P (PLP)

M. R. KAYANI, J.‑This is a first appeal from a decision of Mt. Muhammad Salim, Sub judge of the first c?^3s at Lahore, by which he dismissed the suit of Mirza Akbar Ali for a declaration that as a lawfully appointed mutawalli of the wakf relating to the Wazir Khan Mosque in Lahore he was entitled to manage its properties, and for certain consequential reliefs. The wakf in question was admittedly created by Hakam Alam‑ud‑Din, better known as Nawab Wazir Khan, in 1641. The wakf deed is in Persian and has been copied out from the original by the author of the book, ".Lahore, its History, Architectural Ren2Lin; and Antiquities", The last mutawalli of the wakf was Mirza Sir Zafar Ali, formerly a judge of the Lahore High Court, who died on the 20th September 1942. In 1935, while creating a wakf alal aulad of his own property, he incidentally nominated his eldest son Mirza Iftikhar Ali defendant ' No. 1, as mutamalli of the present wakf, and Mirza Iftikhar Ali has continued to be mutawalli since his death. Sir Zafar Ali had two other sons Mirza Israr‑ul‑Qadir and Mirza Anwar‑ul‑Qadir, both of whom have been impleaded as defendants. The plaintiff stated in his plaint that, immediately upon the death of Sir Zafar Ali, the members of his family had assembled and, in pursuance of the provisions of the wakf deed and the usage observed b5 the family, had elected the plaintiff as mutawalli, that defendant No. 1, on acquiring knowledge of this election, had taken with him his four brothers‑in‑law, namely, the sons of his uncle Hussain Ali, and proclaimed himself mutawalli in the Wazir Khan Mosque by going through some form of dastarbandi alleging that his father had appointed him mutawalli in .his lifetime. The plaintiff maintained that, in view of the fact that Sir Zafar Ali had for a long time suffered from paralysis and possessed no conscious mind, he was not capable of appointing a successor and could not have made such appointment contrary to ' the ‑wakf mama and established practice. The plaintiff, therefore, asked for a decree, declaring that he bad been a properly appointed mutawalli and requiring the defendants to render account of the wakf properties. A list of these properties was, attached to the plaint. The plaintiff, it might be explained here, alleged himself to be the son of Mirza Safdar Ali, an elder brother of Sir Zafar Ali. The defendants denied that he was a son of Mirza Safdar Ali. They also denied that he had been appointed mutawalli by the family or that the family had any such power of appointment. Their main case was that, according to the terms of the wakf deed, the Mst. mutawalli had the power of appointing the successor and since Sir Zafar Ali had made such appointment, first in writing in 1936 and again verbally about twenty days before his death,, the question of any appointment by the family did not arise. The following issues were framed :‑

(1) Is the plaintiff a legitimate son of Mirza Safdar Ali, 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 term s of the wakf name or in accordance with th 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 direction's and terms of the wakfnama or Muhammadan Law? (4) If issue No. 2 be found for, the plaintiff, is not defendant No. 1 an accounting party? The findings of the trial Court were as follows :‑

(1) The plaintiff was a legitimate son of Mizra Safdar Ali. (2), (a) The mutawalli, after Nawab Wazir Khan himself was to be his son Muhammad Saeed Khan, after him Nawab Wazir Khan's second son Mirza Muhammad Anwar , and after Mirza Muhammad Anwar the most upright or the most righteous of the male descendants of Mirza Muhammad Anwar. (2) (b) There was no usage in the family by which election to the office of mutawalli was made by the members thereof. (2) (c) There was no announcement after the death of Sir Zafar Ali, as alleged by the plaintiff in his evidence, that a meet?ing would be held for the election of a mutawalli and no actual meeting took place. It was true, however, that the majority of the adult male members of the family had subscribed to a docu?ment which purported to be the evidence of the plaintiff's selec?tion as mutawalli. This, however, was not enough, since the plaintiff had not necessarily been selected as the arshad‑i‑zukur (the most upright of the male descendants). (3) Mirza Iftikhar Ali, defendant No. 1, had been validly nominated by the last mutawalli, Sir Zafar Ali. (4) Even if the plaintiff succeeded, he could not call upon defendant No. 1 to render an account of the wakf property. The finding on the fourth issue has not been seriously contested by the plaintiff and the finding on the first issue was accepted by Kh. Feroze‑ud‑Din, learned counsel for the defendants, after some evidence of an undeniable character had been examined. There is in fact such overwhelming evidence in favour of the plaintiff's paternity that it is impossible to regard the defendant's attitude in this behalf as anything but dishonest. ???? The wakf deed provides that the superintendence of the mosque and the attached properties shall vest in the founder during, his lifetime, "wa bad azoo badast‑i‑walad‑i‑ sulbi Muhammad Saed Khan, ba'd‑i‑oo ba Mirza Muhammad Anwar, wa ba'd‑i‑oo ba arshad‑i‑zukur‑aulad‑i‑oo wa aulad‑i‑aulad‑i‑oo batnan ba'd‑a‑batnin wanaslan ba'd‑a‑ naslin" that is to say, " and after the founder, in the son of his loins Muhammad Saeed Khan, after him in Mirza Muhammad Anwar, and after him in the most upright of his (Muhammad Anwar's) male children and the children of his children, generation after generation and progeny after progeny." The learned counsel for the defendants tried to aruge