Kazi Salahuddin Vs. Kazi Badruzzahedin (Dabir) and others, VI ADC (2009) 113

Case No: Civil Petition for Leave to Appeal No. 136 of 2008

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. A. F. M. Mesbahuddin,,

Citation: VI ADC (2009) 113

Case Year: 2009

Appellant: Kazi Salahuddin

Respondent: Kazi Badruzzahedin (Dabir) and others

Subject: Wakf,

Delivery Date: 2008-7-22

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Abdul Matin J
 
Kazi Salahuddin
……………….......Petitioner
Vs.
Kazi Badruzzahedin (Dabir) and others
……………..........Respondents
 
Judgment
July 22, 2008
 
Appointing the petitioner as Mutawalli of Khairuddin Kazi Wakf Estate, Dhaka to have been made without any lawful authority and of no legal effect. … (1)
He is neither a stranger nor maternal uncle but he is paternal uncle of the respondent No. 2 and eldest of this Wakif’s family which is affirmed by the inspector’s report. Annexure-A to the writ petition is not wakf deed but taliatnama meaning an appointment letter. By taliatnama 1st Mutwalli Khairuddin Kazi appointed his son Kamoruddin Kazi as Mutawalli with the direction up him to appoint anybody as Mutawalli after him and there is direction in the taliatnama for appointing petitioner No.1 inn the writ petition that he Kazi Khairuddin should appoint anybody as Mutawalli from his own family. …. (11)
 
Lawyers Involved:
Kazi Abdul Khaleque, Advocate, instruct­ed by Md. Nawab Ali, Advocate-on-Record-For the Petitioner.
A. F. M. Meshbahuddin, Senior Advocate, instructed by Zahirul Islam, Advocate-on-Record-For Respondent No. 1.
Not represented- Respondent Nos. 2-3.
 
Civil Petition for Leave to Appeal No. 136 of 2008
(From the judgment and order dated 26.11.2007 passed by the High Court Division in Writ Petition No.5937 of 2003.)
 
JUDGMENT
 
Md. Abdul Matin J.
 
This petition for leave to appeal is directed against the judgment and order dated 26.11.2007 passed by the High Court Division in Writ Petition No.5937 of 2003 making the Rule absolute and declaring order dated 27.08.2003 made by the respondent No.2 (Assistant Administrator) appointing the petitioner as Mutwalli of Khairuddin Kazi Wakf Estate, Dhaka to have been made without any lawful authority and of no legal effect.
 
2. Late Kazi Khairuddin and his son Badruzzahedin Dabir filed the Writ Petition No. 5937 of 2007 as petitioner Nos. 1 and 2 respectively stating, inter alia, that Kazi Khairuddin was the Mutwalli of Khairuddin Kazi Wakf Estate situated at 102, Islampur, Kotwali, Dhaka. The great grand father of late Kazi Khairuddin was Khairuddin Kazi, son of Joynuddin Kazi who by a deed dated 21 Sraban 1297 (Annexure-A to the writ peti­tion) appointed his son Kamaruddin Kazi as Mutwalli of the Khairuddin Kazi Wakf Estate. This Khairuddin Kazi was the 1st Mutwalli.
 
3. Kamaruddin Kazi had two sons and the eldest son Kazi Alimuddin became Mutwalli after his father Kamaruddin as per wakfanama.
 
4. Kazi Alamuddin had two sons namely Kazi Nuruddin and Kazi Mahatabuddin Kazi.  Kazi Nuruddin being eldest was appointed Mutwalli by his father Alimuddin but due to premature death of Kazi Nuruddin. Kazi Khairuddin son of deceased Nuruddin was    appointed Mutwalli by his grand father Alimuddin by registered deed on 22.12.1960.
 
5. Being old and seriously sick Kazi Khairuddin, the Mutwalli writ petitioner No.1   instructed his son writ petitioner No.2 to work for the Wakf Estate and accordingly he worked and gathered expe­rience and later on he was appointed Mutwalli. He filed an affidavit on 05.01.2003 and thereafter petitioner No.1 resigned from Mutwalliship.
 
6. It was further stated that Wakf Estate comprised of one Mosque on the 1st floor with one shop in the front and two godowns in the back on the ground floor standing on one katha of land.
 
