Kanhaiya Lal, J.:— The question for consideration in this appeal is whether Sheikh Muiz-ud-din is entitled to obtain a refund of the money due to Bashir-ud-din, the late de facto mutwalli of the trust. It appears that a suit was filed by certain persons to dislodge Bashir-ud-din from the position of the mutwalli of the trust. That suit was decreed by the trial Court, and a Board of Trustees was appointed, to whom Bashir-ud-din was directed to pay certain trust money and costs. Subsequently that decree was set aside by this Court, which came to the conclusion that Bashir-ud-din had acted as a de facto mutwalli of the trust sufficiently long to be entitled to remain in possession of the trust property as such. By virtue of the decree of this Court Bashir-ud-din became entitled to claim a refund of the trust money and costs, which he had meanwhile paid to the judgment-debtors. A portion of the said money was realised by Bashir-ud-din in the life-time. An application was now made by his son, Muiz-ud-din, for the recovery of the balance. His allegation is that he was appointed by Bashir-ud-din, the late mutwalli, as his successor to the office, but the evidence adduced by him on that point was disbelieved by the Court below, and we are not prepared to differ from that view.
2. It appears, however, that on the death of Bashir-ud-din, Muiz-ud-din succeeded in getting mutation of names effected in his favour in respect of the trust property, and that he has since then been in possession of the trust property as the de facto mutwalli of the trust.
3. In that capacity we think he is entitled to claim a refund of the monies, provided he agrees to credit the same to the trust and to duly account therefor to the person or persons who may hereafter be declared lawfully entitled to the mutwalliship. It is urged on behalf of the judgment-debtors respondents that the payment of the money to Muiz-ud-din should be withheld, till the question of mutwalliship is finally decided by a competent Court. The judgment-debtors cannot be allowed to hold back the trust moneys; but in the interest of the trust, we consider it advisable that we should not allow Muiz-ud-din to withdraw the money, which may be realized by execution, if the opposite party take steps within a reasonable period to get the question of the mutwalliship to the trust adjudicated in a proper Court.
4. We allow the appeal accordingly and setting aside the order of the Court below, allow the execution to proceed subject to the condition that the money realized by execution or paid into Court shall remain in deposit until adequate security is filed to the satisfaction of the Court below for a refund of the same to the person entitled or for a period of 6 months in order to enable the judgment-debtors to contest the right of Muiz-ud-din to act as the lawful mutwalli of the trust in succession to his father Bashir-ud-din. If no suit is filed within the period to contest the validity of that office, Muiz-ud-din will be entitled to withdraw the money from Court without such security. If a suit is filed, the money shall remain in deposit till such security is filed or the question of the right of Muiz-ud-din to succeed to the office of mutwalli is determined in due course. The parties will, under the circumstances, bear their own costs of this appeal.
5. Appeal allowed.