Judgement

Appeal (No. 67 of 1946) from a judgment and decree of the High Court (July 12, 1944) which affirmed a judgment and decree of the Commercial Subordinate Judge, First Class, Delhi (June 28, 1941).

The following facts are taken from the judgment of the Judicial Committee. In the year 18S5 one Sheik Mohammad Taqi made a will by which, so far as relevant, he gave one-third of his property in charity and appointed Qutab-ud-Din as his executor. In or about the year 1872 Qutab-ud-Din received a sum of Rs. 1,66,683-3-8 on account of the share of the estate of Sheikh Mohammad Taqi given in charity, and their Lordships of the Board thought, in agreement with the High Court in India, that Qutab-ud-Din was in possession of that property as mutwalli of a wakf. On April 17, 1874, Qutab-ud-Din made a will in which he stated that he was the manager of an Institu tion created for religious purposes by the said Sheik Mohammad Taqi and he executed his will in favour of his three sons, Abdul Ghani, Mohammad Shafi and the appellant, Abdul Razaq, with the idea that the entire business of the Institution should continue and subsist after his death. He then admitted that he was in possession of immovable property worth Rs. 40,000 pertaining to the said Institution and directed the legatee to apply the income for religious purposes. It was not clear how the balance of the fund originally received by Qutab-ud-Din in 1874 had been dealt with, but his sons never disputed that they held the fund received by them under his will as mutwallis of a wakf. Probably their appointment as mutwallis could be justified on the ground that Qutab-ud-Din was the executor of the wakif but, in any case, their appointment had never been challenged. In 1902 Mohammad Shafi, one of the sons of Qutab-ud-Din, died, and thereafter Abdul Ghani and the appellant continued to act as mutwallis. By two agreements dated respectively September 15, 1914, and June 27, 1927, Abdul Ghani and the appellant divided between them work connected with the wakf. Their Lordships of the Board thought that those agreements were designed only to facilitate the administration of the wakf, and that such agreements did not purport, and in law were incompetent, to divide the wakf into two wakfs.

On March 2, 1924, Abdul Ghani, while in sound health, made a will by which, after reciting that under the will of his father he along with his brother the appellant was the executor and trustee of the properties therein mentioned, and that he and his said brother held proprietary possession of the entire property bequeathed as trustees and managed the same, and that he considered that the charitable institution should continue after his death, he appointed his son, respondent No. 2, his executor, successor and representative and directed that after his, the testators, death respondent No. 2 should be competent to manage the property bequeathed along with the appellant jointly or severally as the testator was then doing, and he directed that respondent No. 2 should utilize the entire income from the aforesaid property for charitable purposes. Abdul Ghani died on April 10, 1939. On October 24, 1939, the second respondent mortgaged part of the property comprised in the said wakf to the first respondent to secure a sum of Rs. 10,000, and it was recited in the mortgage that the father of the second respondent was the owner as trustee of the property, that he, the second respondent, was the executor, successor and representative under his fathers will, and that the purpose for which the mortgage was executed was to meet the cost of repairs, construction and improvement of the trust property. On the same day the second respondent executed a lease in favour of the first respondent in respect of the property comprised in the mortgage.

This suit was filed on April 19, 1940, by the appellant as plaintiff against the respondents as defendants. The relief claimed was a declaration that the properties referred to in t