MUHAMMAD SHAFIQ AHMAD Vs. MUHAMMAD MUJTABA

JUDGEMENT

(1.) This appeal arises out of a suit for the following reliefs: First, a declaration that the right of defendant 1 to remain mutwalli of certain waqf property has become extinct, and that the plaintiff is entitled to possession of the waqf property as mutwalli, and that he may be put in possession of it as such. Secondly, a declaration that a sale-deed of 5 October 1920 by which defendant 1 transferred a certain portion of the waqf property to defendant 2 is void, and that defendant 2 may be ejected from that property and the plaintiff put in possession of it as mutwalli. The plaintiff is the eldest son of defendant 2, and the waqf in question was created by the father of defendant 1 by a deed dated 13 September 1919. The deed declares that the waqif makes "a waqf for self and children in respect of his immovable property specified at the foot of the deed, and that the property "shall henceforward be property dedicated to God." The deed contains the following provisions: That the waqif should remain mutwalli to the end of his life; that on his death his son Mohammad Mushtafa (defendant 1) should be sole mutwalli and, after him, his son, Mohammad Shafiq Ahmad (the plaintiff) should be mutwalli; that the office of mutwalli should be hereditary in the family of the waqif; that after the death of the waqif it should be the duty of the mutwalli to maintain the waqif property in repair, and to pay taxes and to expend at least sis pies per rupee of the residue of the income "on good deeds and charity." The balance of the income, so far as the plaintiff and defendant 1 are concerned, is to be divided as follows. 2 suls share to defendant 1, and 1 sul share to the plaintiff. The dead further provides that inasmuch as a portion of the waqf property, namely an ahata (which I shall henceforth call the ahata), had been mortgaged by the waqif before he created the waqif, and inasmuch as the waqif was also under an obligation to build upper storeys on certain shops, which are also included in the waqf, it should be the duty of the mutwalli to pay off the mortgage debt and to build the upper storeys of the shops "out of the rent of the ahata" or by raising money against the said ahata is any other reasonable and proper manner.

(2.) (This ahata is the property which defendant 1 subsequently sold to defendant 2, and which the plaintiff now seeks to recover). The deed finally provides that if any of the mutwallis fail to abide by the dictates of Islam or does anything against the conditions of the waqfnama he shall be deprived of the right of being mutwalli and after him whoever may be surviving and entitled according to the conditions of the waqfnama shall be mutwalli; but, if none of the male or female descendants of the waqif survives, the District Judge shall have power to appoint any reliable Musalman of the Sunni sect and belonging to the Hanaf school as mutwalli; and that such mutwalli should spend the income from the waqf property on the religious education of Musalmans; submit an account of income and expenditure to the District Judge every year; and comply with his orders regarding management of the property.

(3.) The present suit was brought as an ordinary suit before the first Subordinate Judge of Cawnpore, who, holding that it should have been brought under Section 92, Civil P.C., granted a decree declaring that the properties mentioned in the plaint were waqf property and refused to give the plaintiff any other relief. The plaintiff has appealed against so much of this order as refuses him the relief for which he asks, and the defendants have appealed on the ground that no declaration should have been given to the plaintiff.