P L D 1954 Federal Court 208 (PLP)

ABDUL RASHID, C. J. This appeal has arisen out of an action brought by Mirza Akbar Ali against Mirza Iftikhar Ali and 1118 two brothers for a declaration to the effect that the plaintiff is the validly appointed Mutawalli of Wazir Khan Mosque and the property attached thereto. The Trial Court dismissed the plaintiffs suit. On appeal, the learned judge, of the High Court dismissed the plaintiff's appeal, but gave certain findings which had the effect of invalidating the appointment of Mirza Iftikhar Ali as Mutawalli by his predecessor. Iftikhar Ali, defendant No. 1, made an applica tion in the High Court for the grant of a certificate for an appeal to the Federal Court on the ground that though the plaintiffs suit had been dismissed the judgment of the High Court was in substance against the interests of the defendant. The High Court granted to defendant a certificate in the following terms :-- "The property involve ‑in this case is admittedly worth much more than Rs. 10,

000. The judgment of this Court was in substance against the petitioner. We certify this to be a fit case for appeal to the Federal Court." Iftikhar Ali, the first defendant, has preferred this appeal. The plaintiff is the only contesting respondent and will be referred to as "the respondent". The other two defendants have also been made pro forma respondents in this appeal. In the year 1641 Hakim Alam‑ud‑Din, who was generally known as Nawab Wazir Khan, executed a Wakfnama (Exh. P. 1/1) dedicating to charitable purposes known as Wazir Khan Mosque "with all its lawful accessories and appendages" situated inside the walled town of Lahore. The Wakif stated that in order to give permanency to this sacred institution he had endowed for its existence all the shops situated on both sides of the road together with habitable quarters etc. He laid down, inter alia, the following conditions for the management of the Wakf property :‑ "The control and charge of the endowments afore mentioned concerning the dismissal and appointment of the servants of the mosque, etc., the disbursement and the assignment of the expenditure, the increase therein and investments and divestments relating thereto, the location and ejectment of the tenants of the shops will permanently be in the hands of the testator himself as long as he lives. After him this power shall be in the hands of his Sulbi son (son born of his loins) Muhammad Saeed Khan, after him (it shall rest) with Mirza Muhammad Anwar and after him with the "fittest" (Arshad‑uz‑zakoor) o: his male issues and the issue of his issue generation after generation and progeny after progeny as long as they procreate and generate. And should none be left of his issue then the power shall rest with the males from among his near relations, in like manner." Provision was made in this wakf‑deed to the effect that any person from among the descendants of the said Wakif who is placed in charge of the legacy shall receive each month one‑sixth of the income accruing from the entire property. It was stated towards the end of the deed that it had been attested as binding by the Qazi of the time who had put his sacred seal on it in confirmation of the same. The last Mutawalli of the Wakf before the present litigation was Mirza Sir Zafar Ali, a former judge of the Lahore High Court, who died on the 20th September 1942. The plaintiff's case is that immediately on the death of Sir Zafar Ali the members of the Wakif's family assembled and, in pursuance of the provisions of the deed of Wakf and the usage observed by the family, elected the plaintiff as Mutawalli. The defendant, on hearing of the appointment of the plaintiff as Mutawalli, proclaimed himself as Mutawalli in the Wazir Khan Mosque by going through some sort of Dastarbandi alleging that his father had appointed him Mutawalli in his life‑time. According to the plaintiff, Sir Zafar Ali had been suffering from paralysis for a long time before his death and was incapable of appointing a successor and, in any case, he was not entitled to make such an appointment. The plaintiff prayed that a decree may be granted to him to the effect that he was the properly appointed Mutawalli and that the first defendant may be asked to render accounts of the Wakf property to him. Mirza Iftikhar Ali defendant denied that the plaintiff had ever been appointed Mutawalli of the Mosque and the property attached thereto, by the family or that the family had any such power of appointment. The defendants pleaded, inter alia, that according to the terms of the wakf‑deed the last Mutawalli had the power of appointing his successor, and as Sir Zafar Ali had appointed Mirza Iftikhar Ali as the Mutawalli first by means of a written deed executed in 1936, and again on his death‑bed verbally about 20 days before he expired, the family had no right to appoint any one else. It was also stated by the defendant that the true interpretation of the Wakf‑deed was that only the most upright of the sons of the last Mutawalli could be appointed, and that none of the other descendants of Mirza Sir Zafar Ali or the Wakif were eligible for appointment. The Trial Court held that according to the deed of Wakf the choice of the Mutawalli was not to be confined to the three sons of Mirza Zafar Ali, the last Mutawalli, but that all the descendants of the Wakif were eligible for appointment. It was further held that no usage regarding the appointment of Mutawalli relating to this institution had been established and that the last Mutawalli was entitled in accordance with the provisions of Muslin, Law to appoint any one, whom he considered to be the most upright out of the descendants of the Wakif, as Mutawalli. Iftikhar Ali, defendant No. 1, was validly appointed by Mirza Sir Zafar Ali as a Mutawalli. The allegations made by the plaintiff regarding his election by the members of the family had not been established and the members of the family had no right to elect a Mutawalli as Iftikhar Ali had been nominated as Mutawalli by Mirza Sir Zafar All. The learner judges of the High Court held that by the terms of the Wakf deed all the members of the family of the Wakif were eligible for appointment as Mutawalli ; that by established practice relating to this institution the Mutawalli is elected by all the members of the family ; and that in any case no one can be regarded as a validly appointed Mutawalli