1. These are two connected matters. First Appeal no. 375 of 1945 arises out of a suit filed by Mt. Khatoon Jannat Bibi against her brother Syed Wali Ullah and his wife Mt. Humera Khatoon, for a declaration that the sale deed dated 24th November 1936, executed by Syed Wali Ullah in favour of Mt. Humera Khatoon is, so far as it relates to the property specified in List (b) at the foot of the plaint, invalid and null and void, and for possession of the said property to the plaintiff as mutwalli. She further claimed from Syed Waliullah accounts relating to all the amounts due to Syed Nabi Ullah mentioned in List (a) at the foot of the plaint and in List 4 of the will dated 11th May 1923 from the period beginning from 2nd July 1923, and it was prayed that the amount found due after rendition of accounts may be made over to the plaintiff by defendant 1. The suit was valued at Rs. 54,000.
2. The allegations of the plaintiff were that Syed Nabi Ullah father of the plaintiff and Syed Wali Ullah, died on 2nd July 1925. He had only one son defendant 1 Syed Wali Ullah, and one daughter the plaintiff. One 11th May 1928, Syed Nabi Ullah executed a will under which he gave certain properties to his son and certain others to his daughter and made certain bequests and also made a waqf of certain properties. Under the will Syed Wali Ullah was to be the mutwalli and in his absence the daughter Mt. Khatoon Jannat Bibi was to be the mutwalli. Plaintiff's allegations were that Syed Wali Ullah had committed several breaches of trust and she had made an application before the learned District Judge of Allahabad under Sections 73 and 74, Trusts Act (II  of 1882). On 26th August 1938, this application was rejected on the ground that the trust created by Syed Nabi Ullah was a public trust and the provisions of the Trusts Act, therefore, did not apply. The matter was taken up to the High Court in a civil revision and the High Court in its order dated 18th January 1940, held that the trust was not a public trust and the provisions of the Trusts Act were, therefore, applicable. The High Court set aside the order of the District Judge and remanded the case with direction that the case be re-admitted to its original number and heard and decided according to law.
3. The learned District Judge on 16th April 1943 purporting to act under Section 78, Trusts Act,' held that Syed Wali Ullah was unfit to continue in office as a trustee and he, therefore, purported to discharge him from his office as a trustee and appointed the petitioner Mt. Khatoon Jannat Bibi as trustee in his place. He, however, held that he was not competent to grant any further relief and left it to Mt. Khatoon Jannat Bibi to 'take such further action against the opposite party as she may consider fit.' Purporting to act under this order Mt. Khatoon Jannat Bibi filed a suit No. 13 of 1944, in the Court of the Civil Judge of Allahabad. The Civil Judge, however, dismissed the suit with costs on the ground that the learned District Judge was not competent to remove Wali Ullah and to appoint the plaintiff in his place. It is against this decree that the plaintiff has filed the First Appeal No. 375 of 1945, and it is against the order of the learned District Judge dated 16th April 1943, removing Syed Wali Ullah from his office as a trustee and appointing the petitioner as a trustee in his place that Syed Wali Ullah and Mt. Humera Khatoon have filed the civil Revision No. 507 of 1943.
4. During the pendency of this appeal Syed Wali Ullah died on 19th February 1946. On his death his legal representatives were his sister, the plaintiff-appellant, and his widow Mt. Humera Khatoon, the defendant respondent, and so in the first appeal Mt. Khatoon Jannat Bibi is the plaintiff-appellant and a note has been made on the record that she and the other respondent Mt. Humera Khatoon are the legal representatives of Syed Wali Ullah deceased. In the civil revision Mt. Humera Khatoon now continues to be the sole applicant.
5. Learned Counsel for the plaintiff has urged that whatever view may have been taken of the correctness of the order passed by the learned District Judge removing Syed Wali Ullah from mutwalliship is no longer of any importance as on his death, Mt. Khatoon Jannat Bibi is now the mutwalli in accordance with the provisions of the deed of waqf. He has, therefore, urged that the question whether the learned District Judge had jurisdiction in proceedings under Section 73 to remove Wali Ullah on the ground of his having been guilty of mismanagement and breach of trust does not arise. He has in the alternative argued that the order passed by the learned District Judge was perfectly correct and the learned District Judge acting under Section 73 had the authority to remove Syed Wali Ullah and appoint the plaintiff as the trustee in his place.
