JUDGMENT Khundkar, J.
1. We have before us an application to set aside abatement in a second appeal and also the appeal itself. The facts out of which the application and the appeal arise, in so far as they are material, may be briefly stated. One Mohammad Golamuddin Fakir made a wakf of his properties. He had more than one wife. Mohammed Abdul Gani Fakir, the present appellant, was a son of the first wife, and one Kader Ali was one of the sons of Golamuddin Fakir's third wife. The wakf deed gave certain annuities to the sons and nephews of Golamuddin. It is said that included in the properties which were covered by the wakf were some properties which really belonged to Golamuddin's brother Majibuddin. After Golamuddin's death, Abdul Gani became the mutwalli in August 1924, Thereafter, there was litigation as a result of which some of the annuitants obtained decrees for arrears of their annuities against the mutwalli. In 1929 a Receiver was appointed in certain execution proceedings which were taken in connexion with those decrees. Then a succession of Receivers followed, of whom Kader Ali was the last. He was appointed in 1936 but was removed from the receivership in the year 1944. Meanwhile, in the year 1940, the present suit was instituted by some of the annuitants for the removal of the present appellant Abdul Gani Fakir from the mutwalliship. The trial Court dismissed the suit, finding that no circumstances had been established which would justify the removal of the mutwalli. The lower appellate Court has set aside that decree and has directed the removal of the appellant from the mutwalliship. The appeal is against the decision of that Court.
2. Nuruddin Fakir, one of the plaintiffs-respondents, died during the pendency of the appeal in this Court. It is alleged that the appellant wrote to the advocate who was representing him in this Court regarding the death of Nuruddin and asking the advocate to take the necessary steps for substitution of Nuruddin's heirs. Apparently, no such steps were taken. On 14th July 1943, the Registrar of this Court recorded that the appeal had abated as against Nuruddin's heirs. It is contended that this order was never communicated to the appellant. Unfortunately, the appellant's advocate, Mr. Syed Farhat Ali, died in November 1943, and this Court is, therefore, deprived of his version of the facts relating to any communication which may have been sent to him regarding the death of Nuruddin. On the materials placed before us, we are not satisfied that the death of Nuruddin was in fact communicated to the late Mr. Syed Farhat Ali as suggested. We are further of the opinion that even assuming that the appellant was not guilty of laches in communicating with his advocate, no circumstance has been established which would justify the application of Section 5, Limitation Act, so as to condone the failure of the deceased advocate to take necessary steps in time. The application to set aside abatement as against the heirs of Nuruddin must, therefore, be refused. This does not mean that the appeal as a whole has abated. The cause of action of each of the plaintiffs who are annuitants is a separate cause of action. The appeal must, therefore, be considered in so far as it relates to the parties other than the heirs of Nuruddin.
3. Both the Courts below have decided that the learned Subordinate Judge, in whose Court the suit was instituted, was competent to entertain it. Two objections have been overruled both by the trial Court and by the Court of appeal below. In the first instance, the Courts have held, rightly in our opinion, that the suit did not require the consent of the Commissioner of Wakfs, and their finding of law on this point has indeed not been seriously challenged before us. The second objection which both the Courts below repelled was that the Subordinate Judge had no jurisdiction to entertain this suit, because under the Mahomedan law control over matters relating to wakfs was vested in the chief kazi. The argument is that the office of kazi having been abolished, the duties of chief kazi now devolve upon the District Judge, as is sufficiently indicated in Section 92, Civil P. C., which requires suits in respect of trusts created for public purposes of a charitable and religious nature to be brought in the principal civil Court of original jurisdiction or in any other Court empowered in that behalf by the Local Government. It is contended that the learned Subordinate Judge was not the principal civil Court of original jurisdiction, and that he was not specially empowered by the Local Government to deal with wakfs.
