MUSLIM ORPHANAGE Vs. KHATOON BI

JUDGEMENT

(1.) The plaintiff is the appellant before us. The suit out of which this appeal arises is for a declaration that the property mentioned in the schedule annexed to the plant is wakf property and for appointment of the plaintiff to the office of Mutawalli and for putting the plaintiff in the management of the schedule property. In order to determine the question, which was raised at the hearing of the appeal, it would be necessary to refer to the averments made in the plaint. The plaintiff is the Muslim Orphanage, a registered body, and it has filed the present suit by its Secretary. Defendants 1 to 4 are the descendants of the sister of the settlor and Defendant 5 and 6 are transferees of the properties mentioned in the plaint. In the plaint it is alleged that one Abdul Azeez made a deed of trust on 25-9-1937 (where-by he made the property in question a wakf) for the maintenance and support of his family with an ultimate benefit expressly reserved in favour of the plaintiff and the charitable purposes for which the Society was founded. It is further alleged is the plaint that defendant I became a Mutawalli, but on 21-12-1946 she in conjunction with Defendants 2 to 4 conveyed the suit property to Defendant 5 on sale in utter defiance of the wakf and her office. Defendant 5 in his turn conveyed it to Defendant 6 who now holds the same. In para 6 if the plaint it is alleged that the plaintiff, as one named for the office, though ultimately, is willing to be appointed to it presently and put in management of the schedule property so that it may be preserved for indigent Muslim orphans who are the final beneficiaries under the wakf. The plaintiff prayed for a declaration that the schedule property was wakf property and for appointing the plaintiff to the office of Mutawalli and to put the plaintiff in the management of the scheduled property.

(2.) Before proceeding further it would be necessary to set out shortly the terms of the said wakf deed. By the said deed the settlor inter alia provided that the trustee appointed by the said deed shall out of the rent and income of the said hereditament pay all rates, taxes, assessments due in respect of the trust premises or any part thereof and the costs of executing repairs to the trust property and after meeting the expenses, divide and pay the net proceeds amongst defendants 1, 2, 3 and 4. It should be mentioned that the said Defendants are the children of the sister of the settlor named Safoorbi. The deed further provided that in case of the demise of any one of the said persons his or her respective share in the said proceeds shall be paid to his or her lineal descendants in the nearest degree to such person the latter's share shall be distributed equally among such lineal descendant or descendants and irrespective also of the sex of intermediate ancestors of such lineal descendant or descendants. The final clause of disposition in the said deed was to the following effect:

(3.) The plaintiff's case is that the Mutawalli in conjunction with the other Defendant's had sold the suit property and was guilty of malfeasance and breach of trust and it has become therefore necessary to preserve the said property for indigent muslim orphans who are the final beneficiaries under the wakf, and the reliefs claimed in the suit should be granted.