Ameer Ali, J.
1. This is a vendor and purchaser summons, taken out by the purchasers. The questions asked are somewhat peculiar in form. The real question is whether the vendors are in a position to convey a good marketable title, notwithstanding three points raised. The first and principal point is that indicated in questions 3, 4, 5 and may be formulated as follows: Can the vendors give a good and a marketable title, having regard to the fact that at the date of the applications and order for sale, one Dularu who was described as a minor, was actually a major, and had the right to be appointed mutwali, in preference to the first vendor, who was actually appointed. The second point is based upon the absence of title deeds, other than the wakf deed of 1901, which is the root of title, questions in the summons 1 and 2. The third point relates to the application of the purchase money, questions 6 and 7 of the summons. These are hardly questions to be asked by a purchaser, for, they cannot be regarded, under any view, as affecting title, but in the circumstances of this case which are peculiar, I shall probably express some opinion.
2. The vendors are two persons appointed by the Court mutwalis of the wakf estate, to which the property in question belongs, and who have been given liberty by the Court to sell the property. The second party to the proposed conveyance is Mr. O. U. Ahmad, an officer of the Court. As already indicated, the circumstances under which the said order came to be made, are somewhat peculiar and I set out such as are essential, to explain my opinion. In 1901, by a registered deed, one Khaja Wazir Ahmad made a public wakf of his properties, including those with which we are concerned. He appointed mutwalis and was himself the first mutwali. His eldest son, Khaja Noor Muhammad continued as mutwali until his death on 23rd May 1928. Khaja Wazir Ahmad, the founder, had a daughter Mariunnessa; her son Ali Ahmad Khan, who died in October 1927 married the daughter of Munshi Abdul Jalil, and left him surviving four minor children Ladley Begum, Malka Bibi, Akhtari Bibi and Sultan Ahmed Khan alias Dularu. From the year 1928, these children went to live with their maternal grand-father Abdul Jalil at his house No. 24-1B, Buddhu Ostagar Lane and were, from that date until his death on 12th June 1936, maintained by him. On 8th August 1928, Jalil was appointed guardian of the minor's property, both secular and wakf, the wakf property being apparently regarded by the Court as a different species of property belonging to the minors.
3. As often happens with regard to wakf property, in what might be called, backward localities, many attempts were made by outsiders to obtain possession of or destroy the wakf property and Jalil was engaged in expensive litigation, both as complainant, plaintiff and defendant, for the purpose of saving the wakf estate. There is no doubt, also, as again is common among certain sections of the community, that the wakf estate was in some respects looked upon as private property. It is to be remembered that this wakf was made before the Act of 1913, whereby wakf-al-aulad were made legal. In the end Jalil appears to have succeeded. On 8th August 1935, Jalil having filed his accounts as guardian, showing the expenditure above-mentioned, obtained an order from the Court, giving him liberty to mortgage the wakf properties for Rs. 45,000. He had, before this, mortgaged his own property in Ostagar Lane. Jalil died before executing the mortgage and on 26th June 1936 his two children Ameer Ali and Kulsum Bibi obtained an order, appointing them guardians of the secular and wakf properties of the infants, subject to furnishing security and for similar liberty to mortgage. They obtained this order but were unable to find security and Ameer Ali was apparently unwilling to act. Hence on 28th May 1937, a further petition was filed by Kulsum Bibi and Ladley Begum, asking to be appointed guardians and mutwalis pending the minority of Dularu, Dularu therefore being recognised as having a preferential right to mutwaliship. They also asked for liberty to mortgage the wakf property for Rs. 45,000 and to sell a hut of small value, admittedly the secular estate of the minors. It is now said that at the date of this application Dularu was a major.
4. The petition was presented before me. It was clearly necessary before making any order, in the first place, that the consent of the Wakf Board should be obtained and throughout these proceedings the Wakf Board Commissioner has been informed of the several steps taken, which have his approval. I was pressed by counsel not to interfere with the orders of the Court previously made, but the position appeared to me far from satisfactory and in the circumstances I directed Mr. Ahmed as Referee to enquire and report upon the amount in which the wakf estate might properly be regarded as indebted to the estate of Abdul Jalil. I refused to appoint any guardians of the infants as mutwalis, but appointed the eldest of the children, whom I had seen in Chambers and who appeared to me to be intelligent, Ladley Begum to act as mutwali. I appointed Mr. Ahmed as co-mutwali, as it is quite obvious that the estate required the control of the Court. It is quite true that the Court did not consider whether Dularu was or was not a major, but in point of fact, it would have made no difference. The management of the legal affairs of the estate was thus placed in the hands of Mr. Ahmed; Ladley Begum and her family remaining in charge of the income and ordinary management.