that, as the word "aulad" was sometime used in singular also, the intention was that after Muhammad Anwar's children the wakf vested not in his children's children but in the children of the last mutawalli. The short answer to this contention is that in Persian the word "aulad" is never used in singular and no scholar of Persian can correctly translate it in this context to mean that selec?tion is to be confined to the children of the last mutawalli. We have, therefore, no hesitation in agreeing with the learned Sub Judge that any person from the family of Mirza Muhammad Anwar can be appointed as mutawalli. But the wakf dead says nothing as to the manner in which a successor is to be chosen and for this purpose reliance is placed by the plaintiff on family usage which, according to him, is indicated in the following cases. (1) Firstly, there is a farman of Ahmad Shah Durrani in the year 1769. A copy from the original in Persian is at p. 21 of the Urdu paper book and an English translation thereof is on p. 219 of the file. This farman states that, since Mirza Muhammad Fazil, a grandson of Nawab Wazir Khan, had represented to him that the appointment and dismissal of the servants of the mosque, such as mutawalli, the mudarris etc., had been in the hands of the descendants of the founder, a farman might be issued restraining others from interfering with these services. A farman was conse?quently issued, confirming the claims of the descendants of Nawab Wazir Khan. It was argued that the submission of Mirza Muhammad Fazil, as reproduced in this farman, clearly shows that the appointment of the mutawalli was in the hands of the founder's descendants. We do not think this result necessarily fellows from the farman, for it not only refers to the appointment of the muta?walli but also to his dismissal, and not to the mutawalli alone but also to other servitors of the mosque, and it is clear that once a mutawalli has been appointed, whether by the family or otherwise, he cannot be dismissed except by the Court, and that, so far as other servitors of the mosque go, they must be appointed or dismiss?ed by the mutawalli, if at all his management is intended to be effective. What the submission apparently intended to convey was that the management of the wakf had vested in the descendants of the founder and that the practice should be confirmed by a Royal Charter. (2) Next; there are documents relating to the appointment of Mirza Anwar Ali, father of Sir Zafar Ali, and it was argued that this appointment took place with the approval of the entire family. Page 105 of the English record reproduces Exh. P. 19 which is copy of a plaint in a suit brought by Mirza Anwar Ali against almost the entire adult male members of his family for a declara?tion that he was mutawalli of the mosque. The plaint said that, according to the terms of the wakf deed, the person to be appointed mutawalli was to be "the most worthy of his lineal heirs male" and the plaintiff stated that he was already holding possession since his father's death. The pedigree‑table at p. 106 of the English record would show that, with the exception of Wali Ullah,' all the living members of the family were impleaded as defendants. The suit was instituted in 1874 and Wali Ullah had died in 1853. He had admittedly sons living who have not been shown in this pedigree‑table. It is possible that there existed some good reason for not impleading Wali Ullah's sons as defendants. But, even if the exclusion had been deliberate, it will not alter the fact that an overwhelming majority of the members of the family were represented. These members submitted a written statement which is at p. 22 of the Urdu record and which is in substance to the following effect:

The plaintiff's father was a mutawalli before him and, after his death, the plaintiff has succeeded and has managed the wakf. Now, in the present family, he is the best, the most learned and the ablest and we all accept his mutawalli‑ship." In the judgment that was given in the plaintiff's favour and which is on p. 106 of the English record, there occurs‑ the following sentence:‑-- "I pointed out to the plaintiff's pleader the futility of his getting a decree in this form; but he presses for it and may have it for what it is worth, Of course, it effects nobody who is not a party to the suit.? The defendant's answer to this appointment is that, in the first place, Mirza Anwar Ali had been carrying on the duties of muta?walli for two years' after his father's death and he merely asked the Court to confirm him as mutawalli and that, in the second place, as admitted by Mirza Sadiq Ali (P. W. 11), (Mirza Sadiq Ali's father Najib Ali was a defendant in that case, the suit was brought because tenants of the wakf property did not recognise Mirza Anwar Ali and refused to pay rent to him. Mirza Sadiq Ali further stated that it had been instituted with an understanding that his brothers would elect him in Court and, in view of the fact that the written statement pleaded judgment in favour of the plaintiff, some such understanding must have existed. But, while it is true that Mirza Anwar Ali asked the Court to appoint him as mutawalli, the fact that he impleaded almost the entire family as defendants and that in their written statement the defendants accepted him as mutawalli, because he was the best of them all, is an unmistakable recognition of the right of the family to accept the appointment. (3) The appointment of Sir Zafar Ali as mutawalli in 1911 was also formal. See Exh. P. 3 on pp. 25 and 26 of the Urdu paper book. This in substance is to the following effect:‑ "We the members of the family of