6. On behalf of the respondent it is urged that the will only provides for the appointment of a mutwalli at the time of the death of Syed Nabi Ullah and if his son Syed Wali Ullah was alive then he was to be the sole mutwalli, and if he was dead then Mt. Khatoon Jannat Bibi, the daughter, was to be the mutwalli and there is no prevision for the appointment of the successor to a mutwalli who had taken over charge on the death of Syed Nabi Ullah and in the absence of any such appointment the plaintiff cannot rely on the will. It is further argued on behalf of the respondent that the learned District Judge's order was illegal and the decision of the Court below was correct and the appeal should, therefore, fail.
7. The question whether the District Judge had jurisdiction in proceedings under Sections 73 and 74, Trusts Act, to remove Wali Ullah on the ground of mismanagement and breach of trust is a matter on which I do not want to express any opinion. Proceedings under those sections are summary and as against an order passed under Sections 73 and 74, Trusts Act, no appeal lies. In the case before us, however, Wali Ullah being dead a fresh mutwalli has to be appointed and it is, therefore, no longer necessary to consider whether Wali Ullah was rightly removed and Mt. Khatoon Jannat Bibi was rightly appointed a mutwalli in his place. She is the daughter of the testator and it is clear from the will that the testator's intention was that in the absence of his son his daughter was to be the mutwalli. I do not, therefore, wish to differ from my learned brother that the Civil Revision No. 507 of 1943 should be dismissed.;
8. I would allow the First Appeal No. 375 of (1945, set aside the decree of the Court below and send the, case back to that Court for decision according to law treating Mt. Khatoon Jannat Bibi as the validly appointed mutwalli. I would make the parties bear their own costs of both the Courts,
Bind Basni Prasad, J.
9. This judgment will dispose of First Appeal No. 375 of 1945 and civil Revision no. 507 of 1943. The two cases am inter-connected. The fact3 are as follows:
10. Late Syed Nabi Ullah was a resident of the district of Allahabad. He was a well-known Barrister practising at Lucknow. On 11th May 1923, he made a will. He died on 2nd July 1926. He left considerable property and by the deed of will he declared that he had only two heirs namely Syed Wali Ullah and the appellant Mt. Khatoon Jannat Bibi. He divided his property in live lists. The property specified in list No. l was given absolutely to the son Syed Wali Ullah and his heirs, and that specified in list 2 to the daughter Mt. Khatoon Jannat Bibi and her heirs. As regards list 3 it was provided in the will that it shall be the trust property. Syed Wall Ullah, and in his absence his daughter Khatoon Jannat would be the trustee thereof. It was enjoined that the trustee would keep Mt. Khatoon Jannat in possession of the entire property in list 3 for her whole life after which Syed Wali Ullah and his heirs would be in proprietary possession and enjoyment thereof.
11. In these two cases, however, we are concerned with the property mentioned in list 4 only which consisted of the outstandings due to Syed Nabi Ullah, houses with sites and household effects in mohalla Balandbagh in the city of Lucknow, shares in different companies, Government bonds and fixed deposits. As regards the property specified in list 4, the provision La paragraph 4 of the will was as follows:
I declare that the property specified in List 4 shall also be after me, the trust property and my son Syeii Wali Ullah, and in his absence my daughter Khatoon Jannat. shall be trustee of that property also. It shall be the duty of the trustee to realise all the dues payable to me, to sell away the houses including the land and household goods and to invest the amount realised as well as the cash in some profitable business according to the provisions of the Indian Trusts Act. As regards the amount relating to the properly of List 4 invested in some business, the trustee shall at all times have power to convert it into ready cash and to invest it in some other profitable business according to the provisions of the Trusts Act.
The will went on to provide that the trustee should realise the profit accruing from the property of List 4 and then to pay annuities to certain persons specified in the will and certain subscriptions to certain specified charitable and educational institutions, e.g., orphanage, schools, colleges and universities.