4. In answer to this contention, it has been argued that this was not a public but a private wakf, and that there is no existing law which requires suits in respect of private wakfs to be brought in any special Court. It is argued that the forum for suits relating to private wakfs must be ascertained and determined by reference to the Code of Civil Procedure, as in the case of any other civil suit. Of the cases cited before us at the bar, the following call for consideration : In Abdus Salam Choudhuri v. Hazi Abdul Aziz Choudhury ('44) 31 A. I. R. 1944 Cal., two earlier cases were examined. The first of these was the case in Atimannessa Bibi v. Abdul Sobhan ('16) 3 A. I. R. 1916 Cal. and its effect was stated by Mitter and Sharpe JJ., in Abdus Salam Choudhuri v. Hazi Abdul Aziz Choudhury ('44) 31 A. I. R. 1944 Cal. in the following words :
After an examination of the Arabic texts, the learned Judges came to the conclusion that in Mahomedan States, it was only the chief Kazi who could control the administration of wakf properties. They further expressed the view that by reason of the provisions of Section 92, Civil P. C., the District Judge may be taken to be the chief Kazi in British India where the wakf was a public one. They further expressed the view that in respect of private walifs, there is no Judicial Officer who can exercise the functions of a Kazi. They made a suggestion that it was for the Local Government to appoint a Judicial Officer to discharge the functions of a Kazi in the matter of administration of private wakfs. All these observations of the learned Judges, however, are obiter.
5. The next case considered was the Privy Council decision in Mahomed Ismail Ariff v. Ahmed Moolla Dawood ('16) 3 A.I.R. 1916 P. C. In that case, their Lordships of the Privy Council made an observation which is quoted in the decision of Mitter and Sharpe JJ. in Abdus Salam Choudhuri v. Hazi Abdul Aziz Choudhury ('44) 31 A. I. R. 1944 Cal.:
Generally speaking, in case of wakf or trust created for specific individuals or a determinate body of individuals, the Kazi whose place in the British Indian system is taken by the civil Court, has in carrying the trust into execution to give effect so far as possible to the expressed wishes of the founder.
6. These words, as pointed out by Mitter and Sharpe JJ. put it beyond doubt that the civil Courts in British India occupy the position of Kazi in the administration of wakfs. All that this means is that the powers and functions of Mahomedan Kazis may be said to have been collectively transferred to the civil Courts. Whether the functions of the chief Kazi have been vested in one Court and the functions of other Kazis vested in other Courts, is quite another matter, and to this we shall refer again hereafter. Though the observations of the Privy Council are clear authority for holding that the jurisdiction in respect of wakfs, with which the Mahomedan law had clothed the chief Kazi, has now been vested in the tribunals which fall within the category of civil Courts, no distinction was drawn by the Privy Council between one civil Court and another, or between the functions of the chief Kazi and of other Kazis. The learned Judges who decided the case in Abdus Salam Choudhuri v. Hazi Abdul Aziz Choudhury ('44) 31 A. I. R. 1944 Cal., adopted the observations of the Privy Council as authority for the opinion that in cases of wakfs the Local Government need not appoint any Judicial Officer to discharge the functions of a Kazi, because the Judges of civil Courts by reason of their office occupy that position :
As the District Judge is the principal Judge in a District, he must be taken to be by reason of his office the chief Kazi and would have all the powers of a Kazi in respect of all wakfs. Whether a Subordinate Judge or a Munsif can perform the judicial functions of a Kazi is a point which need not be considered by us in this case.
7. A careful reading of the case in Atimannessa Bibi v. Abdul Sobhan ('16) 3 A. I. R. 1916 Cal. would show that this point has not been decided in that case either. Although Mukherjea J. expressed the opinion that (p.491), to cover cases of private wakfs it was desirable that the Local Government should authorise either District Judges or Subordinate Judges or even Judicial Officers of a lower grade, if it be thought desirable to exercise the functions of a Kazi, it is to be noted that Beachcroft J. expressly stated, (p. 492), that he expressed no opinion as to the position of the District Judge with reference to private wakfs. We are of the opinion that the remarks of Mukherjea J. in Atimannessa Bibi v. Abdul Sobhan ('16) 3 A. I. R. 1916 Cal., were not necessary for the decision of the point which arose for determination in that case, and those remarks are, therefore, not binding upon us. The case in Burhan Mirdha v. Mt. Khudaija Bibi , related to jurisdiction in a matrimonial cause, but it is nevertheless clear authority for the proposition that though the substantive law has been saved to Moslems, the law of procedure is that of the British Courts, and that the question of jurisdiction is a question of procedure. In this connexion reference should also be made to the observations of the Right Hon'ble Sir George Rankin in Mosque known as Masjid Shahid Ganj v. Shiromani Gurdwara Prabandhak Committee, Amritsar ('40) 27 A. I. R. 1940 P. C.:
In British India the Courts do not follow the Mahomedan law in matters of procedure [cf. Jafri Begum v. Amir Muhammad Khan ('85) 7 All. 822 (P. B.), per Mahmood J.] any more than they apply the Mahomedan criminal law or the ancient Mahomedan rules of evidence. At the same time the procedure of the Courts in applying Hindu or Mahomedan law has to be appropriate to the laws which they apply.