unless his appointment is approved by all the members of the family. It was further held that Sir Zafar Ali could only appoint his successor when he was suffering from Marzul Mout and that it had not been established that he made any such appointment twenty days before his death as alleged by the defendant Even if he had made such an appointment it would have only a temporary effect. The plaintiff's claim that he had been elected a Mutawalli in pursuance of a properly convened meeting was negatived. The parties were left to bear con vened meeting was negatived. The parties were left to bear their own costs. The most important question for determination in this case is whether Iftikhar Ali defendant was appointed a Mutawalli by his predecessor, Mirza Sir Zafar Ali during Marzul Mout (illness resulting in death), and if so, whether his appointment was valid under the Muhammadan Law. On the 13th July 1936, Mirza Sir Zafar Ali executed a deed of wakf‑alal‑aulad (Exh. D 4). After making provislor, for his children regarding his personal property, he made the following provision in respect of Masjid Wazir Khan :‑ "I also mention here that I am the Mutawalli of Tvlasjrd Wazir Khan and the property attached thereto. After me my eldest son Mirza Iftikhar Ali, aforesaid, shall be the Mutawalli of Masjid Wazir Khan and the property attached thereto." This appointment was made by Sir Zafar Ali about six years before his death which took place on the 20th of September 1942. According to the defendants, the recitals in this registered deed were given effect to by Sir Zafar Ali by making a verbal appointment of Mirza Iftikhar Ali as Mutawalli on the 1st of September 1942. Ghulam Dastgir (D. W. 2) states that in the first week of September he went to see Mirza Zafar Ali who was his real uncle. He was in his perfect senses but was ill. The witness had travelled from Hoshiarpur to Lahore in order to see his uncle. At that time Mirza Iftikhar Ali defendant was present and so was Hamid Ali, typist of Sir Zafar Ali. Sir Zafar Ali at that time told all those who were present that he considered Iftikhar Ali to be arshad‑uz‑zakoor (most upright) and that he was appointing him as Mutawalli of Wazir Khan Mosque. Mirza Zafrullah who used to collect the rent of this property was also instructed in the presence of Ghulam Dastgir to deposit the rents of the property in the bank in the name of defendant No.

1. Mirza Zafrullah (D. W. 19) states that about 20 days before his death Sir Zafar Ali sent for him and he went to see him in the company of his brother. The three defendants and a typist Hamid Ali were there. Sir Zafar Ali told him that in pursuance of the nomination of defendant No. 1 as Mutawalli already made by him in a registered deed he had appointed the defendant as Mutawalli and that he should begin to deposit the surplus of the income of the Mosque and the property attached thereto in the name of defendant No.

1. To the same effect is the evidence of Hamid Ali typist (D. W. 22). Iftikhar Ali defendant has stated that on the 1st of September 1942 his father had ordered that the Wakf account should be transferred in his name. At that time, Hamid Ali typist, his 'younger brother Anwarul Qadir, Zafrullah Khan rent collector, and his brother Ghulam Dastgir, were present. The account was, then transferred in his name the same day. Anwarul Qadir, defendant No. 2, supported the first defendant with respect to the transfer of the Wakf account to the name of Iftikhar Ali and the dictating of a letter to the Imperial Bank to his typist Hamid Ali by Sir Zafar Ali. It appears from Exh. D. 17 that on the 1st of September 1942, a sum of Rs. 9,993‑4‑6 was transferred from the acconnt of Sir Zafar Ali to the credit of Mirza Iftikhar Ali defendant. According to the defendant and the typist, this sum related to the Wakf account, I am of the view that the sum of Rs. 9,993‑4‑6 could not have been transferred by Sir Zafar Ali to his eldest son as a gift on the 1st of September. Evidently, this sum con stituted the whole amount standing in the name of Mirza Zafar Ali on the 1st of September 1942 in one of the two accounts (the Wakf account and the personal account) that he had with the Imperial Bank. Mirza Sir Zafar Ali had been ill for a very long time, and he could not transfer his entire personal account to his eldest son and thereby make himself penniless. He might have lived for a number of years after the 1st of September 1942. There was no certainty that he would die in another three weeks. It appears to me, therefore, that the appellant is right in stating that this sum of Rs. 9,993‑4‑6 constituted the entire amount standing to Sir Zafar Ali's credit in the Wakf account, and that the whole of this amount was transferred to him on the day that he was appointed as Mutawalli. The evidence summarised above was relied upon by the Trial Court, and a finding was given that it had been established that Iftikhar All was appointed a Mutawalli of the Wakf property by Mirza Zafar Ali on the 1st of September 1942 during Marzul Mout. The stand taken up by the respondent was that Mirza Zafar Ali was unconscious for a period of two or three months before his death, and that he could not have appointed Iftikhar Ali as a Mutawalli on the 1st of September 1942. On this question, the defendants produced Dr. Yar Muhammad Khan M. D. as a witness. He stated that he had seen Mirza Zafar Ali twice during his last illness. The first visit was on or about the 12th of September and the second one was about a week later. At the time of the first visit Mirza Zafar Ali was in his full senses. He re cognized the doctor whom he knew before and replied to his questions rationally. The main contention of the respon dent's counsel was that the witnesses who gave depositions regarding the death‑bed appointment of Iftikhar Ali as Mutawalli were closely related to him, and that such interested testimony should not be relied upon. It appears to me that the evidence of these witnesses is strongly corroborated by Exh. D. 4 which was executed Ly Mirza Sir Zafar Ali in 1936 and Exh. 17 relating to the transfer of Rs. 9,993‑4‑6 to Mirza Iftikhar Ali on the 1st of September 1942. The finding of the High Court in this respect is against the weigh; of evidence and cannot be sustained. The learned Judge have not paid due regard to the circumstances which induced the Trial Court to rely on Exh. D.

