Mukteshwar Prasad, J. - (1.) WE have heard Sri M. A. Quadeer, learned counsel for the petitioner and Sri Shahld Masood, learned counsel appearing for the respondents on the substitution application as well on the merits of the petition.
(2.) THIS petition was filed by Rukunuddin Khan, challenging the order dated 14.6.1995 (Annexure -25 to the writ petition) passed by the Controller of the U. P. Sunni, Central Board of Waqfs, Lucknow and for issuing a writ of mandamus commanding the opposite parties not to give effect and not to implement the impugned order dated 14.6.1995. The sole petitioner died on 29.4,2001. After the death, his son Sri Nisaruddin Khan has moved this application for substitution, claiming himself, to be mutawalli of the waqf in question through a Will dated 9.4.2001 executed by his father Rukunuddin. He has further claimed himself to be in actual control and management of the waqf in dispute. A photocopy of the Will dated 9.4.2001 was also filed. On the other hand, learned counsel for the respondents has opposed the application and urged that the petitioner had no right to execute a Will appointing his son as a mutawalli of the waqf in question and cause of action does not survive after the death of sole petitioner and the petition is liable to be dismissed. Admittedly late Nizamuddin alias Chhotey Miyan Saheb created a waqf, which was registered in the office of Controller, U. P. Sunni Central Board of Waqfs, Lucknow at serial No. 58, District Hamirpur. He died on 1.3.1989. Sri Qamaruddin respondent No. 3 moved an application dated 9.3.1989 for his appointment as mutawalli. He was appointed as mutawalli by the Waqf Board. Aggrieved by the order of the Board the petitioner filed a Civil Misc. Writ Petition No. 19650 of 1990, challenging all the three orders passed by the Board. This Court vide its order dated 17.5.1991 quashed the orders and directed the Controller of the Board to decide the matter of mutawalliship on merits. The petitioner based his claim on the Will said to have been executed by his late father on 13.11.1986. Admittedly Sri Nizamuddin was appointed by the Board, but he had no power/authority to appoint his successor. The Controller vide his order dated 14.6.1995 rejected the claim of the petitioner and appointed respondent No. 3 as mutawalli. Aggrieved by this order passed by the Board, this petition was filed.
(3.) ADMITTEDLY , after creation of the waqf the property vests in the Almighty and the founder has no interest therein. Mutawalli is a manager of the waqf property and this office is neither heritable nor transferable. It is also settled that a waqf can be created through a deed of waqf executed by the founder and the founder has powers to appoint first mutawalli and lay down a scheme for the administration of the trust and for successor of the office of the mutawalli. He may nominate the successor by name or indicate the class together with their qualification from whom the mutawalli may be appointed. Admittedly Sri Nizamuddin had executed no waqf deed and he was appointed mutawalli by the Board. He was, however, given no power to appoint/nominate his successor. Sections 204 and 205 of the Mulla's Principles of Mohammedan Law provides that if the founder and the executor are dead and there is no provision in waqfnama for succession to the office, the mutawalli for the time being may appoint a successor on his deathbed.;