Ali Asghar Hasan v. Farid Uddin Hasan

Braund, J.:— This is a first appeal, presented as long ago as the month of April, 1941, from a judgment of 25th February, 1941, of the Civil Judge of Budaun.

On the 28th June, 1915, a gentleman named Chaudhri Salah Uddin Hasan (hereinafter called the “settlor”) who became the first defendant to the suit out of which this appeal arises, was minded to make a waqf of certain property, including houses, more particularly described in the schedule to the plaint. It suffices to say that this property was, and is substantial, being of the annual value of something approaching ten thousand rupees a year or eight hundred rupees a month.

The settlor at the date of the waqf had two wives, the first Mst. Zahir-un-nissa and the other Mst. Asghari Begam. By the former he had no children and she died, subsequently to the making of the waqfnama, in 1918. By the latter wife, Mst. Asghari Begam, he had three children, all of whom had been born at the date of the waqfnama. They were Mst. Nafis-un-nissa, who was born in 1908; Chaudhri Farid Uddin Hasan, the plaintiff in the suit, who was born in 1910; and Mst. Sadr-un-nissa, who was born in 1912. In 1917, subsequently to the date of the waqfnama, the settlor, however, divorced Mst. Asghari Begam. On divorcing this lady in 1917, the settlor appears to have taken a third wife, namely Mst. Shahzadi Begam, and by her a son was born to him in 1920 who is the second defendant to this suit Ali Asghar Husain. The settlor and all his children are still alive. Such, then, was the state of the settlor's family at the date when he created the waqf to which this suit relates and subsequently. As far as I know, he has had no further children. At that point it will be convenient to refer to the waqfnama itself, although the actual language of it will Have to be examined later on in this judgment, since much will turn upon it. The settlor began by reciting that he was the owner of the property set out in the schedule to the waqfnama together with the state of his family as it then was. He proclaimed his intention of taking advantage of the Waqf Validating Act (Act VI of 1913) to make a settlement “for the perpetual support of my children and children's children, generation after generation, as well as to make proper arrangement for the fulfilment of some charitable purposes and thus to win the favour of God and his Prophet and derive benefit in the next world.” He then concluded the recitals by saying that from the date of the waqfnama his own proprietary possession of the property would be “withdrawn” and that he would “remain in possession thereof as a mutwalli,”. By clause 1 of the operative part of the instrument he declared that:

“1. I myself will remain the mutwalli of the waqf property during my lifetime and I will spend the income from the waqf property for my support and for the support of my children and wives and on deeds of charity in a way considered proper by me, but this property will not be sold privately or by public auction in satisfaction of any debt or amount due by me nor shall I have any right to make any sort of transfer.”

By clause 2 the settlor then made provision for the future devolution of the office of mutwalli and he said:

“2. I shall, during my lifetime appoint any one of my male issues as mutwalli of the waqf property and if I fail to do so the eldest of male issues shall be appointed as a mutwalli and after my death every mutwalli shall be empowered to nominate his successor as mutwalli and if any mutwalli is not nominated then after the death of each mutwalli the eldest of his male issues belonging to my generation shall be appointed as mutwalli…”

with a proviso for what was to happen if it should befall that the male issue happened to be insane or should forsake the Muhammadan religion.

Clause 3 of the waqfnama then went on to deal with what may be called the beneficial provisions of the settlement. It will be observed that by clause 1 the settlor had already reserved for himself the full beneficial interest in the property during the remainder of his own lifetime. By clause 3 he again affirms that the expenses of the education and support of his children are first to be met out of the income of the waqf property and that during his own lifetime he would himself apply it for this purpose and in meeting his own personal expenses and in maintaining his wives and relations as he thought proper. He then went on to say what was to happen after his death by providing that:

“…. After my death out of the income from the waqf property Rs. 100 would continue to be paid to my first wife, Musammat Zahir-un-nissa and Rs. 100 to my second wife, Musammat Ashgari Begam per mensem provided I do not sever my connection with my wives aforesaid during my lifetime and they may be living and taking food with me…”

That is a clear provision of a hundred rupees a month after his death for each of the two wives to whom he was married at the date of the waqfnama, provided they survived him and had not at the date of his death been divorced. As regards his daughters, he gave: “…Rs. 100 to each of my daughters aforesaid…”, meaning the two daughters Mst. Nafis-un-nissa and Mst. Sadr-un-nissa.

It is to be assumed I think from the context that what he meant by that was that each of these two named daughters was to have a hundred rupees a month each after his death. He then proceeded to have further provision for any further issue he might have by saying that:

“If God willing my wives aforesaid give birth to other issues beside the present issues, each son shall continue to receive Rs. 300 and each daughter Rs. 100 per mensem out of the income from the waqf property….”

Finally, by clause 4 of the waqfnama he made certain ??? dispositions in the form of Rs. 25 which were to ??? to be spent during Ashra Muharram-ul-haram, Rs. 15 for the fateha of the saints, Rs. 50 on the education of Muslim girls Rs. 50 on the education of Muslim boys and Rs. 50 for ??? of the poor and orphans, all such payments to be ??? This amounts to Rs. 190 per annum in all. In conclusion declared that he himself “and after my death” the mutwalli the time being should make these payments.

That was the effect of the waqfnama itself. In 1917, as already set out the settlor divorced Mst. Asghari Begam and married Mst. Shahzadi Begam and in 1918 Mst. Zahir-un-nissa died. At that point, therefore, it would seem possible that, by reason of his having divorced their mother, the settlor's affections may have become diverted from his three children by her, who in terms were the only objects of the benefactions contained in clause 3 of the waqfnama. In 1920 the defendant Ali Aaghar Husain, was born.

It is possibly significant that the next step in the history of the matter was that on the 25th February, 1921, the settlor made an attempt to repudiate the entire waqf by executing what is known as an ibtalnama or document of repudiation. This was an atempt to get rid of the settlement altogether, and it was ultimately frustrated only by means of a suit, No. 130 of 1922, which was filed by the three children of Mst. Asghari Begam against (among others) seventy-three transferees of various parts of the waqf property to whom the settlor had purported to transfer it subsequently to his own repudiation of the waqf. It is remarkable that this suit dragged on until November, 1935 when it was ultimately disposed of (so far as the Indian courts were concerned) by a judgment of this Court in appeal by which it was held that the waqf instrument of 1915 was a valid deed, that it had been acted upon by the settlor and that the plaintiffs were entitled to a declaration that the ibtalnama or repudiation of the 25th February, 1921, was ineffective to get rid of it and that it remained binding on the settlor. This judgment actually went in appeal to the Privy Council where it was affirmed in 1944. This comparatively simple litigation, therefore, lasted for no less than twenty-three years.