Nawab Wazir Khan have great pleasure in recording that Mirza Zafar Ali is the Arshad-uz‑zukur i. e., the best and the ablest of the entire family, and, since it was the will (wasiyat) of his father Mirza Anwar Ali that Sir Zafar Ali should succeed him, now, therefore, Mirza Zafar Ali has at the request of the entire family accepted the post of mutawalli." This is signed by nine members of the family, and learned counsel for the defendants did not question its authenticity. He only argued that it was not an appointment but a form of adulation by which the family wished to propitiate an important member. The objec?tions of the learned Sub‑Judge are based on other grounds. Firstly, there was not the slightest mention of any usage of the family and, secondly, Sir Zafar Ali was chosen because he was the arshad‑uz-zukur according to the wakf deed and because it was the will of the last mutawalli. Neither these objections nor those of the learned counsel appeal to us. The wakf deed said that the most upright of the descendants of Mirza Muhammad Anwar was to be, mutawalli and the members of Sir Zafar Ali's family said that, since Sir Zafar Ali was the most upright of them, they had great pleasure in accepting him as mutawalli. This was a clear recogni?tion of their right to accept or not to accept. If they accepted him in a flattering mood, it only means that he was by far the best of them, and there is in that case all the more reason why the right of the family to elect or appoint a mutawalli should not be recog?nised, since, even in a case where the appointment was a foregone conclusion, the family exercised their right. The learned Sub‑Judge has criticised the explanation of some of the plaintiff's witnesses that the word "wasiyat" used in this document had been objected to by some of the signatories but that the scribe had explained that it merely stood for "opinion". To some extent the criticism is not unjustified, because, strictly speaking, "wasiyat" does not mean "opinion" but means either a will or a wish and, in this context; it can mean either. The evidence of Mirza bilshad Ali, (D. W. 9) that Sir Zafar Ali became mutawalli under will of his father is clearly indefensible because, if such a will had existed, it would undoubtedly have been produced, and it is admitted that nobody has seen any written will by Sir Zafar Ali's father. But, even if a will had existed, it would not have made any difference to the fact that the family were exercising their right and if in the exercise of that right they took into consideration the wishes or will of Mirza Anwar Ali also, they were merely making a gesture of good will. ?????? (4) On p. 97 of the English paper book is copy of a judgment in a suit filed by the Muslim Anjuman against Mirza Izzat Bakhsh, grandfather of Sir Zafar Ali, who was a mutawalli in 1866, the date of the judgment. This was a suit for the ejectment of Mirza Izzat Bakhsh from the mosque, and the judgment recognises the principle that the mutawalli‑shit was to descend after Muhammad Anwar "to the most worthy of his lineal heirs male." (5) At p. 107 of the English paper book is a judgment of the High Court delivered in 1906 in a suit brought by Mirza Anwar Ali against Mirza Sadiq Ali (P. W. 11) for the possession of certain property belonging to the wakf. It was observed in that judgment that by the terms of the wakf nama such person was to be chosen who was the fittest of the descendants and it was the descendants who were to choose him: The descendants thus occupied a position of trust with reference to the wakf property; they 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." These judgments have some value inasmuch as they show that even in 1866 and 1906, they recognised that the right of appointing the mutawalli vested in the family. We have no doubt that the appointment of Sir Zafar Ali and of his father Mirza Anwar Ali establishes some sort ' of a usage' that, the appointment was to be made with the approval of the family. It was, however, contended for the defendants that the question of usage does not arise? because a mutawalli has a right to appoint his successor and such an appointment has been made in this case. It can 'hardly, be a matter for doubt that Sir Zafar Ali, when creating a wakf of his own property, stated incidentally that his son Mirza Iftikhar Ali defendant No. 1 would succeed him as mutawalli of the mosque. See Exh. 1)..4 on pp. 45 and 46 of the Urdu paper book. It is also claimed that Sir Zafar Ali again ap?pointed defendant No. 1 or confirmed his appointment about twenty days before his death. Evidence to‑this effect is given by Ghulam Dastgir (D. W. 2), nephew of Sir Zafar Ali,‑Zafar Ullah (D. W. 19), a brother of Ghulam Dastgir, and Hamid .Ali (D. W. 22). The evidence of Ghulam Dastgir is to the effect that in the first week of September 1942 he came to Lahore from Hoshiarpur where he was an Assistant Sub‑Inspector and went to see his uncle Sir Zafar Ali in the company of his brother. Zafar Ullah. Sir Zafar Ali told them that, since defendant No. 1 was arshad, he was appoint?ing him as mutawalli. Sir Zafar Ali then dictated a letter to his steno‑typist Hamid Ali (D. W. 22) and addressed it to the Imperial Bank, directing the Bank to transfer the accounts of the wakf tit the name of defendant No.

1. Zafar Ullah (D. W. 19) stated that twenty days before his death Sir Zafar Ali said that he had already appointed defendant No. 1 by a wakf deed and was now making over the accounts to him. Zafar Ullah is rent collector of the wakf properties and states that thereafter he started crediting the wakf balances to the account of defendant No.