12. Lastly it was provided that if the aggregate amount of the annuities and subscriptions specified in items (a)to(m) : (m) of para. 5 of the will is not covered by one-third of the total amount of annual/profits of the property of List 4 and the profits of the property of Lists (1) to (3) mentioned in paras. 2 and 3 of the will, the said item with the exception of Item (a) in para. 5 would be proportionately reduced. The house specified in List 5 was given exclusively to one Kaniz Batul, daughter of Qazi Wilayat Husain.
13. In accordance with the will, Syed Wali Ullah began- to act, obtained succession certificates in respect of the outstandings due to late Syed Nabi Ullah, brought suits in respect of them, got decrees and realised some, if not all, of them. On 3rd March 1937, Mt. Khatoon Jannat Bibi made an application purporting to be under Bs. 73 and 74, Trusts Act, 1882 (II  of 1882) to the District Judge of Allahabad in which she played for the following reliefs:
(a) That Wali Ullah be removed from trusteeship;
(b) that the applicant be appointed trustee;
(c) that the opposite party be ordered to hand over to the applicant all documents, deeds, securities, shares, policies, deposits of banks postal cash certificates, bonds and Government loans which form part of the trust and all documents whatsoever relating to the trust property;
(d) that Humera Khatoon who is in possession of his personal effects including cash accounts, documents and other papers be ordered to file the same in Court;
(e) that the opposite party may be ordered to render accounts of the trust from the date of late Maulvi Nabi Ullah's death;
(f) that the said accounts be properly audited;
(g) that order be made for the payment of such sums as may be found due to the trust from the opposite party; and
(h) that the Court may be pleased to pass such further and other orders as in the circumstances of the case it may be deemed fit.
14. Mt. Humera Khatoon is the wife of Syed Wali Ullah. It was alleged by Mt. Khatoon Jannat Bibi that Syed Wali Ullah was mentally deranged, that he had realised certain assets mentioned in List 4 and purchased certain zemindari property in mauza Savadkbat Kara with the same, but subsequently he transferred the said village to his wife Mt. Humera Bibi. It was further alleged that Syed Wali Ullah did not pay the annuities and the subscriptions mentioned in the will and that he had misappropriated the funds of the trust. It was asserted that by reason of his mental infirmity and breach of trust Syed Wali Ullah was unfit to act as trustee.
15. In reply Syed Wali Ullah assailed the validity of the will and contended that it was void. He denied the allegations about his mental infirmity and breach of trust. The learned District Judge without going into the questions of fact raised in the case held that the nature of the trust created by the will in question was such as to exclude the application of the Trusts Act. The application was accordingly dismissed on this preliminary point. Mt. Khatoon Jannat Bibi came in revision before this Court and on 18th January 1940, a Division Bench of this Court set aside the order of the District Judge. It was held by this Court that there was nothing in the preamble of Section 1, Trusts Act, to justify the argument that the applicant was not entitled to proceed under the Trusts Act in a case where the major portion of such trusts as have been created is of a private nature. The conclusion at which this Court arrived was that Mt. Khatoon Jannat Bibi was entitled to file a petition under the provisions of the Trusts Act and that the learned District Judge was wrong in dismissing that application on the preliminary point. In the result the case was remanded to the learned District Judge with the direction that he should re-admit it to its original number and proceed to hear and decide it according to law.
16. The learned District Judge then proceeded with the case and by his order dated 16th April 1943, he came to the conclusion that Syed Wali Ullah was unfit to act as trustee. He (Wali Ullah) was therefore discharged from the office of trustee and Mt. Khatoon Jannat Bibi was appointed as a trustee in his place. He further declared that all the trust property shall from the date of his order vest in Mt. Khatoon Jannat Bibi as a trustee. As regards the other reliefs, he held that it was not competent for him to grant them and remarked that it was open to Mt. Khatoon Jannat Bibi to take such further action against the opposite party as she might consider fit. On the questions of fact, he held that the zamindari in village Sawad Khat Kara had been acquired by Syed Wali Ullah from the funds of the trust and that it was not competent for him to transfer it to his wife Mt. Humera Bibi. Further, it was held that Syed Wali Ullah had been treating the entire trust property given in List 4 as his own. Of the annuities that were directed by the testator to be paid out of the income from this property the majority of them were not paid. The orphanage, the Islamia High School, the Intermediate College and the Aligarh and Lucknow Universities had not received any payment whatsoever. Mt. Khatoon Jannat Bibi had not been paid anything after 22nd December 1932. The learned District Judge expressed his conclusion that Syed Wali Ullah had acted irresponsibly and had disregarded the wishes of the testator.