7. The petitioner (respondent No.3 in the writ petition) arranged a few musullis of the Mosque to submit a representation to the Wakf Office for appointing the peti­tioner as Mutwalli who is a maternal uncle of writ petitioner No.2 and on 22.04.2003 the petitioner submitted an application to the Wakf Office for getting appointment as Mutwalli.
 
8. The respondent No.4, Assistant Administrator directed Wakf Inspector Abdul Quddus on 20.05.2003 to make local inquiry into the affairs of the Wakf Estate with copy to the then Mutwalli Kazi Khairuddin Writ petitioner No. 1 to give his opinion on the application of the petitioner for Mutwalliship with statement of income and expenditure. The Inspector sent notices requesting both parties to remain present on 05.06.2003 for enquiry in the Wakf premises.
 
9. The writ petition No.2 (respondent No.1 of this civil petition) in place of Mutwalli writ petitioner No.1 submitted a written reply on 15.06.2003 to the office of the Wakf stating that as per his father Kazi Khairuddin's oral direction he has been working for a few years and thereafter as per Notary Public Affidavit dated 05.01.2003 for the Wakf Estate and requested them to appoint him as Mutwalli. On 02.07.2003 the   Wakf Inspector submitted enquiry report recom­mending for appointment of the petitioner as Mutwalli and accordingly the Assistant Administrator, Wakf appointed the peti­tioner as Mutwalli on 27.08.2003.
 
10. It was further alleged that the petition­er is a stranger and cannot be a Mutwalli. Moreso he is a men of bad character hav­ing 2nd wife. The respondent No.4 Assistant Administrator has no jurisdic­tion to appoint Mutwalli.
 
11. The petitioner (respondent No.3 in writ petition) contested the writ petition by filing affidavit-in-opposition denying all material allegations in the petition. His case, in short, is that he is neither a stranger nor maternal uncle but he is paternal uncle of the respondent No.2 and eldest of this Wakif’s family which is affirmed by the    inspector's report. Annexure-A to the writ petition is not wakf deed but a taliatnama meaning an appointment letter. By taliatnama 1st Mutwalli Khairuddin Kazi appointed his son Kamoruddin Kazi as Mutwalli with the direction up him to appoint anybody as Mutwalli after him and there is direction in the taliatnama (Annexure-B to the writ petition) for appointing petitioner No.1 in the writ petition that he Kazi Khairuddin should appoint anybody as Mutwalli from his own family.
 
12. It was further stated that the petitioner No.1 in the writ petition aged about 90 years was seriously sick for about 12 years and was totally unable to look after the wakf estate during this time the respon­dent No.1 (petitioner No.2 in writ petition) worked for the Wakf Estate. The Wakf Estate was registered with the Wakf Office being E.G. No.291 showing the scheme founded on land measuring .532 ajutanghsa as found in the taliatnama (Annexure-B) appointing Kazi Khairuddin and the said land of 532 ajutangsha land with the mosque, one shop, two godowns upon some portion had been handed over to him. But in para 12 of the writ petition the land of Wakf Estate was shown as 1 katha that is .0150 ajutangsha and no explana­tion was offered where the rest .0382 aju­tangsha land of the said wakf had gone out of their possession and in the absence of any such explanation it is clear that the said .0382 ajutangsha was sold away and the whole price money was misappropriat­ed by said Kazi Khairuddin and his son Badruzzahedin Dabir without spending a single farthing for the Wakf Estate. The inquiry report also disclosed the above facts as correct.
 
13.  After hearing the parties the High Court Division by the impugned judgment and order made the Rule absolute,
 
14. Being aggrieved thereby the petitioner has filed this petition for leave to appeal.
 
15. Heard the learned Advocate and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
 
16. It appears that the High Court Division found that the order appointing the peti­tioner as mutwalli  and removing the respondent from the post is illegal and without lawful authority and in so holding the  High  Court Division relied upon annexure-I to the writ petition which is report of the inspector and other materials on record.
 
17. We find that the High Court Division has rightly exercised the jurisdiction vest­ed   in it under Article 102 of the Constitution and the same does not call for interference by this court.
 
We find no merit in this petition which is accordingly dismissed.
 
Ed.