Case Note & Summary
This appeal before the Supreme Court of India arose out of a suit filed by Sugra Bibi, the widow of a deceased joint Mutwalli, seeking the removal of Hazi Kummu Mia, the surviving Mutwalli, from a wakf estate created in November 1936. The wakf deed, executed by one E, endowed property worth Rs. 30,000 and appointed his son S and his son-in-law (the respondent) as joint Mutwallis. The deed laid down detailed provisions: Rs. 500 per year were to be spent on the upkeep of mosques and for helping the poor and needy; additional sums were earmarked for the maintenance of the settlor’s family; and in the event of the total extinction of the family, the entire income was to be applied to general charitable purposes. It further gave the surviving Mutwalli the power to nominate a successor from the family line, failing which the senior‑most lineal descendant would become Mutwalli. After S died in December 1960, the respondent became the sole Mutwalli. In July 1967, the appellant brought a civil suit asserting that the respondent was unfit to continue as Mutwalli and praying for his removal, the appointment of her son (by S) as Mutwalli, and the appointment of a receiver until the son attained majority. The respondent contested the suit on the preliminary ground that it was not maintainable without the prior written consent of the Advocate-General as required by Section 92 of the Code of Civil Procedure, 1908. The trial court rejected this objection, held the suit unaffected by Section 92, and ordered the removal of the respondent. The first appellate court dismissed the respondent’s appeal. However, on revision, the High Court reversed the concurrent findings, holding that the suit was incompetent owing to non‑compliance with Section 92 CPC. Aggrieved, the appellant appealed to the Supreme Court. The core legal issue was whether a suit for removal of a Mutwalli from a wakf that applied a portion of its income to charitable and religious purposes while also providing for the maintenance of the settlor’s family fell within the ambit of Section 92 CPC, thereby requiring the Advocate-General’s consent. The appellant argued that Section 92 had no application because the wakf deed preponderantly benefited the family. The Supreme Court was called upon to interpret the section and decide the maintainability of the suit. The excerpt of the judgment does not contain the final decision of the Supreme Court.
Headnote
A) Civil Procedure - Section 92 CPC - Applicability to Wakf Deed providing for both charitable and family purposes - Code of Civil Procedure, 1908, Section 92 - The wakf deed of November 1936 provided for an annual expenditure of Rs. 500 on mosques and poor relief, maintenance of the settlor's family, and conversion of the entire income to charitable use upon extinction of the family line; after the death of one joint Mutwalli, the surviving Mutwalli (respondent) became sole administrator; the appellant (widow of the deceased Mutwalli) filed suit for removal, alleging unfitness, and sought appointment of her minor son with a receiver; the trial court decreed the suit, holding Section 92 not applicable, but the High Court in revision reversed and held the suit barred for want of Advocate-General's consent; the Supreme Court was moved to determine the correct scope of Section 92 in the context of a wakf serving mixed purposes (Paras Not mentioned).
Issue of Consideration
Whether a suit for removal of a Mutwalli and appointment of a new Mutwalli from a wakf that applies income to both charitable/religious purposes and maintenance of the settlor's family is maintainable without the prior written consent of the Advocate-General under Section 92 of the Code of Civil Procedure, 1908.
Law Points
- Where a wakf deed allocates income partly for charitable or religious purposes and partly for maintenance of the settlor's family
- a suit for removal of a Mutwalli without the Advocate-General's written consent may fall within Section 92 CPC depending on the dominant purpose of the trust
