A. K. Kirty, J. - (1.) THE following ques tions have been referred to this Bench for answer:- "Where, on the date immediately pre ceding the date of vesting, out of two co-mutwallis (who were also co-beneficiaries) of a waqf-alal-aulad created by a Shia Muslim, one co-mutwalli was personally cultivating a land (other than sir and grove), the proprietary right in respect of which was subject-matter of the wakf, did the rights of a bhumidhar accrue in the land under Section 18(1) (a) of the U. P. ZamindariAbolition and Land Reforms Act? If so, whether - they accrued in favour of the wakf or God or in favour of both the co-mutwallis or in favour of that co-mutwalli alone who was cultivating the land?"
(2.) THE above questions arise in the following circumstances. One Sibte Hasan, a Shia Musalman by faith, had created a waqf-alal-aulad under a deed of waqf dated 8-2-1918, appointing his male des cendants as mutwallis and also making them beneficiaries, generation after gene ration. The subjectof the wakf was some Zamindariproperty. The wakif died in 1924 leaving behind two sons, Farzand Hasan and Sibte Hasan, as co-mutwallis and co-beneficiaries. Sinte Hasan, it ap pears, was a minor at that time and the wakf property came to be actually manag ed by Farzand Hasan. Part of the land of the wakf estate was let out to tenants, while some plots were cultivated by Farzand Hasan himself. It is not quite clear whether Sibte Hasan cultivated any land personally after creating the wakf, but it is admitted that he had no khud-kasht land when he created the wakf. It Ss also not clear whether Farzand Hasan had himself, for the first time, brought any land under personal cultivation or had continued to cultivate the land which, after creating the wakf, Sibte Hasan had in his lifetime brought under his own cultivation. Farzand Hasan died on 29-10-1954 and, upon his death, the land personally cultivated by him continued to be in the possession and cultivation of his heirs, who are the appellants before us. In the re venue records also, all such land stood re corded as being in the cultivatory posses sion of Farzand Hasan during his life time and thereafter in the name of the appellants, who are his legal heirs. After the enforcement of the U. P. ZamindariAbolition and Land Reforms Act, 1951, Farzand Hasan had claim ed to have ac quired bhumidhari rights in the land and on his death, his legal heirs claim ed to have become bhumidhars thereof. How ever, in consolidation proceedings pute arose between the heirs of Fai 45 Hasan and Simte Hasan in regard twe said land the former claiming excivor bhumidhari rights and the latter co-bhumidhari rights. All the 7 solidation authorities appear to have decisions- against Simte Hasan. He j. lenged those decisions by filing writtion No. 1296 of 1963 praying, inte:s that the adverse orders passed by various consolidation authorities be qued.
(3.) THE writ petition was decided by M. M. Beg, J., who quashed the orders of the consolidation authorities and remand ed the matter to be decided in accordance with law as indicated in his judgment dated 27-7-1967. Against the judgment of Beg, J. a special appeal was filed by the heirs of Farzand Hasan. The special ap peal came up before a Division Bench of this Court, which, by its order dated 13-5- 1969, .referred the questions quoted at the outset for answer by a larger Bench. This Full Bench having been constituted by the Hon'ble the Chief Justice for answering the said questions, the matter has come up before us.;