ABDUL RAZAQ Vs. ALI BAKHSH

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the High Court of Judicature at Lahore dated 12 July 1944 which affirmed a judgment and decree of the Commercial Subordinate Judge, First Class, Delhi, dated 28 June 1941.

(2.) Leave to appeal to His Majesty in Council was granted by the High Court on the ground that substantial questions of law were involved. The only question of law which appears to arise is whether the father of respondent 2 who was mutwalli of a wakf, had power to appoint respondent 2 as his successor. The respondents have not appeared on the appeal but counsel for the appellant has placed before the Board the relevant arguments on both sides.

(3.) The facts giving rise to the appeal can be stated shortly. In the year 1855 one Sheikh Mohammad Taqi made a will by which, so far as relevant, he gave one - third of his property in charity and appointed Qutab - ud - Din as his executor. In or about the year 1872, Qutab - ud - Din received a sum of Rs. 1,66,683 - 3 - 8 on account of the share of the estate of Sheikh Mohammad Taqi given in charity, and their Lordships think in agreement with the High Court in India that Qutab - ud - Din was in possession of this property as mutwalli of a wakf. On 17 April 1874 Qutab - ud Din made a will in which he stated that he was the manager of an Institution created for religious purposes by the said Sheikh Mohammad Taqi and he executed his will in favour of his three sons, Abdul Ghani, Mohammad Shafi and the appellant, Abdul Razaq, with the idea that the entire business of the Institution should continue and subsist after his death. He then admitted that he was in possession of immoveable property worth Rs. 40,000 pertaining to the said Institution and directed the legatee to apply the income for religious purposes. It is not clear how the balance of the fund originally received by Qutab - ud - Din in 1874 had been dealt with, but his sons never disputed that they held the fund received by them under his will as mutwallis of a wakf. Probably their appointment as mutwallis can be justified on the ground that Qutab - ud - Din was the executor of the wakif, but, in any case, their appointment has never been challenged. In 1902 Mohammad Shafi, one of the sons of Qutab - ud - Din, died, and thereafter Abdul Ghani and the appellant continued to act as mutwallis. By two agreements dated respectively 15 September 1914 and 27 June 1927 Abdul Ghani and the appellant divided between them work connected with the wakf. Their Lordships think that these agreements were designed only to facilitate the administration of the wakf, and that such agreements did not purport, and in law were incompetent, to divide the wakf into two wakfs.