17. Civil Revision No 507 of 1943 is from this order of the learned District Judge. It was filed originally by Maulvi Syed Wali Ullah and his wife Mt. Humera Khatoon. During the pendency of that revision Maulvi Syed Wali Ullah died and Mt. Humera Khatoon is now the sole applicant in the case.
18. After the order of the learned District Judge passed on 16th April 1943, Mt. Khatoon Jannat Bibi brought a regular suit against Syed Wali Ullah and Mt. Humera Khatoon in the Court of the Civil Judge, Allahabad, on 4th March 1944, in which after reciting the above facts she claimed the following reliefs:
(a) It may be declared that the sale deed dated 24th November 1936 executed by Syed Wali Ullah in favour of Mt. Humera Khatoon is so far as it relates to the property in list (b) at the foot of the plaint altogether invalid and null and void and possession may be awarded to the plaintiff as mutwalli over the property held in amanat specified at the foot of the plaint in list (b),
(b) Defendant 1 may be asked to render accounts relating to all the amounts due to Syed Nabi Ullah mentioned in list (a) at the foot of the plaint and in list 4 of the will dated 11th May 1923, for the period beginning from 2nd July 1925, up to the day the amounts held in amanat are made over and the amount found due after rendition of accounts may be made over to .ho plaintiff as trustee.
(c) If in the opinion of the Court defendant 2 is found in possession of the property mentioned in list (b) then as an alternative relief the plaintiff may be awarded possession over the said property through the Court.
The suit was resisted by Syed Wali Ullah on a variety of grounds. No less than twelve issues wore framed by the learned Civil Judge. He field that the will was valid and enforceable, that no undue influence was exercised upon the testator, that the deed of sale dated 24th November 1986, is inoperative against the trust and has the suit is not barred by Section 92, Civil P.C., because this Court had decided that the trust is a private one. He held, however, that the order?of the learned District Judge under Sections 73 and 74, Trusts Act, was not conclusive and that it can. not bar the defendants from raising the same pleas in a subsequent suit. He went on to say that Mt. Khatoon Jannat Bibi chose a wrong procedure and if she wanted to remove Syed Wali Ullah from the trusteeship she ought to have brought a regular suit for his removal and then claimed possession and accounting in case the Court found him unfit to continue in the trust. In the result he dismissed the suit with costs. Mt. Khatoon Jannat Bibi brings First Appeal No. 375 of 1945 from that judgment of the learned Civil Judge of Allahabad.
19. As already mentioned above, we are not concerned in these two cases with the entire property disposed of by the will. We are concorned only with the properties mentioned in List 4 of the will of which the testator made a trust.
20. The death of Syed Wali Ullah has altered the position very much. The position now is that apart from the consideration of Wali Ullah's unfitness to act as a trustee on the alleged ground of his breach of trust, there is no trustee now after his death; hence, if the trust exists, a trustee must be appointed. The maxim is well known that no trust shall be defeated for want of a trustee.
21. It is contended, however, on behalf of the defendant-respondent that as a matter of fact no valid trust was created by the will. I am unable to agree with this contention. It is plain enough from the will that a trust was created in respect of the properties mentioned in List 4. From the profits of the trust property certain fixed sums were payable to specified charitable and educational institutions and annuities were to be paid to certain individuals. In Kayastha Pathshala, Allahabad v. Mt. Bhagwati Devi and Ors , their Lordships of the Judicial Committee held that where by a deed of trust the testator makes dispositions in favour of a charitable institution which are real and not illusory and other dispositions in favour of relatives and friends which may be invalid, the deed is not wholly void, and, where the charitable institution has entered into possession under the deed without opposition and administered the trusts, a suit in ejectment against the institution by a person claiming as heir to the settlor on the ground that the deed is wholly void will not lie. In the present case also Syed Wali Ullah entered into possession of the property in dispute as a trustee, obtained succession certificate in that capacity, realised the assets and carried out for some time the provisions of the will. It is too late in the day now for Wali Ullah or his legal representative to dispute the validity of the trust created by the will. The trust was in respect of one-third of the property left by Syed Nabi Ullah, and I can see no illegality in it.
