Authored By : B.K. Mukherjea, Kamal Chunder Chunder

B.K. Mukherjea, J.

1. This appeal is on behalf of the plaintiff and it arisesout of a suit, commenced by him, in the Court of the Sub-Judge at Burdwan fordeclaration of his title, as mutwalli, to certain wakf properties and forrecovery of possession of the same. The question for consideration in thisappeal hinges primarily upon the interpretation to be put upon certain wordsused in a Persian document by which the wakf was created in the year 1849. Thewakif was one Munshi Mahammad Muzaffar, a man of fairly large means, who was aninhabitant of Kusumgram in the district of Burdwan. Muzaffar married threewives, and had a son by each one of them. Modessar was the eldest of his sons,born of his first wife Osimannessa. The son by "his second wife, wasMahammad Ismail and Abdul Ohid was the son by his third wife. On 30th July1849, Mujaffar executed a wakfnama in Persian language by which he created apublic wakf in respect of certain properties included in Mouza No. 5297 of theBurdwan Collectorate which were purchased by him at an auction sale. Thewakfnama provided that the wakif himself would remain in charge of theendowment so long as he would remain alive and after his death his eldest sonModessar would be the mutwalli. The provision in the deed of wakf, as regardsdevolution of the office of mutwalli after Modessar runs as follows:

the said office shall devolve till the passing of ages (i.e.for ever) and repetition of months, as God the merciful wills upon theoffspring of my son (ba farzandani fsrzandam) from generation to generation(Naslan baad naslin) womb after womb (batnam baad batnio).

2. The whole controversy in this case depends upon themeaning to be attached to the Persian words mentioned above, which I haveplaced within brackets. Muzaffar died in the Bengali year 1271, correspondingto the English year 1864, and after his death his eldest son Madassar becamethe mutwalli and possessed the wakf estate under the terms of the wakfnama.Madassar died in 1280 B.S. and thereafter his only son Munshi Mahammad Ebrahimbecame the mutwalli. Ebrahim died childless in April 1900 and upon his deathhis widowed sister Fatema laid claim to the office of mutwalli and filed apetition for registration of her name as mutwalli in respect of the landedproperties, under the provisions of the Bengal Land Registration Act. MahammadIsmail and Abdul Ohid, the two surviving sons of Mujaffar opposed theapplication. Ohid later on abandoned the contest and the Deputy Collector whoheard the application granted the prayer of Patema and directed her name to beregistered as mutwalli of the wakf properties. There was an appeal takenagainst this order by Ismail but the appellate officer confirmed the order ofthe Deputy Collector, leaving open the question of title, and directing Ismailto assert his rights in a civil Court if he so desired. No civil suit was filedby Ismail, and Patema acted as mutwalli till her death in November 1937. AfterPatemas death her son Ojhi who was the original defendant in this suit, hadhis name enrolled as mutwalli with the Wakf Commissioner, under the Bengal WakfAct of 1934 and took possession of the properties. Thereupon on 20th April1931, the plaintiff who is the eldest son of Ismail, who died during Fatemaslife time, applied to the Wakf Commissioner for having his name enrolled asmutwalli after setting aside the previous order made in favour of Ojhi. Thisapplication was rejected and on 17th June 1939, this present suit was brought.The plaintiffs case as made in the plaint or rather during trial, was, that ona proper construction of the wakfnama the office of the mutwalli should be heldto devolve, in the first instance on the male descendants of Madassar. Failingmale descendants of Madassar the office would go to the other descendants ofthe wakif and the oldest and the most qualified among them should be appointedmutwalli, and no woman could hold the office so long as any male descendant wasavailable. The position taken up by the plaintiff therefore was that afterEbrahims death the proper person to hold the office was Ismail the father ofthe plaintiff, and Fatema had no legal title to mutwalliship. Now that Patemawas dead, the plaintiff as the senior most male descendant of Muzaffar wasentitled to the office of mutwalli under the terms of the wakfnama, and Ojhithe son of Patema had no right to it. The younger brothers of the plaintiffwere made pro forma defendants to the suit.

