Subba Rao, J.
1. Learned counsel appearing for the parties in the second appeal agree that this appeal may be posted before a Bench of two Judges. The only ground for the joint request is that the value of the property involved in the second appeal is more than Rs. 50,000. If the appeal is heard by a single Judge and leave to prefer the Letters Patent appeal is refused they an afraid that they will not have an opportunity to take up the matter to the Supreme Court. The relevant rule of the Appellate Side Rules is rule (I) Chapter I, Part II which reads thus:
'The following matters may be heard and determined by one Judge; provided that the Judge before whom the matter is posted for hearing may at any time, adjourn it for hearing and determination by a Bench of two Judges:
The rule does not lay down the circumstances under which a single judge is empowered to post the case before a Bench of two Judges. Therefore, a single Judge may, in his discretion refuse to post a case before a Bench if in his opinion the value of the subject-matter of the appeal is not a relevant circumstance for posting it before a Bench. But it is represented to me that under the Standing Orders of the High Court a second : appeal involving a subject-matter of the value of more than Rs. 10,000 will have to be posted before a Bench of two Judges. Rule 183 of the :Standing Orders says: 'All second appeals from decrees in which appeals may lie to the Privy Council by reason of me amount of value of the subject-matter (Section 110. C. P. C.) shall be posted before a Bench or two Judges. When on examining a second appeal the Appeal examiner has reason to be-have that the second appeal is one of this kind, he wilt make the necessary note on the docket sheet fortifying himself, if necessary, by making ' a reference to the appellant or his advocate and bring the second appeal to the notice of the Deputy Registrar and of the posting clerk.'
The Standing Order is inconsistent with Rule (1) : of Chapter I Part II of the Appellate Side rules. When a rule of the Appellate Side rules which has statutory force says that all second appeals shall be posted before a single Judge, I cannot hold that the office can and shall post a second appeal under certain circumstances before a Bench. It is, therefore, necessary, if it is held that second appeals involving a subject-matter of the value of wore than Rs. 10,000 shall be posted before a Bench of two Judges, that the Appellate Side rule should suitably be amended. In this case, I direct this second appeal to be posted before a Bench of two Judges in exercise of my discretion under Rule (1) of Chapter I of Part II of the Appellate side rules.
Basheer Ahmed Sayeed, J.
2. The plaintiff is the appellant in this second appeal, which is preferred against the judgment and decree of the learned Principal Subordinate Judge, Nellore, in A. S. No. 215 Of 1947 against O. S. No. 301 of 1938 on the 01e of the District Muusif's Court of Kavall
3. The plaintiff brought the suit against the-respondent in the District Munsif's Court of Kavali for a declaration that the deed dated 12-12-1933, executed by Rahamatullah Saheb in favour of the respondent was null and void, for a declaration that the appellant was the validly appointed trustee of the 'Mohideenia Mosque' In the village of Damaramadugu, Kovur taluk, Nellore district, for a direction against the respondent to deliver to the appellant possession of all the properties included in the schedules to the plaint as well as all the account books and vouchers and receipts etc. and other effects and things belonging to the said Mosque, for a direction that the respondent should handover the management of the mosque to the appellant, for an injunction restraining the respondent or his agents or servants or employees from interfering with the appellant in the management of the mosque or of the properties thereof, for an account to be rendered by the respondent to the appellant for the income derived or ought to have been derived from the properties described in the schedules to the plaint from 1-1-1933 up to date and to pay the balance of the amounts that may be found to be due by the respondent to the appellant on such accounts being taken and also for the appointment of a receiver for the properties of the 'Mohideenia Mosque' pending the disposal of the suit.
4. The respondent contested the suit on various grounds. In his written statement, the respondent admitted the execution deed Ex, III in favour of his wife by Rahamatulla Sahib and the appointment of Rahamtullah Sahib in 1923 as trustee, but contended that the appellant was not appoint ed a hereditary trustee, under the deed dated 1-5-1926, that at the time the deed was executed, the appellant was a minor and the appointment was therefore invalid. The respondent further contended that the appellant did not take charge and did not function as a hereditary trustee and that even otherwise, the appellant had been properly removed from the office under powers validly reserved in that behalf of the late Rahamatullah Sahib, the founder of the trust. The further points taken by the respondent in his written statement were that the appellant was not a member of the committee referred to in the plaint and that the late Rahamatulla Sahib did not acknowledge the appellant's rights as a trustee of the mosque and that the appellant did not continue to be a trustee after the notice issued by the committee dated 6-5-1933, that the document dated 12-12-1933 which was executed in favour of the respondent himself was a valid document and an operative one and that there was no fraud or collusion in respect thereof and that the respondent was the proper person appointed and entitled to be the trustee of the mosque.
4a. The learned District Munsif, after framing the necessary issues on the pleadings, and after taking into consideration the oral and documentary evidence adduced in the case, dismissed the suit of the appellant holding that the appointment of the appellant as a hereditary trustee by the late Rahamatullah Sahib under the deed dated 1-5-1926 was not true nor valid, that though the appellant acted as a trustee for some time the question of his removal from the trusteeship did not arise for consideration in view of his finding that he was not validly appointed as trustee and that the question as to whether the respondent was truly and validly appointed a trustee also did not arise.
Similarly, the learned District Munsif thought that there was no need to give any finding on the question as to whether the suit was barred by-limitation or whether the respondent was liable to render an account of the properties in his management from 1-1-1933 as alleged by the appellant. The main ground on which the suit would appear to have bean dismissed was that the appointment of the appellant at a time when he was a minor was void though he might have acted as a trustee for some time. The learned District Munsif held that he was not clothed with the legal character of a trustee and did not have any rights as a trustee.
