The Patna High Court set aside a Tribunal order dismissing a Waqf appeal due to the appellant's death. It held the Tribunal erred by not adjudicating the substitution petition and remanded the matter.
The order dated 29.04.2014 is set aside and the matter remitted to the Bihar Waqf Tribunal to hear both sides afresh.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.171 of 2014
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Mostt. Kishwar Widow of Late Mohibul Hasan Nadvi Resident of MohallaDahiyawan, N.C.Gali, P.S.-Chapra town and District-Saran (Chapra).
... ...Appellant… ...Petitioner
Versus
... ... Respondents… ...Opposite Parties
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Appearance : For the Petitioner/s : Mr. Mohammed Abu Haidar For the Respondent/s : Mr. ======================================================
CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA ORAL ORDER
12 03-10-2018 Heard both sides.
The petitioner has filed this civil revision against the order dated 29.04.2014, passed by the Presiding Officer, Bihar Waqf Tribunal, Patna by which the appeal preferred by the husband of the petitioner has been dismissed.
The learned counsel for the petitioner submits that the Executive Officer of the Waqf Board removed the husband of the petitioner from the post of Mutwalli on 01.01.2005. The husband of the petitioner filed Waqf Appeal No.04 of 2012 against the order of his removal but during the pendency of the Waqf Appeal, the husband of the petitioner died. Petitioner filed petition for substitution but without passing the order on the substitution petition filed by the petitioner, the learned Tribunal dismissed the appeal
Patna High Court C.R. No.171 of 2014(12) dt.03-10-2018 2/2
holding that the appeal on account of death of the appellant became infructuous.
The learned counsel for the opposite parties submits that the office of Mutwalli is not inheritable if the order of succession on the post of Mutwalli is not described in the Waqfnama.
Having considered the submissions of both sides and on perusal of the order impugned, I find that the learned Tribunal has dismissed the appeal on the ground that it has become infructuous on account of death of the appellant but the learned Tribunal did not record any finding on the petition for substitution filed by the petitioner, the wife of the appellant. If the Waqfnama does not contain the order of succession of the Mutwalli and the wife of former Mutwalli is not entitled to succeed her husband, the Tribunal should have passed order on the substitution petition instead of dismissing the appeal itself holding that the same is infructuous, therefore, I find that the order is illegal and not sustainable and thus the order dated 29.04.2014 is set aside. The matter is remitted to the Tribunal to hear both sides afresh and pass order in accordance with law.
The civil revision petition is allowed.
(Prabhat Kumar Jha, J)
S.KUMAR/-
U
2 issues framed by the court
Whether the dismissal of the appeal on account of the appellant's death without first adjudicating on the substitution petition was legal.
Whether the Petitioner-wife is entitled to succeed her husband as Mutwalli in the absence of succession rules in the Waqfnama.
2 provisions across 2 enactments
Kishwar Widow of Late Mohibul Hasan Nadvi
Bihar State Sunni Wakf Board
Md. Masudur Rahman
Imteyazur Rahman
Prabhat Kumar Jha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