1. These two witnesses, it should be made clear, are interested in the defendant, being his brothers‑in‑law. Further, Zafar Ullah, being a rent collector under the mutawalli, must be dependent on him, and two of the brothers of these witnesses and also their mother receive stipends from the wakf. Hamid Ali (D. W. 22), who claims to have been Sir Zafar Ali's steno‑typist, deposed to having sent a letter to the Imperial Bank on behalf of Sir Zafar Ali, requiring the bank to transfer the wakf accounts to defendant No.

1. Sir Zafar Ali had two accounts in the bank, known as account `A' and account 'B', the former relating to the wakf, the latter personal. The original letter to the bank is not traceable in its records. See the statement of Ghulam Rasu1, Head Clerk, Imperial Bank (D. W. 21). A memorandum, however, addressed by the bank to defendant No. 1 in relation to this letter appears on p. 121 of the English palter book and is to the following effect :‑ "With reference to your letter dated 27th June 1948, we have to advise that a sum of Rs. 9, 995‑4.6 was transferred to the credit of your current account on 1st September 1942 by trans?ferring the amount from Sir Zafar Ali's account." This does not necessarily show that the transfer was from account 'A' which related to the wakf. It might well have been a transfer from the personal account of Sir Zafar Ali. We would not, there?fore, be prepared to hold on, this evidence that any appointment, which, considering its proximity to the death of Sir Zafar Ali, might be treated as a deathbed appointment, was made by Sit Zafar Ali on or about the 1st of September 1942. Here, we might pause to consider the provisions of Muhammadan Law in respect of the appointment of a mutawalli. In section 491 (2) of Tyabji's Muhammadan Law, it, is stated: "The provisions for the appointment of a successor to the mutawalli may be in writing or oral or may be inferred from the prevailing usage. Among the rulings, to which reference has been made by the Commentator in this connection, there occurs Sayad Abdul Edrus v. Sayed Zaire Sayed Hasan Edrus. (I. L. R. 13 Bona. 555) where it was recognised that a custom might be proved by which the eldest son of the last mutawalli succeeded to the wakf, though in that case the plaintiff did not succeed in establishing such custom. In section 492, it is stated that 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) or, the death of the said executor or surviving executor, the Court may appoint the mutawalli. In section 492‑A, the Commentator says that the authorities make no mention of the last mutawalli making a successor to himself, though they also state (a) that a superintendent may at death commit his office to another in the same way as an executor may commit his to another and (b) that 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. It is further observed that this death‑bed act cannot; of course, affect the power of the proper authorities to appoint his successor, whether such proper authority is the wakif himself, or his executor, or the Court. But in the absence of the proper authority taking any step to appoint, the death‑bed appointment by the last mutawalli must take effect, the snore so as such an appoint?ment was the last service that the dying mutawalli could perform, towards the wakf, and was necessary in order that wakf property may not, pending an appointment by the proper authorities, remain entirely unattended to. It is not denied that, with one exception, judicial authority hay consistently adhered to the view that a mutawalli can appoint hip successor only on death‑bed and not while he is in good health, The exception is Haji Abdul Razak v. S. Ali Bakhsh A. I. R. 1946 Lah. 200 where Din Muhammad, J. with whom Harries, Chief justice agreed, held that in a case where a mutawalli is empowered to spend the income of the wakf property at his own dircretion, it can safely be concluded that his powers were general in the sense in which this term is used in Muhammadan Law and that a muta?walli so appointed is empowered to nominate his successors at ant time he likes. With great respect, we do not think that in such a case, i.e., where a mutawalli is empowered to spend the income of the wakf property at his own discretion, it can be said that his powers were "general". This is a technical expression in Muhammadan Law and has been thus explained in Ameer Ali's Muhammadan Law, Vol. I, at p. 455: "As regards the meaning of the expression `in a general manner' the author of the Radd‑ul‑Mukhtar explains it as follows ;‑ It means that if the wakif or Kazi were to make a condition at the tine of appointing the mutawalli that he should have the ?power of transferring the trust to another and substituting that other in his own place by a sauad‑i‑wakf or wasiat, should necessity arise for it, such a condition would carry with it the power, on the part of the mutawalli, to appoint another mutawalli during his lifetime or in death illness". It will further be noticed that while interpreting the opinions of the authorities on Muslim law, the learned judges have drawn a distinction between the "appointment" and the "nomination' of a mutawalli. The term used in the original texts is "appointment", and it is argued, with some reason, that this refers to a transfer of office with immediate effect, while nomination, when made in health, takes effect only after death. Thus in Baillie's: Digest, which is based on the Fatawa‑e‑`Alamgiri, it is stated at page 594 that "a superintendent while alive and in good health cannot appoint another to act for him, unless the Alt appointment of himself were in the nature of a general trust." Observing that the British Indian Courts have interpreted this and other texts so as to interdict both appointment and nomination, Din Muhammad, J. makes the following remarks : "In my view, however, if appointment means the complete surrender of his office by the appointer and its immediate transfer to the appointee, the principle enunciated is quite in accord with Muhammadan Law. But if it is intended to convey that a mutawalli for the time being cannot even nominate his