1. This is a vendee's appeal arising out of a suit for pre-emption. The vendee was originally a co-sharer in the mahal, but executed a deed of waqf alalaulad under Act VI of 1913 appointing himself mutawalli in his lifetime and making provision for the maintenance of himself and his family. Thereupon he acquired the present share which has been sought to be pre-empted. The defence was that being the mutawalli during his lifetime, he is still a co-sharer and not a stranger to the mahal and accordingly the sale-deed taken by him cannot be pre-empted. The Court below has lightly rejected this defence. The Pre-emption Act defines co-sharer as any person other than a petty proprietor entitled as proprietor to any share or part in a mahal or village, whether his name as or is not entered in the register of proprietors Therefore it is quite clear that the person claiming to be a co-sharer must show that he is entitled as a proprietor to a share or part of a mahal. The mere fact that he is in possession in a different capacity cannot suffice. This was emphasized in Bachchi Lal v. Debi Din : AIR1929All300 where it was pointed out that for a person to be a co sharer, it is necessary that he should be entitled as a proprietor to a share in the mahal and that a lessee or a mortgagee, for instance, or a person in adverse possession without having acquired actual title would not be entitled as proprietor to the property in his possession and could not resist a claim for pre-emption by a co-sharer, so long as title had not matured by prescription within the meaning of the Act. It cannot be denied that the defendant after having executed the waqf ceased to be the proprietor of the waqf property. As laid down by their Lordships of the Privy Council in Abdur Rahman v. Narayan Das Aurora 71 Ind. Cas. 646 at p 648 : 71 Ind. Cas. 646 : A.I.R. 1923 P.C. 44 : 50 1 A. 84 : 50 C. 329 : 17 L.W. 309 : 32 M.L.T. 153 : 44 M.L.J. 624 : 25 Bom. L.R. 670 : (1923) M.W.N. 421 : 38 C.L.J. 212 : 28 C.W.N. 121 (P.C.) when once it is declared that a particular properly is waqf, or any such expression is used as implies waqf, the right of waqif is extinguished and the ownership is transferred to the Almighty:
The manager of the waqf is the mutawalli, the governor, superintendent or curator.... But neither the sajjadanashin nor the mutawalli has any right in the property belonging to the waqf, the property is not vested in him and he is not a trustee in the technical sense.... Under the Muhammadan Law the moment a waqf is created all. rights of property pass out of the waqif and vest in God Almighty.
2. The curator whether called mutawalli or sajjadanashin or by any other name is merely a manager. It is thus perfectly clear that the vendee ceased to be the proprietor of this property after the creation of the waqf and that accordingly he is not entitled as proprietor to any share in the mahal, although in the capacity of a mutawalli he is entitled to hold possession. The view taken by the Court below was, therefore correct. The appeal is dismissed under Order XLI, Rule 11.