(Paras 1 to 15 omitted being narration of facts. - Ed.)

16. From a reading of this document it is clear that the charities could be performed or could be entrusted to others to see that it is performed. Further it is clear from the document that the main purpose is only to give food during the birth and death anniversary of two persons mentioned in the document. No religious function is directed to be performed and it is only charity was feeding the poor, was directed to be performed under the document. On the basis of document, for the purpose mentioned above, we have to consider whether females could be excluded from acting as mutawalli.

17. Asaf A.A. Fysee is his book Outlines of Muhammedan Law (3rd Edition 1964) at page 304 of the text has stated thus:

"It may be said generally that every sane adult is entitled to be a mutawalli, unless there is a specific bar. It is well-settled that the following can legally act as mutawallis; (i) the founder himself (wakf) (ii) his children, (iii) women (iv) non-muslims; (v) sunniites in a shiite wakf and vice versa.

Minority and unsoundness of mind are positive disqualifications; in Pakistan it has been held that a minor can be appointed a mutawalli, if the office is declared to be hereditary, and as regards, women, their Lordships of the Privy Council have ruled that sex is no bar in case where no religious duties have to be performed but aliter, if religious duties or spiritual functions are part of the duties of a mutawalli, and in such cases, a female or a non-muslim cannot act as a Sajjada-nashin, kahatib, mujawar of a dargah, or an imam of a mosque".

18. Mulla on Principles of Mohammedan Law, (18th Edition, 1977) at page 228 considered this question of lineal descendant. Learned author says thus:

"In Shahar Banco v. Aga Mohomed, the founder was a Shia and his lineal descendant, who claimed to be appointed mutawalli was a female of the Babi sect. The trial judge appointed her a mutawalli, but the High Court set aside the appointment and appointed another person. This was not on the ground that she was not qualified, but because as a female she would have to perform many of her duties by deputy, and as a Babi she might not take zealous interest in carrying out the religious observances of the shia school for which the trust was founded. This decision was upheld by the Privy Council on appeal. In considering the authorities the Lordships said, "the authorities seem to their Lordships to fall far short of establishing the absolute right to the lineal descendants of the founder of the endowment, in a case like the present, in which that founder has not prescribed any line of devolution. "If the line of devolution is prescribed from generation to generation it does not follow that a female, or persons claiming through females are excluded though it may not be desirable to appoint a female owing to their habits and seclusion. In a case where the founder of the wakf was a Mohamedan lady who had appointed herself first mutawalli and directed that the succession should be to the legal heirs of the second mutawalli it was held that female heirs were not excluded. Where the wakif appointed his son as mutawalli and provided that the descendants (be Farzandan) should succeed as mutawallis, it was held that the words be farzandan did not exclude the daugthers of male descendants, but excluded the children of daughters."

19. Tyabji on Muslim Law (4th Edition), at page 580 has held thus:

"(9) When the office of mutawalli entails the performance of religious or spiritual duties which cannot be performed by females or minors or non-muslims, they are disqualified from acting as mutawalli or Sajjadanashin?" But where females are excluded, it does not necessarily imply that the male descendants of female members of the family of the Wakf, or of the last mutawalli will also be excluded.

(10) If the primary object of a grant is maintenance of the proper services at the mosque- viz., Khijmat (sic. for