 1981, for recording their names as permanent mutwallis appointed by the last surviving permanent mutwalli, Md. Mazhar. The petitioner have also stated that they have already taken possession and management of the said Estate immediately after the death of Md. Mazhar and have been functioning as permanent mutwalli, till the day of moving this application and have stated to have paid the wakf Estate's contributions to the wakf fund it has also been stated that the Commissioner of Wakfs has accepted such payment from them, that apart, it has been claimed that the petitioners have also paid substantial amount on account of Corporation rates and taxes apart from clearing all other dues of the said Estate to the Corporation of Calcutta. They have also stated to have realising rents from the tenants of the said Estate and making necessary expenses for executing the religious and charitable purposes connected with the said Estate. The petitioners have also stated to be regularly paying the salaries to all the employees under the said Estate apart from paying the beneficiaries. 11. The Respondents, through their respective learned Advocates, in short claimed that as Md. Mazhar was not a permanent mutwali and which fact would be established from his conduct in making the application under S. 40 to the said Act, dealing with the power of the Board so also the Commissioner Respondent no. 1, to appoint a mutwalli in the case of any wakf of which there is no mutwalli or where the mutwalli is not available or the mutwalli appointed under any deed or instrument is not a citizen of India or he is in the opinion of the Board, not capable of acting as such or where there appears to the Board to be an impediment to the appointment of a mutwalli, the Board, may appoint for such period as it thinks fit, a person to act as mutwalli, provided that where the mutwalli appointed under any deed or instrument is not a Citizen of India, the Board may appoint his nominee if any, to act as mutwalli, it was appropriately held by the Commissioner Respondent No. 1, that Md. Mazhar was not a permanent mutwalli and he was duly appointed as a temporary one under S. 40 of the said Act. In that view and character of Md. Mazhar, it was also contended, that he was not entitled to make the death-bed appointment under paragraph 205 of Mulla's Mohammedan Law, as according to them, a temporary mutwalli appointed under S. 40 of the said Act would not have such right. Apart from submitting in the line as indicate above Mr. Kabir, who appeared for the Respondent No. 4, who, as mentioned hereinbefore was added with the leave of the Court, stated that the claim of Md. Mazhar, to be the Receiver of the said Estate, which was in fact pleaded, would not also be enough to make the death-bad appointment of the mutwalli, the more so when he was only a temporary mutwalli. 12. Mr. Mazhar, to be the Receiver of the said Estate, which was in fact pleaded, would not also be enough to make the death-bad appointment of the mutwalli, the more so when he was only a temporary mutwalli. 12. Mr. Noni Coomar Chakravorti, appearing for the petitioners, in support of his claim, that a mutwalli cannot be removed or his possession cannot be interfered with without a suit being duly filed referred to the unreported determinations by P.C. Mallick J. dated 20th August 1962 in Matter No. 2 of 1950. (In the matter of Wakf Estate of Rahim Bufsh Ostagar, deceased), where it has been observed that when however a mutwalli is sought to be appointed by removing an existing mutwalli, the proper procedure according to the authorities, is to proceed by way of suit. So also the proper procedure is to proceed by way of suit, when the object is to obtain possession of the wakf estate and nor merely to be appointed as mutwalli. It was also claimed by Me Chakravorti that since the appointment or order under S. 40 of the said Act, was made pending the disposal of application under S. 47 of the said Act, which deals with notification of changes in enrolled wakfs and lays down that (1) in the case of any change in the management of an enrolled wakf due to the death or retirement or removal of the mutwalli, the incoming mutwalli shall forthwith and any other party may, notify the change to the Commissioner and (2) in the case of any other change in any of the particulars mentioned in S. 44, the mutwalli shall within three months from the occurrence of the change, notify such change to the Commissioner, Md. Mazhar could not be treated as a temporary mutwalli and the application, as filed by him, for compliance with the provisions of S. 47 of the said Act, has been misconstrued and such order as made, could not take away the character of Md. Mazhar as a permanent mutwalli and as such, he duly made the death-bed appointment. As mentioned above, the validity of such death-bed appointment has been denied and disputed by the answering Respondents and they have also challenged the power and propriety of Md. Mazhar, in making the appointments, as were done. Mazhar as a permanent mutwalli and as such, he duly made the death-bed appointment. As mentioned above, the validity of such death-bed appointment has been denied and disputed by the answering Respondents and they have also challenged the power and propriety of Md. Mazhar, in making the appointments, as were done. It was also contended by the Respondents that the order in 1939, even if the same was made by an Assistant Commissioner, which nomenclature, was or is not available under the said Act, cannot be challenged at this stage being stale and the more so when, such order was given effect to or acted upon. 13. The application of Md. Mazhar, for appointing him as interim mutwalli under S. 40 of the said Act, till the disposal of his application under S. 47 was dated 17th February 1971 and on the same day be prayed for mutating his name as mutwalli for the said Estate. Those records are disclosed as Annexure “C” to the present petition. 