The next material event which happened is one which is very elevant to the present proceedings. By what is styled a deed relinquishment of the 14th May, 1937, the settlor purported ??? and discharge himself from the mutwalliship of the ??? of 1915 and to appoint the defendant Chaudhri Ali Asghar Husain, his only son by his wife Mst. Shahzadi Begam, in his placed and at the same time he purported to make certain material ??? in the beneficial interests of the waqf. This document is ??? from the point of view of this appeal. The settlor in it ??? that he had executec a deed of waqf-al-al-aulad of the 28 June, 1915, and that it was still in force and had been declared valid by the judgment of this Court in appeal in 1935. He went on to recite that:

“…. Under the waqf aforesaid I was declared to be the mutwalli of the (waqf) property for my life and uptill now I am holding the office of mutwalli, but I do not want to remain mutwalli in future and my children are not satisfied with my management and in order to remove me from the mutwalliship they are ready to take legal proceedings. In order to avoid litigation I voluntarily and of my own accord relinquish the office of mutwalli and from today resign the office of mutwalli and appoint as mutwalli Chaudhri Ali Asghar Husain…. He is from today the mutwalli of the waqf property mentioned in the deed of waqf aforesaid….”

The settlor then went on to make certain material alterations in the terms of the waqfnama of 1915 by providing that the defendant Ali Asghar Husain, as the mutwalli, should pay “from the present income of the waqf property” five rupees per mensem to the settlor's daughter Mst. Nafis-un-nissa and a like amount to his daughter Mst. Sadr-un-nissa and that, after applying the above mentioned annual sum of Rs. 190 to the religious and other purposes specified in clause 4 of the waqfnama, “he may appropriate the rest of the income from the property, which is at present appropriated by me and is in my possession in my capacity as a mutwalli, as his dues of mutwalliship as long as he remains the mutwalli….”

It has to be remembered that under the waqfnama itself the settlor, while having constituted himself the mutwalli during his own lifetime, had also, subject to the benefactions of clause 4, retained his full beneficial interest in the income of the property during his lifetime. In other words, under clause 3 of the waqfnama the beneficial interest of the two wives, should they survive him, and of his two daughters and any other issue lie might have by such wives, did not arise until after his death. If, therefore, on its true construction, the effect of the deed of relinquishment of the 14th May, 1937, was merely to interpose an additional charge on the income of the property of five rupees a month each in favour of the two daughters, without affecting their beneficial interest to take effect after the settlor's death and to bestow an interest in the remainder of the income during the settlor's lifetime on Asghar Ali Husain, it can be argued that the beneficial interests of the children of Mst. Asghari Begam were not in any way adversely affected by the deed of relinquishment. In the same way it can, and has been, argued that, if it was open to the settlor himself to resign as mutwalli for the remainder of his life and to substitute Ali Asghar Husain in his own place as mutwalli then, provided such substitution is only for the lifetime of the settlor, no beneficial interest under the waqfnama are affected except those of the settlor himself. In other words, it is said that until the death of the settlor the only person beneficially interested in the income of the waqf property (subjects to the charitable annuities contained in clause 4) was the settlor himself, inasmuch as the provision during his lifetime for his wives, children and needy relations under clause 3 of the deed were expressly made discretionary so long as he was alive.

The present suit is the direct outcome of the purported relinquishment of the mutwalliship by the settlor in 1937 and the purported substitution by him of the defendant Ali Asghar Husain as mutwalli, since it is the mutwalliship that carries the real beneficial interest. The present suit was started on the 31st October, 1938, claiming a declaration that the plaintiff (that is to say, the settlor's son Farid Uddin Hasan) is the sole mutwalli and the manager of the property settled under the waqfnama of the 28th June, 1915, and that neither the settlor nor his son Ali Asghar Husain have any right to the mutwalliship. This is certainly a curious conclusion on which to base the relief asked for in the plaint. What appears to have been in the mind of the plaintiff, and his advisers who drafted the plaint, was that the settlor had no legal right under the Muhammadan law to relinquish his office as mutwalli under his own waqfnama. If that were so, the logical conclusion would appear to be that the instrument of relinquishment of the 14th May, 1937, had no effect and the settlor himself would, therefore, have retained the mutwalliship. It is difficult to see how on any footing the plaintiff could set up any right in himself to the mutwalliship. The settlor was, and is, still alive, and, if his attempted appointment of his son Ali Asghar Husain failed, it would appear that the settlor himself remained mutwalli. The settlor has never, nominated the plaintiff Farid Uddin Hasan as a mutwalli arid, indeed, under clause 2 of the waqfnama the settlor had no power of nominating a successor except to take effect after his own death. It is difficult at first sight, therefore, to see on what the plaintiff bases his right to claim the mutwalliship for himself. I shall, however, deal with this aspect of the matter at a later stage of this judgment and I only mention it now so as to make it clear that I am aware of the difficulty that may arise.

The learned Civil Judge of Budaun in his judgment treated the issue of whether the settlor was competent or not to transfer the office of mutwalliship to his son Ali Asghar Husain, and whether, in consequence, the second defendants appointment as mutwalli was valid, as the main issue in the case. He dealt at some length with the previous history of the matter and set out those passages from the judgment of Sir Shah Muhammad Sulaiman, the late Chief Justice of this Court, in the appeal proceedings of 1935 which came to the conclusion that the attempts by the settlor from 1921 onwards to get rid of the settlement were because his affections had been transferred since the date of the waqfnama from the children of Mst. Asghari Begam to his son Ali Asghar Husain and that he desired to benefit the latter at the expense of the former. In the passage from the judgment of the late Sir Shah Sulaiman referred to by the learned Civil Judge the former said: “… I think the clear conclusion to be drawn from these documents is that Salah Uddin executed the waqfnama of 1915 in order to make provision for his family by Mst. Asghari Begam and for his two wives of that period and for himself as a Sunni could do under Act VI of 1913. Later when he divorced one of these wives and married Mst. Shahzadi Begam in 1917, his mind was turned against the plaintiff”—that is against Farid Uddin Hasan— “and he desired to provide for Mst. Shahzadi Begam and her children. He, therefore, in 1921 adopted the method of declaring by the deed of revocation that the waqfnama was fictitious and invalid…”

The ultimate conclusion at which the learned Civil Judge arrived seems to have been, after examining the Muhammadan law, first that the settlor had no legal right himself to resign the mutwalliship, and (as he describes it) “thus deprive the plaintiff and the issues of Mst. Asghari Begam and Mst. Tahir-un-nissa and their children's children and change the scheme, share of beneficiaries and deprive the issues of the first two wives of Salah Uddin and introduce the issues of Mst. Shahzadi Begam, in the waqf of 1915”. It will, of course, be a matter for consideration whether the effect of the resignation by the settlor of his mutwalliship and his purported appointment of Ali Asghar Husain in his place was to oust the beneficial provisions of clause 3 of the waqfnama. But it is clear that the learned Judge held first that the settlor had as a matter of law no right to resign and appoint Ali Asghar Husain as his successor in his lifetime and that, in purporting so to do, he both intended to and did deprive the other beneficiaries of their beneficial interests under the settlement. Having reached that conclusion, he then came to the further conclusion that, since the settlor “says that he does, not want to be mutwalli any more … and as he cannot transfer his office of mutwalliship to Ali Asghar Husain and as Ali Asghar Husain cannot be appointed mutwalli because the whole scheme of the waqf would be changed”, the plaintiff Farid Uddin Hasan, “automatically” became mutwalli. I can understand, without necessarily accepting, the grounds on which the learned Civil Judge came to the conclusion that the settlor could not resign his mutwalliship and appoint a successor in his lifetime. But it is difficult to follow reasoning when he says that the plaintiff “automatically” steps into the vacant mutwalliship. That however, was the conclusion to which the learned Judge came and basing himself on it, he decreed the suit for a declaration that the plaintiff Farid Uddin Hasan was the sole mutwalli and manager of the waqf and that neither the settlor nor his son Ali Asghar Husain had any interest in it.

