Henry Richards, C.J. and Pramada Charan Banerji, J.
1. In this suit which purports to have been brought under the provisions of Section 92 of the Code of Civil Procedure, the plaintiffs claimed that the defendant should be removed from the mutawalliship of certain property which was specified in lists A and B appended to the plaint, that the defendant should be called upon to furnish accounts and that new trustee or trustees from the family of the original appropriator (one Wali-ullah) should be appointed. In the plaint are set forth the history of the waqf about which there appears to be no doubt. One Maulvi Wali-ullah started an Arabic School of literature and Muhammadan Jurisprudence in the city of Farrukhabad about the year 1808. He dedicated certain shops which at present produce about Rs. 22 per mensem for the expenses. For a long time a man of the name of Syed Fazal Ali was de facto mutawalli. He made a further waqf of property worth about Rs. 7,500. He continued to be, at least, de facto mutawalli during the remainder of his life and named his son Inam Ali to be mutawalli after his death. Inam Ali succeeded Fazl Ali and died on the 5th of February, 1908. Fazal Ali when making his dedication provided that the descendants of Inam Ali should be the mutawalli of the entire endowment. After the death of Syed Inam Ali, who apparently died without issue, his brother Karamat Ali assumed the mutawalliship. Then followed some litigation. Karamat Ali brought a suit asking for a declaration that he was the lawful mutawalli of all the property. The court of first instance decided in his favour. The principal plaintiff in the present suit, Syed Ali Raza, was a party. Syed Ali Raza appealed and on the case coming before this Court the suit was withdrawn with liberty to bring a fresh suit. From the Judgment it would seem that the Court had indicated that the evidence adduced by Karamat Ali was not sufficient to justify it in making an affirmative declaration in his favour. No fresh suit was apparently brought owing to the death of Karamat Ali. On the death of Karamat Ali which took place on the 23rd of August, 1911, the present defendant, Niamat Ali, became mutawalli under the guardianship of his mother Musammat Tasliman. This was in accordance with a provision in the will of Karamat Ali. The present suit was then instituted on the 20th of February, 1912. It must be noted here that there is no allegation in the plaint that there has been any misappropriation of trust funds or any breach of trust. It is not alleged that any scheme was required. The prayer is simply for the removal of the defendant from the office of mutawalli and that some new trustee or trustees from the family of the original appropriator should be appointed. The court below has made a decree removing the defendant from being trustee and has appointed the plaintiff Syed Ali Raza mutawalli. It has even given the costs of the suit against the defendant.
2. Section 92 of the Code of Civil Procedure provides for a suit for certain relief in the court of the District Judge in a case of an alleged 'breach' of a trust created for public purposes of a charitable or religious nature or where the direction of the court is deemed necessary for the administration of any such trust. Suits relating to disputes between parties as to who is entitled to be mutawalli on the ground of family relationship are not brought under this section, We have already pointed out that no breach of trust was alleged nor proved, nor was it shown in any way that the intervention of the court was necessary. Assuming that Karamat Ali was legally entitled to be the mutawalli (an office which he undoubtedly de facto enjoyed) he was entitled to appoint his successor. It seems to us that the suit was entirely misconceived and ought not to have been entertained by the learned Judge. It is argued that there was no mutawalli and that the waqf property was derelict and that accordingly the intervention of the court was absolutely necessary. This is clearly not so. Karamat Ali was de facto mutawalli and it was never decided that he was not also de jure so. As a matter of fact it clearly appears that the defendant did assume the office and apparently the trust property was being properly managed.
3. It is said that the defendant Niamat Ali is a minor. It is possible that he was a minor according to the Indian Majority Act, but it is by no means certain that he was a. minor according to the Muhammadan law, that is to say, that he had not reached the years of puberty and discretion. In the will of Karamat Ali which was made before the present dispute arose, he is described as being a boy of 16 years of age.
4. On the general merits of the case it seems to us that the present suit has very little. The defendant is the grandson of Fazal Ali, who made the last endowment, the most substantial portion of the waqf. Fazal Ali had for many years been at least de facto mutawalli of the endowment created by Waliullah and the presumption would be that he was also de jure mutawalli. According to the spirit of Muhammadan law Niamat Ali, his grandson, would have the best right to be mutawalli. We need hardly say that if there is a breach of trust in the future, it will be open, upon proper proof, to get the mutawalli removed and a new trustee appointed. We allow the appeal, set aside the decree of the court below and dismiss the plaintiff's suit with costs in both courts.