successor who is to act as such after his death, with all respect, I am disposed to think that the Muhammadan Law on the point has riot been properly appreciated. One can well understand the prohibition against a person who has been deputed to occupy a position of trust in respect of certain property not to divest himself of his responsibility at his own discretion and throw it on the shoulders of another, when he himself is in perfect health and can properly discharge his functions. But why to introduce the same prohibition when he is only to nominate a person who is to take office after his death is altogether incomprehensible ????..When the texts lay down that a valid appointment of a successor can only be made on death‑bed, they deal with the actual transfer of the office at once, and not with the nomination of a successor, who is to take office only after the death of the mutawalli." With great respect, we agree that the texts do .not deal with the nomination of a successor. We venture to go a step further and point out that they do not provide for nomination at all. The general rule is that the appointment of a mutawalli rests with the wakif in the first place, with his executor in the second place and with the Court in the absence bf these two. If the wakf deed contains an express direction or established usage indicates an implied direction, such direction will be followed, whether by the executor, the Court or the person or persons to whom the appointment is entrusted. The appointment on death‑bed is an exception and lasts only till such time as a proper appointment is not made‑unless it accords with the intention of the wakf deed. Such appointment, as observed in Tyabji's book, is the last service that a mutawalli can render to the wakf, so that the property may not suffer for neglect. The reason stated in the texts (Ameer Ali., Vol. I, page 456) in support of a death‑bed appointment is that the mutawalli is in the position of an executor, and as an executor can assign the executorship by testament, a mutawalli may also do so. And it is right to hold that the powers of a Kyyum (curator) and executor are co‑extensive. And this is different form an act done in health, for a Kyyum in health is like a deputy (wakil), and a wakil has no power of delegating his powers." It is well to remember this distinction, that a mutawalli on death‑bed is like an executor and in health merely a wakil for another, without any power of appointment. And if a wakil has no power of appointment in life, there is hardly any reason for projecting such power into the future that takes life from his death. In the present case, there scarcely arose any occasion for the last mutawalli to exercise any power, whether in life or on death?bed, for by established usage the appointment was to be made with the approval of the family. 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.) We, therefore, hold that a mutawalli has no power to make an appointment, except on deathbed, and that, even when such an appointment is made, it does not affect the power of the proper authorities, whether they are the Court or members of the family, to substitute it by a proper appointment. Such appointment is merely the last service that the dying mutawalli can perform towards the wakf and takes effect only if no proper appointment is made. The last question is whether any such appointment was made in the present case. The plaintiff says he was in Wazirabad when the family elected him mutawalli "by a majority of votes." That should mean there was actual voting, though it may also mean that the persons who were present and elected him constituted the majority of those who were entitled to vote. It would, however, be contrary to the common conception of an election that the time and place " of such election should not receive proper publicity. To avoid this defect, the plaintiff's witnesses have stated that there was an announcement at the graveyard immediately after the funeral of Sir Zafar Ali on the afternoon of his death which took place on the morning of the ' 20th September, 1942. According to Sadiq Ali (P. W. 11), son of Najib Ali, the announcement was made by Mubarak Ali (P. W. 27), his uncle Bashir Ali (P. W. 25) and another person, and it was to the effect that according to usage a mutawalli would be elected by the family, the place of election being the house of 'Muhammad Azam (P. W. 18). a brother of Sir Zafar Ali, and the time being evening. He himself could not attend the meeting, but on the same night or the following day he received a letter from. Muhammad Azam to which he relied by Exh. P. 7, dated the 24th September, approving the election. He also informed ‑his two sons, Ghazanfar Ali (P. W. 12) and Maratib Ali (P. W. 20) and the latter's son Nawazish Ali (P. W. 26), who were all in Delhi; and these witnesses say they also approved of the selection. It should be stated here that Sadiq Ali's sister was Sir Zafar Ali's first wife, and that Sir Zafar Ali married another lady‑the mother of defendant No. 1 during the life of his first wife. But whether Sadiq Ali on that account liked Sir Zafar Ali or not, it is clear that neither he nor his sons and grandsons are witnesses of the actual voting. Ashraf Ali (P. W. 15), a brother of Sadiq Ali, purports to have been a witness of the meeting, but not of the announcement, at the graveyard. He had not attended the funeral and had been told by his brother Wahid Ali (P. W: 22) at 7 p.m. that a meeting would be held at 8 p m. When he and Wahid Ali reached the house of Muhammad Azam, those already present were signing a document which a document which lay on a table and to which everybody went over to sign. He also signed it. Every member before signing the document declared that he was voting for the plaintiff. This, then, was the manner of voting: each member first declared that he was in favour of the plaintiff and then signed the document. But Wahid Ali, who accompanied Ashraf Ali, tells a different story. "When we reached there," says he, "the document of election was being, signed. We asked the persons present as to what had occurred and they told