17. I have not the slightest hesitation in holding that Iftikhar Ali appellant was appointed a Mutawalli of the Wazir Khan Mosque by his predecessor Mirza Zafar Ali on the 1st of September 1942 while he was on his death‑bed. The next question to be considered is whether this appointment was valid under the provisions of Muhammadan Law. It is stated in Ameer All's Muhammadan Law, Vol. I, p. 349 (1892 Edition) that "In the absence of any provision in the trust‑deed as to the mode of succession, or of any evidence of usage, the Mutawalli may, on his death‑bed, nominate his successor, and such nomination will be valid without any judicial order. But in order that the nomination may be effective, it is necessary that the person so appointed should be adult and possessed of understanding." At p. 354, it has been stated that "The last Mutawalli has the power of nominating his successor oniy when the Wakif has made no provision regarding the office. If the Wakif has declared that the office shall descend in the lineal male in a particular family, none of the incumbents will have the power of changing the course of descent. Or, if the Wakif has declared that after A, B should succeed to the office, A has no power to appoint C." In this respect, Wilson is in agreement with Ameer Ali. It has been Said down in para. 328 of Wilson's Anglo‑Muhammadan Law (6th Edition that "The mode of succession to the office of Mutawalli is usually defined in the deed of endowment. If it has not been so defined, and if the intention of the founder cannot be inferred from usage, the right of appointing a successor when a vacancy occurs vests in‑-- (1) The founder, if still living ; (2) His executor, if any ;then, except as provided by the next section, in (3) The Court (other than a Small Cause Court) which exercises ordinary civil jurisdiction over the local area within which the dedicated property is situated" ............... Pare 329 lays down that "After the death of the founder and of his executor, if any, and if no order of succession has been indicated in the deed of endowment, the Mutawalli, for the time being may appoint his own successor by will. But an order of the Court is necessary in order to complete the title of the testamentary successor to the enoluments enjoyed by his predecessor. A Mutawalli, has no power to transfer the office to another person while he is himself alive and in good health, unless such a power was expressly conferred upon him by the founder or by the Court that appointed him." In Baillie's 'Digest of Muhammadan Law' (1865 Edition) it is stated that "When the superintendent has died, and the appropriator is still alive, tht appointment of another belongs to him and not to the judge ; and if the ‑appropriator be dead, his executor is preferred to the judge. But if he had died without naming an executor, tie appointment : of an administrator is with the judge.".. .. "A superintendent may at death, commit his office to another, in the same way as an executor may commit his to another. But when the appropriator has assigned some particular property for this superintendent, it does not belong to the person whom he has appointed to the office ; and the matter must be submitted to the judge, in order that he may assign for him the hire, or salary of similar work, unless the appropriator had assigned the allowance for every superintendent. A superintendent while alive and in good health cannot lawfully appoint anotner to act for him, unless the appointment of himself were in the nature of a general trust." Reference in this connection may also be made to paras. 204 and 205 of Mulla's Muhammadan Law (1950 Edition) where it is stated that "(1) The founder of the Wakf has power to appoint the first Mutawalli, and to lay down a scheme for the administration of the trust and for succession to the office of Mutawalli. He may nominate the successors by name, or indicate the class together, with their qualifica tions; from whom the Mutawalli may be appointed, and may invest the Mutawalli with power to nominate a successor after his death or relinquishment of office. (1) If any person appointed as Mutawalli dies, or refused to act in the trust, or is removed by the Court, or if the office or Mutawalli otherwise becomes vacant, and there is no provision in the deed of Wakf regarding succession to the office, a new Mutawalli may be appointed, (a) by the founder of the Wakf; (b) by his executor (if 'any); (c) if there be no executor, the Mutawalli for the time being may, subject to the provisions of section 205 below, appoint a successor on his death‑bed ; (d) if no such appointment is made, the Court may appoint a. Mutawalli. Para. 205 is to the effect that "If the founder and his o to tutor are Loth dead, and there is no provision in the Wakfnama for succession to the office, the Mutawalli for the time being may appoint a successor on his death‑bed. He cannot do so whip he in health as distinguished from death‑illness. Nor it the office goes by hereditary right." A reference to p. 120 of Vol. 4 of the Urdu translation of Fatawa‑i‑Alamgiri shows that the Mutawalli on his death‑bed can appoint his successor in the same way as a wasi has a right to appoint his successor at the time of his death. But if the Wakif has fixed any particular emoluments for the Mutawalli, the successor so appointed would not be entitles to those emoluments until this question is decided by the Qazi. The provisions of Muslim Law referred to above make it clear that, in the absence of any directions by the Wakif as to the mode of succession, the Mutawalli is entitled during his death‑illness to appoint his successor, though lie is not allowed to appoint his successor while he is in good health. The counsel for the respondent urged that the provisions reproduced above from various authoritative books on Muslim Law did not contain a complete statement of the law on the subject. He relied in this connection on paras. 