The facts have been set out at some length above, because the issues are not altogether easy to understand. The first issue, however, as the learned Civil Judge rightly apprehended, seems clearly to be whether the settlor had power in May, 1937 to resign his own mutwalliship and to appoint his son Ali Asghar Husain, as his successor. If he had, then that is an end of the matter, apart, of course, from any question whether by the same document he had a right to vary, and did vary, the beneficial interests under the settlement. This question involves an examination of the Muhammadan law relating to the power of a settlor under a waqfnama-al-al-aulad to resign his own mutwalliship during his lifetime and while hale and hearty.

The first work to which our attention has been directed is Baillie's Digest of Muhammadan Law published in 1865, first edition at page 594, second edition, page 604, in which the learned author, discussing the powers of superintendent to commit the office of mutwalli to another, observes that: “… A superintendent while alive and in good health cannot lawfully appoint another to act for him, unless the appointment of himself were in the nature of a general trust…” I shall discuss the significance of the concluding thirteen words of this passage in a moment. This is further elaborated in a case in 1909 in the Calcutta High Court before Sir Asutosh Mukerji and Mr. Justice Vincent in the judgment, in which certain valuable texts are set out and comments made on them. In this case [Khajeh Salimullah v. Abdulkhair M. Mustafa(1)] of the report there occurs the following:

“It is laid down in the Kunyah: If the mutwalli appointed by the founder says ‘I Asign my mutwalliship’ (literally I dismiss myself), ‘this declaration has no effect’ (and he continues as mutwalli) unless the declaration is made in the presence of the founder or the Cadi, who would thereupon remove him (Fatawa Mahdiyah, a collection of decisions by the Grand Mufti of Egypt Sheikh al-Islam Muhammad al-Abbasi, A.D 1883, volume 2, page 575; also Fatawa Alamgiri, volume 2, page 509, 1, 6).

The view taken in these texts is substantially reproduced by modern text-writers. Baillie in his Digest of Mahomedan Law, Volume I, 1st edition, page 594, 2nd Edition, page 604, observes that while a superintendent, may at death commit his office to another in the same way as an executor may commit his to another, a superintendent, while alive and in good health, cannot lawfully appoint another to act for him, unless the appointment of himself were in the nature of a general trust (c.f Fatawa Alamgiri, Volume 2, page 508, 1-8). Amir Ali in his Mahomedan Law, volume I, page 355, observes that should a mutwalli in his lifetime and in health appoint another in his place, the appointment will not be lawful and valid, unless the mutwalli has obtained the tawliyat with that condition in a general manner. He then quotes a passage from the Raddul-Muhtar, volume 3, page 337, to explain the meaning of the term ‘general’. The term signifies that the mutwalli at the time of his appointment was such as should receive the power of transferring the trust to another and substituting that other in his own place. It is worthy of note that the prohibition against the transfer of the trust applies to the appointment of a permanent and substantive successor who occupies the position and exercises the full powers of the mutwalli, in fact succeeds him in the office and not merely acts as his temporary substitute in his place. In other words, the renunciation by a mutwalli of his office is entirely distinct from his determination to act by a deputy. To the same effect is the statement by Sir Rowland Wilson in his Anglo-Mahomedan Law (third edition, sections 328 and 329).”

The passage referred to above as laid down in the Kunyah appears on the face of it to refer to a case of a “mutwalli appointed by the founder” in the sense of a mutwalli other than himself appointed by the waqif, since it could hardly refer to a declaration to be made “in the presence of the founder or the Cadi”, unless it was dealing with a case in which the founder was not himself the mutwalli. Nor would the text from the Kunyah necessarily preclude the possibility, in the case of a founder who is himself the first mutwalli, being deemed or resignation to do so with his own consent, which, indeed, is much the same thing as tracing back the power of resignation and of reappointment to the general residuary power remaining in the waqif. But in my view this passage from the Kunyah cannot be taken as dealing with a case such as we have before us here in which the waqif himself is the mutwalli. Both the reference to Baillie's Digest of Muhammadan Law, which I have referred to above, and the subsequent reference to the passage from the Rt. Hon'ble Sir Syed Ameer Ali's Muhammadan Law referred to later seem to exclude cases in which a mutwalli resigns and makes a new appointment in his own place out of some general power of appointment such as that which resides in the waqif himself. The passage at page 454 of the fourth edition of Sir Syed Ameer Ali's work on Muhammadan. Law says:

“The mutwalli cannot, however, assign or transfer the office to any one, or appoint another during his lifetime, unless his own powers are ‘general’. Should he in his lifetime and in health, appoint another in his place, the appointment will not be lawful and valid, unless the mutwalli has obtained the towliat with that condition, ‘in a general manner’. In that case the mutwalli so appointing another person in his place will not be able to remove the latter, unless the wakif whilst confiding the trust empowered him to assign the same to another, and also to remove the trustee.”

This clearly refers to a case in which the mutwalli is not the waqif himself and it equally clearly implies that even a mutwalli who is not the waqif himself will have the power in his lifetime and in health of appointing a successor, if he has those general powers which the waqif is capable of transmitting to him by express appointment. There are other passages in Sir Ameer Ali's work which point in the same direction. At page 441 he quotes the Sahib-ul-Hedaya (the author of the Hedaya) as saying:

“…. The wakif is primarily entitled to appoint a mutwalli for the management of the trust. If he is honest and just, he has a title superior to that of the Kazi to nominate a trustee, for though he has parted with the property, and his right in it has become extinguished, still he has a right to see that its proceeds are applied according to the terms of the consecration.”

This would seem to point to an inherent or general power in the founder of the trust and again, in quoting from the Radd-ul-Muhtar at page 442 he says:

“It is lawful for the wakif to reserve the towliat (the governance of the trust) for himself. And where a wakf has been created but the wakif has appointed no trustee or mutwalli for the administration of the wakf, nor has expressly reserved the towliat for himself, the office would nevertheless appertain to him qua wakif.”

This again would seem to point to an inherent residuary or general power in the waqif himself the Rt. Hon'ble Syed Ameer Ali at page 447 of the fourth edition of his book says that the power of appointing a mutwalli rests primarily with the waqif…’ The meaning of the term “general” in reference to the appointment of a mutwalli is explained in the Anfaa-ul-Wasail as being “that the waqif appoints a mutwalli and places him in his own place and constitutes him his successor and authorises him to assign the trust to whomsoever he likes, in such a case the mutwalli can transfer the trust either in health or death-illness.” (See Ameer Ali, 4th edition, page 456). It would seem, therefore, to be beyond doubt that the waqif, as the primary repository of the general powers of appointment, has power to confer on a mutwalli the right of appointing a successor to himself even in health. If that is so, there would appear to be at least as good reason why, in a case in which the waqif has retained the mutwalliship in his own hands, he should have power himself to do that which he undoubtedly could have conferred on a third party the right to do—namely to appoint a successor in health. I can see no logical reason why the waqif should have less power to do himself something that he could confer on a third party the right to do. It is quite consistent with this principle of the founder of the waqf possessing an ultimate residuary general power of regulating the mutwalliship that, in a case in which he has transferred a general power of appointment to a mutwalli and that power fails, the power of appointment reverts to the founder or his executor, if the founder is dead [Raggan Prasad v. Dhanno]. This too seems to point to the possession by the preceptor of at least as great a general power of regulating the succession to the mutwalliship (including power to resign in health and to appoint a successor) in a case in which he is himself the first mutwalli, as he could transmit to a third party in a case in which he is not the first mutwalli. There is a passage in the judgment of a later case in our own High Court which certainly has the appearance of going the whole length of the proposition that the founder of a waqf, who is himself the mutwalli, can appoint his own successor while in health, though it does not in terms go to the length of saying that he can himself retire and instal such successor immediately. But it is fully consistent with the reasoning that the founder of the waqf should possess such a power. In this case [Ghazanfar Husain v. Ahmadi Bibi] Mr. Justice Sen and Mr. Justice Niamat-ullah say that:

“Under the Muhammadan law, a mutwalli who is not the founder of the trust has no power whilst in health to appoint a successor or to formulate any scheme for the succession to the office of the mutwalli. This restriction does not apply to the founder of the waqf, who in reason and equity ought to have a free hand in the matter of nominating and appointing a mutwalli for the administration of the trust in praesenti….”

The last case to which I propose to refer is that of Abdul Ghafoor Mian v. Haji Khundkar Altaf Husain(2) which is a direct authority of two of the learned Judges of the Calcutta High Court that a mutwalli, who is himself the “appropriator” can renounce the mutwalliship and appoint another person in his place. They say:

“It is said that a mutwalli cannot renounce and appoint another mutwalli. That may be so in respect of a mutwalli who is not himself the appropriator. Atibunnessa in the towliatnama of 1894, expressly says that she was acting in her double capacity. She renounced in her capacity of mutwalli but appointed Ghafoor in her capacity of the wakif. It is laid down in the Kunyah: ‘If the mutwalli appointed by the founder says, I resign my mutwalliship’ this declaration has no effect unless the declaration is made in the presence of the founder or the Cadi, who would thereupon remove him.” Fatawa Mahdiya, volume 2, page 575 quoted in Salimullah v. Abdul Khair(3).

“Here the founder herself made the renouncement to herself and made the appointment herself, such an appointment by the founder is quite distinguishable from an appointment by one mutwalli of another without the intervention of the founder or the Cadi. This appointment, however, cannot enure against the express terms of the original deed of wakf, and must terminate with the life of the wakif.”

The concluding qualification is, of course, important and is itself entirely consistent with the view that, while retaining all his general powers as waqif or “appropriator” to the extent to which he has not parted with them, he cannot in effect revoke or vary the waqf he has himself created by exercising them if, and to any extent that, he has assigned them to a third party and that third party is able and willing to exercise them. This principle will have some bearing on the result of the appeal when we come to consider what the effect of the purported appointment by the settlor of Ali Asghar Husain on this case may have been.

There are two arguments advanced by Sir Tej Bahadur Sapru which remain to be noticed against the view that the settlor could relinquish his own mutwalliship during his lifetime and appoint an immediate successor in his own place. The first is that such a course is said to be opposed to the whole principle of the Indian Trusts Act which, unlike the English Trustee Act, does not leave it open to a trustee to retire at will. This may well be true; but the answer must be that the principles of the Trusts Act do not apply to a matter such as a Muhammadan waqf, which is governed by the special provisions of Muhammadan law applicable to it. The other argument advanced by Sir Tej Bahadur Sapru is that by the terms of the waqfnama itself in this case, the, settlor has expressly appointed himself as mutwalli for the whole of the remainder of his own life and has, therefore, released and surrendered any residuary or general power of retirement and reappointment he might otherwise have had. Even if, on a true construction of the waqfnama, the settlor has appointed himself for the whole of the remainder of his life, I do not see why that should connote a surrender of his inherent power to retire, assuming he has that power. There is certainly no express surrender, and, in my view, it would require for more than a mere appointment of himself as the first mutwalli “for my life” to amount to an abandonment by him of a power to retire (assuming he has such power) at will. It may have been, and probably was, the settlor's intention when he made the waqf, to manage it as mutwalli as long as he lived. But a right to “retire” necessarily implies the possibility of a change of mind, or at least an option to interrupt an existing state of affairs.

In the later text books also there is support for the view that a waqif who appoints himself the mutwalli retains an inherent power to regulate the management of the waqf by resigning and transferring his office to another. In the 3rd edition of Tyabji's Muhammadan Law at page 626, the learned author sets out a series of propositions—

“494. The wakif cannot lawfully remove the mutwalli unless in the dedication he has empowered himself so to do.

495. The mutwalli has no authority to discharge himself from his office, unless permitted by the wakif or Court.

495A. The mutwalli has no authority during his transfer his office to another.

495B. The wakif or his executor on appointing himself as the mutwalli, or acting as such retains the power of transferring the office to another under sections 492, 495.”

The paragraph 495B above fully recognizes the power of a waqif who is himself the mutwalli to “transfer the office to another”—not, merely, be it observed, to appoint a deputy; and by paragraph 492 the general power of appointment inherent in the waqif is placed first in the catalogue of the means by which a mutwalli should be appointed. This view also appears to be shared by Sir Dinshaw Mulla (Principles of Muhammadan Law, 12th edition, page 178) who says that “if any person appointed as mutwalli dies, or refuses to act in the trust,… or if the office of mutwalli otherwise becomes vacant and there is no provision in the waqf deed regarding sucession to the office, a new mutwalli may be appointed; and first again in the catalogue of persons who may appoint he places the founder of the waqf himself. I cannot see why, on the principles which I have been able to deduce from the texts, when the waqif is himself the first mutwalli, he should not appoint a successor if a vacancy arises, not provided for by the deed of waqf, when himself he refuses to act further in the trust.

From the foregoing slight examination of the Muhammadan texts and the authorities, so far as they have been brought to our notice. I have reached the conclusion that there is nothing in Muhammadan law which prevents the appropriator or waqif, who is himself the first mutwalli, from resigning his office, and, out of his own residuary or general powers as waqif or appropriator, appointing his own successor, provided that thereby he does not oust any express power already conferred by the deed of waqf. In my judgment, therefore, there is nothing in the general provisions of Muhammadan law to prevent the deed of relinquishment of the 14th May, 1937, in so far as it is a resignation of his office by the settlor and the appointment of Ali Asghar Husain as his successor, from taking effect to the extent aforesaid.

