SHYAMAL KUMAR SEN, J. - (1.) The facts in this appeal, inter alia, are that on July 1930, a registered deed of wakf was executed by Sahebzada Mirza and Ali Nakey where by he dedicated his properties mentioned in the schedule as wakf Alal Aulad appointing and constituting himself as the Mutwali. It was, inter alia, mentioned in the said deed that after death the office of Mutwali would devolve jointly on his daughter Shahebzadi Ahmedi Begum and her husband Dr. Abdullah Al Mamun Suharwardy and on the death of either on the survivor of them and after them on her lineal male descendents, if any, in order of seniority of age, one after another, in the absence of all lineal defendants, male or female of the said daughter, the nominee or nominees of the said daughter and son-in-law or of the survivor of them by a registered instrument shall be the Mutwaln.
(2.) On 13th January, 1985, the said Dr. Abdullah Al Mamun Suharwardy died without appointing or nominating a Mutawali. In 1942 Sahibzada Mirza Mohammed Ali Nakey died after acting as Mutwali of the Wakf estate. On 9th May, 1967 an unregistered deed of appointment was executed by Sahebzadi Ahmedi Begum whereby she nominated Kulsum Jalil being the defendanat as the Mutwali of the wakf estate. On the same date another unregistered deed of gift was executed whereby the said Sahebazadi Ahmedi Begum made a gift of the properties; mentioned in the said deed to the said Kulsum Jalil. On the 11th June, 1967, the said Sahebzadi Ahmedi Begum died intestate and without leaving any issue or any decendant either in the male or in the female line. On 3rd July, 1967', the said Kulsum Jalil being the defendant presented for registration in the office of the Joint Registrar of Alipore at Behala the said deed of appointment executed by Sahabzadi Ahmedi Begum since deceased. On 11th December, 1967, suit no. 2748 of 1967 was instituted by the appellant against Kulsum Jalil claiming, inter alia, the following reliefs (a) declaration that the purported appointment or nomination of the defendant as the Mutwali is void, invalid etc. and the defendant was and is not entitled to act as such (b) declaration that the purported deed of 'appointment dated 9.5.67 is null and void and is of no effect and not binding on the wakf and/or the plaintiff decree for delivery up and cancellation of the purported deed of appointment dated 9.5.67; perpetual injunction restraining the defendant from acting as Mutwali and that the plaintiff be appointed Mutwali of the Wakf created by an under the deed of wakf dated 22.7.30. On 6th February, 1968, Mr. Ramendra Mohan Datta, J. as he then was appointed the said Miss Kulsum Jalil receiver to collect rents, issues and profits of the premises being subject matter of the wakf estate and to pay municipal rates and fazes and to carry out the Provisions of the deed of wakf upon notice to plaintiff .On 11th February, 1976, the said suit was dismissed by this Court, on 25th March, 1976, the instant appeal was preferred against the said dismissal. On 18th June, 1976, the memorandum of cross objection was filed. It may be noted that the Appeal Court directed the said Kulsum Jalil to continue as receiver of the wakf estate., On 12th December, 1985, the deed of appointment was executed by the said Miss. Kulsum Jalil appointing" the respondent no. 1 as the Mutwali. On 14th December, 1985, the said Miss. Kulsum Jalil appointed one Mrs. Fatima Mahmood as permanent Mutwali in her death bed. On 19th December, 1985, the said Kulsum Jalil died. On 26th November, 1986, an order was passed by the Commissioner of wakf appointing Mrs. Fatima Mahraood as temporary Mutwali for a period of one year and directing the parties to move Civil Court for appointment of permanent Mutwali. In 1987 another suit being no. 83 of 1987 was instituted by Syed Md. Khurrem Hossain in this Court for his appointment of permanent Mutwali of the wakf estate. In 1987, suit being no. 328 of 1987 was instituted by the said Mrs. Fatima Mahmood in this Court for her appointment as permanent Mutwali. On 6th April, 1987, death of Kulsum Jalil was recorded by the .appeal Court and Sayed Md. Khurram Hossain and Mrs. Fatima Mahmood were appointed in her place. On 13th November, 1987, an order was made in an application made by the said Syed Md. Khurram Hossain in his suit being suit no. 83 of 1987 for appointing him as receiver of the wakf estate wherein Baboo Lai J. observed that the parties would be at liberty to obtain appropriate directions from the appeal court in view of the fact that the order for appointment of receiver passed in the instant appeal is subsisting even after death of Kulsum Jalil. On 4th October, 1989 an order was passed by the Commissioner of Wakf re-appointing Mrs. Fatima Mahmood as Mutwali for a period of one year. On 31st August, 1990, an order was passed by the Division Bench of this Court dismissing the application of the said Mrs. Fatima Mahmood for appointing herself as receiver over the said wakf estate.
(3.) It may be noted that the disputes arose in respect of the said wakf created by one Sahebzada Mirja Mohammad All Nakey a Haanafi Musalman, under the registered deed dated the 22nd July, 1930 whereby various properties were dedicated in perpetuity by way of an wakf alal aula. The said deed, the factum thereof is undisputed, inter alia, provided as follows : - (1) The wakf will be known as "Sahebzada Mirja Mohammad Ali Nakey Wakf". (2) The wakf would be appointed and constitute the first mutwali of the said wakf. (3) After the death of the wakf, the office of mutwali would develope jointly on the Sahebzadi Ahmedi Begum the daughter of the wakif and her husband Dr. Abdulla Almamoon Suhrawardi and on the death of either, on the survivor and after the death of both of them on her lineal male descendants, if any, successively in order of seniority and in the absence of such male descendants on her lineal female descendants, if any, successively, in order of seniority. (4) In the absence of all lineal descendants male or female the nominee of the said daughter and son-in-law of the wakif or of their survivor by registered instrument would be the mutawali.;