22. The second question which was argued on behalf of the respondent was that Wali Ullah could not be removed from the office of the trustee by an application under Section 74, Trusts Act, and that the proper remedy for the appellant was to have brought a regular suit for his removal. It is argued that the Trusts Act gives no right of appeal from an order passed under Section 74 and, at the most, it was only in non-contentious cases that Section 74 is applicable. Sections 73 and 74 provide as follows:
73. Whenever any person appointed a trustee disclaims, or any trustee, either original or substituted, dies, or is for a continuous period of six months absent from British India or leaves British India for the purpose of residing abroad, or is declared an insolvent, or desires to be discharged from the trust, or refuses or becomes, in the opinion of a principal civil Court of original jurisdiction, unfit or personally incapable to act in the trust or accepts an inconsistent trust, a new trustee may be appointed in his place by : (a) the person nominated for that purpose by the instrument of trust (if any) or (b) if there be no such person, or no such person able and willing to act, the author of the trust if he be alive and competent to contract, or the surviving or continuing trustees, or trustee, for the time being, or legal representative of the last surviving and continuing trustee, or (with the consent of the Court), the retiring trustees, it they all retire simultaneously, or (with the like consent) the lost retiring trustee.'
74. Whenever any such vacancy or disqualification occurs and it is found impracticable to appoint a new trustee under Section 73, the beneficiary may, without instituting a suit, apply by petition to a principal civil Court of original jurisdiction for the appointment of a trustee or a new trustee, and the Court may appoint a trustee or a new trustee accordingly.
In appointing new trustees, the Court shall have regard (a) to the wishes of the author of the trust as expressed in or to be inferred from the instrument of trust; (b) to the wishes of the person, if any, empowered to appoint new trustees, (c) to the question whether the appointment will promote or impede the execution of the trust, and (d) where there are more beneficiaries than one, to the interests of all such beneficiaries.
It will be seen that there is nothing in Section 74 to limit its application only to non-contentious bases. In fact, when Section 74 gives power to the (Court to appoint a new trustee on the ground of unfitness or personal incapacity of an existing trustee, the proceeding in its very nature cannot be non-contentious. Indeed, even in the case of appointment of a new trustee in place of a deceased one, the matter may be disputed by rival claimants. It is true that no right of appeal is given by the Act against an order passed under Section 74, but the order is revisable. It may be that the Legislature deliberately provided a speedy procedure for the appointment of a new trustee by Section 74. The interests of a trust demand that a trustee should speedily be appointed in circumstances mentioned in Section 73. Section 74 therefore gave a speedy remedy to the beneficiaries to have a new trustee appointed. I express no opinion as to whether or not a regular suit for the removal of a trustee and the appointment of another person in his place is [maintainable, but even if such a procedure is?available for the removal of a trustee and the appointment of a new one, it is an alternative one. The beneficiary may either move the principal civil Court of original jurisdiction by a 'petition under Section 74 or may bring a regular suit under Section 9, Civil P.C.
23. Learned Counsel has relied upon the case of Nathabhai Devidas v. Waghjibhai Javerbhai A.I.R. (15) 1928 Bom. 20. In that case the District Judge, on a petition under Section 74, Trusts Act, removed from office the trustee appointed by the testator on the petition presented by one who was not a beneficiary under the will. The principal ground upon which the order of the learned District Judge was set aside was that the petitioner had no locus standi to make an application under Section 74, Marten C.J., however, went on to observe:
But I wish to put the matter on rather broader grounds by way of warning. Speaking generally, applications for the removal of a trustee should undoubtedly be brought by a suit. And where, as here, ft is alleged that the trustees have committed a breach of trust, that suit should ask for the delinquent trustees to make good the breach of trust.