3. A written statement was filed by Ojhi the originaldefendant in the suit. Ojhi however died before the suit was heard and his sonMahammad Amin was substituted as defendant in his place. Amin adopted thewritten statement filed by his father, and his contention in substance was thatunder the terms of the wakfnama, the devolution of the office of mutwalli wasto continue in the line of Madassar, and all his descendants through males orfemales were eligible to hold the office. So long as Madassars line was notextinct, the plaintiff had no right to come in as mutwalli. The othercontentions raised were, that on the plaintiffs own case, Patema having beenin unlawful occupation of the office for more than twelve years the plaintiffsclaim if any was barred by limitation, and that in any event, there was AbdulRashid, a son of Ohid, who was senior in age to the plaintiff and consequentlyhad preferential rights to the office of the mutwalli.

4. The Sub-Judge dismissed the suit. It was held by thelearned Judge that under the terms of the wakfnama, mutwalliship would devolveupon Madassar and his descendants and the expression "Farzand"(descendants or progeny) would include female children and descendants throughdaughters as well. In these circumstances Fatema was validly appointed amutawalli, and after her death her son, and grandson were entitled to hold theoffice. The plaintiff although he was senior to Rashid was not entitled to comein as mutwalli so long as Madassars line was not extinct. The Sub-Judge heldfurther that the plaintiffs claim if any was barred by limitation.

5. It is against this judgment that the present appeal hasbeen preferred. Mr. Apurbadhan Mukherji appearing in support of the appeal hasinvited us to put an interpretation upon the material words of the documentsomewhat different from what was urged on behalf of his client in the Courtbelow. His contention is that the terms of the document would not exclude thedaughters of Madassars family but would exclude descendants through daughterswho would belong to a different family. According so the learned advocate,Fatema was no usurper and was entitled in law to hold the office as a laughterof Madassar; but her son and grandson would not rank as progeny or descendantsof Madassar and would have no claim to mutwalli. Shin. The learned advocatecontends that as the lieu Madassar has become extinct, the plaintiff an thesenior most male descendant of the wakif is entitled to be appointed asmutwalli, and as Fatema had a legal title to the office no question oflimitation would arise in this case.

6. Now the document is undoubtedly an obscure one, writtenin an extremely involved style in the Persian language, and the interpretionare not uniform as regards the interpretation to be put upon the material wordsused in it. The plaintiff produced one translation marked (Ex.1a) made by Mr.A. Bekhud, who was then a lecturer in Arabic and Persian in the IslamiaCollege. Mr. Bekhud was examined as a witness In the case, and during his crossexamination he produced another translation of the same document, which wasmarked Ex. (p) at instance of the defendant. The translation relied upon by thedefendant was made by Mr. Abdul Alim an interpreter and translator attached tothe Original. Side of this Court. The trial Court preferred the defendantstranslation to that of the plain-tiff. It seems to us, that except in regard tothe interpretation to be put upon a few words in the document, there is nosubstantial difference between the two translations. For purpose of conveniencewe would proceed on the translation made by the defendants translator andaccepted by the Court below, as the basis of our discussions, and we wouldpoint out at appropriate places, the particular words upon which the plaintiffwants us to put an interpretation different from that adopted by the lowerCourt. The material portion of the document has been thus not out in thejudgment of the learned Sub-Judge, who for purposes of convenience has dividedit into several clauses, though there is no such division in the originaldocument.

Clause (a).-For the present, the management, performance andsupervision of the duties of the "tawliat" superintendence of theaffairs of religious foundations) of the aforesaid endowed Mahal appertains to(i.e. remains in charge of) me, the Wakif (one who makes a charitableendowment). If during my life time, I, the Wakf, appoint my son, MunshiMahammad Madassir, may God, the most High, preserve him, to the office of the"tawliat," well and good; and, in case I do not happen to do so, thenafter me the Wakif, the very said son of mine shall become the Mutwalli(trustee) of she said Mahal that has been made a Wakf of and similarly the saidoffice (or duties) shall devolve, till the reassing of ages (i.e. till eternityor for ever), and repetition of months (i.e. month after month), as God themereful wills, upon the children (i.e. off-spring) of my son, from generationto generation, and "womb after womb."

Clause (b)-But, whoever from among the mate issue of my sonand of the children (off spring) of my son, is learned and God fearing, andvirtuous, and adorned with the ornament of truth and purity, and embellishedwith the qualities of fidelity and honesty and celebrated for, and qualifiedwith laudable qualities and pleasing manners, shall be appointed to the officeof the aforesaid "tawliat."