5. Against this judgment and decree, the appellant preferred an appeal before the Additional Subordinate Judge of Nellore in A. S. No. 119 of 1943. The learned Subordinate Judge, who heard the appeal concurred with the learned District Munsif and held that the appellant had not proved that he was a major on the date, namely 1-7-1928, when he took charge of the trusteeship, in pursuance of Ex. C dated 1-5-1926, and that the finding of the learned District Munsif that the appointment of the appellant as a trustee was invalid, was correct. The learned Subordinate Judge also rejected the argument that the appellant had to be considered a 'de facto' trustee as against the respondent, who was a trespasser and held that if the appellant was to be considered as a 'de facto' trustee under an invalid appointment, the same would be the case with the respondent as well. He also held that the appellant could only succeed in ousting the respondent from his possession on the strength of his office as a trustee and that since he was not a trustee, he had no right to oust the respondent from the possession of the properties. On that ground also, the learned Subordinate Judge held that the suit was rightly dismissed by the learned District Munsif and even the request to remand the suit to the lower Court was rejected.
6. Against this decree and judgment of the learned Subordinate Judge, a second appeal (S. A. No. 155 of 1945) was preferred in this Court and when it came on for disposal before Lakshmana Rao J. on 27-2-1946, the learned Judge held that the onus of proving the minority of the appellant (appellant in this second appeal also) on 1-7-1928 was on the respondent who asserted it, relying upon the decision in -- 'Jagannath Prasad Singh (Raja of Deo) v. Abdullah', AIR 1918 PC 35 (A) and that no evidence was adduced about it on his behalf, that the appellant was not even cross-examined on the point and that the dismissal of the suit on the ground that the appellant was a minor on 1-7-1928 could not be upheld. The learned Judge accordingly set aside the decree and judgment of the learned Subordinate Judge for disposal according to law on the other questions involved in the appeal and directed the respondent to pay costs to the appellant in this Court and in the. Court below.
7. When this matter went to the learned Subordinate Judge's Court, the second Additional Subordinate Judge at Nellore took up the appeal for final hearing on 22-9-1946 and passed the following judgment:
'The High Court has now found that the settlement deed in favour of plaintiff is not invalid on the ground of his minority. The trial Court in dealing with issues 1 and 2 has considered other grounds on which the deed is invalid. These grounds were not specifically raised in the written statement. The respondent wants to raise them by filing a petition for amendment. He will be at liberty to do so before the District Munsif who will deal it on its merits. The other questions raised in the issues were not determined by the District Munsif. It is necessary to give findings on them, viz., issues 3 to 6 before the suit is finally decided. The decree of the trial Court is set aside and the suit remanded for .fresh disposal on all the issues after hearing such further evidence as the parties may let in. Costs of this appeal will be costs in the cause. The court-fee will be refunded to the appellant'
8. In pursuance of this judgment of the learned Second Additional Subordinate Judge, the decree of the trial Court was set aside and the suit was remanded for fresh disposal on all the issues after hearing such further evidence as the parties might let in.
9. When the suit went down to the learned District Munsif, Kavali, for trial on the remand order referred to above, the respondent filed L A. No. 1119 of 1948 praying that he might be permitted to amend his written statement by adding an additional paragraph as paragraph 5 (a). In the new paragraph sought to be introduced in the written statement, the respondent pleaded to the following effect:
''Even otherwise, the appointment of the plaintiff as trustee was even in the inception invalid, as on a proper construction of the trust deed, dated 12-7-1917 and the events that happened subsequently, the right to make the appointment of trustee did not accrue to Rahamatullah Saheb, the contingency for the exercise of such power as contemplated in the said document had not arisen and Rahamatulla Sahib was incompetent, to make any such appointment. Also it was a condition precedent to the taking effect of the appointment or of the plaintiff holding to the office, or being competent to hold the office of trusteeship in question that he should be a resident of Dhamaramadugu. The moment he showed a clear intention of not residing in Damaramadugu if even otherwise, he could claim to be a trustee (which the defendant denies), the plaintiff did and must be deemed to have forfeited his right to the said office.'
10. The appellant filed a counter petition in which he contended that the remand order of the High Court did not entitle the respondent to the amendment asked for and that the application for the amendment was itself filed at a late stage, that no grounds at all had been alleged in the affidavit to justify the amendment at that stage, that the amendment sought for had the effect of pleading a new case which was thoroughly inconsistent and contrary to the position taken up by the respondent in his original written statement and that the respondent was trying to go back upon his admission of an allegation made by the appellant and referred to by the respondent in paragraph 3 of his written statement and that in view of the admission contained in paragraph 3 of the written statement there was no controversy between the parties as to the power of Rahamatulla Sahib to appoint the plaintiff as the trustee. The learned District Munsif, in an elaborate order, dated 6-1-1947 allowed the amendment rejecting the contentions raised by the appellant and the written statement was accordingly amended and the suit was heard 'de novo' by the learned District Munsif of Kavali. No fresh issues however were framed by the learned District Munsif as he was satisfied that the issues framed already in the suit covered all the points raised in the plaint and the amended written statement.
11. After examining once again the documentary and oral evidence in the case, the learned District Munsif held that the appellant failed to prove that Rahamatulla Sahib had power to appoint him by reason of his alleged authorisation by the committee. The learned District Munsif was also of the opinion that it was a salutary principle of law that a trustee cannot delegate his duties or transfer his office during his life time and that the appellant could not be heard to urge that Rahamatullah Sahib had the power as trustee at least to appoint him, irrespective of any authorisation and that it would be delegation by a delegate and in that view also the appointment of the appellant could not be upheld. The learned District Munsif also held that the appointment of the appellant as a hereditary trustee by the late Rahamatulla Sahib under the deed dated 1-5-1926 though true, was not valid, that he held that office for about 5 years and it was futile for the respondent to contend that the appellant never acted as trustee. On the question of removal of the appellant from office, he held that the appellant could not be deemed to have been validly removed from the office of trustee if it were once to be held that he was validly appointed. He did not find it necessary to decide the issue as to whether the appointment of the respondent as trustee was true and valid. On the question of limitation, the learned District Munsif held that the suit was not barred by limitation and that the appellant was not entitled to ask for any accounts from the respondent. The suit was consequently dismissed.