492 and 493 of Tyabji's Muhammadan Law (Third Edition). Emphasis was laid on the following passage at p. 622 :‑ "The authorities relating to the points covered by section 492‑A are not quite clear and require some attention The general rule is first stated ‑ ‑ (1) "When the superintendent has died, and (a) the appropriator is still alive, the appointment of another (Mutawalli) belongs to him, and not to the judge ; and (b) if the appropriator re dead, his executor is preferred to the judge. But (c) if he had died without naming an executor the appointment of an administrator is with the judge". It was urged 'that the texts give authority to appoint a successor to three persons successively : the Wakif, his executor and the Court; and make no mention of the last Mutawalli nominating a successor to himself. The learned author, however, proceeds to state that "(2) `A superintendent may at death commit his office to another in the same way as an executor may commit his to another ...... (3) `A superintendent while alive and in good health cannot lawfully appoint another to act for him, unless the appointment of himself were in the nature of a general trust," The author then explains that " The two statements numbered (1) and (2) are not inconsistent, since (2) means that though the Mutawalli (has in the absence of express direction in the Wakf‑nama) no right to appoint a successor himself (just as he has no right to appoint a substitute in his life‑time) ; yet, as he may, when necessary, in his life‑time appoint a deputy, similarly " at death " he may commit the administration of the Wakf to a successor. This death‑bet act cannot, of course, affect the power of the proper authorities to appoint his successor,‑whether such proper authority is the Wakif himself, of his executor, or the Court." The counsel submitted that the above passages lead to the conclusion that the death‑bed appointment of a successor by a Mutawalli is a temporary or an interim appointment and that such a Mutawalli can hold office only till the Court appoints a successor. At p. 623, however, the following observations are made by the learned author :‑ " We are thus enabled, if not to trace out, at least to get scent of a helpful surmise how it is that the power of appointing a successor to the Mutawalli is attributed, in the text to three persons, the Wakif, his executor, and the Kazi‑and yet, in practice, this power is in India most often exercised by a fourth person, the Mutawalli himself." He then traces the history of the steps whereby the Mutawalli has in practice acquired the power of appointing his successor in his last illness. This is clear from the following passage :‑ "The Wakif may accordingly appoint an executor speci fically for administering the Wakf, who would in effect be the Mutawalli and in that manner the residual remnant of the Wakif's powers may vest in the Mutawalii as though he were (as regards the Wakf property) the Wakif's executor; thus he may acquire the power (originally attributed to the executor) of nominating a successor to himself." It appears to me that the statement of the law as given in Tyabji's Muhammaden' Law is not materially different from that given in the other five authoritative books referred to above. The learned author has only tried to provide an historical explanation of the steps whereby the last Mutawalli has acquired the power to appoint his successor on his death‑bed. Mr. Yaqub Ali Khan quoted a number of authorities relating to the appointment of Mutawallis and Sajjadanashins to show that the trend of judicial opinion is that a Mutawalli can appoint his successor under certain circumstances even when he is in the enjoyment of good health. I consider it unnecessary to refer to these authorities, as I have held that Mirza Zafar Ali at his death‑bed appointed Mirza Iftikhar Ali as his successor. It was contended by the counsel for the respondent with the utmost vehemence that the words " in the absence of any provision in the trust‑deed as to the mode of succession " in Ameer Ali's Muhammadan Law mean that where there is no provision at all of any type whatever regarding the appoint ment of a successor, the last Mutawalli can appoint one on his death‑bed, but as in the present Wakf deed it was stated that the Mutawalli shall be a male lineal descendant of Mirza Mohammad Anwar and that he should be " arshad‑uz‑zakoor ", that is, the most upright of the descendants, it could not be held that the mode of succession was not indicated in the present deed of Wakf This contention, in my opinion, is devoid of all force. Mode of succession can be said to be indicated in a Wakf‑deed only when by following that mode we can find out a specific person who is to succeed the last Mutawalli. In the present Wakf‑deed, it is not stated how the " arshad‑uz‑zakoor " or the most upright male lineal descendant of Mirza Mohammad Anwar, is to be selected, Ts the succession to be determined by election or by nomination ? If an election is to be held, are the descendants of Mirza E Mohammad Anwar the only persons who can partake in such' an election, or, should the inhabitants of the locality or the citizens of Lahore be allowed to cast their votes in favour of the various descendants? It cannot be said that by laying down that the Mutawalli shall be chosen from the malc issue of Mirza Mohammad Anwar and that he should be the most upright of them, the Wakif has made a provision regard ing the mode of succession to the office of Mutawalli. The counsel for the respondent was not able to point to a single authority or any text of Muhammadan Law in support of his contention that a vague direction in the deed of Wakf which cannot lead to the appointment of a definite person as a successor has ever been regarded as a provision relating to the mode of succession. I hold, therefore, that no mode of successor having been laid down in the present Wakfnama, it was open to Mirza Zafar Ali during his death illness to appoint his successor. It was next urged that there was nothing on the record to prove that Mirza Iftikhar Ali was the arshad‑uz‑zakoor or that Mirza Sir Zafar Ali took into consideration the claims of all the descendants of Mirza Mohammad Anwar before making the appointment. These contentions were not raised by the respondent by his pleadings and no issue was therefore framed as to whether Mirza Iftikhar Ali was or was not the most upright of the descendants of Mirza Mohammad Anwar. If he is so advised, he might institute a suit for the removal of Mirza Iftikhar Ali on any grounds that might be open to him. In the present litigation, the respondent merely stated that Mirza Zafar Ali was unconscious for a period of two months before he died and that no death‑bed appointment had in fact been made by him. It was contended on behalf of the respondent that according to usage governing the appointment of the Mutawalli, so far as the Mosque of Wazir Khan is concerned the successor to a Mutawalli has to be elected in a meeting attended by all the descendants of Mirza Muhammad Anwar. The paragraph relating to this usage in the plaint runs as follows :‑ "