Clause (c)-And as long as begetting and procreatingcontinues from the stock, and family and blood connections (i.e. relations ofme, the Wakif, whether male or female, the Judge of the time (i.e. theauthorities in power) shall not be competent to interfere in any matterwhatsoever by making any change or substitution (alteration).

Clause (d).-And, if from among the children of the Mutwalli,several persons are found to be adorned and qualified with the aforesaidattributes, then the person who is senior-most in age among them be entitled tothe "tawliat", and, supposing they be equal in age, then one of themshall be entitled according to the advice of religious Musalmans and sober(i.e. pious) learned men, and so long as there exist male issue, the saidoffice shall not be transferred to female issue."

Clause (e)-If by Divine decree the male issues becomeextinct, then it shall be transferred to the females, with the same aforesaidconditions as are applicable to the class of males and with the same, anothercondition also will be added (namely) that the husband of the females shallpossess virtue and piety, learning and wisdom. And if, by sublime Divinedecree, at any time, there be left not a single male and (or female) child fromthe stock and family (generations) of me, the Wakif, and from the children(offspring) of my son, and if this chain be severed, then at that time itwould be obligatory and binding upon the Judges of the time (i.e. theauthorities for the time being) to dispense justice and equity, in the interestof the dignity of Government and state (or authority) and (thereby) to elevateto the office of the tawliat, some man from among the blood connections(relations) and kinsmen of me, the wakif, and (from among) the children(offspring) of my son who happens to possess ability, and aptitude fordischarging the duties of the tawliat, and entrust this important matter tohim, on the conditions mentioned above.

