- (1.) This writ petition has been directed mainly for quashing the orders dated 23-6-85 and 16-4-82 passed by the Controller U.P. Shia Central Board of Waqfs of Lucknow, Respondent No. 2 Nawab S. Mohd. Ali Khan, Petitioner No. 1 is the son of late Nawab S. Murtaza Ali Khan and Petitioner no 2 Nawab Aftar Zamani Begum is the widow of late Nawab S. Murtaza Ali Khan. Nawabzada Zulfiqar Ali Khan, Respondent No. 3 is the brother of deceased Nawab S. Murtaza Ali Khan. The dispute relates to seven waqfs created by the Ruler of erstwhile Rampur State in 1855. Earlier the eldest son succeeding to the Rulership of the Rampur State used to be appointed as the Mutwalli of these waqfs. On the death of Nawab Sayed Raza Ali Khan Saheb in 1966, his eldest son late Nawab S. Murtaza Ali Khan became the Mutwalli of these waqfs. It is not in dispute that these waqfs have been duly registered with Shia Central Board of Waqfs. As quoted in para 20 of the petition the Petitioner No. 2 was appointed as Nawab Mutwalli by the U.P. Shia Central Board of Waqfs by order dated 4th January 1979 vide Annexure-1.
(2.) On the application of the Petitioner No. 1 the U.P. Shia Central Board of Waqfs appointed the Petitioner No. 1 as Mutwalli and also ordered for the continuance of the Petitioner No. 2 as Naib Mutwalli. It appears that certain complaints were made before the State Government and the U.P. Government passed an order directing the Board for staying the operation of the impugned order dated 14th April, 1982. In view of the above directions by order dated 16 4-82 the Board stayed the operation of its order dated 14th April, 1982 till further orders. A reference under Section 55 of the U.P. Muslim Waqfs Act was preferred before the District Judge, Rampur by the Petitioners but the same was rejected as not maintainable by order dated 24th April, 1982. The Respondent No. 3 had also applied for being appointed as Mutwalli. The Respondent No. 2 held an enquiry in which the Petitioner no 1 and Respondent No. 3 participated. After giving various reasons the Respondent No. 2 was of the opinion that the Petitioner No. 1 should not be appointed as Mutwalli, that there was no necessity of the appointment of a Naib Mutwalli and that the Respondent No. 3 will be the proper person to be so appointed. The Respondent No. 2, accordingly, by the impugned order appointed Respondent No. 3 the Mutwalli of all the seven waqfs; Being aggrieved the Petitioners have filed this writ petition for quashing the aforesaid orders.
(3.) The impugned order has been challenged before us on various grounds. It is contended that the Petitioner No. 1 is the only son of the deceased Mutwalli and as such under the terms of the deed is the only competent person to be appointed as Mutwalli, that the question of title or succession to the waqfs could not have been decided by the Board and this question could have been decided by the Civil Court only. It is contended that on this basis the impugned order is a nullity and without jurisdiction. It is also contended that under the Act the Board had no power to appoint Mutwalli and that on the death of Nawab S. Murtaza Ali Khan the Petitioner No. 1 became automatically the Mutwalli of these waqfs. These contentions have been repelled on behalf of the contesting Respondents. In the impugned order on interal page-9 the procedure and the condition for appointment of Mutwalli has been given as below: My son Mohd. Yusuf Ali Khan, Prince Royal (Wali-Ahed) is appointed as Mutwalli for life, and is given the authority to appoint in future from amongst his sons the one, who may be the Ruler, as Mutwalli for performing the prescribed duties. Similarly in future every Mutwalli shall have the right to appoint from amongst his sons the one, who may be recognised as the Ruler as Mutwalli of the Waqfs. In the event of any Mutwalli being issueless (that is had no son) he shall appoint a person from his family or from out-side, who may be able and honest, as Mutwalli of the waqfs. There is no dispute that the former states have come to an end and the former Rampur State is no more inexistence. As such there is now no Ruler of Rampur State. Tee princely order has also been abolished in 1971. Under the procedure quoted above the Mutwalli had the right to appoint from amongst his sons one, who could be recognised as the Ruler, as Mutawalli of the waqfs. Even if, this principle is held to be applicable, late Sri Murtza S. Ali Khan had not appointed the Petitioner no 1 as Mutwalli of there waqfs. Therefore, this provision for the appointment of Mutawalli is clearly in-applicable, in the present case. Similarly in the second clause also it was for the Mutawalli to appoint a person and that action had not been exercised by late Nawab S Murtaza Ali Khan The terms of the waqfs and even the intention of waqif regarding appointment of Mutwalli has clearly become in-applicable now in the changed circumstances.;