The District Judge in that case had decided the matter on affidavits without cross-examination and not oral evidence. The procedure was disapproved and it appears that this was also one of the grounds for the setting aside of the order of the District Judge.
24. The remarks quoted above are obiter dictum and they were not necessary when the case could be disposed of on the ground that the application had been made by a beneficiary.
25. Reliance has also been placed on the case of Tirathdas v. Parmeshwaribai A.I.R. (30) 1943 Sind 223. In that case a trustee was removed and another one was appointed in his place under Section 74; but there are certain remarks in the judgment to the effect that Section 74 should be used only in non-contentious cases. As already stated above, there is nothing in the section to confine its applicability only to non-contentious matters. With great respect I do not agree with those observations.
26. Another ground upon which the argument as to the inapplicability of Section 74 is supported is that, first of all, there should be the opinion of the Court under Section 73 as to the unfit-ness of a sitting trustee and only after such an opinion has been obtained in the course of any suit or proceeding that Section 74 applies. Section 73 does not entitle a beneficiary to ask for the verdict of the Court as to the unfitness of sitting trustee. It is only when he makes a petition under Section 74 that the Court gets an opportunity to express its opinion as to the fitness or unfitness of a trustee. For the appointment of a new trustee under Section 74 all what is necessary is that a disqualification as specified in Section 73 should have occurred. It is for the Court to find out whether or not such a disqualification has occurred.
27. The third objection raised is that Section 74, does not contemplate cases of breach of trust or unfitness of a trustee by reason of his misconduct. It is argued that only when there is physical, unfitness that the provisions of Section 74 are attracted. I am unable to agree with this. In the Sind case, Tirathdas v. Parmeshivaribai A.I.R. (30) 1943 Sind 223, a trustee was removed by reason of his breach of trust. The words in Section 73 are that a new trustee may be appointed in place of an old one if in the opinion of a principal civil Court of original jurisdiction the sitting trustee has become 'unfit or personally incapable to act in the trust or accepts an inconsistent trust ' The words 'peroonally incapable' are referable to physical incapacity. When these words have been placed in juxtaposition with the word 'unfit', this word cannot also be construed as meaning 'physically incapable'. 'Unfit' here means 'unfit by?reason of misconduct or breach of trust.'
28. Section 73, Trusts Act, follows Section 86 Trustee Act, 1925, which runs as follows:
Where a trustee, either original or substituted, and whether appointed by a Court or otherwise, is dead or remains out of the United Kingdom for more than 12 months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, or is an infant, then, subject to the restrictions imposed by this Act on the number of trustees : (a) the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or (b) if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representative of the last surviving or (continuing trustee, may by writing, appoint one or more other persons (whether or not being the persons exercising the power) to be a trustee or trustees in the place of the trustee so deceased remaining out of the United Kingdom, desiring to be discharged, refusing, or being until or being incapable, or being an infant, as aforesaid.
Lewin on the Law of Trusts at p. 432 (1939 Edn.) observes as follows:
In exercising its inherent jurisdiction of removing trustees, the Court has laid down the broad principle that its main guide must be the welfare of the beneficiaries. In oases of positive misconduct a Court of Equity has no difficulty in interposing to remove trustees who have abused their trust; but it is not every mistake or neglect of duty, or inaccuracy of conduct of trustees which will induce the Court to adopt such a course. The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity. Friction or hostility between trustees and beneficiaries, or between a trustee and his co-trustee, is not of itself a reason for the removal of trustees. But where hostility is grounded on the mode in which the trust has been administered, where it is caused wholly or partially by overcharges against the trust estate or where it is likely to obstruct or hinder the due performance of the trustee's duties, the Court may come to the conclusion that it is necessary for the welfare of the beneficiaries that a trustee should be removed.
In the present case the finding of the learned District Judge, based upon evidence, is that Wali Ullah transferred property purchased with trust funds to his wife and he did not make the payments as directed by the will. He has treated the trust property as personal property and did not maintain proper accounts. These facts were sufficient to prove his misconduct and breach of trust and to make him unfit to continue as a trustee. He did not base his finding on affidavits without cross examination. Parties had filed documentary evidence and some witnesses had also been examined. Wali Ullah and Mt. Khatoon Jannat Bibi were examined on commission. The case was in fact tried as a regular suit and parties were given full opportunity to adduce evidence and to cross-examine their opponent's witnesses.
