ALI HUSSAIN Vs. MOHAMED HUSSAIN

JUDGEMENT

(1.) THE suit out of which this appeal arises relates to a grove which originally belonged to one Musammat Muniran. She made a waqf of this grove in the year 1890 and appointed herself the first mutwalli. THE deed of waqf provided that after her death the mutwallis should be her grandsons, namely, the plaintiff Muhammad Husain and the defendant Ali Husain. THE present suit was brought by the plaintiff for a declaration that the grove was waqf property in which the plaintiff and the defendant Ali Husain had no other rights than those of mutwallis. He asked for an injunction restraining Ali Husain from transferring the trees in the grove. He was allowed to amend the plaint and to claim a certain sum of money as the price of trees which were alleged to have been out down. It appears that on the 15th of June 1917 the plaintiff Muhammad Husain executed a document whereby he transferred his rights as mutwalli to his father Allah Baksh and appointed him mutwalli in his own place. Allah Baksh applied for mutation of names, but his application was refused and he has taken no part in the management of the property nor has he asserted any right in respect of it. THE defendant contended that as the plaintiff had transferred his rights to his father be was not entitled to maintain the suit and that he had ceased to be mutwalli. THE decision of the question thus raised depended on the terms of the waqfnama executed by the creator of the waqf. In the fourth paragraph of that document she provided that the mutwallis could appoint a member of her family as mutwalli in their own place. THE learned Subordinate Judge Yield that this was not a general power enabling each one of the mutwallis to appoint a substitute in his own place but power was given to both the mutwallis jointly to appoint a substitute in place of both of them. We think that this interpretation of the clause the in waqfnama is a proper interpretation and apparently represents the intention of the waqif, If this was so (and we think that this is what was intended by the waqif), the appointment of the plaintiff s father by the plaintiff was invalid. As we have said above, the appointment has never taken effect and the plaintiff s father has after the decision of the mutation case not asserted any right under the document executed in his favour. It is urged before us that the effect of the appointment of the plaintiff s father by the plaintiff was that the plaintiff relinquished his rights as mutwalli, and in support of this contention reliance is placed upon the following passage in Mr. Ameer Ali s Muhammadan Law, Volume I, Fourth Edition, page 456: "THE appointment of another mutwalli by one who does not possess general powers, without the leave of the Qazi, is tantamount to a withdrawal of the incumbent from office, yet he remains responsible, unless the appointment or transfer of the trust is subsequently confirmed by the Qazi." This passage, in our opinion, so far from supporting the case of the appellant, is against him. THE plaintiff, notwithstanding the appointment by him of his father, remained responsible inasmuch as the appointment of the father or the transfer of the trust was never confirmed by any authority. Being so responsible he is entitled to restrain the defendant, his co trustee, from alienating or wasting any part of the waqf property. A reference was made in the coarse of the argument to Section 92 of the Code of Civil Procedure and it was urged, though no plea has been taken on the point in the memorandum of appeal before us, that the plaintiff was seeking by this suit to obtain the remedy which could be granted by Section 92. It is clear from the prayer in the plaint that such was not the intention of the plaintiff. He was not seeking to remove the defendant from the management of the trust property. On the contrary he is asking for a declaration that both he and the defendant are the mutwallis and are entitled to manage the waqf property jointly. We think the appeal is without force. We dismiss it with costs.