ORDER
Chandra Reddi, J.
1. The question that arises for determination in this case is whether an application filed for the appointment of a Muthavalli, when there is already one in management of the wakf, though not a validly constituted muthavalli, is sustainable. This question was answered against the petitioner by the District Judge of South Malabar.
2. For a proper understanding of the contentions raised on either side, it is useful to set out briefly a few facts. One K. P. Mohammad created a wakf by a document dated 19-5-1935 dedicating a house, a shop and a paramba in Ponnani, South Malabar District, the object of the wakf being feeding of the poor and other charitable functions like the chanting of katham etc., on the anniversary day of the founder's father's death. Under the deed he constituted himself as the first muthavalli and appointed his mother to succeed to him as muthavalli in case she survived him and directed that there. after his daughter who was then a minor should become the muthavalli, with his wife as her guardian. It was also provided in the deed that after the death of his existing daughter, the female children that may be born to him in future in the order of seniority from time to time should become the muthavalli. Sometime after the creation of the wakf the founder died and his mother succeeded him as muthavalli and continued in that office till her death in 1944. It may be mentioned here that the founder's minor daughter predeceased his mother. Subsequent to the death of the founder's mother, her sister who is respondent 2 herein assumed the management of the trust and has been continuing ever since as such. It must be mentioned here that the founder did not provide under the deed for any mode of appointment of muthavalli or for any other line of succession.
3. In January 1947 the petitioner herein who is the nephew of the late K. P. Mohammad filed an application for the appointment of a muthavalli alleging that on the death of the founder's mother, the line of succession to the office of muthavalli has become extinct and therefore a vacancy in the office of muthavalli had arisen. To that application, he impleaded respondent 2, the sister of the founder's mother, the second respondent's brother who is respondent 2, herein 1 and also the founder's wife's brothers and sisters. The application was opposed mainly by respondent 2 who is also the contesting respondent herein, inter alia on the ground that a mere application for the appointment of a muthavalli does not lie and that the proper remedy is a suit. She put forward the contention that she was in management of the wakf 'agreeably to the presumed intention of the founder and to the wishes of the relations of the founder and others interested in the wakf'' and has been functioning as such ever since and as she has been administering the wakf property as prescribed by the founder. She could not be removed in an application. The learned District Judge who heard the petition rejected it holding that it is barred by Section 92, Civil P. C., and that it was not competent for the Court to entertain this summary application.
4. In this petition what is urged by Mr. Ramakrishna Aiyar, the learned counsel for the petitioner is, that the Court erred in assuming that it had no jurisdiction to entertain this application merely because there was some person in office without any colour of title putting forward a right to continue in possession thereof. According to him the existence of such a person in office did not make any difference for the decision of the question whether there was a vacancy in the office of muthavalli or not and by virtue of the fact that the person who was in office was one without any colour of title, the lower Court must have proceeded on the assumption that there was a vacancy in the office of muthavalli. In support of his contention that such a matter can be agitated in a mere application and that a suit under Section 92, Civil P. C., is not the only remedy, a passage in Mulla's Principles of Mahomedan Law, 12th Edn. at p. 180, in the following words was cited :
'Where there is a vacancy in the office of muthavalli, and there is no question of removing an existing trustee, the vacancy may be filled up by an application to the Court. It is not necessary to bring a suit under Section 92, Civil P. C., but before making the appointment the Court should issue notices to all persons interested.'
This statement of law has been accepted in Abdul Alim v. Mt. Abir Jan Bibi : AIR1928Cal368 and in several other decisions; see Muhammad Ali Khan v. Ahmed All Khan : AIR1945All261 and Mohamed Bhai v. Wazirbi, I. L. R. 1946 Nag. 646 : This position is not disputed by the respondent's counsel. So it is unnecessary for me to labour this point any further.
5. The nest question that has to be considered by me is whether, in a case where there is already a muthavalli in office, whether he be a de jure or de facto muthavalli, an applicant could avail himself of a remedy by an application.
6. It was urged for the petitioner that a vacancy must be held to have occurred when the line of succession to the office of muthavalli has become extinct, despite the fact that there was some person in de facto management of the trust and in support of this contention he placed reliance on Bibi Zohra v. Bibi Habiunnissa, : AIR1940Pat9 . In that case what happened was that on the death of the last muthavalli, an application was made for the appointment of a muthavalli on the ground that there was a vacancy in the office of muthavalli. This application was resisted by one Bibi Zohra claiming to be in actual charge of the trust property. It was found that Bibi Zohra had not really assumed the office of muthavalli because the interval between the death of Zaibunnissa, the last muthavalli, and the date on which an application was made by Bibi Zohra for substitution of her name in the proceedings started under Act XIV [14] of 1920, was very short, being only five days, and there was thus a vacancy in the office of muthavalli. So this case is not an authority for the proposition advanced by the counsel for the petitioner. On the other hand a passage occurring at p. 12 of the report contains an answer to the contention put forward on behalf of the petitioner. After referring to the decision in Abdul Alim v. Mt. Abir Jan Bibi : AIR1928Cal368 with approval the learned Judges state as follows :
'It was further held that Sub-clauses (a) and (b) of Clause (1) of Section 92, Civil P. C., are co-relative and not disjunctive; that is to say, the power to appoint a new trustee given fay the section is dependent on the removal of the old. In other words, it was held that when there is a vacancy and no muthavalli is otherwise available, the District Judge may appoint one on application, but that he cannot do so in that way if the conditions of Section 92 (a section which is available for the removal of a trustee de son tort also) are satisfied.'
