D.L. MEHTA, J.—These two appeals arise out of the judgment and decree dated 28th October. 1976 passed by the learned District Judge, Ajmer in Civil Suit No. 18/73. Plaintiff Dargah Committee instituted a suit against the defendants and prayed therein that the plaintiff Dargah Committee may be declared as the Manager and Mutwalli of the Wakf properties after the death of Mumtaz Begam. A further declaration was sought that it may be declared that the defen-dant No, 1 is not owner of the property No. 5. Decree was also sought against the defendant No. 2 in respect of the properties No, 1 to 5. A decree for rendition of account was also sought for. In para 4 of the plaint it has been mentioned that in the light of the Government deed, Ex. I, the line of succession is as under:—

(a) After the death of Shri Mohd, Ali his eldest son was to act as Manager, Mutwalli, after his son it would devolve on his lineal descendants,

(b) In absence of a son, his wife Smt Sher Bano was to act as Manager, Mutwalli

(c) After the death of Smt. Sher Bano her daughter Smt, Mumtaz Begam alias Eallo was to be Manager, Mutwalli,

(d) After the death of Smt, Mumtaz Begam her eldest son and his lineal descendants were to be Manager Mutwalli.

(e) In absence of a son or daughter of Mumtaz Begam the eldest son & bis lineal descendants of Smt. Niaz Bano were to act as Manager Mutwalli.

(f) In absence of any issue of Smt. Niaz Bano, the eldest son of Smt, Rasoozan Begam his lineal descendants were to act as Manager, Mutwalli.

(g) In the event of the line of issues of the four executant being set off, the of Dargah Hazarat Khwaja Saheb Moinuddin Chistee Ajmer shall manage, look after the properties as described in the deed, as Mutwalli, Manager,

2. Mumtaz Begum executed a registered sale deed on 5.12.1968 stating therein that the bequeathed waqf properties No. 4 and 5 to defendant No, 1 as she was there absolute owner. It was also stated in the will that there was no male member left to the Waqf after her death and, as such defendant No. 1 will act as Mutwalli. Defendants submitted the written statement and it was prayed therein that the line of waqf has not come to an extinct and, as such Dargah Committee is having to right to file a suit. After considering the pleadings of the parties the following issues were framed:—

(1) Whether Mumtaz Begam alias Kaloo dies without leaving any issue as detailed in para 6 of the plaint?

(2) Whether the line of the waqf became extinct and as such the plaintiff is entitled to act as manager and Mutwalli of wakf properties as alleged in para 10 of the plaint?

(3) Whether Mumtaz Begam illegally willed away any of the wakf properties and she was not entitled to appoint defendant No. 1 as Mutwalli of wakf properties as mentioned in para i 1 of the plaint?

(4) Whether defendants Nos. 1 and 2 have no right to remain in the properties or to convey the rent of the properties as mentioned in para 12 of the plaint?

(5) Whether the title of the plaint is wrong, and, as such, the suit is not maintainable?

(6) Whether the suit is bad for non-joinder of the descendants of the waqfs as alleged in para 22 of the written statement?

(7) Whether the court-fee paid is insufficient?

(8) Whether the plaint is not duly verified, if sor to what effect?

(9) Is the suit barred by time?

(10) To what relief the plaintiff is entitled?

3. Issue No. 2 has been decided against the plaintiff. Rest of the issues have been decided against the respondent-defendant. The court dismissed the suit of the plaintiff on the ground that the line of descendants of the waqf has not come to extinct and, as such, the plaintiff is not entitled to act as Manager or Mutwalli of the wakf property as alleged by him in para 10 of the plaint. The court also held that Mumtaz Begum illegally willed away a part of the waqf property and she was not entitled to appoint defendant No. i as Mutwalli of the waqf properties as mentioned in para 11 of the plaint.

4. Yesterday both the appeals came up for hearing

Click Here to Read the rest of this document