12. Against this dismissal the appellant preferred an appeal to the Principal Subordinate Judge of Nellore. The learned Subordinate Judge found that Rahamatulla Sahib was validly appointed as a trustee and that he had the light to exercise his rights as trustee and therefore Rahamatullah's right to appoint the appellant as trustee could not be questioned and that the respondent himself admitted in his written statement that Rahamatullah was appointed by the committee as a trustee in place of his wife and that it empowered him also to appoint a person as trustee in his place. After having said so much, the learned Subordinate Judge however held that the appointment of the appellant under Ex. C during the lifetime of Rahamatulla as a trustee was not valid for the reason that the appellant did not come within the definition of the persons who are to work as trustees. There have been contradictions between what the learned Subordinate Judge has observed in paragraph 5 and what he has stated in paragraphs 6 and 7 as pointed out by the learned counsel for the appellant. He also held that the fact that the appellant acted for five years or even more as a trustee could not give him any right and that Rahamatullah, the founder of the mosque in question, had no power to appoint strangers like the appellant, who was only a foster son. At the same time, the learned Subordinate Judge held that the document under Which the respondent claimed trusteeship, namely, Ex. I, dated 12-12-1933 also was not valid and therefore the appointment of the respondent could not also be upheld. A further ground relied on by the learned Subordinate Judge for dismissing the appeal was, that the appellant had no residential qualification as laid down in the original document creating the trust itself Ex. Ill and that therefore the appellant was nobody in the eye of the law and that he could not ask for any relief against the respondent. Against this decree and Judgment of the learned Subordinate Judge, the present second appeal has been preferred.
13. The common ground between the parties in this second appeal js that under Ex. III the late Rahamatulla Sahib from whom both the appellant and the respondent claim their trusteeship founded the trust, Ex. III is dated 12-1-1917. It is a deed of trust executed in favour of Moideenia Masjid (mosque named after Mohideen) in Damaramagudu Village, in Kovvur taluk, Nellore district. The document is a fairly long one drawn up in TeJugu.
The first paragraph of the deed sets out the properties possessed by the founder and the reasons for his creating the endowment in favour of the Masjid. The third paragraph is the operative portion where the dedication is made in favour of 'God for the benefit of the mosque. The fourth paragraph sets out the constitution of the committee of supervision as well as its powers and the appointment of servants and office bearers of the mosque including the trustee. While appointing under this paragraph his senior wife Ghose Bibi as trustee and the various other servants of the mosque Including the 'Khathib' and the manager, who are all said to be relations of the-founder, provision is made that the founder himself shall be the first member for carrying out the duties of the committee member on behalf of the 'Khathib'. In case of lapses on the part of the servants, power is given to the committee to remove these people & to appoint others in their stead. Vacancies in the membership of the committee are also to be filled up by the remaining members from among the relations of the founder. If the committee members failed to carry out their duties properly, provision is made that the other relations of the (founder shall have the power to stop remission of their salaries and the amounts settled to be paid to their descendants. It is also provided in the deed of trust in paragraph 4 that the committee members should obtain from the trustee a surety bond for its. 500 as the properties of the trust and the income thereof would all be in the-possession of the trustee.
In the various sub-paragraphs under the main paragraph 5 and in paragraph 6 the duties of the various servants of the mosque including those of the trustee, the manager and the committee of supervision, details of expenses of the mosque, scales of salaries of members of the committee etc., have all been set out. In paragraph 7, directions-for the maintenance of accounts and for the discharge' of duties etc., and the retention of the income derived from the properties are given. Paragraph 8 contains other directions as to how the lands have to be leased on cowles etc.
Paragraph 9, which is the main paragraph relevant for the purpose of this second appeal, sets out that the entire properties have been delivered over to the trustee who should preserve the same, that the servants should do service to the mosque and that the committee members should supervise the same. It further provides that if they fail to duly carry out the duties and thereby damage is caused to the aforesaid properties, the founder reserves to himself the right to become the trustee during his lifetime and without having any committee members to take possession of the entire properties and carry out the duties himself. If any issue are born to him in future, the deed says, his descendants only shall be the trustees and they shall perform all duties without the assistance of a committee. There is a further provision in paragraph 9 that in the event of damage being caused to the above-mentioned property after his lifetime or there after when no issue is Bom to him, there should be no objection whatever for any of his relations or Mohammadans belonging to that village or other villages or any other persons who are devotees of God to intervene, duly take possession, of the entire wakf properties and see that all the duties are performed as mentioned in the trust deed.
14. Before the significance and the bearing of the recitals in this document on the various issues raised in this second appeal are considered, it is desirable that a few minor points raised by the learned counsel for the appellant should be disposed of.