us that the plaintiff had been elected the new mutawalli and asked us td give our opinion. We also approved of the election and signed the document." Further, Wahid Ali and every other witness on this particular point‑contradicts Ashraf Ali in the statement that the document in question lay on a table to which every member in turn went over : according to him it was passed on from hand to hand as each member signed it. And this is of a detail which time can efface, if the main incident continues to live in memory. The document in question is Exh. P. 18 and is printed at page 28 of the Urdu paper book: It says that since according to the wakf deed it is the primary duty of Sir Zafar Ali's family to 'elect a mutawalli after his death, the members thereof had after consideration agreed to appoint his nephew, Mirza Akbar Ali. It bears the signatures of sixteen members of the family purporting to have been present at the meeting and three others who signed it subsequently. Those of them who have appeared .in evidence are P. Ws. 14 to 19, 21 to 23, 25, 27 and

40. There were, according to Mirza Muhammad Azam (P. W: 18), thirty‑nine adult males in the family. Thirty of them were in Lahore and of these, twenty: approved the 'election (Sadiq Ali, P. W. 11, by a letter). Of the nine outside Lahore, four‑apart from the plaintiff himself‑have appeared in evidence and supported the plaintiffs claim. These are the two sons and a grandson of Sadiq Ali (P. W. 11) and Muhammad Azam s son, Jamadar Muhammad Sadiq (P. W. 10). The persons who made the announcement at the grave‑yard were, as already indicated, Mubarak Ali (P. W. 27) and his uncle Bashir Ali (P. W. 25). Mubarak Ali says that after the funeral he suggested to his uncle Dr. Asghar Ali, who was married to Sir Zafar Ali's sister, to take up the mutawalliship, but that he declined it on the ground of old age, suggesting in this turn that the plaintiff was the fittest person for the duty. Announcement was, therefore, made that a meeting would be held for the purpose of electing a mutawalli between four and five p m. at the house of Muhammad Azam. In the meeting the witness proposed the name of the plaintiff. He was, there?fore, asked to make the proposal in writing and he drew up Exh. P.

18. Muhammad Azam had explained to those assembled the requirements of the wakf deed in this behalf. Apart from the fact that Mubark Ali might be feeling aggrieved over the stoppage of his sister Wilayat Begum's monthly stipend of Rs. 5 since 1940, there is a great deal in his cross‑examination to shock even credulity. One part of the case for defence was that the plaintiff had even during the last illness of Sir Zafar Ali attempted to instal himself in the mutawalli's seat and with that end in view, a letter Exh. D. 1, purporting to have been written by this witness to Muhammad Akram (or Akram Ali D. W. 15) was produced in evidence. This letter is dated the 25th August 1942 (about a month before Sir Zafar Ali's death) and is in substance to the following effect: "I enclose copy of a draft, in respect of which" (perhaps it should read to the original of which) "your uncle Mirza Wilayat Ali. ‑I myself and my sons have subscribed our signatures. Your father told me he had written to you at Bombay, and that on receiving a reply, the draft would be signed by him and by you and your brothers. So far, 22 members of the family, that is to say, 85 per cent. have signed it. As you have not replied up to this time, I send a copy of the draft also. Please write at once in favour of Mirza Akbar Ali, so that necessary arrangements may not be delayed???" Akram Ali, appearing as D. W. 15, says he had received this letter on the 28th August 1942 while at Bombay, together with the draft now Exhibited as Z (not printed), which proposed the plaintiff as the next mutawalli. He could not say in whose handwriting the draft teas. However.' in reply to this letter he wrote to Mirza Muhammad Azam that as Sir Zafar Ali had already nominated defendant number one, he could do nothing. In reply, Muhammad Azam wrote to him a letter, now Exh. D: 2, on the 27th September 1942, seven days after Sir Zafar Ali's death. It says:‑ "I have before me your letter of the 28th August which you wrote tome in reply to Mirza Mubarak Ali's letter

You have no knowledge of what has happened during this whole month and of the present state of affairs .... ....... It is not possible to detail everything in this letter‑but this must be said that the promise implied in the use of the word `we' by you was; far from being fulfilled, openly ,broken. That is to say, your father, Mirza Inayat Ali, has violated it both in word and deed and has become undisguisedly partisan:???..I have no grievance except that he refused even to hear me. Personally, I am neutral and wish will to both sides. All I want is that the right which the descendants of the (Nawab Wazir Khan) . possess by virtue of the wakf deed should be upheld and should not be lost for ever " Akram Ali, although a partisan of the defendants, cannot but be credited with truth, for the two letters which he produces support him. As the letter which he wrote from Bombay to Muhammad Azam has not been proved by the plaintiff, we might well accept his version of it. Mubarak Ali (P. W. 27); who wrote the first letter to Akram Ali, says : " Mirza Iftikhar Ali (defendant No. 1) secured this letter from me in order to extort some money from his father by showing the same to him. Mirza Iftikhar Ali told me that he will be able to get some money from his father on the pretext that the same would be paid to the writers of such letter who were plotting against his family and wanted some‑ one else to be the next mutawalli ...... Iftikhar Ali had secured five or six such letters from me in fictitious names. He never shared with me any money that he may have thus obtained froth his father," Mubarak Ali styles himself a landlord and when he made this statement in 1947, he possessed such substantial respectability as the‑age of 57 years can confer upon a person of some means. Five‑ years earlier, when he wrote this letter; he could not have been less respectable