JAGMOHAN LAL, J.:- - (1.) THIS appeal relates to a Muslim Waqf-Alal-aulad known as Waqf Sohani Begum which was created by Smt. Sohani Begum by means of a waqf-deed dated 22nd March, 1929. Smt. Sohani Begum had two daugh ters named as Malka Mehr Nigar Begum and Ahmadi Begum. The latter died prior to the execution of the waqf-deed leav ing two sons Siddiq Ahmad, plaintiff-res pondent in this appeal and Khalil Ah mad, defendant-appellant. Nigar Begum had also a son named Maqsood Ali. Out of the income of the waqf property less than 25% was to be spent on some public charities specified in the waqf-deed. while the remaining income was to be spent on paying allowances to the waqif and her descendants and to meet the ex-pences on some other religious ceremo-i nies for the benefit of the family. The waqif constituted herself as the first Mutawalli and after her death her daugh- ter Nigar Begum was to be the next Mutawalli. On her death one of her daughter's son, who was found fit and capable by the District Judge, Lucknow, was to be appointed as Mutawalli.
(2.) LATER on under a supplemen tary deed dated 29-11-1938 she purport ed to change the scheme of Mutawalli-ship so as to appoint one of her daughter's son, namely, Khalil Ahmad, defen dant-appellant, as Mutawalli after the death of the waqif in preference to her daughter Nigar Begum. This supplemen tary deed was, however, challenged by Smt. Nigar Begum by a suit filed by her against Khalil Ahmad and it was adjudg ed as illegal. The decision of the Civil Judge was affirmed by this court in Khalil Ahmad Khan v. Malka Mehar Nigar Begum, AIR 1954 All 362 (FB). Smt Sohani Begum died on 14-12-1942. On her death her daughter Nigar Begum became the Mutawalli. She, however, migrated to Pakistan along with her son Maqsood Ali after the parti tion of the country with the result that her beneficiary interest in the waqf along with the office of Mutawalli held by hei vested in the Custodian, Evacuee Pro perty. In that capacity the Custodian, Evacuee Property continued to hold and manage the waqf property till 1959. There was an arrangement between him and Khalil Ahmad, defendant-appellant, by means of which the Custodian agreed to accept the capitalised value of the bene ficiary's interest of the evacuee Nigar Begum and to release the property from his management and charge. The capita lised value was at first fixed at Rupees 19, 200. Khalil Ahmad Khan sold one of the properties of the waqf with the per mission of the District Judge for Rupees 20, 500 in order to pay the capitalised value to the Custodian. The Custodian then handed over the management of this property to Khalil Ahmad Khan with effect from 1-6-1959. His brother Siddiq Ahmad Khan, plaintiff-respondent, who was also a beneficiary in the waqf, was not satis fied with the management of the appel lant and he made a complaint against him to the Sunni Central Board of Waqfs. The Board issued a notice to the appellant calling upon him to produce accounts in respect of the waqf property. He, however, challenged the jurisdiction of the Board to make such demand on him as, according to him, the provisions of the Muslim Waqfs Act, 1960 were not applicable to this waqf in view of Sec tion 2 (3) of the Act. This plea of the appellant was accepted by the Board which refused to take any further action against the appellant and left the plain tiff-respondent to seek his remedy in court. The plaintiff then applied to the Board to grant permission for filing a suit under Section 64 of the Act. The Board was of the view that since this waqf was not governed by the provisions of the Act under Section 2 (3), no such permission was necessary, otherwise the Board had no objection to his filing a suit against the defendant-appellant.
(3.) THE plaintiff then filed a suit in the court of the Civil Judge, Lucknow on 1-6-1961. THE suit was filed against the defendant-appellant as well as Smt. Malka Mehar Nigar Begum. In this suit the plaintiff alleged that the defendant was not a legally appointed Mutawalli. but he was only a de facto Mutawalli to whom charge of the waqf property was given by the Custodian, Evacuee Pro perty, He mentioned various acts of mis conduct and neglect of duty on the part of the Mutawalli and prayed for his re moval from that office and in his place appointment of himself as Mutawalli. He also prayed for rendition of accounts by the defendant for the period during which he was in-charge of this property as de facto Mutawalli. F.I.R. After filing the suit the plain tiff also applied for appointment of a Re ceiver during the pendency of the suit. That application was, however, dismissed by the trial Court. Against that ordei the plaintiff filed an appeal in this court. During the pendency of that appeal this court appointed an Advocate as Receiver of the waqf property.;