Mr. Umamaheswaram, the learned counsel for the appellant contended that when this court remanded the suit by its Judgment dated 27-3-1946 in S. A. No. 155 of 1945 it was not intended that the learned Subordinate Judge should in his turn remand the suit to the trial court permitting the-respondent to amend his written statement so as to raise the plea that the founder of the trust had no reserve power to appoint the appellant as the trustee. The learned counsel argues that the learned Subordinate Judge should have applied his mind and' dealt with the appeal himself in pursuance of the directions given in the order of remand of the High Court and should not have sent it back to the District Muusif's court with an order of remand, that the order of remand passed by the learned Subordinate Judge does not set forth any proper grounds for remanding the suit to the Munsif's court. We have perused the order of remand made by this court. It expressly says that the dismissal of the suit on the ground that the appellant was a minor is set aside and that the case is remanded to the learned Subordinate Judge for disposal according to law on the other questions involved in the appeal. It any amendments were to be considered, it would have been appropriate and within the province of the learned Subordinate Judge himself to consider those amendments and either allow or disallow the same after giving opportunities to the parties to be heard. Instead of doing so, the learned Subordinate Judge has actually remanded the suit to the learned District 'Munsif. We do not think that he has acted in accordance with the directions of the order of remand of this court in having done so.
15. The learned counsel for the appellant has further raised the point that when the suit went before the learned District Munsif he acted improperly in allowing the amendment which was in direct contravention of the respondent's admission in paragraph 3 of his written statement. In the plaint originally filed, reliance has been placed on Ex. 3 as well as on the subsequent act of the committee in appointing Rahamtullah Sahib as trustee in place of his wife, Gnose Bibi, who was originally appointed by him and the further power given to him to appoint a person as a trustee in his place. In paragraph 7 of the plaint there is an averment to the effect that the relationship between the appellant and Rahamtulla Sahib was very amicable and the said Rahamatulla in pursuance of his power reserved in him in that behalf, executed a deed dated 1-5-1926 in favour of the appellant whereby he appointed the appellant as the hereditary trustee of the mosque from 1-7-1928. In paragraph 8 also there is an averment that under the deed executed by Rahamatullah in favour of the appellant, the said Rahamatullah and his heirs and representatives had no manner of right whatever of removing the plaintiff from his office as trustee, or of appointing any one in his place. It is also urged in paragraph 14 that the appellant was never validly removed from his office as trustee, as Rahamatulla Sahib had no power to so remove the appellant; nor did the committee expressly or validly remove the appellant at any time. As against these averments, in the plaint, paragraph 3 of the written statement, which alone is material for the purpose of this second appeal, is to the following effect: 'This defendant admits the execution of the deed of 12-7-1917 by Shaik Rahamatulla Sahib but as regards the contents thereof he begs -;eave to refer to the document itself in preference to the allegations contained in paragraph 5 of the plaint. The said Rahamatullah Sahib was appointed trustee in the year 1923 or thereabout as mentioned in plaint paragraph 6.''
16. It is also averred in paragraph 13 of the written statement that the appellant had been removed from his office, that it was incorrect to contend that the appellant could not be removed from the office and that it was not true that Rahamatullah Sahib was not entitled to remove him from office. On a proper reading of the amendment, which has been allowed by the learned District Munsif it would be clear that the respondent having admitted the execution of the deed of endowment, dated 12-7-1917 and having placed reliance upon the contents of the document itself in preference to the allegations contained in paragraph 5 of the plaint and having also said that Rahamatullah Sahib was appointed as a trustee in the year 1923 or thereabouts as mentioned in paragraph 6 of the plaint, it was not open to the respondent to go back upon the admission contained in his written statement and contest that Rahamatullah, the founder had no power either under the original document, or under the subsequent documents, to appoint a trustee in his place. We do not think that the learned District Munsif was right in having allowed the amendment. The points raised in the amendment having already been pleaded in the plaint and also in the written statement in the manner shown above, it was not proper on the part of the learned District Munsif to have allowed the respondent to raise an amendment which was a direct negation of his own admission in the written statement. We do not think that we can uphold the amendment that has been allowed by the learned District Munsif in these circumstances. However that be, in the view we have taken of the matter as would appear hereinafter we do not think that there is any material prejudice caused to the appellant by the amendment having been allowed.
17. After the execution of Ex. III, it transpires that the founder of the trust had himself furnished security in the sum of Rs. 500 in favour of the committee on his wife's behalf, whom he had appointed trustee and in respect of whose trusteeship Ex, III had stipulated that security should be taken for the said amount. It is, how-, ever, the case of the appellant that sometime after the creation of the trust the wife of the founder, namely, Ghouse Bibi, was not in a fit position to carry on her duties as trustee, that thereupon, in or about 1923 the committee of supervision appointed the founder Rahamatulla himself as a trustee In place of his wife and that he was also given the power to appoint a trustee in his place if it became necessary. No document has been produced in support of what exactly was done by the committee consequent upon Ghouse Bibi, the founder's wife having ceased to be in a position to discharge the duties of a trustee. The respondent admitted that the founder was appointed a trustee in place of his wife, but did not admit that the said founder was authorised to appoint a trustee by the committee in the year 1923. For supporting this contention, the appellant relied upon the minutes book of the committee which according to him contained the resolution appointing Rahamatullah sahib as a trustee and also authorising him to appoint a trustee in his place as and when he felt it necessary. That minutes book was in the possession of the respondent. It appears that the appellant took necessary steps to compel the production of this minutes book by the respondent by issuing the necessary notices but it was of no avail. The respondent admitted having had the custody of the records including the resolution book for sometime, but he pleaded that the book of resolutions which was filed into Court in another suit, namely, O. S. No. 137 of 1935, was not taken return of by the respondent though he applied for it 0s early as 1944. This, the respondent sought to substantiate by production of Ex. VI which is a certified copy of D. R. P. No. 103 Of 1944 in O. S. No. 137 of 1935 on the file of the District Munsif's Court, Kavali, with the endorsement of the District Munsir's Court thereon. This exhibit shows that the respondent's application for return of the resolution book was rejected on the ground that it was filed by a witness into Court and that he was not entitled to claim a return of it.