29. The last objection raised to the main tainability of the application under Section 74 is that Mt Khatoon Jannat Bibi is not a beneficiary and so she could not apply under that section. Apart from the fact that by paras 1 to 8 of the will she has been given substantial rights to the property left by her father, she was given certain rights in respect of the trust property also by para 4 of the will according to which she was to act as trustee in a certain contingency. According to para. 5 (f) she was to receive the annuities payable to her son and daughter during their minority. By Clause (g) of para. 5 she was to receive Rs. 120 a year to meet the expenses of the mosque situated at Kara, Paragraph 6 of the will runs as follows:
Out of the balance that remains after meeting the items set forth in para. 5 with the amount of profit mentioned in the said paragraph at first Syed Wali Ullah and his heirs shall get Rs. 4200 in the life time of Khatoon Jannat and Rs. 2400 after her death on account of the deficiency in his share in the profit of other properties and then the amount that remains shall be paid to the extent of two 'suls' to Syed Wali Ullah and his heirs and one 'suls' to Khatoon Jannat and her heirs.
It is plain enough from the above that she is a beneficiary under the will in respect of the trust property and entitled as such to apply under Section 74.
30. It is next urged that Mt. Khatoon Jannat Bibi is not a proper person to be appointed as a trustee. The will provides that in the absence of Syed Wali Ullah Mt. Khatoon Jannat Bibi would be appointed as a trustee. The learned District Judge remarks:
The petitioner appears to have received a certain amount of education and is already looking after the property which has been allotted to her by the estate and there can be no doubt that the testator considered her to be a suitable person to be appointed as trustes after his son.
No beneficiary has come forward to object to the appointment of this lady as a trustee. Having regard to para. 2 of Section 74 which sets out the considerations that should be kept in view in appointing a new trustee, I am of opinion that Mt. Khatoon Jannat Bibi is a fit person to be appointed as a trustee. It may be noted that apart from the fact that she was declared the proper person to be appointed as trustee by the author of the trust, she is also an heir of Syed Wali Ullah. After his death she appears both as an appellant as well as a respondent in her capacity as a legal representative of Syed Wali Ullah along with his wife Mt. Humera Khatoon.
31. The teamed Civil Judge, in support of his finding that the order of the learned District Judge appointing Mt. Khatoon Jannat Bibi as the trustee is not conclusive, has relied upon the cases of Bhagwan Din v. Har Saroop and Prem Nath v. Harm Ram A.I.R. (21) 1934 Lah. 771. Those were cases under Charitable and Religious Trusts Act, 1920, and not under the Trusts Act, 1882. The provisions of the former Act are different from those under the latter. Once a District Judge passes an order after full enquiry under Section 74, the order becomes conclusive between the parties and it is not open to any party to go behind it in subsequent proceedings. It was, therefore, not open to Syed Wali Ullah to challenge the order of the learned District Judge removing him from trusteeship,
32. The position thus is that the learned District Judge rightly passed an order acting under Sections 73 and 74, Trusts Act, to remove Syed Wali Ullah from trusteeship and to appoint Mt. Khatoon Jannat Bibi as a trustee in his place. By reason of Wali Ullah's death it has become all the more incumbent now to appoint a trustee in his place and this lady appears to be the; best fitted at present, civil Revision No. 507 of 1943, brought by Syed Wali Ullah, should therefore be dismissed. In view of this finding the decree passed by the Civil Judge dismissing Mt. Khatoon Jannat Bibi's suit should be set aside. In the event of any sum being found due from Syed Wali Ullah, Mt. Humera Khatoon will be liable only to the extent of his assets in her hands.
33. I would, therefore, dismiss Civil Revision no. 507 of 1943 and decree First Appeal No. 375 of 1945 in the terms indicated above, and remand the case to the Court below to re-admit the suit to its original number and to dispose of it according to law.