1. This is an appeal by one Mt. Nabi-un-Nissa, who was defendant 1 in the suit out of which this appeal has arisen.
2. One Irfan Ali died leaving two widows, the elder of whom is the appellant before us and four children. Out of the children there was only one son, Muzaffar Ali, who figured in 'the suit as defendant 3. The wives and demandants of Irfan Ali, were impleaded as defendants. Irfan Ali purported to create a waqf of his property by a deed, dated 11th June 1918. This waqf was created under Act 6 of 1913, and was meant mostly for the benefit of his wives and children; He directed that 1/30th part of the income of his property should go for the benefit of two schools. On the death of Irfan Ali, the appellant sued the remaining heirs of her late husband for her dower. The result was a compromise, by which certain portions of the property left by Irfan Ali were given to her in satisfaction of a portion of her dower, and she was permitted to proceed, by way of execution, against other portions of the waqf property. Thereupon, the plaintiffs to the suit, who were the managers of the two institutions, who were to benefit, in part, by the waqf, instituted this suit to obtain a declaration that the waqf was a valid and good one and was binding on all concerned.
3. The suit was contested by defendant 1 alone. She pleaded, inter alia, that the waqf was bad in law inasmuch as the mutwalli appointed by the waqif was a minor, namely, his son Muzaffar Ali, that the waqf was never acted upon, that it was a device to deprive her of her dower debt, the amount of which was Rupees 50,000, and that if anything appeared to show that she was a consenting party to the waqf, it must be remembered that she was a pardahnashin lady of low understanding.
4. The Court of first instance came to the conclusion that the waqf was invalid and was never acted upon. In a general sort of way the learned Judge expressed the opinion that the dower debt of Rs. 50,000 was actually due to the appellant and that the waqf was calculated to defeat her of her rights.
5. On appeal by the plaintiff's, the learned District Judge came to the conclusion that the waqf was a genuine one, that it had been acted upon and that it was not void because the first mutwalli appointed was a minor. As regards the waqf being calculated to defeat the right of the appellant with respect to her dower, the learned District Judge was not satisfied that the dower was as much as was claimed, and, in any case, he was satisfied that the object of the waqf was not to defraud the wife's just claim. The result was that the learned Judge allowed the appeal and setting aside the decree of the Court of first instance decreed the suit.
6. In this Court two points have been argued. The first paint is that the mutwalli appointed being a minor, the waqf was invalid in law. The second point argued was that, in any case, the learned Judge of the lower Court should have addressed himself to the question whether the waqf was not calculated and meant to defeat the just rights of the appellant for her dower.
7. On the first question. We have not been referred to any clear authority where it may have been held that if a waqif appointed a minor as the first mutwalli, the waqf should become void. The high authority of Mr. Amir Ali, to be found in his book, supports the conclusion arrived at by the Court below. The relevant portions of his book (edn 4, Vol 1) have been quoted by the learned District Judge and will be found at pp. 446 and 447. At the top of p. 446 there occurs the following sentence:
If the waqif appoints a minor as mutwali and no adult is associated with him the Qazi shall appoint some person to do the work until the minor attains majority. If there is an adult associated with the minor, the Qazi may appoint some person to represent the minor and' act jointly with the co-mutwalli, or may em power the adult mutwalli to act for the minor.
8. This is a quotation from Radd-ul-Mukhtar, Vol. 3, pp. 593 and 596. Again at p. 447 the learned author quotes Surrat-ul-Fataw as follows:
If the towliat has been entrusted by the waqif to a boy, his towliat will remain in abeyance (or ineffective) until he attains majority when the trust will be made over to him.
9. These quotations clearly show that a, waqf cannot fail simply because a mutwalli happens to be a minor at the time. Indeed the authorities go so far as to indicate that a waqf shall not fail even if the mutwalli appointed be absent from the place. At p. 417 an authority is quoted which lays down':
If the waqif appoints as mutwalli a person who is absent, the Quzi has the power of nominating in his place another for the time being and when the mutwalli appointed by the waqif arrives, the trust will revert to him.
10. There can be no doubt that the Mahomedan jurists were fully alive to the importance of the doctrine that a waqf or trust should never fail for want of a trustee. They have fully given effect to this doctrine in their writings.
11. The learned Counsel for the appellant has quoted four cases in support of his contention that if the first mutwalli appointed by the waqif should happen to be a minor the waqf should be regarded as invalid. The first case is Piran v. Abdool Karim  79 Cal 703. That is a case where the person who was appointed mutwalli was not only to be mutwalli but was also to be a spiritual head of an institution. In other words, he was to be a sajjadanashin as well as a mutwalli. Amir Ali, J, pointed out that a sajjadanashin was not only to manage a property but he was to perform the services of a spiritual preceptor, a 'peer' or a 'guru'. In the circumstances it was found that the appointment of a minor was not proper. We do not think that the case lends support to the view contended for.