18. The relevancy of this minutes boob, irrespective of the fact that it has been suppressed by the respondent or that the appellant did not himself take steps to secure it from the Court by necessary process of law, after having come to know that it was filed in O. S. No. 137 of 1935, arises only in regard to the point as to whether the founder, who was admittedly appointed a trustee had or had not the power to appoint another trustee in his place. The appellant wants to rely upon the minutes book for the purpose of showing that the founder had the power to appoint a trustee and the respondent contends that the founder was not authorised by the committee to appoint any successor to him in the office of trusteeship. It is a well known proposition of Islamic Law that the wakif has the power to appoint the first Mutavalli and also to provide for succession to the office of Mutavalli. The wakif also may nominate his successors by name, or indicate the class together with their qualifications, from whom the mutavalli may be appointed and may also invest the mutavalli with a power to nominate a successor after his death or relinquishment of office (Vide paragraph 204 of the 'Principles of Mahomedan law' on page 190 by Mulla).
In this case the founder made provision that a mutavalli or the trustee as, it is loosely called, should be appointed by the committee of supervision in case the mutavalli appointed by the founder refused to act and he also indicated that in making such appointment, the choice should be confined in the first instance to the-relations of the founder. In accordance with this provision when Ghouse Bibi was not in a fit condition to discharge the duties of the mutavalli or the trustee, the committee of supervision, as admitted by both the parties, appointed the founder himself as the mutavalli or the trustee in succession to Ghouse Bibi. It is also a well accepted principle of Muslim law that if any person appointed as mutavalli dies or refuses to act or is removed by the Court or if the office of mutavalli otherwise becomes vacant and there is no provision in the deed of wakf regarding succession to the office, a new mutavalli may be appointed either by the founder of the wakf or by his executor if any; if there be no executor, the mutavalli for the time being may appoint a successor 'on his death-bed' or if no such appointment is made, the Court may appoint a mutavalli (vide paragraph 204 of Mullah's 'Principles of Mahomedan law' 13th Edn.). Thus, it is clear that when a present mutavalli appoints a successor in the absence of the founder or his executor and in the absence of any provision in the wakfnama for succession to the office, the mutavalli for the time being may appoint a successor only 'on his death-bed'. He cannot, however, do so while he is in good health as distinguished from death illness. The same will be the position if the office goes by hereditary right (vide paragraph 205 at page 193 of Mullah's Principles of Mahomedan law). This proposition has been uniformly accepted by all authors on Islamic Jurisprudence. That is to say, except on his death-bed, i.e., when he is suffering from Mar-zul-maut, the mutavalli for the time being cannot appoint a successor.
At page 620 in paragraph 492 of his book 'Mahomedan law' (1950 Edn.) Tyabji observes as follows:
'In the absence of any express or implied provision in the dedication for the appointment of successive mutavallis -- (1) the wakif is entitled to make the appointment; (2) After the death of the wakif, the executor of the wakif or the survivor of several executors, is so entitled; (3) on the death of the said executor or surviving executor, the court may appoint the mutavalli'
In paragraph 492-A the learned author observes thus:
'Subject to Sections 492 and 492-P it will generally be presumed that the mulavalli is empowered under the dedication to appoint a successor to himself. There is no such power of appointment in the congregation or devotees as such'........
In paragraph 492-F, the learned author observed:
'The mutavalli may, in accordance with Section 492-A, appoint a successor to succeed him at his death, but cannot validly transfer his office to another during his lifetime. An appointment or nomination made during the lifetime of the mutavalli is revocable like other testamentary dispositions.'
So also in paragraph 328 on page 355 of Wilson's Anglo Mahomedan law (5th Edn.) the learned author observes as follows:
'The mode of succession to the office of mutavalli is usually defined in the deed of endowment. If it has not been so defined, and if the intention of the founder cannot be inferred from usage, the right of appointing a successor when a vacancy occurs in (1) the founder, if still living; (2) his executor if any, then, except as provided in the next section, i.e., Section 329; (3) the court (other than a Small Cause Court) which exercises ordinary civil jurisdiction over the local area within which the dedicated property is situated.'
In paragraph 329, the same author states:
'After the death of the founder, and of his executor, if any, and if no order of succession has been indicated in the deed of endowment, the Mutavalli, for the time being may appoint his own successor by will. But an order of the court is necessary in order to complete the title of the testamentary successor to the emoluments enjoyed by his predecessor.
A mutavalli has no power to transfer the office to another person while he is himself alive and in good health, unless such a power was expressly conferred upon him by the founder or by -the court that appointed him.'
19. The learned counsel for the respondent places reliance upon the passages quoted above and urges that in so far as Rahamatullah Sahib has been himself a mutavalli appointed by the committee of supervision under Ex. III, he could not have validly appointed the appellant as mutavalli during his lifetime and that there is no evidence that when the appointment of the appellant was made, the late Rahamatullah Sahib, tha outgoing trustee mutavalli was on his death-bed. Both the courts below have concurred with this position taken up by the respondent and have held that the appointment of the appellant as mutavalli or trustee was not valid as Rahamatullah Sahib could not delegate the authority to another during his lifetime. While accepting this position of the respondent, both the Courts below have also held at the same time that the claim of the respondent himself that he was the validly appointed mutavalli by the same outgoing mutavalli as his successor namely by Rahamatullah Sahib could not also be upheld, as the mutavalli had not the power to appoint his successor while he was in good health. The result is that the wakf is left without a mutavalli to manage its affairs.