4. Immediately on the death of Mirza Zafar Ali, the late Mutawalli, the descendants of the common ancestor having consulted together in accordance with the instruc tions and conditions of the deed of Wakf and practice of the family appointed me, the successor Mutawalli. They called me by means of a telegram, informed me of my appointment and congratulated me. Thereupon I forthwith informed all the tenants of the Waif property, of my appointment and served registered notices on them for executing rent‑deeds in my favour and payment of the rent to me in future and started taking possession (of the property)." The Trial Court found that there was no usage whereby a Mutawalli is to be elected by the descendants of Mirza Muhammad Anwar, and that no such election was held so far as the respondent was concerned. The High Court held that the plaintiff had not been elected at any duly constituted meeting of the descendants of Mirza Muhammad Anwar. A halting finding, however, was given that the right of appointing a Mutawalli vested in the family and that the appointment of Sir Zafar Ali and his father Mirza Anwar Ali "establishes some sort of usage that the appointment was to be made with the approval of the family." When asked to state the precise nature of the usage on which he relied the counsel for the respondent stated that the usage was that on the death of the last Mutawalli the members of the family elect the succeeding Mutawalli in a meeting called for the purpose. Realizing that there was hardly any evidence worth the name to establish such a usage he urged that, in any case, the appointment of a Mutawalli is not valid unless he is accepted as such by the majority of the members of the family. In this connection, he relied on five instances, which have been referred to in the judgment of the High Court :‑

1. Firstly, there is a Farman of Ahmad Shah Durrani issued in the year 1769 (Exh. P 2). This Farman was issued, as Mirza Muhammad Fazil, a grandson of Nawab Wazir Khan, had represented to the authorities that the appointment and dismissal of the Mutawalli and other servants of the Mosque had been in the hands of the descendants of the founder, and that several persons were interfering in the management of the Mosque. A Farman was consequently issued confirming the claim of the descendants of Nawab Wazir Khan that the appointment and removal of the Mutawalli and the servants of the Mosque were in the hands of the descendants of the Wakif. The learned judges of the High Court have remarked that it does not necessarily follow from the Farman that the control of the Wakf property was in the hands of the descendants of the Wakif, for the Farman not only refers to the appointment of the Mutawalli but also to his dismissal. It further deals not only with the appointment of the Mutawalli but refers to other servants of the Mosque. The learned judges have also remarked that once a Mutawalli has been appointed, whether by the family or otherwise, he cannot be dismissed except by the Court, and that in so far as the other servants of the Mosque are concerned, they must he appointed or dismissed by the Mutawalli. This Farman is not of the slightest assistance to the plaintiff in establishing a usage that the descendants of the Wakif elect a Mutawalli on the death of the previous Mutawalli.

2. Reliance was placed by the counsel for the respondent on documents relating to the‑ appointment of Mirza Anwar Ali, father of Sir Zafar Ali, in the year 1874. In his plaint (Exh. P 19) Mirza Anwar Ali stated that he had been holding the office of Mutawalli ever since his father's death and he prayed the Court‑ that he be appointed Mutawalli of Wazir Khan's Mosque on the basis of the terms of the Wakf‑deed. It is clear that he did not base his claim on any formal usage, nor on the fact that he had been chosen to, be the Mutawalli by the descendants of the founder. He stated that as he was the son of the late Mirza Izzat Bakhsh and as he was the most worthy of his lineal descendants, he should be appointed a Mutawalli. The defendants in that case stated as follows :‑ "The plaintiff's father died two years ago. Since then, he has been the successor and manager. How the plaintiff is the most superior, learned and capable person of all the present members of the family. Hence, all of us accept him as Mutawalli. He may always remain in occupation. We have no objection. He may be declared to be entitled to mutawalliship." It is clear that Mirza Anwar Ali had been a Mutawali for two years before he instituted the suit and that neither he nor the defendants relied on any family usage in accepting him as Mutawalli.

3. The next document (Exh. P. 3) on which strong reliance was placed by the counsel for the respondent is the one relating to the appointment of Sir 7afar Ali as Mutawalli in the year 1911, In this document, the following statement was made by ten persons who were the descendants of the Wakif : ‑‑ "We, all the members of the family of Nawab Wazir Khan (may God's mercy 1,,e upon him) say with great pleasure th‑it Mirza l‑afar All, B. A. District judge, is the Arshad‑uz‑Zakur, i.e., the ablest and best of all the living male descendants of the said Nawab, deceased, and according to the deed of Wakf executed by Nawab Wazir Khan, deceased, dated the 1st Ram7.in‑ul‑Mubarik 1051 Hijra, he deserves in every way, to be Mutawalli of Masjid Wazir Khan, situate at Lahore, together with all the property attached thereto. Moreover his father Mirza Anwar Ali, deceased, also had willed that he should be appointed Mutawalli of the said Mosque after him. Now, Mirza Zafar Ali aforesaid has, at the request of us, all the members of the family of the aforesaid Nawab Sahib, accepted Mutawalliship and has taken into his hand the entire work of Mutawalli." There is no indication whether this document was ever brought to the notice of Mirza Zafar Ali. It does not refer to any usage and does not show that all the members of the family formally met to elect him as a Mutawalli. The reference to Mirza Anwar Ali's will. is also significant. The learned judges have stated that this document provides a clear recognition of the rights of the descendants of the Wakif to accept or not to accept the Mutawalliship of Sir Zafar Ali. It appears to me that this conclusion cannot be drawn from the contents Exh. P/3 unless it is shown conclusively that this document ever carne to the Ali, and was accepted by him as correct. This document embodies an ackonwledgment of an accomplished fact, Sir Zafar Ali having been appointed as his successor by his father Mirza Anwar Ali by means of a will that might have been made on death‑bed.

4. Exh. P/13 is a judgment of the Deputy Commissioner of Lahore in the case of Muslim Anjuman v. Mirza Izzat Bakhsh (grandfather of Sir Zafar Ali who was the Mutawalli in 1866). It merely contains some recitals that the Mutawalliship was to descend after Mirza Muhammad Anwar to the most worthy of his lineal male heirs. It does not refer to any family usage that the lineal male heirs are to elect or to choose the successor to the last Mutawalli.

