A. K. KIRTY, J.:- The following questions have been referred to this Bench for answer:-

"Where, on the date immediately preceding the date of vesting, out of two co-mutwallis (who were also co-beneficiaries) of a waqf-alal-aulad created by a Shia Muslim, one co-mutwalli was personally cultivating a land (other than sir and grove), the proprietary right in respect of which was subject-matter of the wakf, did the rights of a bhumidhar accrue in the land under Section 18 (1) (a) of the U. P. Zamindari Abolition and Land Reforms Act? If so, whether they accrued in favour of the wakf or God or in favour of both the co-mutwallis or in favour of that co-mutwalli alone who was cultivating the land?"

2. The above questions arise in the following circumstances. One Sibte Hasan, a Shia Musalman by faith, had created a waqf-alal-aulad under a deed of waqf dated 8-2-1918, appointing his male descendants as mutwallis and also making them beneficiaries, generation after generation. The subject of the wakf was some zamindari property. The wakif died in 1924 leaving behind two sons, Farzand Hasan and Sibte Hasan, as co-mutwallis and co-beneficiaries. Sinte Hasan, it appears, was a minor at that time and the wakf property came to be actually managed by Farzand Hasan. Part of the land of the wakf estate was let out to tenants, while some plots were cultivated by Farzand Hasan himself. It is not quite clear whether Sibte Hasan cultivated any land personally after creating the wakf, but it is admitted that he had no khudkasht land when he created the wakf. It is also not clear whether Farzand Hasan had himself, for the first time, brought any, land under personal cultivation or had continued to cultivate the land which, after creating the wakf, Sibte Hasan had in his lifetime brought under his own cultivation.

3. Farzand Hasan died on 29-10-1954, and, upon his death, the land personally cultivated by him continued to be in the possession and cultivation of his heirs, who 'are the appellants before us. In the revenue records also, all such land stood recorded as being in the cultivatory possession of Farzand Hasan during his lifetime and thereafter in the name of the appellants, who are his legal heirs. After the enforcement of the U. P. Zamindari Abolition and Land Reforms Act, 1951, Farzand Hasan had claimed to have acquired bhumidhari rights in the land and on his death, his legal heirs claimed to have become bhumidhars thereof. However, in consolidation proceedings a dispute arose between the heirs of Farzand Hasan and Simte Hasan in regard to the said land the former claiming exclusive bhumidhari rights and the latter claiming co-bhumidhari rights. All the consolidation authorities appear to have given decisions against Simte Hasan. He challenged those decisions by filing writ petition No. 1296 of 1963 praying, inter alia, that the adverse orders passed by the various consolidation authorities be quashed.

4. The writ petition was decided by M. M. Beg, J., who quashed the orders of the consolidation authorities and remanded the matter to be decided in accordance with law as indicated in his Judgment dated 27-7-1967. Against the judgment of Beg, J. a special appeal was filed by the heirs of Farzand Hasan. The special appeal came up before a Division Bench of this Court, which, by its order dated 13-5-1969, referred the questions quoted at the outset for answer by a larger Bench. This Full Bench having been constituted by the Hon'ble the Chief Justice for answering the said questions, the matter has come up before us.

5. A perusal of the referring order dated 13th May, 1969, shows that before the Division Bench an argument was raised by the learned counsel for the appellants that in the case of a waqf-alal-aulad created by a Shia Muslim, the proprietary right in the wakf property vests in the mutwalli or mutwallis and not in God Almighty nor in the wakf itself. In support of this contention reliance was placed on certain observations made by