Richard Garth, C.J.
1. We think that this case must be decided upon a point which appears too have been improperly considered by the Court below.
2. (After stating the facts as above, his Lordship continued):
3. The defendant denies the right of the plaintiff's to dispossess him of the endowment. He denies that he is in any respect unworthy of the post, or has misappropriated any part of the property; and he also denies the plaintiffs' right to bring this suit. He further says, that the plaintiff Ashruff Ali is himself an improper person to be mutwali.
4. The lower Court has found in favour of the plaintiffs. It has decided that Wahid Ali has mismanaged the endowment and is otherwise an improper person to hold the office of mutwali. It also finds that Mussamut Bibi Pearunnessa, being the lineal descendent of Khoda Buksh, had a right to be mutwali herself, and to depute the plaintiffs, by the deed of 1878, to be mutwalis in her place. Now, if the question had been simply, whether the defendant Wahid Ali was a proper person to perform the duties of mutwali, and whether Mussamut Pearunnessa, as being the lineal descendant of Khoda Buksh, had a right to be mutwali in his stead, we might probably have agreed with the Court below. But the point which has been urged upon us here, and which we consider to be an answer to the suit, is this, that although Mussamut Pearunnessa might herself have had a right to claim to be mutwali in the room of Wahid Ali, she had no right to appoint the plaintiffs by deed or otherwise to be mutwalis in her stead.
5. We consider that the office of mutwali is a trust, which a woman, equally with a man, is capable of discharging; but we think that it is a personal trust, and we find no authority for the position, that the office may be transferred and the endowed property conveyed to any person whom the acting mutwali may select. Besides which, there is this further difficulty in this case, that Pearunnessa, although she might have a right to become the mutwali, and to dispossess Wahid Ali, has never taken any steps to assert her claim, and she professes to have conveyed away the office to the plaintiffs before she had acquired it herself. It has been contended by the plaintiffs, that this passage at commencement of Book 9, Chap. V., p. 591, of Baillie's Mahomedan Law, is an authority in support of their claim: 'No one should be appointed but an ameen or trustee who is able to act by himself and by deputy; and in this males and females are alike.'
6. It is said that the word deputy' justifies a complete transfer of the office of mutwali from the superintendent to some other person; but we think this is not so. The word 'deputy' in that passage merely means some one who, as an agent, may be employed to perform the duties of the office, as to collect the rents or other proceeds of the property, and to assist the mutwali in expending them for charitable purposes. But the employment of an agent in this way is a totally different thing from a complete transfer of the office of mutwali to a third person. The office in such case would remain with the mutwali, although he might employ this or that person to perform some of the duties attached to it.
7. In this case it appears to us that the only person who could claim the office and bring the suit would be the Mussamut herself; and that the plaintiffs have clearly no right to do so as her transferees.
8. We think, therefore, that the suit must be dismissed, and that as there is no sufficient reason for departing from the ordinary rule as to costs, the plaintiffs must pay the defendant's costs in both Courts.