' By this appeal Haji Rustarn Shah had challenged the order passed on 3.4-1984 by the Additional District Judge I, Quetta who has appointed a receiver to look after the Musafirkhana and maintain the books properly.
2. The dispute between the parties relates to a Musafirkhana known as "Abdul Ghaffar Khairati Musafir Khana" Kausi Road, Quetta together with the property attached to it and built on the land under Khasra No, 5199 Khatooni No, 208 measuring 19,134 sq. Ft. Bearing Municipal No, 7-18/112. A Wakfnama was executed by late Haji Abdul Ghaffar son of Abdul Aziz and the same was duly registered with the Sub-Registrar Quetta on or about 20th October, 1952. By this deed the Wakif appointed his son-in-law (Haji Rustam Shah as the first Mutawalli after his death and thereafter the office of Mutawalli was to devolve on the male lenial descendant of the .Wakif and if no such person was available the male descendants of the other daughters of the Wakif was to be appointed. The relevant provision of the deed reads as follows:_ {{URDU TEXT}} ' During the lifetime of Rustam Shah a dispute arose and it was complained by Abdul Sattar and Abdul Jabbar the two sons of the Wakif that the Wakif property was not being managed in accordance with the deed of Wakf and the Mutawalli Rustam Shah has not been managing the affairs properly and has committed acts of distrust and some portion of the property has been used to his own personal advantage (The details have been furnished in para. 6 of the plaint filed by the plaintiff on 26th April, 1977), and it was prayed that the Mutawalli be removed and a rival claim to the office of the Mutawalli was also put forward. The written statement was filed on or about 4-6-1977 but strangely enough no effective proceedings have been allowed to be taken. At one stage it was suggested that the matter be referred to Arbitrator and considerable time was allowed to be wasted though nobody had actually been appointed. Aliegations were made that the Mutawalli had started raising construction of a house and rooms were being built on Musafirkhana and interim order restraining the Mutawali to raise construction was made on 27-5- 1981. On the application moved on behalf of the plaintiff a Local Commissioner was, appointed to inspect the site an Advocate namely Abdul Samad Dogar was appointed and a report was received from him that some construction was being raised. An application was made on 30-8- 1981 for the appointment of a receiver. This was opposed and yet on an application made on 5-9- 1983 the Additional District Judge I, Quetta himself inspected the site and ultimately on 3-4-1984 an order of the appointment of a Receiver was made. Against this order the appeal has been filed on 22-4-1984. The appointment of Receiver was considered necessary because the defendant had occupied a portion of the Wakif property for his own use which according to the interpretation of the Deed was not provided therein.
3. The appellant Haji Rustam Shah died on 16-3-1985. The Application No, 240 of 1985 is for the substitution of the new Mutawalli allegedly made vide a registered Deed executed on or about 16- 7-1984. This application has been replied. Yet another application (C. M. 334 of 1984) has been filed by Akbar Shah a son of Haji Rustani Shah seeking permission to file certain documents. C. M. 512 of 1985 has been filed for impleading persons for whom Akbar Shah has been acting as attorney.
' During the course of hearing of this matter it was brought to my notice that a suit has been filed challenging the execution of the Deed whereby Late Haji Rustam Shah has appointed his own son (Akbar Shah) to the office of the Mutawalli and the same is pending in the Court of the Senior Civil Judge. It has been submitted by Mr. Basharatullah that Akbar Shah should be substituted as appellant being newly-appointed Mutawalli and the suit be transferred to the High Court and be dismissed or the appeal be kept pending till Akbar Shah is brought on record so as to enable him to appear before the lower Court and make a proper prayer therein that the suit be dismissed.
4. The point for determination is whether Akbar Shah can be substituted in the present proceedings wherein the order of the appointment of Receiver has been challenged. It has been vehemently urged by Khawaja Safdar Rashid the learned counsel for the plaintiff/respondent that Akbar Shah has no locus standi to be substituted for deceased-appellant (Haji Rustam Shah) as no cause of action has survived in the appeal and the appeal has abated, and in that connection it has been submitted that the Waqfnama dated 8-8-1952 prescribes a mode of succession to the office of the Mutawalli and the office of Mutawalli is not heritable rather the son of Rustam Shah in terms of the Deed has been debarred and only the sons from the other daughters of late Wakif could be appointed. Additionally it has been contended that no power to appoint his son could be claimed by Haji Rustam Shah as he was definitely not on his death bed when the document appointing Akbar Shah, his son was made. The Application No, 240 of 1965 filed by Akbar Shah itself established the fact that the Mutawalli had misappropriated the Wakif property and as such further misappropriation is to be prevented and in these circumstances Akbar Shah is not entitled to remain Mutawalli or substituted for the deceased Mutawalli and since the office of Mutawalli has fallen vacant, therefore, it is all the more necessary to appoint a receiver to avoid waste of property even for the interim period till a Mutawalli is appointed according to the Wakif Deed.
This last submission of Khawaja Safdar Rashid is supported by a D. B. Judgment of Patna High Court reported as Bibi Zohra v. Bibi Habibunnisa (1) and AIR 1945 Ali.
261. A perusal of the plaint filed by the sons of the Wakif makes it clear that the acts complained against Haji Rustam Shah were personal in nature and as such he was sued in his personal capacity. So, in my humble opinion the appeal abates. A The document dated 16-7-1984 certainly gives an impression that property of the Wakif is being claimed by Akbar Shah as his personal contrary to the Wakif deed. Even Haj Rustam could not possible claim any portion of the Wakif property and set up a title adverse to the beneficiaries of the Wakif. The appointment of Akbar Shah by late Rust= Shah during {{FOOT NOTE}}
(1) AIR 1940 Pat. 9 {{FOOT NOTE}} his lifetime and ignoring the male descendants of the Wakif is open to serious challenge. The proposition of law that Mutawalli has no power to transfer the office to another, unless such a power is expressly conferred upon him by the founder is well-established. The provision of the Wakif deed dated 8.8-1952 quoted above certainly prescribes a mode and this arrangement cannot be changed. Rustam Shah has been removed by nature, the cause of action against him has no doubt come to an end but in the event of the removal of the Mutawalli the duty of the Court to appoint a Mutawalli to continue the purpose of the Wakif has still to be performed. The power of the Court to appoint a Mutawalli when vacancy occurs and there is none to take office under the terms of the Wakif is beyond question. In such circumstances it is expedient to appoint a receiver to avoid irreparable mischief and the Court is under .An obligation to protect the Wakif property being wasted.
For the above reasons I find no merit in the appeal and the order impugned therein is maintained.
Since the parties are related to each other there shall be no order as to costs.