and as Sir Zafar Ali must have been familiar with his hand- writing‑‑the letter, is in fact signed by him‑-he, ought to have felt very small if ever Iftikhar Ali I showed the letter' to his father and told him' he needed money to hush the voice of" the writers of such letters ", Mubarak Ali being one' of them. But assuming that he possessed sufficient elasticity of temperament to be able to stand, up to Sir Zafar Ali's righteous indignation, the letter, contains inherent evidence of the falsity of his state?ment. It is dated the 25th of August, 1942, when Sir Zafar Ali had more than a foot in the grave and could ‑not, therefore, have been regarded a suitable 'Subject for extortion. For this reason, perhaps, Mubarak Ali says he wrote the letter nearly two months before Sir Zafar Ali's death, forgetting that in taking back the date he is contradicting the evidence furnished by the date given in the letter itself. The " draft " mentioned in the letter: however, was according to him, different from Exh. Z, though he cannot say in what respect. While on this subject, we might well pursue it to the conclu?sion. Mirza Muhammad Azam (D. W. 1f) 'denies that any attempt was made by him before the death of Sir Zafar Ali to obtain the assent of the family to the plaintiff's appointment. In this,' he has been contradicted by they plaintiff's own witness, Karamat Hussain (P. W. 141, a graduate and an Assistant in the Civil Secretariat, who says Muhammad Azam and a certain Nami bad come to obtain the signature of his father to the appointment of the plaintiff while Sir Zafar Ali was still alive. The plaintiff admits that on the 6th of September 1942 he had a scuffle with the chowkidar of the Wazir Khan mosque who had assaulted him at the instance of Zafarullah (D. W: 19) rent collector of the wakf property. He denied, however, that the scuffle had anything to do with his claim that he had become mutawalli. Both parties made reports to the police, but these reports are not available by reason of ‑ the flux of time. The plaintiff states that he made the report to an Inspector, though he does not remember whether he told, the Inspector that he had become mutawalli, The Inspector in question was Mirza Muham?mad Anwar (P. W. 1) now a Deputy Superintendent, and he stated that so far, as he could remember, the plaintiff had told him he had gone to the mosque to receive the rent of the shops. It seems futile to deny in the face of the, letter Exh. D. 1, the admission of Karamat Hussain (P. W.‑ 14) and the statement of Inspector Muhammad Anwar, that ,canvassing, was attempted for and by the plaintiff in anticipation of Sir Zafar Ali's death, and that the plaintiff had even tried to exercise the power of the mutawalli. To revert to the evidence relating to the announcement at the graveyard and the meeting in the house of Mirza Muhammad Azam : It has been seen .that the deed of appointment was drafted by Mubarak Ali. H‑is three sons, Muhammad Ali (P. W. 16), Afsar Ali (P. W. 21) and Afzal Ali (P. W: 23.); were, also, present at the meeting. Muhammad Ali. however, does not remember the name of the person who proposed the plaintiff. If it had been proposed by him his own father he ought to have remembered him. The meeting was after Asr prayer and dispersed before Maghrib. Afsar Ali and Afzal Ali both say the meeting was at five o'clock and the latter also says it lasted an hour or an hour and a half. On the 20th September it would‑ clearly be over before Maghrib. Compare this with .the statement of Ashraf Ali (P. W. 15) according to whom the meeting was at eight o'clock. We have seen that the other man who announced the meeting was Bashir Ali (P. W. 25), uncle of Mubarak Ali. We should, recall that Mubarak Ali first offered the appointment to Dr. Asghar Ali, Bashir Ali says nothing; about this offer, but states instead that there was a talk between him and Dr. Asghar Ali about, the appointment of the new mutawalli and that, with the Doctor's advice, he announced the meeting. This meeting took place at Asr and ended before Maghrib. Now Mubarak Ali and Bashir Ali, being, elderly persons, are two of the most important members of the family, and if it is true that they both consulted Dr. Asghar Ali (a Khan Bahadur and a still more important member) and the Doctor suggested a meeting, then indeed it is remarkable that Doctor Asghar Ali himself did not sign the deed of appointment. Two of his sons, Saifullah (P. W. 19) and Nisar Ali (P. W. 28) are witnesses of the announcement, though only Nisar Ali; attended the meeting. Saifullah says he did not go because his father suffered from asthma and that he signed on the following day. A third son, Makhdum Ali; (D. W. 10) has appeared on the defence side and stated that there was no announcement, but, that, ten or twelve days later the, plaintiff and Muhammad A7.am brought a; document purporting to approve of the plaintiff's appointment, when both he and his father refused to sign it on the ground that Sir Zafar Ali had already made an appointment. Whatever value, however, may be placed on the respective statements of the sons of Dr. Asghar Ali, it cannot but be noticed as a pointed circumstance that Dr. Asghar Ali himself neither attended a meeting, which he had himself initiated nor appended his signature to the deed of appointment on a subsequent occasion. Last, but most important, is Mirza Muhammad Azam (P. W. 18), a brother of ‑Sit. Zafar Ali. It was he who brought up the plaintiff when his own father left him an orphan at the age of six months. We cannot but 'ascribe good faith to him in. his determination to make the appointment of the mutawalli a matter for the consideration of the entire line, of Nawab Wazir Khan, particularly when he, has made no effort to enlist support for himself" or his two living sons. We should, however, concede that his enthusiasm for a good cause has carried him someway beyond the truth, and we have seen that his denial of having made an attempt to secure mutatvalliship for the plaintiff even during Sir . Zafar Ali's life has been belied by his nephew Karamat Hussain (P. W. 14), to say nothing of the letter, Exh. D.

