Jyotirmay Bhattacharya, J.@mdashThis application under Article 227 of the Constitution of India is directed against the Judgment and/or order dated 6th August, 2004 passed by the learned Presiding Officer, Wakf Tribunal, West Bengal in Appeal No. 21 of 2003 of the instance of the respondent No. 3 in the said appeal.
2. The dispute is with regard to the rival claims of the parties viz., appellant/opposite party No. 1, the appellant/opposite party No. 2 and the respondent No. 3/petitioner herein for appointment of Mutwalli in Nawab Shamsi Jahan Begam Wakf Estate.
3. The facts leading to such disputes which are relevant for the present purpose are given below.
4. On 9th September, 1898 the then Nawab Begum of Murshidabad Nawab Shamsi Jahan Begam Saheba and her grandson Prince Syed Fateh All Meerza Bahadur executed an instrument of Wakf Nama divesting their ownership in the properties mentioned therein for -application and disposal of the income thereof to and for the religious and charitable purposes as particularly mentioned in the said deed for ever. A detailed provision was laid down in the said deed of Wakf Nama regarding the initial appointment of Mutwalli as well as the subsequent appointment to the said post as and when vacancy will arise therein.
5. Syed Iskindar Mirza, the only son of the co-wakif Prince Fateh All Mirza was the last recorded Mutwalli in respect of the said Wakf estate. Syed Iskindar Mirza died in 1969 leaving him surviving his only son Nawabjada Syed Humuyun Mirza but as he did not claim for his appointment as Mutwalli for his living in America and since the next eligible person also did not claim the said post, the appellant/opposite party No. 2 was appointed as Mutwalli of the Shiah Wakf estate for a temporary period of three years u/s 40 of the Bengal Wakf Act, 1934. Subsequently the said appointment was extended for another period of three years.
6. After the expiry of the said extended period, an official Mutwalli was appointed by the Board of Wakf for the management of Wakf estate by an order dated 4th August, 1976. Subsequently, thereafter the Board appointed a Committee of Mutwalli on 3rd October, 1980 for two years and thereafter one W.H. Rivzi was appointed as Mutwalli to act upto 30th November, 1982. Thereafter a Committee of five Mutwallis was appointed on 18th December, 1982 for a period of five years u/s 40 of the Wakf Act. Syed Zafaruddin Hossain Mirza, a full brother of the respondent No. 3 was one of the members of the said five men Committee.
7. During the tenure of the said five members committee, the opposite party No. 1, opposite party No. 2 and the petitioner herein applied separately claiming Mutwalliship but the Board of Wakf, instead of allowing the prayer of any of them, allowed the said Committee of Mutwalli to continue vide Order dated 7th May, 1985.
8. Before expiry of the term of the said Committee of Mutwalli, the Board of Wakf passed a resolution on 7th October, 1986 removing the said joint Mutwallis, as none of them was found to be the descendant of the Wakifs. By the said order, the respondent No. 3/petitioner herein was appointed as Mutwalli of the said Wakf estate by rejecting the claim of the opposite party No. 2 for such appointment.
9. Challenging the said order of the Board, the opposite party Nos. 1 and 2 filed a writ petition under Article 226 of the Constitution of India before this Court. This Court, however, transferred the said proceeding to the Tribunal for its consideration and disposal, as this Court found that after the Wakf Act, 1995 came into operation, the Tribunal is the only authority which can consider the correctness of the order of the board of Wakf regarding appointment of Mutawalli.
10. The learned Tribunal, after considering the rival claims of the parties, held that the claims of the respective parties were not duly proved. Considering the insufficiency of the materials on record, the Tribunal felt it difficult to resolve the dispute and as such the said proceeding was remanded back to the Board of Wakf with a direction to consider the claim of the petitioner afresh vis-a-vis the claim of the opposite party No. 1 along with the claim of any other descendant of their category, if any, coming from the same line of succession to Mutwalliship of the Wakf estate and in case none is found to be suitable from the said line of succession then to consider the claim of the appellant No. 2 who is coming from the next line of succession in the light of the observations as made in the said Judgment.
11. Undisputedly, there is none in the first line of succession who can be appointed as Mutwalli in respect of the said Wakf estate. Admittedly the claimants, viz., the opposite party No. 1 and the petitioner are coming from the second line of succession. It is also an admitted position that the opposite party No. 2 is coming from the third line of succession.
12. It is provided in the deed of Wakf Nama that in the event no suitable descendant can be found out in the first line of succession then appointment can be given to the seniormost descendant belonging to shiahseet from the second line of succession. Similarly, if no suitable person is available in the second line of succession, then appointment can be given from the third line of succession.
13. Thus, if any one of the said two claimants, viz., either the petitioner or the opposite party No. 1 herein, is found to be suitable for such appointment then the claim of the opposite party No. 2 who is coming from the third line of succession, cannot be considered. In other words, the claim of the opposite party No. 2 can only be considered if none amongst the petitioner and the opposite party No. 1 is found to be suitable.
14. Let me consider first as to who amongst the petitioner and the .opposite party No. 1 is most suitable for the appointment in terms of the said deed of Wakf Nama.
15. No provision has been made for appointment of joint Mutwallis in the said deed of Wakf Nama. Accordingly, one out of the said two claimants, is to be chosen.
16. In the deed of Wakf Nama, the following qualifications were prescribed for appointment of Mutwalli in the said Wakf estate:-
i) The descendant must be the son of a Munkooha wife of a Sadi Marriage,
ii) The descendant must belong to Isna Asharia Seet of Shiah Mahommedan,
iii) The descendant must be the seniormost amongst the eligible descendants from the same category, i.e., in the same line of succession.
