JUDGMENT
1. This appeal arises out of a suit instituted under Section 539 of Act (XIV of 1882). One Bansidhar by his Will dated the 5th of March, 1892, made a waqf of the property therein mentioned providing for the disbursement of the income of the property on certain charitable objects. He appointed his daughter, Musammat Muni, mutawalli of the waqf and gave her power in her life-time by a written document to appoint her successor as mutawalli. Musammat Muni never exercised the power of appointing her successor, but upon her death Kanhaya Lal defendant appears to have taken possession of the property and succeeded in having it entered in his own name as his private property. He actually mortgaged it to his own wife for Rs. 11,500. Kanhaya Lal alleges, and we may assume that it is true, that he paid back this Rs. 11,500 by a relinquishment of the mortgage. Even in the present appeal the defendant Kanhaya Lal contends that he is entitled to one-half of the income as his private property. The learned Judge of the Court below found that the testator created a waqf of the whole of the property and the defendant was not entitled to any portion of the property or income thereof. He removed Kanhaya Lal from the trusteeship and appointed the Collector of Moradabad in his place, subject to the Local Government giving their consent to his acting. When the case came before us we adjourned the hearing of the appeal in order to ascertain whether the Collector was willing to act and also whether the Local Government were satisfied that he should do so. It is now admitted that the Collector is ready and willing to act and the Government have consented to his doing so. The appellant contends, first, that under the terms of the Will he is entitled to one-half of the income of the property in his personal capacity and in support of this contention the judgment of the Privy Council in Ashu Tosh Dutt v. Doorga Churan Chatterjee 5 C. 438; 5 C.L.R. 296; 61. A. 182 is cited. In that case a Hindu lady left certain property to her sons to support the daily worship of an idol and defray the expenses of certain other religious ceremonies with the provision that in the event of there being a surplusage after the charitable purposes had been satisfied, such surplusage should be applied to the support of the family. Their Lordships held that the provisions of the Will amounted to a bequest of the surplus to the members of the joint family. The terms of the Will in the present case are very different. In the first place the testator begins by expressly making waqf of the whole property and the only similarity that can be suggested in the two Wills is that Bansi Dhar provided that half of the income should be spent on “the maintenance food and raiment of his daughter and in disbursing the pay of the servants engaged on the entire property, paying the Government revenue of the whole of it and defraying the conveyance charges and expenses in Courts and all incidental expenses.” No specific portion of the income was set apart for the daughter. It is also to be remembered that she was expressly appointed mutawalli and it is very reasonable to suppose that this provision for her food and raiment was made for her in her capacity as a mutawalli. In our judgment the Court below was quite correct in holding that on the true construction of the Will, Kanhaya Lal defendant was entitled to no part of the income of the property as heir of Bansi Dhar. It was next contended by the appellant that the Collector ought not to be appointed as a trustee but a member of the family ought to be so appointed. Considering the conduct of Kanhaya Lal in respect of the trust property and also the fact that he even now claims a portion of it as his private property we hardly think it lies in his mouth to claim that he or any nominee of his should be appointed a trustee. The plaintiffs-respondents ask that they or some of them should be appointed trustees. No objection to the decree of the Court below on their behalf was filed within time, but we have been asked to permit it to be filed now. If we thought that there was any substantial reason for entertaining the objection we should probably allow it to be filed not with standing that it is beyond time. We, however, think that under the peculiar circumstances of the case it is undesirable that the plaintiffs should be appointed trustees. It has been admitted before us that certain disputes including a riot took place concerning the management of this property. It will) of course, be open to the Collector to get the assistance of some member or members of the family in the management of the trust, if he is able to find suitable persons. We, of course, do not intend to impose any restrictions upon his discretion in the matter. We dismiss the appeal with costs to be paid by the appellant Kanhaya Lal. Costs in this Court will include fees on the higher scale.