But that does not end the matter, since certain further considerations have been raised with which I must now deal. This branch of Sir Tej Bahadur Sapnt's argument runs in this way. It can be put shortly. He bases it on the assertion that it is proved from the facts of the case, and particularly from the findings of this Court in the earlier appeal, that the settlor has acted, if not fraudulently, at least in a manner from which it is plain that he seeks to consult his own wishes and interests rather than the interests of the trust. In the first place he sought unsuccessfully to repudiate his own waqf for no other reason than because he had transferred his affections from one set of members of his family to another. Now, it is said, he seeks by the instrument of the 14th May, 1937, to accomplish the same thing in a new way and to benefit the defendant Ali Asghar Husain at the expense of the proper beneficiaries under the trust. I confess that I have found this argument attractive. Sir Tej Bahadur Sapru has drawn our attention to a recent Full Bench case in this Court [Muhammad Ali Khan v. Ahmad Ali Khan] in which Mr. Justice Wali-ullah and I took the view that, in a case in which assets were once within the administration of this Court, in the sense that this Court was seized of the administration of trust assets by having before it proceedings concerning their management, it had, not only the power, but the duty of doing everything necessary by way of administration to protect those assets. That case also was a case concerning a Muhammadan waqf, thought it arose in somewhat different circumstances from the present circumstances. I am glad to have the opportunity of repeating that in my opinion it is never beyond the power of the court, in a proceeding before it in which assets held on any form of trust are concerned, to protect those assets for the benefit of the beneficiaries in whatever way is necessary. Although I freely accept it that the Indian Trusts Act as such does not apply to a Muhammadan waqf, nevertheless in my opinion the broad principles on which the court administers and protects property once within its cognizance apply as much to assets comprised in a Muhammadan waqf as to any other assets held on trust. And, in my judgment, that would extent to a power in a proper case to remove a mutwalli, and to appoint a new mutwalli in his place, since, though he is not technically a trustee, a mutwalli unquestionably is a person who stands towards his waqf in a relationship of the same character as that of a trustee to his trust. Moreover, the court for this purpose is one of the modes of appointing a new mutwalli which is recognized by all the text books.

If, therefore, I was satisfied that it were necessary for the court to intervene in these proceedings for the purpose of preserving the property and income comprised in the waqfnama with which we are here dealing from something in the nature of a fraud, I should not, notwithstanding the technical validity of the instrument of the 14th May, 1937, have shrunk from disregarding it and, if necessary, appointing a new mutwalli, who might, or might not, be the plaintiff Chaudhri Farid Uddin Hasan. That is the course which Sir Tej Bahadur Sapru says is the proper course; and, indeed, it is, I think, the only ground on which he can establish a footing for the plaintiff. It is, of course, a considerable departure from the plaint, which does not ask that the plaintiff should be appointed a mutwalli in the place of the settlor, but seems a declaration that he “is the sole mutwalli and manager of the waqf”. As actually framed, I think the suit would be bound to fail for the reasons I have already given; but I am not prepared on that account to exclude from consideration the point now taken by Sir Tej Bahadur Sapru, since, as explained above, it is in my view the duty of the court, now that it is seized of this matter, to consider the future administration of the waqf.

I do not doubt that the proceedings of the settlor in this matter leave a good deal to be desired and that he did in fact repent of his original benefaction in favour of the children of Mst. Asghari Begam and endeavoured to transfer it to Ali Asghar Husain, the child of his third wife. But I have to consider whether this by itself constitutes such a fraud on the trust as to disqualify the settlor from nominating a successor on his own retirement or, in the alternative, to disqualify Ali Asghar Husain from being the mutwalli. It is said that the relinquishment of the 14th May, 1937, goes further than the mere retirement of the settlor and the appointment of a new mutwalli and that it is sought to vary the beneficial trusts at the expense of the old beneficaries for the benefit of the new ones. Its provisions in this respect are as follows:

“…. He”, i.e Ali Asghar Husain, the new mutwalli, is from today the mutwalli of the waqf property…. It shall be incumbent upon the mutwalli aforesaid to pay from the present income of the waqf property Rs. 5 per month to Mst. Nafis-un-nissa daughter, Rs. 5 per month to Sadr-un-nissa … and to spend Rs. 190 annually on religious purposes as detailed in the deed of waqf and he may appropriate the rest of the income from the property, which is at present appropriated by me and is in my possession in my capacity as a mutwalli, as his dues of mutwalliship as long as he remains the mutwalli…”

So far as the charitable annuities are concerned, they remain exactly the same as before the only difference seems to be that monthly payments of five rupees to each of the two daughters are inserted, while the beneficial interest in the residue of the income, which is at present appropriated by me and is in my possession in my capacity as a mutwalli”, is to be retained by Ali Asghar Husain instead of by the settlor himself. As regards the daughters, if my construction of clause 3 of the original wuaqfnama of 1915 is right, the daughters were to have a hundred rupees a month each after his death. As far as I can see this has not been revoked by the document of 1937 and what has really happened is that he has added to that a payment of five rupees a month during his lifetime. In the same way the provision for his wives does not appear to be affected. I have difficulty, therefore, in seeing that, so far as the daughters and wives are concerned, the attempted provisions of the document of 1937 adversely affect them. Indeed, they are beneficial to them. As regards the position during the settlor's own lifetime, as I have already pointed out, by the original waqfnama he expressly reserved to himself a power of disposing of the surplus income at his own discretion. By clause 1 he said that he would “spend the income from the waqf property for my support and for the support of my children and wives and on deeds of charity in any way considered proper by me …” By clause 3 he expressly said: “… During my lifetime I shall spend money on these things” (the expenses of the education and support of his children) “in a way I think proper and I shall continue to meet my personal expenses with the same income along therewith …” and it was only after his death that he gave the legacies to his wives and children specified in clause 3. It appears to me, therefore, that the settlor under the original waqfnama had retained his beneficial interest in the income of the property during his lifetime, subject only to the charitable annuities. Reverting again to the document of the 14th May, 1937, it appears on this construction, at any rate during the settlor's lifetime, to affect adversely no one but the settlor himself. It is quite true that the annuities of five rupees a month to the two daughters and the appropriation of the residuary income by Ali Asghar Husain are not expressly confined to the settlor's lifetime. But, on the reasoning of the earlier part of this judgment and accepting with respect, as I do, the authority of the learned Judges of the Calcutta High Court in Abdul Ghafoor Mian v. Haji Khundkar Altaf Hosain to the effect that the appointment of a new mutwalli on the resignation of the old one can only take effect subject to the express terms of the original deed of waqf, I am bound to conclude that the appointment of Ali Asghar Husain as mutwalli, if it is valid at all, can only be valid for the remainder of the lifetime of the settlor. In the same way I must conclude that the beneficial provision for the appropriation by him of the surplus of the income of the waqf property attached to his mutwalliship must be similarly limited. On general principles, I can see no reason why an excessive exercise of his powers by the settlor should not be given effect to the extent to which they are actually within his powers, although the settlor may have gone beyond that point, unless, of course there is some other overriding reasons—such as fraud—affecting them.

Our attention has been drawn to nothing in this case indicating any personal disqualification of the defendant Ali Asghar Husain from being a mutwalli, unless it be that he is his father's now favourite son. I feel, however, that by itself would be too slender a ground to enable us to carry out what otherwise appears to be a quite valid appointment by the settlor. I do not say that there are no grounds for anxiety. But there would have to be a little more than that, before, in my judgment, we could intervene to use the powers of this Court to protect the property. This would not, of course, prevent any beneficiary or other person interested from taking the proper steps in the event of their being able to assert and prove any actual breach of trust or any positive jeopardy to the property. But at present there is nothing in this record which enables me to say that it exists.