12. The next case is that of Mohammad Nasim v. Mohammad Ahmad  18 O.C. 38. The question that arose in this case was whether the defendant was rightly removed by the District Judge from his position of a mutwalli and whether the District Judge was right in appointing a major in his place. On appeal the Judicial Commissioners of Oudh upheld the appointment and laid down that a person who was not sui juris and who required a guardian to look after his property could not be entrusted with the management of a trust. This was laid down as a matter of general law and not as a matter of Mahomedan law. The next case, Khatun Begam v. Ejaz Ahmad  39 All. 288, can hardly be said to be in point. The head note reads as follows:
When the office of a mutwalli devolves on a minor by virtue of a provision in the trust deed, the appointment will remain in abeyance until he attains majority, but it is the duty of the civil Court, as representing the authority of the state, formerly administered by the Qazi, to appoint some person to perform the duties of the office until the minor comes of age.
13. This case does not directly deal with the point before u', namely, whether initially a mutwalli may be appointed to manage a wakf property, the mutwalli being a minor.
14. The last case cited by the learned Counsel is S. Hasan Raza Sahib v. Mir Hasan Ali  40 Mad. 941. In this case in a suit for administration of a trust a scheme was framed by the High Court. According to that scheme, there was a managing committee of five members including the president and three mutwallis, and it was arranged that vacancies in the committee were to be filled by election. In filling up one of the vacancies a minor was appointed a mutwalli. This was not approved of by the High Court in the case quoted. The reason is perfectly clear. The appointment was under a scheme and not under the Mahomedan law. In framing the scheme the High Court never considered that a minor might fill one of the appointments.
15. On an examination of the authorities, therefore, there is no ground for holding that a wakf must fail because the first mutwalli is a minor. It will be remembered that in this case the Waqif took the precaution of appointing a guardian of the minor mutwalli selected by him. For all practical purposes, therefore, there was a person duly qualified who could look after the trust property. We hold that the waqf is good.
16. The next question is whether the waqf is bad as being intended and calculated to defeat the just claims of the appellant. Although the point was specifically taken in the written statement, it does not appear that it was pressed in either of the Courts below. In the Court of first instance the learned Subordinate Judge, who set aside the wakf, stated that there were three points for him to decide as going to invalidate the waqf. These grounds he stated at p. 13 of the paper-book as
(a) on the ground that it appointed a minor as a mutwalli and was, therefore, invalid; (b) because no delivery of possession ever took place under it and therefore it was never operative; and (c) for the reason that it was never acted upon and remained a dead letter.
17. It will be noticed, therefore, that although the learned Subordinate Judge took the view that a large sum of dower was due to the appellant, he was never asked to consider whether on that account, the waqf was invalid. There may have been many reasons why the appellant's counsel did not think it proper to press the plea which had been taken in para. 9 of the written statement. We have already stated that the appellant apprehended that it might be taken that she was a consenting party to the waqf. It was she who was appointed the guardian of the minor mutwalli, and presumably her consent was taken before this appointment was made. This and other reasons may have existed which dissuaded the appellant from pressing She plea that the waqf was made to defeat her just rights. It is also the case that, after the execution of the waqf, Irfan Ali purchased a valuable property for Rs. 10,000, in the name of the appellant here. All these matters would go to show that the waqf was never intended to serve a sinister purpose.
18. In any case it is clear to us that the plea taken in para. 9 of the written statement was not put forward before the learned Subordinate Judge for an answer. Again the judgment of the learned District Judge shows that the point was never pressed before him except perhaps in some vague sort of way. In the grounds of appeal taken in this Court the point has not been specifically taken. In the third ground of appeal it is said that the cardinal point for decision in the case was whether or not the dower was due. But even if that point was decided in favour of the appellant, it did not follow that the waqf was bad. There was, therefore, no definite contention before any of the Courts that the waqf was bad under the provisions of Section 53, T.P. Act. The plea in ground 2 of the appeal does not go far enough to raise a plea like that. In the circumstances, we do not feel justified in remanding the suit for deciding a fresh issue. The result of our remanding an issue like that would probably be that a mass of doubtful evidence would be put forward on behalf of the appellant-evidence which was never put forward in the earlier part of the case, although a specific plea had been taken.
19. The result is that the appeal fails and is hereby dismissed with costs.