MOAZZAM ALI Vs. RAZA ALI

JUDGEMENT

(1.) In our, opinion this decision cannot be supported. The learned Judge has misapplied the decision in the case of Muhammad Ibrahim Khan V/s. Ahmad Said Khan (1910) I.L.R. 32 All. 503, which was founded upon an earlier case, namely, Mahadeo Prasad V/s. Bindeshri Prasad (1908) I.L.R. 30 All. 137, in which it was held "that the appointment of a guardian to a minor, not being a matter of private right as between parties, is not a question which can be settled by reference to arbitration."

(2.) That is to say, the court has a kind of parental control over a minor, and a special jurisdiction over the guardian, and it cannot allow that jurisdiction to be taken out of its hands by any private arrangement between the parties. In the decision in the case in 32 Allahabad, that principle was applied to the mere appointment of a mutawalli, and we express no opinion as to whether it was rightly applied or riot. But that is not the question in this suit. It cannot really be better put than the learned District Judge put it. Independently of the question of the appointment of mutawalli--it being still an open question as to whether this waqf is a valid: one and whether a mutawalli has lawfully been appointed--the parties referred certain differences to an arbitrator, who by his award, determined their rights. As the learned District Judge says, "the status of the parties has been determined by the award, and each is entitled to an equal share in the management and profits of this property."

(3.) That is what the plaintiff sued for, and the defence really amounts to an act of impudence. That is to say, under the cloak of public right, public charity, and religious endowment, the defendant claims to stick to the whole of the profits of this property to the exclusion of the party who is entitled to half. The law is not so foolish as to deprive a plaintiff of his just civil rights in a suit of this nature. The appeal must be fallowed, and the decree of the lower appellate court restored with costs.