20. So far as the legal position goes, It cannot be disputed that a mutavalli as such cannot appoint his successor unless he is on his death-bed or there is a provision in the wakfnama as to how the office of the mutavalli should be filled up when vacancies arise or the wakfnama expressly authorises the mutavalli to appoint his successor. But in this second appeal, both the courts below have 'ignored a very important aspect of the case, namely, that in the present case, Rahamatullah Sahib, under whom both the appellant as well as the respondent have claimed a right to the office of mutavalliship has been himself the founder and had vested the power of appointing a mutavalli in the committee of supervision and had at the same time reserved to himself the power as founder to appoint a trustee overriding the powers given to the committee. Therefore when he was appointing either the appellant or the respondent as mutavalli, he must be deemed to be acting as such founder, irrespective of the fact that the committee had earlier appointed him as a trustee with or without power to appoint his successor in or about 1923, when Ghouse Bibi, the first appointed trustee or mutavalli, was not in a position to discharge her duties. The question is as to whether at the time when the said Rahamatullah Sahib appointed the appellant in the first instance under Ex. C and later on the respondent under Ex. I the said Rahamatullah had ceased to be the founder and whether he was in any way prevented from exercising his rights as a founder as and when certain contingencies arose which Justified in his opinion his acting as a founder in respect of the mutavalliship of the trust. As long as the founder was alive, it cannot be argued so long as he had reserved to himself the power if any to act himself as the mutavalli, that he could not exercise such power simply because the committee of supervision had intervened or that he was himself appointed as a mutavalli by the said committee for a time.
21. The question which arises then is whether, when the founder created the endowment in favour of the mosque, he had reserved to himself or not the power to appoint any trustee for administering the wakf and its properties as and when he felt it necessary to do so, notwithstanding the vesting of such a power in a committee of supervision. Reference in this connection has to be made to the relevant recitals of Ex. III which have already been referred to and in particular to paragraph 9 thereof. The recitals contained in that paragraph which it is not necessary to quote once again clearly indicate that the founder, when he was creating the wakf and making arrangements for the administration of its properties, had clearly envisaged that whenever the contingency arose he should have the right to become himself the trustee during his lifetime dispensing with any committee of supervision and to take possession of the entire property and carry out all the duties of administration himself thereby exercising all the powers of a founder including those of appointing his successors to the office of mutavalli as such founder.
It has been contended by the learned counsel for the respondent that paragraph 9 of the said Ex. III cannot be so construed as to import any such reserve power. We do not think that we (an agree with this contention, in our opinion, a proper construction of the said recitals in paragraph 9 of Ex. III would lead to no other conclusion than that the wakif as such had reserved to himself the necessary power to appoint himself as mutavalli or appoint other trustees in case the administration of the wakf needed such resumption of the management and fresh appointment of trustees.
22. Even apart from Ex. III, the document Ex. C dated 1-5-1926, which is relied upon by the appellant as being a deed under which he was himself appointed as the mutavalli after the founder had resumed the management of the trust himself for a short period, throws abundant light on what exactly the founder himself had in mind when he set out the recitals contained in paragraph 9 of the Ex. III. The best indication of his such intention and purpose is to be found in what he himself has stated in the recitals contained in Ex. C. In the earlier part of Ex. C he has stated to the following effect:
'Giving away my lands and other properties to Muhideenia Musjid in the village of Damara-madugu, I have reserved to myself in the deed of settlement executed on 12th July 1917 and registered on 17th July 1917 in the office of the Sub-Registrar of Butehireddipalem, the right to look after the work remaining as the trustee of the said property and to appoint a trustee to look after the work in my stead. I am by virtue of it the present trustee of the Mohideenla Masjid estate in the village of Damaramadugu.'
23. The document then goes on to set out the reasons why he is appointing the appellant as trustee in his place and they are to the effect that he the founder, is wanting in ability to attend to the work of management as a trustee and that among his relations there is none who is capable of doing the work of a trustee, that as the appellant is under his supervision being educated at his cost and as he is helping him in his work and learning the duties of a trustee and as he possesses good behaviour and character, the founder has, on his own security, appointed him as the trustee in his place from 1-7-1928. This document also purports to give the power to the appellant to appoint, another manager in consultation with the committee of supervision in his place for a period of three years if he thinks necessary and the conditions justified the same. In our opinion, in the face of the recitals in Ex. III, and those contained in Ex. C, if, is futile for the respondent to contend that the founder, having appointed a committee and a trustee, had exhausted his rights as founder or, in the alternative, having reserved the power to become himself the trustee, he could not appoint a further trustee in his place. If it were the case that Bahamatullah Sahib was merely a trustee appointed by the committee without any other capacity left in him, and without power to appoint any successor to him, there might be some semblance of force in the argument that he having been appointed the trustee by the committee, cannot himself delegate his power to another trustee. But it cannot be ignored that the committee of supervision derives its authority from the founder and that the founder had by no means obliterated himself from intervening at the right moment in the interests of the wakf.
24. In actual fact, we find that the founder Rahamatullah Sahib has reserved for himself even to dispense with the committee and also to dispense with all other formalities when he finds that the management of the trust or those persons who were entrusted with the management and ministerial duties have failed to carry out their duties. Therefore, when the said Rahamatullah Sahib was appointed the trustee in 1923 by the committee and within 3 years thereafter, he found that it was necessary for him to intervene and assume the powers reserved by him in paragraph 9 of Ex. III, and when he mentions in such clear terms as are found in Ex. C that he had assumed such powers reserved by him, we do not think that there is any point in the contention that Rahamatullah Sahib was merely a trustee appointed by the committee that he did not have the power to appoint his successor and did not possess the powers of a founder when he executed Ex. C in favour of the appellant. There is nothing placed before us to show in contradistinction to paragraph 9 of Ex. III that he had ceased to be the founder and had lost his powers as such, simply because he had appointed a committee and that the committee had in turn appointed him as a trustee in 1923. It is clear to our mind that in spite of the committee having appointed him as trustee in 1923, assuming that that was the case, in the absence of production of the minutes book, which alone could have supported the actual terms of the appointment, his action, as evidenced by Ex. C in 1926 in having assumed for himself the powers of the founder, points only to the fact that he had exercised such powers as a founder which powers he had reserved for himself In Ex. in paragraph 9.