17. Let me examine as to who amongst the petitioner and the opposite party No. 1 can satisfy the above three qualifications.
18. So far as the opposite party No. 1 is concerned, it is an admitted position that he satisfies the first qualification, as mentioned above. So far as the petitioner is concerned, it is undisputed that the petitioner is the descendant of the Wakif being the great grandson of Nawab Shahar Bano Begum of Khagra estate, Purnia, a named person in the Wakf Nama. There is also no dispute that he is a son by Mankooha wife of his father. The father of the petitioner admittedly had no other marriage.
19. A dispute, however, was raised by the opposite parties regard to the Sadi Marriage between the parents of the said descendant. The opposite parties claim that the father of the petitioner married the daughter of a servant of the Nawab family. As such, the petitioner cannot be a descendant of his father from Mankooha wife of a Sadi Marriage.
20. Let me consider how far the opposite parties succeeded in establishing their claim to the effect that the petitioner is not a descendant of his father from a Mankooha wife of a Sadi Marriage.
21. On perusal of the pleading of the opposite parties in this writ petition, it appears that excepting raising such a contention evasively, the opposite parties did neither elaborate their contention regarding the dispute concerning the Sadi Marriage of the father of the petitioner with the petitioner''s mother nor produced any material to show that there was no Sadi Marriage between the father of the petitioner and the petitioner''s mother. Undisputedly, the father of the petitioner did not marry for the second time. As such, the marriage between the father and mother of the petitioner was the principal marriage. Thus, the mother of the petitioner was the Mankooha wife of his father. Mankooha means principal.
22. Now what is Sadi Marriage? According to the accepted dictionary meaning, "Sadi" means joy or festivity and is commonly applied to the first or principal marriage usually celebrated with festivities and a good deal of expenses.
23. Thus, it follows that there are three ingredients of a Sadi Marriage. Firstly, the marriage must be the principal marriage means the first marriage. Secondly, it must not be a secret marriage. Thirdly, the marriage must be performed with festivities and a good deal of expenses.
24. According to the opposite parties, in order to be a Sadi marriage, marriage should be contracted with the bride coming from the same family status of the bridegroom. Even this family custom regarding the concept of Sadi marriage has not been proved by the opposite parties herein.
25. Under such circumstances, the Tribunal rightly held that the dispute involved in this proceeding cannot be resolved without taking evidence. In fact no evidence has been adduced by the parties in connection with the said proceeding.
26. But even then let me consider as to whether the order of remand can be supported or not.
27. Initially Mr. Munshi, learned Advocate, appearing for the petitioner tried to impress upon this Court that the Tribunal has no jurisdiction to resolve such a dispute u/s 83 of the Wakf Act of 1995. According to Mr. Munshi, as the order impugned was not passed under the said Act of 1995 section 83(2) of the said Act cannot be invoked. Mr. Munshi further submitted that since a disputed question of fact regarding the determination of the conflicting claims of the parties regarding the nature of marriage, the right of inheritance, seniority of the claimants etc. are involved in his proceeding, it is the Civil Court of competent jurisdiction which is the only authority to decide such a dispute.
28. However, such a contention cannot be accepted by this Court in view of the order passed by this Court in the earlier writ petition by which such a dispute was referred to the Tribunal for resolution. The parties have accepted the said order. The parties have also submitted to the jurisdiction of the Tribunal for resolution of the said dispute by following the direction of this Court passed while disposing of the earlier writ petition. The said order which was passed by this Court in the earlier writ petition, attained its finality and as such the same cannot be disturbed by this Court sitting in this jurisdiction.
29. On consideration of Section 112 read with section 83 of the Wakf Act of 1995, this Court also cannot hold that the Tribunal is lacking jurisdiction inherently to resolve such a dispute. Sub-section (2) of section 83 of the said Act provides as follows: -
83. (2) Any Mutawalli person interested in a Wakf or any other person aggrieved by 311 order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf.
30. Thus, it follows that any Mutawalli person interested in a Wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf. The dispute which is involved in this particular case is no doubt a dispute relating to the Wakf. As such, the Tribunal can consider the application relating to such a dispute when an application is filed by any of the persons as specified in the said sub-section challenging the order of the Board of Wakf.
31. Sub-section 5 of section 83 provides that the Tribunal shall be deemed to be a Civil Court and shall have the same prower as may be exercised by a Civil Court under the Code of Civil Procedure, 1908 while trying a suit or executing a decree or order. The other provisions of the said Act such as Sections 32(3), 48 and 54 show that the Tribunal has the power to take evidence of the parties.
32. Furthermore, while dealing with an application u/s 83(2) of the said Act, the Tribunal does not exercise its appellate power which its enjoins by virtue of various provisions of the said Act such as under Sections 33(4), 38(7), 51(5), 52(4), 64(4) etc. Since while considering an application u/s 83(2) of the said Act, the Tribunal does not exercise its appellate power, the Tribunal cannot remand any proceeding to the Wakf Board for retrial. Even the power of the Tribunal to remand a proceeding to the Tying Authority, in exercise of its appellate jurisdiction, has been held in the negative by this Court in the case of Abdur Rahim Dewan v. State of West Bengal reported in 2005(1) CLJ 467.
33. In such view of the matter, this Court holds that the Tribunal should not have remanded the dispute to the Board of Wakf for resolving such a dispute which requires trial on evidence and particularly when the Tribunal has been given the said power to resolve such a dispute by taking evidence of the parties.
34. Accordingly, the impugned order cannot be sustained. The order impugned thus stands set aside.
The learned Tribunal is directed to consider and dispose of the dispute by taking evidence of the parties in the light of the observation made hereinabove.
Urgent xerox certified copy of this Judgment, if applied for, be given to the parties, as expeditiously as possible.
