1. Musammat, Atibunnissa and her husband, Hossein Ali, jointly executed a deed of wakf on the 4th of Sravan 1270. Certain properties mentioned in schedule ka to the plaint were the subject of dedication. Under this deed Hossein Ali was to be mutwalli for his life and Atibunnissa after him for her life. After their death without children the nearest relative, who was also dianutdar or honest, was to succeed as mutwalh, but on his death the successor would bo not necessarily his heir-at-law but one amongst the near relatives of the dedicators who was dianutdar.
2. Hossein Ali died in 1279 and in 1282 Atibunnessa executed another deed of wakf in respect of the properties in schedule kha and additional properties in schedule kha. This towliaknama was revoked and in 1284, 1289, 1291, 1297, she executed different towliatnartias, but none of them came into operation and she continued to act as mutawalli until 1894, when she executed three documents one after another in favour of Abdul Gafoor, father of defendant No. 1. The first document was dated the 25th March, and relinquished some of the wakf properties in favour of Abdul Gafoor. The second document was a towliatnama in favour of Abdul Gafoor in respect of kit and Ma properties and the third document was an ekrarnama, dated the 27th September, confirming the lowliat, and agreeing that neither she nor her heirs or representatives would object to the same. In 1899 she applied for permission to sue as a pauper for setting aside the documents of 1894 as procured by fraud and undue influence. The permission was refused and she died in 1905 without bringing any suit. In 1907, Khoka Mia, the father of the plaintiff, brought a regular suit for declaration of his title to the wakf properties and recovery of possession. To that suit defendant No. 1 pleaded, saying he was in lawful possession as mutwalli under the towliatnama of 1894. Khoka died pending suit and the plaintiff and his brothers, defendants Nos. 2 and 3 were brought in as his heirs. The suit was decreed by the first Court, but was dismissed by the High Court on the ground that all the heirs of Khoka Mia could not be matwallis. A fresh suit by the person who would be the mutwalli was permitted, and accordingly this suit has been brought.
3. The pleas of the defendant, amongst other things, were that Khoka Mia was not the step-brother of Atibunnissa and that the suit was barred by limitation.
4. The first Court decreed the suit in respect of the properties in schedule ka, holding that Khoka was the step-brother of Atibunnissa and that the suit was not barred by limitation.
5. Defendant No. 1 appeals and on his behalf it has been argued (1) that the suit is incompetent as not in compliance with the provisions of Section 92 of the Civil Procedure, Code, (2) that Khoka Mia is not proved to be the step-brother of the wakif, Atibunnissa, (3) that the suit is barred by limitation.
6. As regards the first point, it was not taken in the Court below, and even if) it had been taken, the plaintiff does not claim any of the reliefs under Section 92. He does not ask the Court to appoint him a mutwalh but to declare that he is the rightful mutwalh and that defendant is not, and for recovery of possession.
7. As regards the second point, we agree with the learned Subordinate Judge that Khoka Mia was the son of Naziruddin and the step-brother of Atibunnissa. We are not prepared to believe the document called shafeenama as a genuine document. It never saw the light of day before it was produced in this case; the entry of its being filed in a previous case is suspicious. In any case it was not filed in the previous suits of Khoka Mia in which it would have been very cogent evidence. Nor are we very much pressed by the application made by Hossein Ali and Dost Ali ignoring its existence, or by the petition of for drawing the pension of her father. Khoka was admittedly illiterate and Hossein Ali and Dost Ali were influential men. They succeeded in keeping him in the background as if he were nobody. It is proved, however, by the evidence of respectable relatives that he and his family lived in the family residence at Shah pore, until in consequence of an open rupture he had to leave the place. The most potent evidence, however, in his favour is the kobala executed in his favour by Atibun-nessa Bibi on the same date on which she executed the wakfnama of 1282. The two documents are executed on the same date, attested by many of the same witnesses and registered by the same am-mukhtar, this kobala describing Khoka as the son of Khondkar Naziruddin. There is no explanation why he was so described and why the relative witnesses attested the document containing such a description. There is a rent-decree which described Khoka as the son of Moyez, but assuming that the same parson is meant, this was after the rupture and even then it is not made out that he was so described to the knowledge of Atibunnissa. It is quite possible, as is suggested at the Bar, that his mother was not of the same rank with the father and he was not, therefore, looked upon as the equal of Atibunnissa, but there is no evidence of that even and the admission of Atibunnissa cannot be got over.
8. The next question is limitation. It is contended that as Abdul Gafoor was put in possession under the towliatnama, of 1894, his possession became adverse from that time or at all events from July 1898 when, according to the application of Atibunnissa for permission to sue as a pauper, he set up a title in denial of her rights.
9. It is said that a mutwalli cannot renounce and appoint another mutwalli. That may be so in respect of a mutwalli who is not himself the appropriator. Atibunnissa in the towliatnama of 1894 expressly says that she was acting in her double capacity. She renounced in her capacity of mutwalli, but appointed Gafoor in her capacity of the wakif. It is laid down in the Kunyah: 'if the mutwalli appointed by the founder says, 'I resign my mutwalliship' this declaration has no effect unless the declaration is made in the presence of the founder or the Cadi, who would thereupon remove him:' Fatawa Mahdiya, Volume II, page 575, quoted in Nawab Khajeh Salimulla Bahadur v. Abdul Khayer Mohammad Mustafa 3 Ind. Cas. 419 : 11 C.L.J. 304 : 37 C. 263 : 14 C.W.N. 497. Here the founder herself made the renouncement to herself and made the appointment herself; such an appoinment by the founder is quite distinguishable from an appointment by one mutwalli of another without the intervention of the founder or the Cadi. This appointment, however, cannot enure against the express terms of the original deed of walcf, and must terminate with the life of the wakif. This dise is, therefore, clearly distinguishable from the case of Nawab Khajeh Salimulla Bahadur v. Abdul Khayer Mohammad Mustafa 3 Ind. Cas. 419 : 11 C.L.J. 304 : 37 C. 263 : 14 C.W.N. 497.
10. So far as the wakf of 1270 was concerned, i.e., in respect of the ka properties, the vacancy occured on the death of Atibunnissa in 1905 and the plaintiff was quite within time in 1910.
11. As found by the learned Subordinate Judge the plaintiff is quite eligible for the post of mutwalli and his brothers do not compete with him.
12. We, therefore, agree with the learned Subordinate Judge and dismiss the appeal with costs. Hearing fee Rs. 150.