25. The Islamic law is clear on the question that when a founder has reserved to himself the power to assume the management of a wakf, which he creates, on finding that the committee of supervision, or other managers, or office bearers, have not discharged their duties, he has the unfettered right to assume the management of the trust himself or to appoint another trustee in his discretion for the proper management of the trust. Paragraph 204 at page 190 of Mullah's 'Principles of Mohamedan law' already referred to above, sets out the position of Muslim law on this point. Even so, paragraph 495 B of Tyabji's Mohamedan Law, 1940 Edn. states as follows;
'The waklf or his executor on appointing himself as the mutavalli or acting as such, retains the power of transferring office to another under Sections 492 and 495.'
In. Islamic law, as already observed, there is nothing illegal for the founder to constitute himself as mutavalli when he creates a wakf and also to determine the mode of succession to the office of mutavaili in the- deed of endowment executed by him. Though the mutavalli has no power to transfer the office to another person while he is himself alive and in good health, still, if such a power is expressly conferred upon him by the founder or by the court that appoints him, such a mutevalli has himself the power to appoint his successor. This position has been clearly set forth by all the original authorities on Islamic jurisprudence referred to in the text books of Muslim law and it is unnecessary to cite them in this Judgment.
26. In addition to these, the decision on the question whether the founder of an endowment could reserve to himself the power to resume the management and appoint a mutavalli if ho thinks fit and proper to do so as reported in -- 'Ali Aghar v. Parid Uddin', AIR 1947 All 261 (B) cited by the learned counsel for the appellant is in point. In that decision, the learned Judges have reviewed the entire original and later authorities on Islamic law relating to wakfs and the powers of wakifs and mutavallis, and we are in entire agreement with the opinion expressed therein. We should like to emphasise in particular the passage quoted from the Rt. Honourable Amir Ali's Mohamedan law in the said judgment. The passages quoted therein clearly lay down that it is lawful for the wakif to reserve the management of the endowment for himself; and once he has reserved to himself the right of such management of the trust, it follows that he has the power of appointing a mutavalli during his lifetime whenever he likes. In this case, in our opinion, this is exactly what the founder Rahamatullah had done when he appointed the appellant, under the document Ex. C.
The present is not the case where the wakif did not appoint a mutavalli; nor is it the case where he had in the first instance constituted himself as the mutavalli; nor is it even the case that he had left the office of mutavalli without being filled up. On the other hand, this is a case wherd the wakif had expressly reserved to himself the power to resume the management of the trust whenever the need arose and to appoint a mutavalli either in himself or any other person when he thought it necessary in the best interests, of the wakf. Therefore it follows that when he was executing the document in 1926 in favour of the appellant, whereby he appointed the appellant to be the trustee to function from 1928 onwards, it was a clear case where the wakif was exercising the powers which he had reserved to himself under the original document creating the endowment, viz., Ex. in and there can be no valid objection to his having exercised such power, in the interests of the wakf as would appear from Ex. C. In such circumstances, we are of opinion that the appointment of the appellant by the said Rahamatullah Sahib, the founder cannot, by any means, be disputed to be invalid or improper. On the other hand, we think that the appointment of the appellant as a mutavalli in succession to the wakif under document Ex. C is a valid and a proper appointment. The appellant would consequently be entitled to a declaration in that behalf as prayed for.
27. It is in evidence and has been found by the Courts below that the appellant, after his appointment as a mutavalli assumed charge of the office from 1928 onwards and continued to be in management and possession of the properties belonging to the wakf for a considerable number of years without any protest or objection from the committee of supervision. This might mean either that the committee, if then in existence, had acquiesced in the appointment of the appellant or that the committee had become defunct by then. Whatever that be, there is no reason why the finding of the Courts below that the appellant has been in such possession of the properties and has exercised the duties of a trustee or mutavalli of the mosque should not be upheld as correct.
28. When once it is held that the appellant was the legally appointed mutavalli in place of the founder himself and that he was functioning as such trustee by virtue of, the said appointment, the question then arises as to the circumstances in which the appellant could be held to have ceased to be such mutavalli or trustee if such was ever the case. The evidence does not show that he has at any time or in any manner abandoned or refused to perform the duties of a mutavalli having been appointed under the said document Ex. C. On the other hand, his claim is that he has been continuing in possession of the management of the mosque and its properties until 1933 when the wakif executed another document, Ex. I, in favour of the respondent appointing him as the trustee. If the appellant has been in possession of the properties belonging to the wakf and has been in such management having entered into the office by a valid and legal appointment and if he has neither abandoned nor refused to perform the duties of such trusteeship, the question that arises for consideration is whether another trustee could be appointed when the appellant himself was the trustee.