The case has not been an altogether easy one. But, on the best consideration I have been able to give it, I have come to the conclusion, differing from that of the learned Judge in the lower court, that it does not automatically follow from what has happened that the plaintiff should now be appointed the mutwalli, and still less that he had actually become the mutwalli. For these reasons I see no other course open but to allow the appeal and to substitute for the decree of the court an order that the suit be dismissed with costs in both courts.

Yorke, J.:— This is a defendant's first appeal by one All Asahnr Husain in a suit for declaration that the sole mutwalli and manager of the waqf-al-al-aulad executed by the defendant No. 1 Salah Uddin Husain father of the plaintiff and of the defendant No. 2 appellant on the 28th June, 1915, and that the defendants have no right in any form to the mutwalliship of the waqf aforesaid.

The circumstances out of which the suit has arisen are as follows: On the 28th June, 1915, the defendant No. 1 Salah Uddin Husain executed a deed of waqf-al-al-aulad for the benefit of certain named persons, his two wives Mst. Tahir-un-nissa and Mst. Asghari Begam and his children by those wives, providing further for the benefit of any other issues to which the wives aforesaid might give birth. His children at that date were one son Farid Uddin, and two daughters Nafis-un-nissa and Sadr-un-nissa. By this deed he appointed himself the first mutwalli in respect of the waqf property. Thereafter Salah Uddin committed numerous acts inconsistent with the deed of waqf, as it appears, he transferred some of the waqf properties to different persons by means of mortgages and sales. It further appears that in 1917 he divorced his wife Mst. Asghari Begam and married in the same year Mst. Shahzadi Begam the mother of Ali Asghar. In the year 1918 the second wife Mst. Tahir-un-nissa died and in the year 1920 the defendant Ali Asghar was born. In 1921 Salah Uddin made a further attempt to rid himself of the effects of his having executed the waqfnama by executing a document described as an ibtalnama by which he repudiated the waqf. It was in consequence of these transfers and the execution of this document that Farid Uddin and his two sisters instituted in August, 1922 a, civil suit No. 130 of 1922 to have the waqf declared valid and to recover from no less than 74 transferees different items of the waqf property. Salah Uddin was impleaded a defendant No. 2 and Ali Asghar as defendant No. 70 of this suit. The suit was dismissed by the District Judge of Budaun but in appeal, First Appeal No. 201 of 1930, decided on the 21st November, 1935, this Court upheld the deed of waqf and decided the plaintiffs' suit for the declaration sought by them, it is said that some of the transferee creditors took the matter to the Privy Council but were unsuccessful there.

On the 14th May, 1937, Salah Uddin executed the document which has given rise to the present suit. This is a document described as a deed of relinquishment. In this deed the waqif or settlor Salah Uddn mentioned that the waqf was still in force and had been declared valid by the High Court in appeal No. 201 of 1930. He went on to say that by the deed of waqf he was declared to be the mutwalli of the waqf property for his life and that up till now he had been holding that office, but that he did not want to continue as mutwalli in future and that his children were not satisfied with his management and ready to take legal proceedings for his removal from the office. He went on to say: “In order to avoid litigation I voluntarily and of my own accord relinquish the office of mutwalli and from today resign the office of mutwalli and appoint as mutwalli Chaudhry Ali Asghar Hasan alias Munna Mian my minor son who is under the guardianship of Mst. Manzoor-un-nissa, own grandmother (of the minor aforesaid). He is from today the mutwalli of the waqf property mentioned in the deed of waqf aforesaid. It shall be incumbent upon the mutwalli aforesaid to pay from the present income of the waqf property Rs. 5 per month to Mst. Nafis-un-nissa daughter, Rs. 5 per month to Sadr-un-nissa alias Kamni daughter and to spend Rs. 190 annually on religious purposes as detailed in the deed of waqf and he may appropriate the rest of the income from the property, which is at present appropriated by me and is in my possession in my capacity as a mutwalli, as his dues of mutwalliship, as long as he remains the mutwalli.” On the face of it the effect of this document would be that Ali Asonar would be the mutwalli for his lifetime and would be entitled in that capacity to appropriate the whole of the annual income apart from Rs. 310 as his “official remuneration” with the possible result that the provisions in paragraph 3 of the waqfnama whereby after the waqif's death each son of the two original wives was to receive Rs. 300 per month and each daughter Rs. 100 per month from the income of the waqf property would be rendered ineffective.

The present suit was filed on the 31st October, 1938. The plaintiff contended that Salah Uddin had no right to appoint any mutwalli outside the circle of beneficiaries described in paragraph 3 of the waqfnama that Salah Uddin had relinquished the office of mutwalli and had legally no concern now left with the office or with the waqf property, and that since the relinquishment the plaintiff, as the eldest son of defendant No. 1 and Mst. Asghari Begam, had become the sole mutwalli and manager of the waqf property according to the terms of the deed of waqf. He sought a declaration to that effect. In this connection he relied on paragraph 2 of the deed of waqf which provides as follows:

“I shall, during my lifetime appoint any one of my male issues as mutwalli of the waqf property and if I fail to do so the eldest of male issues shall be appointed as mutwalli, and after my death every mutwalli shall be empowered to nominate his successor as mutwalli and if any mutwalli is not nominated then after the death of each mutwalli the eldest of his male issues shall be appointed as a mutwalli etc.”

The suit was not defended by Salah Uddin but a written statement was filed on behalf of Ali Asghar on the 11th January, 1940, in which the execution and validity of the waqfnama were admitted. In paragraph 6 of the additional pleas, however. It was said that the defendant No. 1 Salah Uddin was not a mere mutwalli but he had also the due capacity of the waqif and as such he could transfer the right of mutwalliship (that is the office of mutwalli), and that he had lawfully and legally transferred the office in favour of the contesting defendant Ali Asghar by the document of the 14th May, 1937. Therefore it was said that “the contesting defendant is now the legal and lawful mutwalli of the waqf property according to the present law and the plaintiff cannot object to it.” It was further said in paragraph 7 that the plaintiff had no right to object to the transfer of mutwalliship during the lifetime of the defendant No. 1 Salah Uddin.

Upon these pleadings a number of issues were framed, but we are concerned only with issues 4, 5 and 6. These issues were as follows:

“4. Was defendant No. 1 incompetent to transfer the office of mutwalli to defendant No. 2 under the terms of the waqf deed dated 28th June, 1915, and is the appointment of defendant No. 2 as mutwalli of the waqf property in suit invalid?

5. Has the plaintiff a cause of action to institute the suit?

6. Is the plaintiff entitled to the office of mutwalli of the waqf property during the lifetime of defendant No.)?

If not, what is its effect?”