These observations make it clear that it was the view of the learned Judges that when there is already a trustee whether de jure or de son tort, an application for the appointment of a muthavalli does not lie but it can only be agitated in a suit under Section 92, Civil P. C., and not by an application in summary proceedings. No doubt on the facts of that case, the learned Judges came to the conclusion that there was no person in actual management of the trust and as such there was a vacancy in the office of muthavalli which could be filled up. But, as already pointed out, the discussion indicates that if there was a person holding the office of muthavalli whether de jure or de facto the Oourt has no jurisdiction to appoint a muthavalli in summary proceedings as it is hit by Section 92, Civil P. C. It follows that this decision, does not afford any support to petitioner's contention.
7. The point whether a District Judge has jurisdiction to entertain application for the appointment of a muthavalli, when there is already one in management though not validly appointed, has been considered in a number of decisions in other High Courts though it is bare of authority so far as our High Court is concerned.
8. In Salihuddin v. Mohiuddin, 26 Pat. 531: : AIR1948Pat374 what happened was that the applicants claiming to be entitled to succeed to the office of muthavalli, filed an application for the removal of persons in de facto management of the trust and for the appointment of a receiver in their stead. The District Judge allowed their application by removing the muthavalli holding office de facto and appointed a receiver. This order appointing a receiver was called into question by the aggrieved parties in the High Court on the ground that the District Judge had no jurisdiction to make such an order in an application, Section 92 Civil P. C., being a bar to such an application. This contention was upheld by a Bench of the Patna High Court which heard the appeals. While dealing with the question, the learned Judges stated that the District Judge had no jurisdiction in a summary proceeding to remove a de facto muthavalli from office or to interfere with his possession, though he might be no more than a trustee de son tort and that it was only when the property was in medio and the office had fallen vacant, the Court had power to fill up the vacancy on an application.
9. The next case that was cited before me by Mr. Sundara Aiyar for the respondent is Abdul Hasan Khan v. Jafar Husain, 13 Luck. 523 : A. I. R. 1937 Oudh 881. In that casealso the point that arose for consideration was whether the District Judge in an application could appoint a muthavalli, on the ground that there was a vacancy when actually there were two persons in de facto management though not validly appointed. This was answered in the negative by the Bench of the Chief Court of Oudh at Lucknow. The following observations of the learned Judges at p. 528 of the report are apposite :
As regards the last contention there, no doubt, seems to be some force in it. It seems to us that it can be said that Section 92, Civil P. C., does not show that its provisions are exhaustive or that beyond a suit of the description prescribed in that section, no other remedy is open to a person for the purposes mentioned in that section. The learned counsel for the applicants before us relies on Sub-section (2) of 92, but what that subsection provides amounts to no more than this; that a suit brought for any reliefs specified in Sub-section (1) must conform with the provisions of Sub-section (1). The section does not expressly bar applications like those now before us. It seems to us, however, that though this is so, Section 92, Civil P. C., bars applications of the kind that are before us by necessary implication. It is hardly conceivable that when the Legislature deemed it necessary that a suit brought for the purposes mentioned in the section should be incompetent unless brought with the consent in writing of the Advocate- General, they meant to permit a mere application to be brought by a private individual without any officialsanction whatever for the same purpose.'
Dealing with the contention on behalf of the opposite parties that they only want their appointment as trustees of the wakf in question and do not pray for the removal of any trustee, the learned Judges observed thus :
'Though in their applications the opposite parties did not specifically pray for the removal of the applicants from trusteeship, yet that is really what their purpose was and what the learned Civil Judge's order has actually amounted to so far as at least one of the applicants is concerned.'
10. In Mohammad Yusuf v. Mohammad Ayub, A. I. R. (25) 1938 Pat. 637 : 178 I. C. 813, it was held that the removal of a muthavalli cannot be asked for in summary proceedings, the proper remedy being a suit for such removal. If I may say so with respect, I agree with the rule of law stated in the rulings quoted above. The principle laid down in all these cases is that the District Court has no jurisdiction to appoint a muthavalli to a wakf in an application when there is already one in de facto management thereof even though without any colour of title and that such a relief can be asked only in a suit under Section 92, Civil P. C. It follows that the order of the learned District Judge rejecting the application for the appointment of a muthavalli on the ground that Section 92, Civil P. C., is a bar when no vacancy has arisen is correct and ought to be confirmed. I reject this civil revision petition and direct the petitioner to pay the costs of the contesting respondent.