7. It can, we think, be fairly gathered from these severalclauses read together that the primary intention of the founder was that afterhis death his eldest son Madassar was to be the mutwalli and the devolution ofoffice after the death of Madassar, would continue in his lineal descendants.The office of the mutwalli, as Clause (a) provides "shall devolve till thepassing of ages... upon the children of my son (Ba Farzandani Farzandam) fromgeneration to generation (naslan baad naslin) and womb after womb (batnan baadbatnin). We agree with the Court below that the expression "my son"as used in the singular is correct translation and it refers to Madassar alone.The dispute is with regard to the meaning of the words "baFarzandani" which have been translated as "upon the children(offspring)" by the defendants translator. Does the expression "farzand"include children daughters Mr. Gupta appearing on behalf of the defendant hasfairly conceded that the word farzand standing by itself may meandescendants through males only excluding the offspring of daughters. Hecontends however that it acquires a wider connotation and means descendantsgenerally when the expression used is ba farzand or there are words like"naslan baad naslin" or "batnan baad batnin" added to it.The point is important and requires careful consideration. But before we come tothis point, it would be necessary to clear up several other matters which ariseon the construction of the clauses set out above. Clause (b) it will be seenenumerates the qualifications of the Mutwalli and lays down that whoeveramongst the male issue of offspring of Madassar is endowed with thesequalifications he shall be appointed Mutwalli. The words "my son"occurring in this clause refer in our opinion to Madassar and none else andtaking Clause (a) and (b) together, the reasonable construction would be thatMutwalliship would in the first instance devolve upon the descendants ofMadassar, generation after generation, and this means that the earliergeneration would exclude the more remote. The position thus is that the officewould not go to the succeeding generation unless the earlier generation isexhausted, and the holder of the office for the time being would not be a freshstock of descent. Clause (c) should in all propriety have come at the end ofClause (e) and not between Clause (b) and (d). It lays down the generalproposition that so long as any of the descendants and blood relations eithermale or female of the wakif would remain, the Judge (or Kazi) would have noauthority to interfere with the appointment of Mutwalli. The meaning is not atall clear. So long as Madassars line continues, no difficulty might arise forthe wakif lays down that the Mutwalli is to be appointed from among thedescendants of Madassar. But what happens when Madassars line is extinctWould then the office go straightway to the other descendants or bloodrelations of the wakif without any intervention by the Court If so what rulesof preference are to be followed in making the appointment Should the Mutwallibe chosen from all the descendants and blood relations of the wakif or preferenceis to be given to nearness of relation and seniority in age It is also notclear what "blood relations" exactly mean. All these are debatablepoints, and we will have to come-back to the clause later on. Clause (d)provides that if amongst the children of the Mutwalli there are found morepersons than one endowed with the qualifications which are enumerated in Clause(b), the senior-most amongst them would be appointed. Mutwalli, and if they areequal in age the choice would rest on pious Mussalmans. On no ground however afemale could come in as Mutwalli, so long as a male is available. If a femalehas got to be appointed at all, it is laid down in Part 1 of Clause (e) thatthe husband of, the appointee must have all the qualifications which are prescribedfor a Mutwalli under Clause (b). Clause (d) undoubtedly indicates that it waswithin the contemplation of the wakif that a female could be a Mutwalli undercertain circumstances and the extreme contention put forward on behalf of theplaintiff, in the Court below, that only male descendants are eligible forappointment as Mutwalli has been rightly repelled by the learned Sub-Judge. Theappellants advocate, however, as said above, has entirely abandoned that lineof argument before us. The controversy so far as Clause (d) is concernedrelates to the meaning that is to be attached to the word Mutwalli"which occurs in the first line of the clause. According to the appellant itincludes the wakif also, who is the first Mutwalli under the wakfnama, andtherefore the provision relates to the descendants of Muzaffar as well. Mr.Gupta argues that the word "Mutwalli" means the Mutwalli for the timebeing, and according to him this clause would indicate that each Mutwalli wasto be a fresh stock of descent. We do not think we can accept this contentionas sound, nor do we feel inclined to agree with the appellant that the wordincludes the wakif also. Clause (d) really comes as a corollary to Clause (b).In Clause (b) certain qualifications are laid down and any one amongst thedescendants of Madassar who has these qualifications would be eligible forappointment as Mutwalli. Clause (d) provides how appointment is to be made,when more than one person having the requisite qualifications are available. Wethink therefore that the expression Mutwalli in Clause (d) refers toMadassar, who alone was declared to be Mutwalli by the wakif. The last portionof Clause (e) introduces another obscure provision in the document. Obviously,it contemplates a state of things when there would be no descendants eithermale or female either of the settler or of Madassar alive. In such contingencythe Kazi is to make the appointment, but the appointment has got to be madefrom among the blood relations and kinsmen of the wakif probably, meaningthereby his collaterals and distant kindred; it is conceded by Mr. Gupta thatit would be very difficult to reconcile this provision with that contained inClause (c). Clause (c) also speaks of blood relations and expressly forbids interferenceby a Judge in the matter of appointment of a Mutwalli when blood relations arein existence. We may have to advert to this portion of Clause (e) later on. Themost important question which we have to consider is whether the appellant isright in his contention that the daughters descendants of Madassar areexcluded from the line of devolution of Mutwalliship as laid down in Clause (a)mentioned above. To decide this point, it would be necessary first of all tocertain what is the exact meaning of the word farzand" as used in theclause. We have to consider then how far the original meaning of the word isextended by reason of the expression be farzand", or the addition, ofwords like "naslan baad naslin" and "batnan baad batmn.""Farzand" is a Persian word of which the Arabian synonym is"Awlad" (Bailee I, 570-72). In Wilsons Glossary (vide Wilson, page157) the meaning of "farzand" is said to be offspring, progeny, a sonor daughter, child or children, in legal language the word "farzand"means lenial descendants in the male line, females and their posterity areexcluded except the persons own laughter. According to the rules ofinterpretation laid down by the Mahomedan Jurists, if a man creates a wakfsimply for his walad or children, then the children of his loins both maleand female would take the produce. If there is no child of his loins, but thereis a child of his son the produce is to go to the sons child, but the child ofa daughter is not included according to the approved doctrine: (Fatwa Alamgiri.vol. II, page 474, Ameer Ali, vol. I, p. 354). The reason is that"walad" means a mans own children; sons children according tocustom are his own children but not daughters children as they belong to adifferent family (vide Raddul Muktor, vol. III, p. 672). There is a differenceof opinion among Mahomedan Jurists regarding exclusion of daughters childrenwhen more than one generation is mentioned (vide Ameer Ali, vol.I,p. 355).According to the view expressed in Fatwa Alamgiri however when theappropriation is for the benefit of the children and the childrens children,the children of daughters are not included. In the Khizanut-ool-Mooftieen it issaid "If a man appropriates an estate to be enjoyed by his descendants ,in perpetuity so long as the race continues, and he leaves children andchildren of his male children, it will be divided among them equally, and nopreference will be shown to the males over the female. But the children offemales are not reckoned-among the lineal descendants according to the approveddoctrine... because the descendants of a mans daughters are not the linealdescendants of that man, lineage being derived from the father and not from themother." Quoted in Macnaughtens Principles and Precedent of Mahomedan Law(p. 332). In Macnaughtens Principles and Precedent of Mahomedan Law a case isdiscussed where the grant of the office of a Mutwalli was made to one Md.Rufeeq, and declared heritable by his Furzumdam or offspring. It was held thatthe grandson in the female line of the grandson in the male line cannot beenumerated among the "furzundam" or offspring or lineal descendants;because when these terms are applied relating to a person, they mean only thosewho are the lineal descendants of that person or his descendants in the maleline how low so ever but a grandson in the female line takes his descent fromhis own father and not from Md. Rufeeq (vide Macnaughten, p. 332). InHja-on-nissa v. Md. Moful-kir-ol-Islam 1 S.D.A. 106, it was definitely held thatthe Arabic plural "aulad" and its Persian equivalent"farzandam" are understood to include both sons and daughters and alldescendants in the male line but not descendants in the female line (see inthis connection Tyabji, Section 511 (1-a), Bailee I, page 568 (para. 2 (577)).There is also decided authority which holds that when the word"aulad" is repeated and the expression used isaulad-dar-aulad" even then the daughters descendants are not included:Abdul Ganee Kasam v. Hussein Miya (73) 10 Bom. 7. It can safely be heldtherefore that the preponderance of authorities is clearly in favour of theview that the expression "farzand" or "aulad would notordinarily include the descendants of female children, though the daughtersthemselves would be included in it. The law on this point is thus summed up inR. Wilsons Digest of Anglo-Mahomedan Law:

Though the daughters themselves are included under suchgeneral terms as child or children their children and remoter descendantsare not admitted to share with descendants in the male line unless some specialterm clearly indicating such an intention is employed. (Article 326).

The correctness of this statement of law has not beendisputed by Mr. Gupta. We will have to consider therefore whether there are anyspecial terms here which Would take the case out of the purview of the ordinaryrule. It is settled by authorities that "Ahfad" is a word of thelargest and most general signification, and includes the descendants of male aswell as of females, similarly the words "Nasl" and Zariat"would refer to all descendants male or female near or remote (Tyabji, Section511 (5), p, 639; Bailee 1, 572 para 4). In Sheikh Harimuddin v. Mir Sayad Alam(86) 10 Bom. 119, a certain village was granted by the Mogul Government in thename of two persons and their aulad va ahfad for the maintenance of a Darga.The plaintiff who was a grandson of a daughter of one of the male descendantsbrought the suit for recovery of a certain share in the mam. It was held thatthe expression ahfad was wide enough to include the descendants of a daughterand the plaintiff was entitled to succeed. Sargent C.J. in course of hisjudgment observed as follows:

Had the intention been to limit the class of descendantsexclusively to persons claiming through males it is difficult to suppose thatthe general expression aulad va ahfad would have been used and not aulad daraulad which admittedly would include them.

In the case before us we have neither the word ahfad norany expression like Nasl or Zariat. Mr. Gupta lays stress on the word bafarzand, and also on the expression naslan-baad naslin and batnan baadbatnin, coming after farzandam. The prepositionba means to with orin livide Richardson, Persian Arabic and English (Dictionary, p. 224). BaFarzandam literally means with children and when these words are added to agrant, and occur after the name of the grantee they are construed to be wordsof limitation, and indicate that the grantee gets an absolute or heritableestate and not a mere estate for life. Thug if an estate is granted to A withchildren A gets an absolute estate and the children acquire no interest by thegrant (Bailee I, p. 580-81, Edn. 2). This proposition however does not reallyassist Mr. Guptas client. In the first place there is no transfer of secularinterest in any property in the present case, but mere creation of a religiousoffice and no question of absolute or heritable right arises with regard to theoffice of a mutawalli under Mahomedan law. But what is more important is thatthe grant is not made here to a particular person and his children. All thatthe deed provides is that mutawalliship would devolve upon the children of theson (i.e. Madassar). "Ba" is here used in the sense of "to"or "upon" and that is exactly how it has been translated by thedefendants translator.