8. In our opinion, the judgment in Atimannessa Bibi v. Abdul Sobhan ('16) 3 A. I. R. 1916 Cal., did not sufficiently consider the effect of Act 11 of 1864 which abolished the offices of Hindu and Mahomedan law officers including that of Kazis. The abolition of the office of Kazi carried with it the transfer of the functions which appertained to the Kazi. Those functions were carried over to the civil Courts which thereupon became vested with them. The limits of the jurisdiction of those Courts in the matter of suits relating to wakfs being clearly matters of procedure were, in the absence of any enactments to the contrary, left to be determined by the rules of Civil Procedure. Section 92, Civil P. C., enacts that in regard to wakfs of a public character, suits must be brought in the principal civil Court of original jurisdiction or in some other Court empowered in this behalf by the Local Government. But from this it does not follow that suits in respect of wakfs of a private character must also be brought in that Court and in no other. In Nimai Chand Addya v. Golam Hossein ('10) 37 Cal. 179 : 3 I. C. 353, Mookerjee J. observed as follows:
It must be conceded, however, that the British system of Administration of Justice differs in so many essential respects from the Mahomedan system that any analogy between the position of a Cadi and that of a District Judge, or of a Judge of this Court exercising original jurisdiction, must be more or less farfetched; and we can see no reason why an approval by a Subordinate Judge of a transaction by which wakf property is mortgaged, provided he has jurisdiction over the wakf property, should not be quite as effectual as a sanction by a District Judge.
9. We are of the opinion that the Courts below were right in holding that the Subordinate Judge had jurisdiction to entertain the present suit. As regards the merits of the plaintiffs' claim in the suit, the judgment of the lower appellate Court sets out a variety of circumstances which, though they may not be separately and individually sufficient to justify the removal of the mutwalli, amount collectively and cumulatively to a very damaging indictment of incompetence. In my judgment, the lower appellate Court was right in directing that the mutwalli should be removed. This appeal must accordingly be dismissed with costs. No order is necessary on the other application filed on 22nd January 1945.
10. I agree, and desire to add a few words. First, as to the question of jurisdiction: I think that in view of the later pronouncements of the Judicial Committee, the dictum of Mookerjee J. in Atimannessa Bibi v. Abdul Sobhan ('16) 3 A. I. R. 1916 Cal., must be accepted with reservation. I entirely agree with what was said by M. C. Ghose J. in the Special Bench case in Burhan Mirdha v. Mt. Khudaija Bibi , that the question of jurisdiction is a question of procedure and not of substantive law. The substantive law has been saved to Moslems, but the procedure is that of the British Indian system. If I followed the argument of Dr. Sen Gupta rightly, it was to the effect that it was only the chief Kazi who was vested under the Mahomedan law with authority in regard to control of wakfs, and that inasmuch as the office of Kazis is now abolished and the functions of Kazis have been transferred to British Indian Courts, it is only such Court in the British Indian system as may be said to correspond to the chief Kazi which will have jurisdiction in these matters. Now, if there was a gradation or hierarchy of Kazis in Moslem law, I do not think that it is possible to postulate a corresponding hierarchy among the Courts established in British India, and to say that the District Judge must correspond to the chief Kazi and the Courts of subordinate jurisdiction to other Kazis. I agree with my learned brother that by virtue of the abolition of the office of Kazis, the functions and duties of Kazis under the Moslem law must be taken to have been transferred collectively to British Indian Courts. That, in my reading, is the effect of the pronouncements of the Judicial Committee. Subject, therefore, to any express statutory provision to the contrary, such, for instance, as is embodied in Section 92, Civil P. C., the question as to the proper Court in which suits for the administration of wakfs, public or private, will have to be instituted, must be determined according to the procedural law now in force in British India. That being so, there can be no doubt that the learned Subordinate Judge was fully competent to entertain the present suit.
11. As regards the merits, I agree that nothing has been shown which will justify us in reversing the judgment of the lower appellate Court. Dr. Sen Gupta's argument in substance was that none of the charges found against the mutwalli amounted to misconduct involving moral turpitude or breach of trust; at the worst, they were mere errors of judgment; and he quoted from Baillie's Digest to show that nothing short of malversation or untrustworthiness on the part of a mutwalli would justify his removal. As the law reports, however, show, there are numerous cases in which mutwallis have been removed on the ground of gross incompetence or dereliction of duty, proving their unfitness for the office which they hold. Reference may be made to the cases cited in Tyabji's Muhammadan Law, 3rd Edn., pp. 655-656. The allegations in the present case which have been found to be established are in my opinion sufficient ground for the removal of the appellant from the mutwalliship. The learned District Judge did not feel called upon to examine all the charges which had been brought against the appellant, but picked out only three items which he considered were sufficient to establish the incompetence and incapacity of the mutwalli.
