PHATMABI Vs. HAJI ABDULLA MUSA SAIT

JUDGEMENT

(1.) The plaintiff claims mesne profits in respect of certain waqf properties. The real questions involved in the suit and appeal were the subject of some discussion before us but the issues settled by the District Munsif shew that the contention of the plaintiff was that she succeeded to the office of Mutawalli of the waqf properties by hereditary devolution, and that she claimed possession of them on that footing as against the defendant, that the defendant on the other hand set up his own title as Mutawalli on the strength of an appointment by a person calling himself the Kazi, and also by the members of his community. The real question therefore to be decided by us is whether the plaintiff has made out that she was the actual and rightful Mutawalli of the waqf properties for three years succeeding 6th August 1905, and not whether the plaintiff has proved some circumstances which would entitle her claims to bs considered, were the court asked to appoint a Mutawalli of the waqf properties. The relative qualifications of the plaintiff and the defendant to be appointed Mutawalli need not be considered by us, notwithstanding that as a defence to the plaintiff s claim, the defendant claim to be entitled to hold the office of Mutawalli himself. It may be that the defendant is not the rightful Mutawalli but that would not necessarily entitle the plaintiff to succeed in her suit.

(2.) The modes in which a person may come to hold the office of Mutawalli seem to be laid down in Baillie s Digest of Mahomadan Law (which it need hardly be said, is a translation merely of the Futwa Alamgiri) on page 693 of the edition of 1865 corresponding to pages 603 and 604 of edition of 1875. It would seem that there are three sources from which a person may trace his right to be Mutawalli. (1) Appointment by the waqif (that is the original author of the waqf or by some person expressly authorised by the waqif to appoint ; and in the absence of any person so authorised, (2) Appointment by the executor of the waqif, and in the absence of such appointment, (3) Appointment by the Court.

(3.) If the statement given above correctly represents the text of the Futwa Alamgiri then, any title to be a Mutawalli must be derived from one of two main sources, namely, either the waqif himself, or the Court.