8. The expressions naslan baad naslin and batnan baadbatnin both of which occur in the wakfnama, are really terms of art, whichsubject to surrounding circumstances and context, ordinarily confer absoluteinterests (Tyabji-Mahomedan Law, Section 511 (5A). Whenever a grant is made toa person with these words added to it, it may be presumed that the granteetakes an absolute or heritable estate. But as said above there is vitaldifference between the grant of a secular estate and the creation of areligious office, and no question of an absolute or heritable right couldpossibly arise in regard to the office of the mutawalli of a wakf. Mr. Guptalays considerable stress upon a decision of the Madras High Court which is tobe found reported in Mahomed Ghouse v. Sayabiran Sahib (35) 22 A.I.R. 1935Mad. 638. We think that the learned Judges rightly pointed out in that casethat although in deeds relating to private property the words "naslan baadnaslin" & would be construed as words of limitation and would conferan absolute estate in the grantee, the same consequences would not follow whenthe document lays down the line of devolution for a religious office. But we cannotagree with the learned Judges that these words literally construed would leadto the result that persons claiming through females would also be included. Ofthe three decisions referred to in the judgment, two really lay down theopposite view whereas in the decision of the Allahabad High Court upon whichthe learned Judges purported to rely, this question was neither raised nordecided. We think that the proper significance of the expressions "naslanbaad naslin" and "batnan baad batnin" is what was indicated bythe Judicial Committee in their recent pronouncement in Saadat Kamel Hanum v.Attorney-General for Palestine 26 A.I.R. 1939 P.C. 185. The case came fromPalestine and arose out of a suit to recover property of a wakf for the benefitof all interested. The questioner consideration was one of limitation which wasto be decided under Art, 1661 of the Ottoman Civil Code; but in the course ofthe judgment Sir George Rankin discussed the meaning of the expression"generation after generation" when it is used in deeds creating wakf.The real object, his Lordship pointed out, of introducing these expressions indeeds of wakf is to prevent nearer and more remote descendants from beingtreated alike. As has been stated in the Fatwa Alamgiri (Crl. II p. 474):

And if he should say upon my child, and child of my child,and child of the child of my child mentioning three generations, the produceis to be expended upon his children for ever, so long as there are anydescendants and is not to be applied to the poor... the nearer and more remotebeing alike unless the appropriator say in making the wakf the nearer isnearer or say on my child then after that on the child of my child or saygeneration after generation when a beginning must be made with whom theappropriator has begun.

9. We think that this principle applies in its entirety tothe facts of the present case. The wakif has laid down that the descendants ofMadassar would hold the office of the Mutwalli. Taking literally the expressionchildren or descendants would mean all descendants nearer and more remote.The words "generation after generation" have made it clear that theearlier generation would exclude the more remote and unless the earliergeneration is exhausted no Mutwalli is to be appointed from the succeedinggeneration. This we think is the true meaning of the expression used in thedocument. There is no indication anywhere that the wakif intended that thechildren of Madassar, would include his daughters children as well. We cannot saythat the point is altogether free from doubt and our difficulty is enhanced bythe fact that neither ourselves nor the learned lawyers appearing before us areacquainted with the Persian language in which the document is written.

