ALLAH RABBUL ALMIN Vs. HASNAIN AHMAD

JUDGEMENT

(1.) This is a plaintiff's appeal in a suit for declaration that plaintiff 2 is the Mutwalli of the entire village Hirapur, district Bulandshahr, and that the defendant is not the Mutwalli of a half share in the said property. The plaintiff subsequently prayed for possession also, on which he paid the necessary court-fee.

(2.) On 14-10-1900, a lady named Imamunnisa, executed a deed of waqf in regard to the said village in which she laid down the following scheme for the appointment of Mutwallis: ". . . After my death Bibi Rab tb Bano, daughter, whom I have brought up as my own daughter shall be the Mutwalli in my place ..... that after her death, first her eldest son, and, in case he was incompetent or for any other reason was unable to carry out his functions, her other sons would be the Mutwallis in order of seniority." The italics are mine. This is the correct rendering into English of the original clause, the translation at page 53 of the paper book not being quite accurate.

(3.) This, in my opinion, means that, after the death of Rabab Bano, her eldest son was to be the Mutwalli, but that, in case the latter, either by reason of incompetency pr any other reason, could not carry out his duties as such, the elder of the remaining sons of Rabab Bano and, after his death, the younger was to be the Mutwalli. It is true that the document does not expressly provide for the elder of the remaining two sons being the Mutwalli on the death of the eldest son, but certainly both the parties assumed--and no suggestion was made during the arguments to the contrary--that the elder of the two remaining sons of the lady, after the death of the eldest, would be entitled to claim the office by virtue of the above recital. The plaintiffs put the position in the clearest terms in para. 9 of the plaint, and the defendant, apart from a bare denial of it, did not plead in his defence that plaintiff 2, who was the elder of the two surviving sons of Rabab Bano after the death of her eldest son, could not claim to be the Mutwalli, merely by reason of the death of the eldest son, unless he had got himself appointed as such by the Court. Indeed, in para. 6 of his written statement, the defendant clearly implied that the said plaintiff could not claim the right of tauliat 'now' because of the will referred to above and the agreement to be referred to later. The learned Civil Judge also, in the beginning of his judgment, put the position, presumably as agreed to and assumed by the parties, on the same line. There being no plea on the point by the defendant, there was no issue also on it in the Court below, nor is there any indication of any such suggestion in its judgment. In my opinion, the intention of the waqif, Imainunnisa, was to provide for the appointment of the second son in case the first was not in a position or was not available to fill the office of Mutwalli by any reason whatsoever. I think that it would be too technical to assume that the waqif required the second son, after the first had died, to get himself appointed as Mutwalli by the Court, before he could claim to have acquired that office. If this were her intention, there would have been a clear recital in the deed to that effect. On the other hand, the words used indicate that the waqif contemplated the desirability of the . second son succeeding to the tauliat after the first had ceased to serve and of the third son succeeding after the second had ceased to occupy the office for any reason whatsoever. In fact, learned counsel for the respondent did not contend during his two days' arguments that the plaintiff had no locus standi to bring the present suit in the absence of an order of appointment by the Court and merely by reason of the death of his eldest brother. At this stage, in the course of dictation of the judgment, he was called again and when asked to clarify his position on this question he no doubt said that there was this loophole in the position of the plaintiff, but when asked why he had not raised or even suggested the point during his elaborate arguments for two days, he only said, it was his 'mistake.' This reply is only a measure of its value and seriousness, and I need not pursue the point any further.