The learned Civil Judge of Budaun treated issue No. 4 as the main issue in the case. He discussed the previous history of the waqf and of the defendant No. 1 Salah Uddin and the terms of the waqfnama and the law in regard to the power of a mutwalli to relinquish his office. He concluded that the waqfnama was created for the benefit of the then two wives Tahir-un-nissa and Asghari Begam and their children and children's children. He held that under the deed the eldest male issue of Mst. Asghari Begam would be the next mutwalli after the waqif mutwalli. On these findings he held that by no stretch of imagination or interpretation could Ali Asghar be a mutwalli or a beneficiary. He went on to hold that by the execution of the deed of relinquishment of the 14th May, 1937, Ali Asghar was appointed mutwalli and could himself appoint a mutwalli and thus the plaintiff Farid Uddin could be completely debarred and all the future sons of Farid Uddin and the sons sons of Farid Uddin would be deprived of the waqf benefit totally. He went on to say further that as Salah Uddin had vacated his office of mutwalli and had said that he did not want to be mutwalli any more from 14th May, 1937, and as he could not transfer his office of mutwalliship to Ali Asghar and as he had a right to resign that office at any time and as Ali Asghar could not be appointed a mutwalli because the whole scheme of the waqf would be changed, the plaintiff automatically became the mutwalli. Further on he said that as Salah Uddin was hale and hearty and was not suffering from death illness and as he had resigned from the mutwalliship, the next mutwalli is the plaintiff automatically as he is the eldest son as noted in the deed, as Salah Uddin would be deemed to have died without appointing a mutwalli. Hence he held that the appointment of Ali Asghar was totally invalid. He accordingly found on issue 6 that the plaintiff was entitled to the office of mutwalli and that by reason of the execution of the deed of relinquishment on the 14th May, 1937, which was calculated to deprive the plaintiff of his right he had a cause of action to institute the suit. He accordingly granted the declaration sought by the plaintiff; hence the present appeal.

The first question which arises on this appeal is whether the waqfnama gives any power of appointment on resignation of the settlor and, failing the waqfnama, whether a settlor mutwalli has under the Muhammadan law such a power to resign his office and make an appointment, of another person as mutwalli in his place. On an examination of the waqfnama it is clear that there is certainly no provision for resignation by the waqif Salah Uddin of his office during his lifetime. The position in Muhammadan law is not entirely clear but on the whole it seems to me that the proper inference to be drawn from the authorities is that a waqif mutwalli has the power to resign his office even during his lifetime and to appoint a successor. We have been referred to a number of authorities. It is stated by Mulla in section 165 of his Muhammadan Law, paragraph 2, that “If any person appointed as mutwalli dies, or refuses to act in the trust … and there is no provision in the deed of waqf regarding succession to the office, a new mutwalli may be appointed—(a) by the founder of the waqf…” The statement of the law is possibly rather too general and, in any case, strictly speaking it covers the case of the resignation of a mutwalli appointed by the waqif other than himself. As mentioned in the leading case on this subject, Khajeh Salimullah v. Abdul Khair M. Mustafa, Baillie in his Digest of Muhammadan Law, volume 1, 1st edition, page 594, 2nd edition, page 604, observes that while a superintendent (mutwalli) may at death commit his office to another in the same way as an executor may commit his office to another, a superintendent, while alive and in good health, cannot lawfully appoint another to act for him, unless the appointment of himself were in the nature of a general trust… By the term ‘general trust’ it is signified that the mutwalli at the time of his appointment was such as should receive the power of transferring the trust to another and substituting that other in his own place.” The implication of the passage is that the waqif or settlor has this general power himself and can confer it on the mutwalli whom he appoints under the waqfnama. It has been suggested in argument that where a waqif appoints himself as the first mutwalli without reserving to himself the power of resignation while in good health and of appointment of a successor in his lifetime, the waqif should be presumed not to have reserved that power. On the other hand, it seems to be recognized that a waqif is a person who occupies a rather exceptional position and to whose wishes special attention has to be paid. It would therefore seem that there ought rather to be some indication that the waqif by appointing himself has also given up his general or residual powers.

Ameer Ali has dealt with this matter indirectly in a number of passages in Chapter XV of his Muhammadan Law (Tagore Law Lectures, 1884). At page 441 he quotes from the authorities: “The waqif is primarily entitled to appoint a mutwalli for the management of the trust.” Again, “It is lawful for the waqif to reserve the towliat (the governance of the trust) for himself. And where a waqf has been created, but the waqif has appointed no trustee or mutwalli for the administration of the waqf, nor has expressly reserved the towliat for himself, the office would nevertheless appertain to him qua waqif. He has the power of appointing a mutwalli during his lifetime whenever he likes.” At page 453 he says: “A mutwalli cannot give up the office of towliat of his own motion; he must obtain the permission of the Kazi to retire from his office. Some jurists appear, no doubt, to have expressed an opinion that a mutwalli can resign his post in favour of another, but they have also held that the latter will not become mutwalli until his appointment has been sanctioned by the Kazi.” Again, at page 454: “The mutwalli cannot, however, assign or transfer the office to any one, or appoint another during his lifetime, unless his own powers are ‘general’. Should he in his lifetime and in health appoint another in his place, the appointment will not be lawful and valid, unless the mutwalli has obtained the towliat with that condition, in a general manner'.” At page 455 the expression “in a general manner” is explained as follows: “As regards the meaning of the expression ‘in a general manner’ the author of the Radd-ul-Muhtar explains it as follows: ‘It means that if the waqif or Kazi were to make a condition at the time of appointing the mutwalli, that he should have the power of transferring the trust to another and substituting that other in his own place by a sanad-i-waff or wasiat, should necessity arise for it, such a condition would carry with it the power, on the part of the mutwalli, to appoint another mutwalli during his lifetime or in death-illness.” If the appointment of the mutwalli, or the assignment to him of the trust, is not general in its nature as stated above, in other words, when the mutwalli does not possess general powers, he cannot assign the trust to another ‘in health’, whilst capable of discharging the functions of the office. The appointment of another mutwalli by one who does not possess general powers, without the leave of the Kazi is tantamount to a withdrawal of the incumbent from office, yet he remains responsible, unless the appointment or transfer of the trust is subsequently confirmed by the Kazi. There, is a further explanation of the term “in a general manner” at page 456 where he says: “With reference to a mutwalli appointed in a general manner, the meaning of the term ‘general’ is, thus explained in the Anfaa-ul-Wasail; ‘that the waqif appoints a mutwalli and places him in his own place and constitutes him his successor, and authorises him to assign the trust to whomsoever he likes, in such a case the mutwalli can transfer the trust either in health or death-illness.’”

We have also been referred to Tayabji's Principles of Muhammadan Law. In section 495 of this treatise it is stated that “The mutwalli cannot discharge himself from his office without the permission of the waqif or of the Court.” By section 495A, “The mutwalli cannot during his lifetime transfer his office to another, much less sell it.” By section 495B, “If the waqif or his executor purports to appoint himself the mutwalli, or acts as such, it does not deprive him of the power of transferring the office of mutwalli to another under section 492 above.” Section 492 provides that “In the absence of any express or implied provision in the declaration of waqf for the appointment of successive mutwallis (1) the waqif is entitled to make the appointment.” In the waqfnama with which we are concerned, the provisions for the appointment of a successor mutwalli only come into effect on the death of the waqif. Section 495B depends on how the act of the waqif in appointing himself the first mutwalli without making any specific reservation of particular powers is interpreted. The point is not directly dealt with in the leading case of Khajeh Salim-ullah referred to above which only quotes the same passage from the Kunyah referred to by Tayabji. The passage is as follows: “It is laid down in the Kunyah: If the mutwalli appointed by the founder says ‘I resign my mutwalliship’ (literally I dismiss myself), this declaration has no effect (and he continues as mutwalli) unless the declaration is made in the presence of the founder or the Cadi, who would thereupon remove him. (Fatawa Mahdiyah; also Fatawa Alamgiri, volume 2, page 509, line 6.)