5. Exh. P/16 is a judgment of the High Court delivered in a suit brought by Mirza Anwar Ali against Mirza Sadiq Ali for an injunction to the defendant not to interfere with the plaintiff in realizing the rents of the various shops attached to the Mosque and for possession of one of the shops. In this judgment, a remark was made that the descendants of the Wakif occupied a position of trust with reference to the Wakf property that they had claimed at various times and had conceded to them the right of appointing and dismissing the Mutawalli. This rendered the Mutawalli, to some extent, dependent on them. In this suit the defendant had relied on limitation and adverse possession in order to defeat the claim of the plaintiff. The remarks to which reference has been made, were in the nature of an obiter dictum and were unnecessary for the decision of the case. Remarks of this description cannot be regarded as establishing a usage that on the death of a Mutawalli, the next Mutawalli is to be chosen in a duly constituted meeting of the descendants of the Wakif. It was repeatedly urged by the counsel for the respondent that it is against the spirit of the deed of Wakf and the Muhammadan Law that an arbitrary decision made by the last Mutawalli on his death‑bed should govern the succession to the Wakf property. It is possible that a most unsuitable person may be declared by the last Mutawalli to be the most upright out of the descendants of the Wakif. The counsel submitted that the arshad‑uz‑zakoor should be selected by all the descendants of the Wakif, and that the High Court judg ment had given effect to the spirit of the Wakfnama and the intention of the Wakif in holding that only a properly convened meeting of the descendants of the Wakif can appoint a Mutawalli. It is obvious that if an unsuitable person is appointed by the last Mutawalli and he is not the arshad‑uz- zakoor out of the descendants of the Wakif, it is open to any one to institute a suit for the removal of the Mutawalli. If such a suit is instituted, it would be the duty of the Court to give effect to the provisions of the deed of Wakf. In the present litigation, no issue was ever framed whether the appellant or the respondent was the arshad‑uz‑zakoor, or whether any one out of the other living descendants of the Wakif could be regarded as the arshad‑uz‑zakoor. For the reasons given above, I would allow this appeal and set aside the finding of the High Court to the effect that Mirza Sir Zafar All did not make a death‑bed appointment, and that even if he had made one, it would have only a temporary effect. I would also reverse the finding that by usage pertaining to Wazir Khan Mosque, a Mutawalli can only be appointed by a duly constituted meeting of all the descendants of the Wakif. The result is that the judgment and the findings of the Trial Court are restored. The parties will bear their own costs throughout. AKRAM, J.--‑On the 28th October, 1948, Mirza Akbar Ali instituted a suit No. 191/43 in the Court of the First Subordinate Judge of Lahore, against the defendant No. 1, Mirza If tikhar Ali and his two brothers, defendants Nos. 2 and 3 (son of Sir Zafar All deceased) for a declaration that according to the terms of the Wakf‑nama executed by Nawab Wazir Khan dated 1641 and according to the family usage the plaintiff was the legally appointed Mutawalli of the Wazir Khan Mosque and the properties attached thereto; for the possession of the said Wakf properties and for accounts. The dispute between the parties relates solely to the right of succession to the office of the Mutawalli as respects to mosque and the properties aforesaid. The last Mutawalli of the Wakf Sir Zafar Ali having died on the 20th September, 1942, his eldest son, the defendant No. 1, Mirza Iftikhar Ali thereupon claimed to have been appointed on the 1st Septem ber, 1942, as the next Mutawalli by his father during death illness and to have been confirmed in that appointment by his heirs in accordance with the prevailing family usage. The plaintiff, who is a son of Mirza Safdar Ali, brother of Sir Zafar All, however, questioned the truth of the alleged appointment of the 1st September, 1942, and its confirmation as also their legality, and asserted that according to the terms of the Wakf‑nama and the usage of the Wakif's family, he the plaintiff, was the properly appointed Mutawalli having been elected by a majority of the adult male descendants of Mirza Muhammad Anwar. The original Wakf deed is not forthcoming but it is common ground that pages 218 and 219 of the Book "Lahore, its History, Architectural remains and Antiquity" contain a correct copy of it, of which an English translation is marked as Exhibit P.

11. On the pleadings die following issues were framed by the trial Court :‑‑ (1) Is the plaintiff a legitimate son of Mirza Safdar All and, therefore, a descendant of the founder of the Wakf ? (2) Was the plaintiff appointed as Mutawalli by the members of the family of the creator of the Wakf according to the directions and terms of the Wakf‑nama or in accordance with the practice obtaining in the family, as alleged in the plaint ? (3) Did Mirza Sir Zafar Ali, the last Mutawalli appoint defendant No. 1 as his successor and was this appointment according to the directions and terms of the Wakf‑nama or Muhammadan Law (4) If issue No. 2 be found for the plaintiff, is not defendant No. 1 an accounting party ? Issue No. 1 was decided in favour of the plaintiff. With regard to Issue No. 2, it was found that the Wakf‑nama contained a provision making all the descendants of Mirza Muhammad Anwar eligible for appointment as Mutawalli: but there was no provision in it for the election of the Mutawalli by the members of the family of Mirza Muhammad Anwar nor was there any usage or custom to that effect established by the evidence in the case. With regard to Issue No. 3, it was held that the defendant No. 1, was validly nominated as Mutawalli by Sir Zafar Ali under the provisions of the Muhammadan Law. With regard to Issue No. 4, it was held that the; plaintiff was not entitled to call for accounts from the defendant No.