The learned counsel for the respondent would contend that by appointment of the respondent under the document Ex. I it must be presumed that the appellant had been removed from his office as trustee and that the respondent had been validly appointed in his stead. If it is a question of removal of the appellant from his office as trustee, then it must be proved that the wakif had the right to remove the appellant from his office as trustee and that he had been actually so removed in a proper and legal manner. As has been observed in paragraph 213 of Mulla's Moha-medan law at page 200, a mutavaltt may be removed by. the Court on proof of misfeasance or breach of trust or if it is found that he is otherwise unfit to hold the office, even though the founder may have expressly directed that he should not be removed in any case. The 'founder' has no power after delivery of possession to remove a mutavalli in any case, unless he has expressly reserved such a power in the original deed of wakf, or in the subsequent deed which he executed in favour of the appellant, viz., Ex. C. Our attentiqn has not been drawn to any recitals in the original deed, Ex. III or in the subsequent deed, Ex. C that such a power existed enabling the wakif to remove the mutavalli who had been valid-ly appointed and who had been performing his duties as such. Nor has there been any evidence let In to show that there has been any breach of trust or any misfeasance or malfeasance on the part of the appellant to justify his removal.
The feeble point that was raised by the learned counsel for the respondent was that the appellant did not claim that the appointment of the appellant was under the powers which Rahamatulla Sahib had reserved to himself in Ex. III. He urged that the appellant's case was that the committee of supervision, in exercise of the powers bestowed in that behalf appointed Rahamatullah Sahib in October 1923 or thereabouts to be a trustee in place of his wife Ghouse Eibi and that being the case even though he might have been empowered to appoint a person as a trustee in his place, the power offended against the principle of 'delegatus non-potest delegare'. It is no doubt true that in paragraph 6 of the plaint there is an averment that the appellant was appointed in pursuance of the powers bestowed in that behalf by the committee on Rahamatullah Sahib to be a trustee in place of his wife and to appoint another person as a trustee in his place. But a reference to paragraph 7 of the plaint would show that there is an averment that the appointment of the appellant as a trustee under Ex. C was in pursuance of the powers reserved for him in that behalf, and this reservation referred in that paragraph has reference only to the powers originally reserved by the said Rahamatullah Sahib in the document Ex. Ill whereby he as founder, could exercise the powers of appointing not merely himself as a trustee but also appointing another person as his successor. Therefore, there is no point in the contention of the learned counsel for the respondent that the plaint did not aver that the original founder assumed the reserved power and exercised it because the committee did not administer the trust and its properties in a proper and satisfactory manner.
29. In these circumstances, it must be held that the appellant, who has been validly appointed by the founder as a successor in the office of mutavalli cannot be removed from office and in fact lias not been removed from such office which he has been holding ever since 1928. A perusal of Ex. I of 1923 executed in favour of the respondent does not disclose that the appellant has been removed from office, nor does it disclose any valid reasons for such removal even if any such removal is to be inferred by implication or otherwise from the said document. This document on which the respondent relies, therefore, in our opinion, is not a valid document and could not become operative in favour of the respondent so long as the appellant remained legally in office as mutavalli appointed by the founder in exercise of his powers as such founder. The findings of the learned Subordinate Judge to the effect that the respondent cannot be considered to have been validly appointed as a mutavalli have to be upheld and the respondent cannot claim any right to the mutavalli-ship of the trust in question.
30. In so far as this mutavalliship does not involve the performance of any religious duties, it is unnecessary for us to consider the point raised as to whether a non-Muslim could be a mutavalli of a wakf in favour of the mosque. The Islamic law is liberal enough to permit the appointment of competent non-Muslim as mutavallis in the absence of suitable Muslims so long as such mutavallis are not called upon to perform any religious duties in respect of the wakf. It is a peculiar feature of Islamic Jurisprudence that It does not ban either women or non-Muslims being appointed or acting as trustees or mutavallis for Muslim endowments so far as the management pertains only to the secular administration of the wakf and its properties and does not involve the discharge of duties relating to religious or spiritual services or obligations.
31. We should also observe that it is quite unnecessary for the appellant to prove title for claiming possession of the properties involved in the suit. In so far as the properties of a wakf are vested in God for the benefit of the mosque or any such institution no person, either a trustee or a mlitavalli, or a manager, could ever claim title to the properties which are vested in God. Any trustee or mutavalli holds the properties endowed for the purpose of the mosque only for and on behalf of the institution and cannot, therefore, be deemed to be a person in whom the properties are vested. The vesting is actual vesting in God for the benefit of the institution which functions for furthering the spiritual advancement of the worshippers in the mosque. The contention therefore advanced on behalf of the respondent that the appellant has failed to prove title to the property in order to enable him to obtain a decree for possession of the properties has therefore no force. It in sufficient if the appellant has succeeded in proving that he has been the validly appointed mutavalli in respect of the endowment properties and he has been put in possession by the wakf of such properties and their management on behalf of the mosque for whose benefit the endowment has been created. In this view, the appellant will be entitled to a decree for possession of the properties mentioned in the schedules to the plaint. The respondent would, therefore, be considered to be a trespasser and he cannot retain possession of the said properties, and he will have no right or claim in respect of the same. On the other hand, he having been in possession of the said properties and having been receiving the rents and profits there from, he will be liable to render a true and proper account to the appellant who is held to be the validly appointed mutavalli or trustee for the suit endowment and its properties as claimed in the plaint.
32. There is no point in the argument or the learned counsel for the respondent that simply because the respondent is in possession and is functioning as a trustee, he should be left in possession without being disturbed in any manner. For being in possession of properties belonging to a trust, it is incumbent upon the respondent to prove his claim thereto and in so far as he has not established any such claim, it cannot be held that he can be allowed to continue in possession of the properties which should legally be handed over to the appellant, who has asked for a declaration of his right to be the mutavalli and also for possession of the same and for accounts.
33. In the result, we find that the appellant has succeeded in establishing his rights to the reliefs he prayed for against the respondent in his plaint, and this second appeal will have therefore to be allowed while setting aside the decisions of the Courts below. In the circumstances each of the parties will bear his costs throughout. Any costs already recovered by any party will be refunded to the party from whom the same has been recovered.