The interpretation embodied in Tayabji's section 495B is the one which was accepted by the Calcutta High Court in a later case, Abdul Ghafoor Mian v. Haji Khundkar Altaf Hosain. At page 607 the learned Judges remarked: “It is said that a mutwalli cannot renounce and appoint another mutwalli. That may be so in respect of a mutwalli who is not himself the appropriator. Atibunnessa in the towliatnama of 1884 expressly says that she was acting in her double capacity. She renounced in her capacity of mutwalli but appointed Ghafoor in her capacity of the waqif. It is laid down in the Kunyah: If the mutwalli appointed by the founder says, ‘I resign my mutwalliship’ this declaration has no effect unless the declaration is made in the presence of the founder or the Cadi, who would thereupon remove him.” Fatwa Mahdiya, volume 2, page 575 quoted in Salimullah v. Abdul Khyer. Here the founder herself made the renouncement to herself and made the appointment herself; such an appointment by the founder is quite distinguishable from an appointment by one mutwalli of another without the intervention of the founder or the Cadi. This appointment, however, cannot ensure against the express terms of the original deed of waqf, and must terminate with the life of the waqif. This case is therefore clearly distinguishable from the case of Nawab Salimullah Bahadur v. Abdul Khyer Mohd. Mustafa.”

In the light of the above quotations from the authorities and the commentators and the decision of the Calcutta High Court, it certainly seems to me to be reasonable to conclude that a waqif who appoints himself as mutwalli does not deprive himself of his general power, which he could have conferred on a mutwalli appointed by him under the waqfnama, to resign office and appoint a successor during his lifetime despite the fact that he is in good health.

It is contended by Sir Wazir Hasan on behalf of the appellant that on this view it was open to Salah Uddin as waqif to relinquish his office and to make an appointment even of a stranger as mutwalli during his lifetime and that in doing so he was not bound by the provisions of the waqfnama of 1915 since the waqfnama is silent on the point. Alternatively it is contended that the appointment is consistent with the terms of the waqfnama which provide only that the waqif shall appoint one of his male issues as a mutwalli.

It is necessary here to consider the exact terms of the waqfnama. In what might be called the general recital of the waqfnama Ex. A-3 Salah Uddin, after setting forth that he has one son two daughters and two wives all of whom he names, recites:— “My object is to take lawful advantage of the waqf for children sanctioned by Islam and accepted by the British Government and Act VI of 1913 which is in force for the time being and to make permanent arrangement for the perpetual support of my children and children's children generation after generation…” In paragraph I of the numbered paragraphs he says:— “I myself will remain the mutwalli of the waqf properly during my lifetime and I will spend the income from the waqf property for my support and for the support of my children and wives…” In paragraph 3 he specifies the manner in which the income of the waqf is to be expended and says: “the expenses relating to the education and support of my children shall be met first from the income of the waqf property; during my lifetime I shall spend money on these things as I think proper and I shall continue to meet my personal expenses with the same income. Along therewith I shall give money to my both wives to meet their expenses and help my ??? relations in a proper way from the same income. After ??? death out of the income from the waqf property Rs. 100 would continue to be paid to my first wife Mst. Tahir-un-nissa and Rs. 100 to my second wife Mst. Asghari Begam per mensem, provided I do not sever my connections with my wives during ??? lifetime and they may be living and taking food with me, and Rs. 100 to each of my daughters. If God willing my wives give ??? to other issues besides the present issues, each son shall continue to receive Rs. 300 and each daughter Rs. 100 per mensem out of the income from the waqf property.” He then goes on to provide for the descendants of these mentioned son and daughters ??? to provide for a proportionate reduction in case the number ??? too large to allow payment of the prescribed allowances.

I have already set out the conclusions of the learned Civil Judge as to the meaning of this document and it is not necessary ??? to say more in regard to the interpretation than that in my judgment his conclusion is correct that this was a waqf for the ??? only of the family of Salah Uddin as it existed then, phus ??? further children as might be born to the two wives, Mst. Tahir-un-nissa and Mst. Asghari Begam and their descendants, general recitals about his desire to take advantage of the ??? of executing a waqf-al-al-aulad do not appear to me to ??? from the soundness of that conclusion. The learned ??? Judge has rightly said that it is not within the general powers ??? waqif to alter the beneficiaries under a waqf-al-al-aulad or ??? under any other waqf once it has been validly executed by ??? but that is a point which will not arise on the view which ???, in agreement with my learned brother, on the next point decision. The question which has to be considered here is the correct interpretation of the numbered paragraph 2 in the light of the above conclusions? In the first place, I am of opinion that bearing in mind the whole of the terms of this waqfname the words “any one of my male issues” in this paragraph must be interpreted as limited to male issues of either of the two wives Mst. Asghari Begam and Mst. Tahir-un-nissa. It would follow that the appointment of Ali Asghar could in no case be effective after the lifetime of Salah Uddin (vide Abdul Ghafoor Mian's case cited earlier). The further question, how ever, arises as to whether, assuming the waqif to have power to resign during his lifetime and therefore to appoint a mutwalli in his place, the appointment of Ali Asghar or in fact of ??? absolute stranger could be valid even for the lifetime of the waqif, bearing in mind the terms of the waqfnama. In a way it may be said to be contrary to the spirit of the waqfnama, but it can also with reason be said that during the lifetime of the settlor not specific benefits are conferred on the wives and children of the settlor who in effect vide paragraphs 1 and 3 of the waqfnama retains complete control over the residual income of the property. The appointment of even a stranger therefore does not operate; ??? a deprivation against the wives and children. The answer must depend ultimately, I think, on the interpretation of the first sentence of paragraph 2 read with the statement in paragraph ??? The question then is does the provision “I shall, during my life time, appoint any one of my male issues as mutwalli of the waqf property,” relate only to an appointment to take effect after the settlor's death or does it also govern any appointment he ??? make during his lifetime and for the remainder of his lifetime. In this connection it appears to me inevitable that full weigh must be given to what is said in paragraphs 1 and 3 of the waqfnama in which it is definitely stated that the settlor will occupied the office of mutwalli for his lifetime and therefore retain the benefits of that office. Had the first few sentences of paragraph 2 stood by themselves, they would have been capable of ??? interpretation that any appointment made by the settlor during his lifetime must be governed by the rule of appointment of ??? of his male issues, that is one of the beneficiaries specified ??? paragraph 3. Reading this paragraph however along with other paragraphs, it appears to me that it was open to the settlor the exercise of his residual powers as settlor to resign his office and to make an appointment even of a stranger which would effective for his lifetime. The question whether such an appointment will be effective after his death does not really arise for decision in the present suit. That is a point which may arise for decision in some future litigation and must be left for decision when it arises. In these circumstances, I am of opinion that the view taken by the learned Civil Judge that the resignation of Salah Uddin operates as a kind of civil death cannot be supported. I would hold that the resignation and the appointment of Ali Asghar by the deed of the 14th May, 1937, is valid. The plaintiffs suit should therefore have been dismissed.

I would allow this appeal, set aside the decree of the learned Civil Judge and order that the suit be dismissed with costs of both courts.

By the Court:— We allow this appeal and substitute for the decree of the lower court an order that the suit be dismissed with costs in both courts.