14. On the basis of the pleadings, the point which is required to be determined is, whether an acting mutwalli appointed under S. 40 of the said Act, has the power to nominate his successors? There is no doubt or any dispute that on this application Md. Mazhar was appointed mutwalli under S 40 of the said Act. The said section contemplates temporary mutwalli to be appointed either by the Board or the Commissioner in respect of five specific cases. Unless the five conditions as stipulated in the section are satisfied, the authorities would not be justified and competent to act under S. 40 and the appointment, if made, would be only for a temporary period. It should be noted that such appointment as made under S. 40, would not be subject to an order of a competent Court. It would really be a temporary ad interim arrangement, to carry on the administration of the estate and that too for a temporary period. In this case, admittedly application under S. 41 of the said Act by Md. It would really be a temporary ad interim arrangement, to carry on the administration of the estate and that too for a temporary period. In this case, admittedly application under S. 41 of the said Act by Md. Mazhar has not been disposed of and on the other hand, there has been claims and counter-claims by Golam Rasul, creating an impediment to the acting or working of the office of the mutwalli not only during his tenure but, also against his nominees, and as such, in my view, the power used under S. 40 or under S. 41 of the said Act, appointing the official mutwalli, was not improper, the more so when, the death-bed appointment, as made by Md. Mazhar, has been denied and disputed. The determinations in the case of Commissioner of Wakfs. West Bengal v. Hazarat Syed Shah Mustarshid Ali Al-Quadari & Ors. 59 CWN 436, on the question of scope of S. 40 of the said Act may be looked into at this stage. In that case, it has been observed that where there is no mutwalli and where it appears to the Board that there is an impediment to the appointment of a mutwalli, what steps the Board or the Commissioner should take. It has also been observed that S. 40 of the Bengal Wakf Act provides that "in the case of any wakf of which there is no mutwalli or where there appears to the Board to be an impediment to the appointment of a mutwalli, the Board subject to any order of a competent Court may appoint for such period as it thanks fit a person to act as mutwalli.” The Board of Wakf is concerned not with the mere existence of a rightful mutwalli but with the occupation by him of the office and even where a de jure mutwalli exists but it is not known who is or, although known, he is not forthcoming to take up the duties of the office, there is no mutwalli from the Board's point of view. Where different persons are putting forward claims to the mutwalliship of a wakf, and it cannot be said that the claims of all but one are plainly unfounded or probably not bona fide, there is an impediment to the appointment of a mutwalli for all practical purposes and an impediment within the meaning of S. 40 of the Bengal Wakf Act. In construing the words “impediment to the appointment of a mutwalli”, S. 40 of the Act is considering the situation from the point of view of the Board and the impediment which it contemplates is primarily an impediment which the Board finds and feels not to the possibility of making any appointment of all, but to an immediate appointment being made by the competent authority. It has further been observed that S. 40 of the Bengal Wakf Act uses the expression "or where there appears to the Board to he an impediment to the appointment of mutwalli’. Although the statue may leave a matter to the opinion or a satisfaction of a particular authority. Courts of law are always entitled to see whether such authority has proceeded on proper considerations or considerations wholly foreign to the subject-matter of the provision and when the power to appoint a temporary mutwalli under S. 40 of the Bengal Wakf Act is delegated in general terms, the whole of the power, including the preliminary function of forming an opinion is delegated. The function of the Board in this respect is a composite function, but the part concerned with the formation of an opinion and the part concerned With the making of an actual appointment are not so mutually exclusive one being a duty and the other being a power, that unless the words of delegation mention formation of an opinion specifically or at least include the word "duty", the first part of the functions cannot pass to the delegatee. It has also been observed that in construing an Act, it must always be borne in mind what its object is and expression occurring in it must be given a meaning which aids the attainment of that object rather than its frustration, unless it is wholly impossible to do so. It has also been observed that in construing an Act, it must always be borne in mind what its object is and expression occurring in it must be given a meaning which aids the attainment of that object rather than its frustration, unless it is wholly impossible to do so. Apart from holding that words of wide content may require to be construed in a limited sense and so many words of a general significance have to be read as carrying only a particular meaning. 15. On consideration of the provisions of paragraph 205 of the Mulla's Mohammedan Law, in agreement with this submissions of the learned Advocate for the Respondents, I hold that Md. Mazhar, being himself a mutwalli appointed under S. 40 of the said Act, had no power to appoint and nominate the petitioners as mutwallis under paragraph 205 of Mohomden Law as such power should be with a permanent mutwalli. 16. In view of the above, I must hold that the submissions of Mr. Chakravorti should fail and as such this application should be rejected and I direct accordingly. There will be no order as to costs. 17. I also keep it on record that the unreported judgment as cited at the Bar, will have no application in the facts of this case. In fact, that determination would have some relevance if Md. Mazhar was a permanent mutwalli and the nomination of the petitioners was duly made by him as such. Application rejected without cost.