P (PLP)

VELLANI, J.

This is an application by Mahmud Illahi moving the Court to exercise its jurisdiction as a Kazi to appoint Mutawallis of the Wakf known as the "Dawn Trust" declared by the Quaid‑e‑Azam, Muhammad Ali Jinnah at Delhi by a duly registered declaration dated .18th November, 1946, of which he, the Quaid‑e‑Azam, was the sole Mutawalli. Since his death the wakf is without a Mutnwalli. Public notice of this application 'vas issued to all Muslims interested in the Wakf, and only Mr. Chotani applied to be brought on the record. He was duly joined as a party to the proceedings. Before the matter came up for hearing, Mr. Wahiduddin for the plaintiff stated that he claimed no relief in these proceedings against the "Pakistan Herald " Limited which publishes the news paper Dawn" at Karachi, and at the hearing of the application he confined his motion to the appointment of a Mutawalli or Mattawallis claiming that the Court had jurisdiction as a Kazi to appoint a Mutawalli of a Wakf upon a vacancy arising. He dropped every prayer for any direction in relation to the Wakf and stated that he did not seek any direction whatever in relation to it. There is authority that Courts in undivided India have exercised the jurisdiction of a Kazi to appoint a b1utawalli upon a vacancy arising when moved by an application. The reported cases are: Abdul Alim v. Abir Jan (1928), 55 Cal. 1284; Bibi Zohra v. Bibi Habibunnisa (1938), 18 Pat. 417 and Allah Rakhoo v. Nasiruddin (1943) A I R Oudh

278. The Calcutta case has considered the question whether such an application lay having regard to the provisions of Section 92 Civil Procedure Code and the learned judges gave a great deal of consideration to that point. Having considered that case very carefully, I think the true reason why section 92 does not apply to such a case is that the foundation for tie application of Section 92 Civil Procedure Code is not laid because such an application is not a case of any alleged breach of trust of the kind mentioned in section 92, nor is it one where any direction, of the Court is deemed necessary for the ad ministration of such a must, and unless the matter is‑ one such, section 92 Civil Procedure Code does not apply, Milkanth Devrace v. Ramkrishna Vithal, 46 Bom. I L R

101. All the parties to this matter agree .that the "Dawn Trust" declared by the Quaid‑e‑Azam above stated is a Wakf, and no one, in spite of public notice above mentioned, has raised before me the question of the validity of the Wakf. In these circumstances it is not proper for me to consider the validity of the Wakf, even though I heard some argument on it. Even if any question as to the validity had been raised before me) there is authority for saying that the person setting up the invalidity. could have been and should properly be referred to a separate suit. Hashim v. Ghossalishah, I L R (1942) Kar. 179, at p. 185‑

5. Such a question might well be said to be outside the scope' of the Kazis jurisdiction to appoint a Mutawalli upon a vacancy arising. As to the persons to be appointed Mutawallis, a statement \was made at the Bar by both Mr. Wahiduddin and Sharifudin that Miss Fatima Jinnah and Mr. Liaquat Ali Khan had agreed to undertake the duties of Mutawalliship of the Dawn Trust." I think they are the fittest persons and accordingly in the exercise of my jurisdiction as a Kazi, I appoint them as Mutauiallis of the Dawn Trust. A. H. Order accordingly.