1. This is bound to affect the value of his evidence in respect of the alleged election after death. According to him, an announcement having been made at the graveyard, the family gathered in his house upto Asr prayer, when he read out the wakfnama and explained its bearings. He also read out the document relating to the election of Sir Zafar Ali himself, in 1911. Mirza Mubarak Ali then proposed the name of the plaintiff and everybody agreed. So far it sounds well. We know, however, that seven days later he wrote the letter, Exh. D. 2 to Akram Ali (D. W. 15), complaining that his father Inayat Ali had not fulfilled the promise implied in the word n we" which Akram Ali had used in his letter to the witness. If a proper election, which could have been proclaimed, had taken place on the 20th September, Muhammad Azam could not, but mention it in his letter of the 27th Septem?ber, when he mentioned every , other event relating to it. Instead of complaining that Inayat Ali had become openly partisan, he should have announced triumphantly that notwithstanding his opposition, the plaintiff had been elected. Instead of declaring that for himself he was neutral and that " all I want " is to secure for the family a right guaranteed by the wakf deed, he should have said he had got what he wanted and had thus secured the right in question in actual fact. When questioned on this point, Mirza Muhammad Azam replied that he did not remember if he had informed Akram of the plaintiff's election. This was apparently before he was confronted with his own letter. He admitted at the same stage of cross‑examination‑that he was not " neutral " because he had signed the election paper. Then he was confronted with the letter, and asked if he could remember "the events of a whole month " to which .it alluded. He could not. Asked why he had styled himself neutral, he explained that what he meant was that he was uncle of both parties. By writing that Inayat Ali had become openly partisan, he meant that he had not supported the wish of the, family. He admitted, however, that he did riot expressly convey to Akram the information relating to the plaintiff's appointment, but maintained that this was implied. Now surely this will not be the mode of communication of a burning item, of news to a person .who, according to the letter itself; had " no knowledge of what has happened during this whole month and of the present state of affairs ". We are not impressed with the evidence relating to the announcement and the subsequent election. Even the plaintiff s own witness, Mirza Muhammad Ahmad (P. W. 4), a nephew of Sir Zafar All, stated that there was neither announcement nor talk at the graveyard; and that he went to Mirza Muhammad Azam's house because the plaintiff had told him there was going to be an election. The plaintiff, we know from himself, was at Wazirabad, and recalling this fact perhaps, the witness, corrected himself and said some outer person had informed him. The defendant's witnesses all deny that there was any announcement, and although they are partisan; it is noticeable that their denial came into being in answer to questions put to them in cross-?examination. There was also a disinterested witness, Sheikh Maqbul Ahmad, Senior Sub‑Judge (D. W 3), who attended the funeral and remained there till the end of the burial. He did not hear any announcement. What is more, he says in cross-examination that the funeral took place on the morning following Sir Zafar Ali's death and that is also the statement of the other witnesses for defence. If this is true and we have no reason to doubt the statement of Sheikh. Maqbul Ahmad the entire fabric of the plaintiff's story, that the election took place on the evening of Sir Zafar Ali's death and after his‑burial, falls to pieces. We have no doubt that the majority of the family were in the plaintiff's favour at the time of the suit, but we cannot hold that an election was announced or that it was held in the manner claimed. On some subsequent day before the institution of the suit there certainly was an ex‑parte canvassing of support for the plaintiff, resulting in the preparation of the document. Eah. P.

18. Now since the plaintiff's case was that be was elected in pursuance of a properly convened meeting following an announce?ment, and he has failed to prove it, we cannot, but agree that he is not entitled to a. declaration in terms of his plaint. In the result we hold : (1) that by the terms of the wakf deed the right of mutawalliship vests in. the entire family, (2) that by established practice the mutawalli is approved of by the entire family, (3) that Sir War Ali did not make a death‑bed appointment but that even if he had made one, it would have bad .,only a tem?porary effect, (4) that the mutawalli. cannot appoint a successor while he is in, health, and (5) that the plaintiff was not elected a mutawalli in pursuance of a properly convened meeting following an announcement to the entire family. We, therefore, dismiss the appeal, but, bearing in. mind that the plaintiff has failed only on one point, we leave, the parties to bear their own costs. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.