Tyabji, J.:—
The trust originated from the will of the deceased Haji Abdulla Hussein which provided that one-third of the estate should be dedicated to such good and valid ((charity)) as his executrix and executors may think proper. That bequest was, by the decree in Haji Usman Haji Esmail v. Mariambai, declared to be a good bequest.
In accordance with generally prevalent Muslim sentiments,—and the law of waqifs supports these sentiments,—members of the family of the waqif ought to be given preference in appointment as trustees. Thus—
“In the Asul it is stated that the judge cannot appoint a stranger to the office of administrator so long as there are any of the house of the appropriator fit for the office; and if he should not find a fit person among them, and should nominate a stranger, but should subsequently find one who is qualified, he ought to transfer the appointment to him.”
See Atimannessa Bibi v. Abdul Sobhan, Niamat Ali v. Ali Raza and Phatmabi v. Haji Musa Sahib.(4)
I do not, therefore (in spite of the deference I should like to show to the Advocate General's point that unless outsiders are appointed as trustees the trust may become entirely a family affair) consider that there must necessarily be any outsider amongst the trustees. On the contrary I think the Muslim law does not dread the management of waqifs being retained in the family of the waqif. It disapproves of the introduction of an outsider in the administration at least of such a trust as is before me, unless the members of the waqif's family show their unfitness to be trustees.
I take this opportunity, however, of observing that though descendants of the waqif are favoured by the Court, when appointing a mutawalli, this does not mean that they have a hereditary right to be mutawallis, still less that their descent will protect them from removal if there is any mismanagement. The trustees that are now being appointed ought to be particularly careful in the administration of the trust. They should utilize the funds for such purposes and in such a manner that there may not be the least ground for any aspersion being cast against them. No suspicions should be allowed to arise that the funds are not being utilized for the most suitable and proper objects. Every portion of the funds should be manifestly put to uses entirely in accordance with the principles of Islam, which is a progressive and enlightened religion.
Attorneys for petitioner: Messrs Bhaishankar, Kanga & Girdharlal.
G.C.O'G.