S.H.A. Raza, J. - (1.) Factual matrix in short compass as set out in the writ petition is that wakf in question was created in 1910. Thereafter, the wakf was managed by several Mutwallis. In the year 1972 one Syed Hashim Husain by means of a Will nominated the petitioner as a mutawalli. Late on Wakf Board exercising its power under section 19 read with section 48 of the U.P. Muslim Wakf Act, 1960 appointed Mutawalli. The petitioner, who alleged himself to be great grand-son of the Wakf, filed a reference before the Tribunal constituted under U.P. Muslim Wakf Act. Tribunal dismissed the reference on the ground that the petitioner had no locus standi to be appointed as a Mutawalli and as the Wakf Act did not provide any provision for filing a reference against an order of appointment of a Mutwalli, hence no reference would lie. Thereafter, the petitioner filed a revision before this Court, which is still pending.
(2.) We have heard the learned counsel for the petitioner as well as Mr. Mohammed Arif Khan appearing on behalf of opposite party Nos.2 and 3. Mr. Zafaryab Jilani, counsel appearing for the petitioner contended that under Mohammadan Law, a Mutawalli may nominate his successor as a mutawalli.
(3.) Section 204 of Mulla's Mahommedan Law provides that the founder of the wakf has power to appoint the first mutawalli and to lay down a scheme for the administration of the trust and for succession to the office of mutawalli. He may nominate the successors by name, or indicate the class together with their qualifications, from whom the mutawalli maybe appointed and may invest the mutawalli with power to nominate a successor after his death or relinquishment of office. Sub-section-2 of Section 204 further provides that if any person appointed as mutawalli dies, or refuses to act in the trust, or is removed by the Court, or if the office of mutawalli otherwise becomes vacant, and there is no provision in the deed of wakf regarding succession to the office, a new mutawalli may be appointed:- (a) by the founder of the Wakf. (b) by the executor, if any. (c) if there is no executor, the mutawalli for the time being may, subject to the provisions of section 205 below, appoint a successor on his death bed. (d) if no such appointment is made, the Court may appoint a mutawalli. In making the appointment the Court will have regard to the following rules:- 1. the Court should not disregard the directions of the founder except for the manifest benefit of the endowment. 2. the Court should not appoint a stranger so long as there is any member of the founder's family in existence qualified to hold the office. 3. where there is a contest between a lineal descendant of the founder and one who is not a lineal descendant, the Court is not bound to appoint the lineal descendant, but has a discretion in the matter, and may in the exercise of that discretion appoint the other claimant to be mutawalli.;