At, High Court of Judicature at Calcutta
By, THE HONORABLE JUSTICE:
1. The four plaintiffs who are the appellants in this Court sued as mutawallis to recover a parcel of land in the possession of the defendants on the ground that it appertains to a wakf. The defendants denied that they were mutawallis, set up one Abdur Rahaman as the sole mutawalli and denied the right of the plaintiffs to maintain the suit. They also stated that the land is not a part of the wakf estate at all, but their own property. Both the Courts below have found the property in suit to be part of the wakf estate, but the Courts below have differed on the question as to the right of the plaintiffs to maintain
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the suit. It has been found by the lower appellate Court that at one time four brothers, Sanitulla, Nayeam, Jafar and Hamid were mutawallis. Abdur Bahaman who is the grandson of Jafar has been found to be a de facto mutawalli along with the plaintiffs and defendant 4. He has not been made a party to the suit. The contesting defendants' case that Abdur Bahaman is the sole mutawalli has not been accepted by the lower appellate Court. The plaintiffs and defendant 4 have been found to be the sons of Majam and Fazley Huq respectively. It has also been found that Majan and Fazley Huq were the daughter's sons of Hamid. Nayeam and Hamid's son sold their rights as mutawallis to the father of the plaintiffs and of defendant 4 by two deeds dated 1296 and 1287 B.S. respectively.
2. The lower appellate Court has found that the said deeds did not make the transferees mutawallis in law. In my judgment a correct view of the law has been taken by the lower appellate Court in this respect. In the absence of any provision in the wakfnama the office of a mutawalli is neither heritable nor transferable. A mutawalli has only power to nominate his successor in death bed, but he has no right to appoint his successor in his own life time and in health and withdraw from the management of the wakf or transfer or assign his office during his life time and while in good health unless his powers are "general" or as the authorities put it, "unless the consignment was made to him in a general manner." That is to say, such appointment or transfer is valid only when the appointing mutawalli or the mutawalli who is transferring his office had been given at the time of his appointment either by the wakf or the kazi the power of transferring the trust to another and substituting that other in his own place by a sanadi-wakf or wasiat, should necessity arise for it. Salimulla v. Abdul Khair M. mustafa (1909) 37 Cal 263. The lower appellate Court has held that the plaintiffs, defendant 4 and Abdur Bahaman are de facto mutawallis and the suit is not maintainable as Abdur Bahaman has not joined as co-plaintiff nor has been made a defendant on the allegation that he had refused to join as co-plaintiff.
3. The learned Advocate for the appellants has raised two points. He says that (1) one of several mutawallis can maintain a suit for possession of wakf property found to be in the possession of a trespasser and (2) the plaintiffs can at least maintain the suit as persons interested in the wakf. The learned advocate for the respondents has raised a further point, namely the plaintiffs cannot maintain the suit, there being no finding that they have been managing the wakf to the exclusion of the rightful mutawallis for the period which would bar their suit for recovery of the office. Although in the view I am taking of the first point urged by the appellants, it is not necessary for me to decide this further point raised by the advocate for the respondents, I am inclined to hold that it is not a good point. The cases reported in Jagannath Dass v. Birbhadra Dass (1892) 19 Cal 776 and Devendra Nath v. Safatulla 1927 Cal 130 no doubt support him, but in my judgment the authority of these decisions has been considerably shaken by the judgments of the Judicial Committee in Ram Charan Dass v. Naurangi Lall 1933 PC 75 and Mahadeo Prasad Singh v. Karia Bharti 1935 PC 44. A person without legal right, but in actual possession of a mutt or any other endowment, is entitled to maintain a suit for recovery of possession appertaining to it, not for his own benefit, but for the benefit of the mutt or endowment. The second contention raised by the advocate for the appellant cannot be accepted. The suit has been framed as a suit not by persons having an interest in the wakf and filed in a representative capacity but by the plaintiffs as mutawallis. Hence this point cannot be entertained.
4. Regarding the first point raised by the appellant my view is that the suit is not maintainable. It is a general principle of law that where administration of a trust is vested in several persons they all form, as it were, one collective trustee and they must exercise the powers of their office jointly. If a suit has to be brought to recover trust property in the possession of a trespasser all must join as plaintiffs, and only such of them as refuse to join as plaintiffs must be made defendants; all the trustees must be parties to the suit. Shebaits or mutawallis are not trustees unless the document creating the endowment vests the property in them as trustees. They are managers no doubt, but the aforesaid principles formulated in Luke v. South Kensington Hotel Co. (1879) 11 Ch D 121 have been applied both to the cases of shebaits and mutawallis: Rajendra Nath Dutt v. Mohammad Lal (1882) 8 Cal 42, Kokilasari Dassi v. Rudranand Goswami (1907) 5 CLJ 527 (cases of shebaits) and Bechu Lal v. Oliulla (1885) 11 Cal 338 (case of mutawalli). The view I am taking accords with the view expressed by Mr. Amir Ali in his Tagore Law Lectures, Vol. 1, p. 562 (Edn. 4), where the learned author introduces only one exception, where it is said that one of several mutawallis can sue (for which, however no authority is cited by him), namely where the fact of the property being wakf is admitted, a case which does not apply here, because in the case before me the contesting defendants contended in both the Courts below that the property was not wakf property but their own personal property. I accordingly hold that the suit has been rightly dismissed by the lower appellate Court and dismiss this appeal with costs