Malik, CJ. V. Bhargava and Chaturvedi, JJ.

[1] These two appeals were referred to a bench of five Judges by a Division Bench of this Court on the 7th of February 1951.

[2] The appeals arise out of two suits relating to a 'wakf' created by Sohani Begam. A small pedigree will help in understanding the facts of this case.

SOHANI BEGAM _________________|__________ | | Malka Mehar Nigar Begam Amdi Begam =Dr. Mahmud Ali Khan =Mohammad Hussain | _______|______________ Maqsood Ali Khan | | Khalil Ahmad Siddiq Ahmad

On the 23rd of March, 1929, Sohani Begam executed a 'wakf alal aulad' under which she constituted herself as the first 'mutwalli' and, after her death, her daughter, Malka Mehar Nigar Begam, was to be the next 'mutwalli'. The relations, however, between the mother and the daughter grew strained and, on the 29th of November, 1938, Sohni Begam executed another document under which she purported to cancel the provision relating to the appointment of mutwalli after her.

[3] On the 14th of December, 1943, Sohani Begam died and disputes arose between Malka Mehar Nigar Begara and Khalil Ahmad about tile possession of the 'wakf property. Malka Mehar Nigar Begam filed a suit, out of which the First Civil Appeal No. 123 of 1944 has arisen, for a declaration that she was the duly appointed 'mutwalli' of the wakf property.

[4] The suit was resisted by Khalil Ahmad on the grounds, among others, that the wakif was entitled to revoke the nomination made by her in the wakf deed of 1929 and to appoint him mutwalli under the document of 1938, and that the recognition by the Sunni Central Wakf Board of Khalil Ahmad as mutwalli was conclusive and he must, therefore, be held, to be the mutwalli of the property.

[5] The objections were, however, overruled and the plaintiff's suit was decreed.

[6] Malka Mehar Nigar Begam thereupon filed a second suit, out of which the First Civil Appeal No. 95 of 1945 has arisen, for possession of the wakf property on the ground that since the institution of the previous suit Khalil Ahmad had managed to get possession of the property. This suit was also decreed on the basis of the previous decree.

[7] Khalil Ahmad filed the two appeals in this Court and one of the points that was argued before the Division Bench was whether a wakif can, after the execution of a wakf deed by which he appoints a mutwalli to succeed him after his death, change the nomination by a subsequent document, when he had not reserved such power in the original deed of wakf.

[8] The learned Judges thought that the matter needed careful consideration and as there was already a decision of a bench of three Judges, they sent the case "for decision to a bench of five Judges.

[9] The first suit was filed on the 29th of January, 1944 i.e. within a month and a half of Sohani Begam's death, and was decreed on the 26th of October, 1944, and the appeal was filed in this Court on the 14th of December, 1944. The second suit was instituted on the 13th of February 1945, and was decreed on the 28th of May, 1945 and an appeal against the decree was filed in this Court on the 2nd of October, 1945.

[10] On or about the 1st of August, 1948, Malka Mehr Nigar Begam migrated to Pakistan. and the Deputy Custodian, Evacuee Property, Lucknow. was substituted in her place as respondent in these appeals. A preliminary objection has been raised by Sir Iqbal Ahmad, counsel for the Deputy Custodian that the hearing of these appeals is barred under Section 46 of the Administration of Evacuee Property Act (31 of 1950). Before the Act there were certain Ordinances and learned counsel has referred us to those Ordinances also. The U.P. Ordinance No. I of 1943 was passed on the 24th of June, 1949, and section 5 of the Ordinance provided that all evacuee property situate in the United Provinces shall vest in the Custodian and the word "property" was defined as including any property, right or interest but not including a mere right to sue or a cash deposit in a bank. "Evacuee