The main legal point established in the judgment is the recognition of the plaintiff's de facto Mutwalliship and the maintainability of the suit by a Mahomadan.

JUDGMENT

Mukerji, J. - The plaintiff obtained in the Court of first instance a decree declaring his title as Mutwalli to the lands in suit and entitling him to recover possession thereof from the defendant. That decree has been affirmed on appeal by the lower appellate Court and tin defendant has preferred this second appeal.

2. The history of the wakf to which the suit relate is important. One Khairat Ali in 123i made a wakf in respect of a third share of his properties, and gave the remaining two-thirds share to his two grandson? Dadali and Mohamedali in equal shares the grandsons partitioned the proparties between themselves, and the property now in suit fall to the share of Dadali. The latter, by a deed dated 1265, made a wakf in respect of his properties and appointed his two wives Akbarannesa and Nujamannesa as Mutwallis the two wives acted as Mutwallis till the death of one of them, viz., of Akbarannesa, when the othar viz., Nujamannasa became the sole Mutwalli. She, in 1298 and before her death, appointed one Kudrutulla, the father of the present plaintiff, as Mutwalli of the wakf estata. Kudrutulla managed the wakf till his death in 1312. The plaintiff's cas9 is that ha was appointed Mutwalli by his father and he was asking as Mutwalli since his father's death, when a dispute aro33 between him and his brother Nur Mohamad which eventually ended in a compromise by which some of the wakf properties were taken by one brother and some by the other, and they both managed the wakf estate as such. In 1320 Nur Mohamed died and thereafter the plaintiff again became the sole Mutwalli the defendant had purchased the property in suit from Nur Mohamed and the plaintiff's casa is that the sale was void as not having been made for legal necessity. The two main prayers in the plaint ware as follows:

(Ka) that it be declared that the proparties in the schedule appertain to the wakf of Khairatali and Dadali; and (Kha) that the plaintiff be awarded a decree for possession it being declare that the defendant has acquired no title by his purchase. The other prayers were for subsidiary reliefs.

3. The suit, as I have stated, has bean decreed by the Courts below in the form stated above. The findings, which cannot be disputed and in deal have not been disputed at the persent stage are that the wakf was a valid one; that the property is wakf property and that there was no legal necessity for the sale the ground upon which the validity of the decree ha3 bean challenged is that the plaintiff has not proved his title as Mutwalli, and therefore is not entitled to the decree.

4. The Court of appeal below has rested its decree upon the ground that the plaintiff was the de facto Mutwalli of the wakf properties since fehe death of Kudrutulla, that the plaintiff also acted as Mutwalli during the period that management was in the hands of Nur Mohamed, and that after Nur Mohamad's death Nur Mohamad's hairs allowed a decree to be passed in plaintiff's favour declaring his right to the Mutwalliship.

5. The learned vakil for the respondent has sought to justify the decree upon a further ground, viz., that as a Mahomadan his client can maintain a suit like the present one.

6. It will be convenient to deal with the second ground first. A very interesting discussion of the question involved in this contention will be found in Mr. Ameer Ali's Mahomsdan Law, Vol. I, Ch. 19, headed Kules of Procedure. So far as this Court is concerned it was held in effect in the case of Jan Ali v. Ram Nath Mundul [1881] 8 Cal. 32 that the mosques, etc., to which the provisions of Act 20 of 1863 apply are not any mo3ques, etc., but any masques, etc., for the support of which endowments have been made by the Government or private individuals. In that suit two of the worshippers are a certain mosque instituted a suit after having obtained the sanction of the Advocate-General u/s 539 of the Civil P.C. of 1882 against the Mutwalli of the mosque and two other persons to whom the Mutwalli h