The surviving mutawalli of a wakf has the power to appoint a successor, unless the deed of wakf or custom provides otherwise.

( 1 ) IN or about 1824 one Serajuddin Ali Khan and his wife Musst. Karamunnessa Begum jointly created a Wakf comprising of properties situated at Entally in the suburbs of Calcutta. They appointed themselves as joint mutawallis in the first instance. After the death of Serajuddin. Musst. Karamunnessa Begum became the sole mutawalli. On the death of Karamunnessa, one Wilayat Hossain became the sole mutawalli. He appointed his wife as his co-mutawalli. Both Wilayat Hossain and his wife were removed by Court in or about 1854. Then Golam Ali and his brother Humayun became joint mutawallis. Thereafter Golam Ali died. Humayun became the sole mutawalli. After the death of Humayun, Hossain Ali became the sole mutawalli. In 1901, Hossain Ali died. His two sons Md. Hossain and Ahmed Hossain became joint mutawallis. In 1905, Md. Hossain died and Ahmed Hossain became the sole mutawalli. In 1908, Warris Ali became joint mutawalli with his brother Ahmed Hossain. In 1935, Ahmed Hossain died and Warris Ali became the sole mutawalli.

( 2 ) IN 1942, the Commissioner of Wakfs filed this suit for removal of Warris Ali as mutawalli and for framing of a scheme for proper administration of the wakf estate. On January 24, 1946, the Commissioner of Wakfs made an application in the suit for appointment of a mutawalli in regard to the wakf estate. The application was heard by S. R. Das, J. (as he then was ). Before the learned Judge there were four claimants for the office S. R. Das, J. considered Mirza Nasir Ali to be a suitable person to be appointed as mutawalli rejecting the claims of the other three claimants. Mirza Nasir Ali was then 17 years of age.

( 3 ) ONE of the three claimants Asraful Alam Shami preferred an appeal against the order of S. R. Das. J. The Court of appeal consisting of the Chief Justice and Mr. Justice Mukherjea appointed Asraful Alam Shami as joint mutawalli with Mirza Nasir Ali. The judgment of the Court was delivered on December 9. 1947 by B. K. Mukherjea, J. (as he then was ). The learned Judge in the judgment observed that Mirza Nasir Ali was still a school boy who had to prosecute his studies further. In view of the above matter the learned Judge further observed that although the said course might not be conducive to an absolutely smooth working of the Institution, it was the best that was possible in the circumstances of the case.

( 4 ) SINCE the appointment of joint mutawallis as aforesaid by this Court Mirza Nasir Ali along with Asraful Alam Shami had been managing the wakf in accordance with the provisions of the scheme framed by this Court

( 5 ) DURING the management of the said wakf estate by Mirza Nasir Ali and his co-mutawalli considerable assets were added to the wakf estate and income has also been greatly enhanced. Mirza Nasir Ali who was a school boy when he was appointed as one of the joint mutawallis completed his studies. He obtained Master of Arts degree in English as well as as Doctorate in English and is now a lecturer in the department of English. Maulana Azad College, Calcutta. In course of his management of the wakf estate he has acquired experience in the affairs of the said wakf.

( 6 ) ON February 23, 1974, the said Asraful Alam Shami died leaving a son named Naushad Alam Shami and a married daughter. He also left a brother Dolara Alam Shami. On the death of Asraful Alam Shami, Mirza Nasir Ali (I shall shortly call him Dr. Ali) informed the Commissioner of Wakfs about the death of his co-mutawalli and notified the Commissioner of Wakfs about the change in the management of the wakf estate as required in Section 47 of the Wakfs Act, 1934. Dr. Ali stated that the office of mutawalliship has passed to him as survivor. He has now become the sole mutawalli in accordance with the custom of the said wakf.

( 7 ) NAUSHAD Alam, the son of Asraful Alam, also applied to the Commissioner of Wakfs to enroll or substitute his name as one of the joint mutawallis on the ground that his father, prior