5. Mr. Ahmed having reported and found that the wakf estate could legitimately be debited to the extent of Rs. 21,000 and no more, I made a second order for sale on 11th June 1937. And it is in pursuance of this order that the agreement for sale now being considered was entered into on 27th August 1937. With regard to the order of 11th June and indeed to the whole administration of this estate by the Court, since the matter came before me, it is obvious that the Court was attempting to make the best of difficult situation. The wakf is in terms purely public. In point of fact there is one small mosque and this has to be maintained. Little or nothing has been spent on it for a great many years. The descendants of the founder have nothing left, but a small hut. They have been, and are being housed and maintained by the descendants of Jalil, in the house which Jalil had mortgaged, as has been found, for the purpose of saving the wakf estate. In these circumstances, the order made appeared to the Court the best solution of a social and legal problem. I now turn to the three points hereinbefore indicated.
1. The first point, Dularu. - It has not been suggested that in no circumstance can the Court give leave to sell wakf property, not that such leave can only be given in a suit. In my opinion, the order of the Court given, protects the purchaser, and the fact that some other person or persons might have been appointed mutwali in the place of those who were actually appointed, makes not the slightest difference. There is in law no absolute right to be appointed mutwali and it is not a matter of property. It is quite possible, see (Q. 5,) for Dularu to claim to be appointed mutwali in preference to his sisters. The Court is not bound to appoint him. Even if he succeeds, it will not affect the sale by those who have actually been appointed by the Court. In this case there is further no question of the order having been obtained by fraud. The order made by the Court would have been the same, had the facts as to Dularu, whatever they are, been brought to its notice. Dularu is not a necessary party to the conveyance. I am aware that orders for sale and mortgage of wakf property have been made by the Court without investigation and with fatal consequences. It is for this reason that, although in no way bound to do so, I have fully explained the circumstances in which, and the reasons for which, the order for sale was made.
2. Title deeds.-The root of title is the wakf deed of 1901. With regard to the founder's title, it appears to me that that cannot now be questioned. The property has been treated and dealt with as wakf for the last 36 years. It appears as wakf in the Corporation records.
6. With regard to title since 1901 the position appears to me as follows : No disposition could be validly made without the order of the Court. Any disposition made otherwise is of no effect. The possession has been throughout with the mutwali or person acting as such. Any sale or mortgage other than equitable mortgage would require to be registered. It seems to me that the only possible encumbrance would be a long term mortgage and, as already stated, without order of the Court and registration, no such encumbrance would be effective. With regard to equitable mortgage by deposit of title deeds, although, of course, registration does not apply, the order of the (Court is again essential, and in the second place, no estoppel can operate against the wakf. The last title deed is the registered deed of wakf which is being made over by the vendors. I consider therefore that notwithstanding the two points raised, the vendors are in a position to make a good marketable title.
7. With regard to the third point, the disposal of the purchase money, this, in my opinion, is a matter which concerns the purchasers not at all. I propose however to give to the mutwalis directions on the following lines : Of the purchase price, after deducting expenses, Mr. Ahmed will apply the sum of Rs. 21,000 directly in reduction of the mortgage or mortgages on No. 24, Buddhu Ostagar Lane. The balance he will either invest in Government securities or for the present retain. This balance will be secured absolutely for the maintenance of the mosque. Mr. Ahmed will communicate with the Wakf Commissioner, and ask him whether he is willing to take custody of the wakf fund and take over the management of this wakf and upon what terms. Upon receipt of the Wakf Commissioner's reply further directions will be given.
8. As to costs, in the normal course the purchasers' objections being unfounded, I should have ordered them to pay the costs of this application. As this is somewhat an unusual matter, I will make no order as to costs, save that the mutwalis will obtain their costs out of the sale proceeds. I gather that Mr. Biswas who has acted for the vendors at the special request of Mr. Ahmed, had kept down the costs in every possible way and he deserves the thanks of the Court for his assistance. My thanks are however mainly due to Mr. Ahmed who has, in this matter, taken an infinite amount of trouble and spent an infinite amount of his own time, in order to assist the Court in giving effect to its directions.