1. In the result the learned Subordinate Judge dismissed the plaintiff's suit. From this decision the plaintiff took an appeal to the High Court of judicature at Lahore. The learned Judges (S. A. Rahman and Kayani JJ.) dismissed the appeal but disagreeing: with certain findings of this trial' Court in connection with Issues Nos. 2 and 3, held that some sort of a practice or usage for the election of the Mutawalli by the descendants of Mirza Muhammad Anwar as claimed try the plaintiff had been established; that the defendant No. 1 had not been appointed by the last Mutawalli (Sir Zafar Ali) and that in any event the appointment of a successor by the last Mutawalli can be valid during marz‑ul‑maut only in case of absence of any direction in the Wakf‑nama with regard to the filling of the vacancy or in case pf the last Mutawalli holding a "general power", but not otherwise, though an appointment maybe made by the last Mutawalli in death‑bed so as to remain in force till the time that a valid and proper appoint ment is made by a competent authority i.e., the Wakif, the executor or the Court in order that the Wakf may not suffer by neglect or want of care and attention during the interval. Being aggrieved by the above findings of the High Court the defendant No. 1, preferred the present appeal after obtaining a certificate under sections 109/110 C. P. C. Counsel for the defendant No. 1, appellant, contended that on a correct interpretation of the Wakf‑nama (English trans lation Exh. P. 1/1) the Mutawalli was to be appointed from the descendants of the last Mutawalli and not from the descendants of Mirza Muhammad Anwar, that the appellant having been appointed by the last Mutawalli In his death-bed on the 1st September, 1942, and the appointment having been subsequently confirmed by the descendants of the last Muta walli, the appointment of the appellant was a legal and valid appointment; that there was a general practice or usage in the family for election by the descendants of the last Mutawalli and pursuant thereto .the defendant No. 1, had received the approval of those descendants; that in any event the Muhammadan Law recognises the right of the last Mutawalli to appoint his successor during death‑illness. It appears, howevar, that the Wak‑nama which is in Persian recites as follows :‑ "ba'd oo ba Mirza Muhammad Anwar, wa ba'd oo Ba Arshad Zakoor‑i‑Auldd‑i‑oo wa Aulad‑i‑Aulad‑i‑oo batnan ba'd batnan wa Naslan ba'd Naslan." The portion underlined when rendered into English would read‑And after him Muhammad Anwar) with the most righteous of his sons (Arshad‑Zakoor‑i‑Aulad‑i‑oo) and his sons' sons in regular descent generation after generation and progeny after progeny, but in Exh. P. 1/1 it has been translated as :‑‑ "after him with the fittest of his male issues and the issue of his issue, generation after generation and progeny after progeny as long as they procreate and generate." From the original Persian it would be clear that there is an express direction in the Wakf‑deed that the successors are to be appointed from the lineal male descendants of Mirza Muhammad Anwar, that the office is to fall on the most righteous of them (Arshad‑i‑Zakoor) and preference is to be given to the generation next following over the one more remote. The claim that a different usage or custom regarding the devolution of the office of the Mutawalli had grown up cannot be accepted in the absence of anything to show that such usage or custom was observed from tine immemorial. The Wakf‑nama itself is dated 1641. It cannot, therefore, be seriously contended that a practice contrary to its terms had grown up from time immemorial. Assuming, however, that even where it is not shown that a practice has been im memorial, still there can be a valid usage or custom in respect of it. I am not satisfied that on the evidence on the record usage or custom with reference to election to the office of the Mutawalli as claimed by either party has been substantiated No doubt in the absence of any direction in the deed of Wakf' the past history of an institution, the way in which the management of its affairs has been conducted and the practices which have grown up since its foundation, may be taken into consideration at the time of the appointment of a Mutawalli. I but that is quite a different matter, it does not imply that the express and explicit directions given by the Wakif may be contravened for deflecting the course of succession and giving effect to the personal wishes or interests of any Mutawalli. The devolution of the office of Mutawalli depends in the fiirst instance upon the provision of the Wakf‑nama and in its absence upon usage, custom or law. The contention, therefore, that "the office of the Mutawalli is hereditary and the ablest son of the last Mutawalli succeed him" (Exh. D. 12/G) cannot be given effect to. It should also be noted that the Wakf is a public religious endowment connected with a mosque and with reference to the expression "Arshad Zakoor‑i‑Aulad‑oo" contained in the Wakf‑nama, the High Court has observed as follows :‑ " Indeed it could hardly be expected of an averagely human Mutawalli to look for uprightness in any quarter other than his immediate household, and Sir Zafar Ali was no exception when he selected as Arshad a person whose conception of the common Muslim's daily prayer is no clearer than that of an idolator. (See the cross‑examination of defendant No. 1 as D. W. 20 in respect of the ingredients of the Isha prayer.)" It cannot be said that it was unnecessary for the High Court to record a finding on this aspect of the question. On the pleadings a distinct issue had been raised " Was this appoint ment according to the directions and terms of the Wakf‑nama or Muhammadan Law ?" (last part of issue No. 3) ; evidence on the point had been adduced and the finding was given by the trial Court " Defendant No. 1, therefore, has been validly nominated as the Mutawalli by the last Mutawalli ". Although I agree in the view that the defendant No. 1, has succeeded in substantiating his claim that in fact he was appointed on the 1st September, 1942, as the next Mutawalli by Sir Zafar Ali in his death‑illness (D. Ws., 2, 19, 22, Exhs. D. 4 ; D. 17) ; this is not of much assistance in resolving the present controversy. The crucial question is what is the legal effect of the appointment having regard to the provisions of the Wakf‑nama and the Muhammadan Law. As to the Wakf‑nama I have already quoted from it the relevant provision and expressed the view that it lays down a perpetual rule of succession by declaring