10. In these circumstances the safest thing for us to do isto proceed on the authority of decided cases as far as possible and not to baseour decision purely on the dictionary meaning of the words used. Our conclusionis that the appellant is right, in his contention that the words children ofmy son as used in Clause (a) as mentioned above, do not include the daughterschildren of Madassar. Fatima Bibi therefore was rightly appointed a Mutwalli,and no question of limitation arises in this case. The defendant must be heldto be outside the line of Madassars children upon whom the office of Mutwalliis to devolve under the terms of the wakfnama. The question now is whether theplaintiff is entitled to a declaration of his title as Mutwalli of the wakfestate. The learned advocate for the appellant relies upon Clause (c) of thedocument, and some portions of the other clauses as well and his contention isthat on failure of Madassars line the office would go to the senior most maledescendant of the wakif himself. A civil Court can declare the title of theplaintiff as Mutwalli only if his rights are established on the contents of thedocument itself otherwise it would be a question of appointing a Mutwalli,which can be done by the principal civil Court of the district as Kazi. In viewof the construction which we have placed on the document it must be held thatthe line of Madassars descendants is extinct. The question now is whether insuch a contingency the document itself provides a rule under which Mutwallishipwould devolve upon a particular person. Obviously, Clause (c) upon which thelearned advocate for the appellant primarily relies is by itself of noassistance to him. That clause lays down in a purely negative manner that solong as the descendants and blood relations of the wakif either male or femalewould remain the Judge (or authorities in power) would not be competent tointerfere by making any change or substitution. The meaning of this clause assaid already is not quite clear. The intention of the founder presumably wasthat when the specific line of devolution of the office of mutwalli as laiddown by him would be extinct, the mutwalli would have to be appointed fromamongst his descendants and blood relation either male or female. Theauthorities in power would not be entitled to bring in any outaider orotherwise interfere with the administration of the endowment. This intentionhas also been expressed in the last part of Clause (e). Clause (c), howeverdoes not lay down in what way, or in what order the appointment has got to bemade from amongst the descendant or blood relations of the founder, and whetherpreference is to be given to agnatic relations or to age or nearness ofrelationship with the founder. Rules of appointment have been laid down with regardto the descendants of Madassar, but not in respect of the offspring or bloodrelations of the wakif himself. The learned advocate for the appellant wants usto hold that the expression "Farzandam" (son) occurring in bothClause (a) and (b) means "sons" in the plural and includes the othersons of the wakif besides Madassar. This contention we are unable to accept,and as said already, the word "son" used in both the clauses refersto Madassar and Madassar alone. We have also held that the word "mutwalli"as used in Clause (d) relates to Madassar and does not refer to the wakif whomight have acted as Mutwalli so long as he was alive. This being the positionthe plaintiff cannot invoke the provisions of Clause (a), (b) and (d) in hisfavour, and Clause (c) by itself does not enable the Court to assign a definiteplace to the plaintiff amongst the descendants and relations of the founder forthe purpose of being appointed a mutwalli to the wakf estate. In thesecircumstances our conclusion is that with the extinction of the line ofMadassar, the specific rules laid down by the founder for devolution of theoffice, of the mutwalli have also come to an end, and it is now for thePrincipal Civil Court of the District to make an appointment having in view thewishes of the founder and the general principles of Mahomedan law.

11. The present suit brought by the plaintiff fordeclaration of title as mutwalli on the basis of the wakfnama cannot succeed,and on that ground and that ground alone this appeal would also fail.

12. It would be open to the plaintiff, the defendant or anyother relations of the wakif to make a proper application to the District Judgeas Kazi for appointing a mutwalli of the wakf estate under the Mahomedan law.

13. Having regard to the complicated nature of the questionsinvolved in the construction of the document and the decision of the mainquestion in favour of the plaintiff we direct that both the plaintiff and thedefendant would be entitled to the costs of the suit and the appeal out of thewakf estate. As the plaintiff was allowed to file the suit and appeal as apauper, the Government would be entitled to the court-fees, which we directshall also come out of the wakf estate. We desire to point out, that thecourt-fees payable for this suit have not been calculated by the Court below onproper basis. It is true that the suit being one for possession ad valoremcourt-fees should not be paid on the market value of the wakf properties. Theplaintiff was undoubtedly suing as mutwalli and be wanted to recover possessionof properties, admitted by the defendant to be wakf properties, solely in that"capacity. The mutwalli is not the owner and he can be called upon tovalue his suit in accordance with his estimate of what the value of his rightsas mutwalli of the properties would amount to. The Court can certainly"check this estimate and decide for itself on proper materials as to whatthe valuation should be. The court-fees for the suit as well as for the appealwould be deter, mined on the basis indicated above and court-fees thusdetermined would be paid to the Government out of the wakf estate.

14. The appeal is dismissed, and the case would go back tothe trial Court for determination of the court fees payable to Government.

Kamal Chunder Chunder, J.

15. I agree.

.

Mahammad Eshaque vs.Mahammad Amin and Ors. (30.04.1948 -CALHC)