12. The first charge related to the conduct of the mutwalli in allowing a suit to be decreed ex parte, though there was, according to his own ease, a good defence to make. The suit had been instituted by one Saidannessa who claimed to be a daughter of Majibuddin Fakir, brother of the original founder of the wakf, Grolamuddin Fakir. Her case was that some of the properties included in the wakf belonged to Majibuddin and not to the founder of the wakf. In that view, she claimed to recover possession of the said properties on declaration of her title as one of the lawful heirs of Majibuddin. The mutwalli filed a written statement denying the claim, but later on refrained from contesting the suit, with the result that the suit was decreed and the properties were lost to the wakf estate. Dr. Sen Gupta argued that this action or inaction on the part of the mutwalli was justified, having regard to the fact that the properties in question were in fact the properties of Majibuddin and not of Golamuddin. I am not at all satisfied that there is any support to be found on the record for that statement. At any rate, regard being had to the fact that these properties were actually held for at least seven years as part of the wakf estate and that they were so held by the present appellant himself for three out of these seven years, it was not for him to take up the position that these properties did not belong to the wakf. If there had been any decision of a Court to that effect, that might have been a different matter, but that was not the case. In point of fact, as I have already stated, the mutwalli himself thought at one stage that the suit required to be defended and he actually filed a written statement. In his deposition in the present suit, he says, he was unable to prosecute the defence, as he had not obtained the necessary funds from the Receiver. For one thing, that explanation is different from that which is now suggested on his behalf by his learned advocate. Secondly, the reason given does not appear to be convincing: it is not clear what steps he had taken to procure the funds which he required for the purpose of the litigation. A mere statement that he asked for funds from the Receiver, but did not obtain any, is not sufficient to exonerate him. As mutwalli, it was his duty to defend the wakf estate against hostile claims, and in the absence of any clear evidence to the contrary, Saidannessa's claim could not but be regarded as hostile. The fact remained that as a result of his withdrawing from the defence, the suit was decreed.
13. The second instance of mismanagement and incompetence found against the mutwalli is in connexion with a transaction for the purchase of a property on behalf of the wakf estate. The facts are not disputed. He entered into a contract for the purchase of the property at a price of Rs. 6500; he paid a sum of Rs. 1000 as earnest money, and under the terms of the contract bound himself to pay the balance within a month thereafter. He, however, made default. The result was that the vendor enforced forfeiture of the earnest money as he was entitled to do under the contract. Thereafter, the mutwalli brought a suit for specific performance, and that suit was dismissed, involving the trust estate in costs to the extent of over Rs. 600. There is nothing to show what led the mutwalli to enter into the contract on the terms he did, if he had no funds at his disposal. It is not alleged that it was necessary for the benefit of the estate to buy any property. It is not suggested, for instance, that there were surplus funds available waiting to be invested in the interests of the endowment. On the other hand, the fact that the mutwalli was unable to complete the transaction within the stipulated period would go to show that he had made what might well be regarded as an improvident, if not a speculative, bargain, which as a de facto trustee he would not be justified in doing. As a result of his thoughtless action, the wakf estate was put to unnecessary loss. It is no answer to say that he is now ready and willing to make good the loss. That cannot take away from the fact of mismanagement.
14. The third charge is of a more serious nature. He was the mutwalli in office. It was therefore incumbent upon him to see to the due performance of the charitable and religious services enjoined by the wakfnama. It is admitted, however, that for a certain period he did not take any steps to see that such services were properly performed. The excuse put forward on his behalf is that the wakf estate was then in the hands of the Receiver. The Receiver was no doubt in charge of the estate, having been appointed in the proceedings taken by the annuitants for the execution of the decrees they had obtained. But the Receiver was there for a limited purpose, and it was not certainly his duty to carry out the religious and, charitable duties under the wakfnama. That remained the responsibility of the mutwalli. The mutwalli would doubtless require funds for the purpose, but there is nothing to show that he ever asked to be supplied with necessary funds by the Receiver. In my opinion, this non-performance of his duties in respect of the religious services is a sufficiently strong indictment against the mutwalli, such as would justify his removal. On all these grounds, I agree that the appeal should be dismissed with costs.