the class and qualification of the person to be appointed as Mutawalli from generation to generation. I do not think that the failure to set forth any particular procedure for searching out the proper person can in any manner affect the conditions prescribed by the Wakif or render them illusory. Indeed for laying down an unending chain of succession any attempt to provide for a definite machinery for giving effect to it might well become oppressive or even absolutely fail with the changing conditions and F circumstances which may occur in course of time in the unforeseen future ; but one may always depend with confidence upon their being somebody present at all times in every civilized government ready to see that a trust does not fail for want of a competent trustee conforming as nearly as possible to the wishes of the creator of the trust. The appellant on his own showing has not been selected from amongst the entire body of the descendants of Mirza Muhammad Anwar and does not possess the qualifications necessary for the office as laid down by the Wakif. I think, therefore, that the appointment cannot be said to have been made in accordance with the provisions of the Wakf‑nama. As to Mohammadan Law:‑ " The last Mutawalli has the power of nominating his successor only when the Wakif has made no provision regarding the office. If the Wakif has declared that the office shall descend in the lineal male line in a particular family, none of the incumbents will have the power of changing the course of descent. Or, if the Wakif has declared that after A, B shall succeed' to the office, A has no power to appoint C." " Should he in his lifetime and in health appoint another in his place, the appointment will not be lawful and valid, unless the Mutawalli has obtained the towliat with that condition, " in a general manner." " In the Fatawai Alamgiri the principle is given thus :‑‑ A Mutawalli may at his death commit office to another in the same way as an executor may commit his to another." (Ameer Ali's " Mohammadan Law" (1912) Vol. 1, pp. 450, 454 and 455). If the founder and his executor are both dead, and there is no provision in the Wakf‑nama for succession to the office, the Mutawalli for the time being may appoint a successor on his death‑bed. He cannot, however, do so while he is in health, as distinguished from death‑illness (f). Nor if the office goes by hereditary right." (Mulla's"Principles of Muhammadan Law" para 205.) " In the absence of any express or implied provision in the dedication for the appointment of successive Mutawallis :‑ (1) The Wakif is entitled to make the appointment; (2) after the death of the Wakif the executor of the Wakif or the survivor of several executors, is so entitled; (3) on the death of the said executor or surviving executor the Court may appoint the Mutawalli. (Tyabji's " Muhammadan Law " para 492.) According to all opinions, therefore, it is only when no provisions is to be found in the deed of wakf with regard to appointment to the office of the Mutawalli that a Mutawalli can appoint his successor in death‑bed like the executor who can bequeath his office to another to carry out the will of the testator. With the greatest respect, I am unable to agree with the observation made in the case of Haji Abdul Razak v. S. Ali Bakhsh and another (A I R (33) 1946 Lah. 200) :‑ " that a Mutawalli is in no way debarred from nominating his successor by will even when he is in good health." So to say, is to render the well‑recognised principles and authorities on Muhammadan law relating to this topic infructuous and nugatory. If the nomination by the Mutawalli is to take effect after death and so the appointment. I fail to' see any real distinction between the two. The powers of the Kazi and of the Mutawalli cannot be treated as alike. The Kazi can mortgage or sell a Wakf property or remove the Mutawalli even against the wishes of the Wakif, in the interest of a public Wakf, but the Mutawalli cannot do so by consider ing such matters as merely concerning " subsidiary rules." Our attention was also drawn to the following comment in para 492 A in Tyabji's book:‑‑ "We are thus enabled, if not to trace out at last to get scent of a helpful surmise how it is that the power of appointing a successor to the Mutawalli is attributed in the texts to three persons,‑the Wakif, his executor, and the Kazi ‑and yet, in practice, this power is in India most often exercised by a fourth person, the Mutawalli himself." But the learned writer has himself made it quite clear that the gradual processes of the growth of the power of appointment a: traced out by him are the outcome merely of his own conjecture and surmise. We are not concerned here with finding out how that power slowly grew up. In whatever manner it may have been developed, the point is that it can be exercised only in the absence of any provision by the Wakif as regards succession to the office of the Mutawalli. The clear duty of a judge is to administer the law as he finds it and not as he thinks it ought to be; he cannot disregard the law in order to find elsewhere a rule that may seem to him to be more in consonance, with reason, justice or expediency. The appointment of the defendant No. 1, appellant, as the Mutawalli by the last Mutawalli cannot, therefore, be upheld either under the Wakf‑nama or under the Mahommadan law. In the circumstances I hold that in the eye of law there is a vacancy in the office of the Mutawalli. The question, however, whether the vacancy is to be filled only through a regular suit or may be filled even through a petition to Court, does not properly arise in the present suit instituted for a declaration of the plaintiff's right to the office of the Mutawalli, but attention may be drawn in this connection to the‑ observations made in the cases of Mohiuddin Chowdhury and others v. Aminuddin Chowdhury and others (A I R 1924 Cal. 441) and Abdul Alim Abed and another v. Mst. Abir Jan Bibi and another (A I R 1928 Cal. 368). For the reasons given, I would dismiss the appeal, but would leave the parties to bear their own costs throughout. SHAHABUDDIN, J.--‑I agree with the judgment proposed by my Lord the Chief Justice, to which I have nothing to add. CORNELIUS, J. ‑I also agree with the judgment proposed by my Lord the Chief Justice. In accordance with the view of the majority, this appeal is allowed, and the judgment and the findings of the High Court being set aside, the judgment and findings of `the Trial Court are hereby restored. The parties will bear their own costs throughout. A. H. Appeal allowed