JUDGMENT Mukteshwar Prasad, J.
1. We have heard Sri M. A. Quadeer, learned counsel for the petitioner and Sri Shahld Masood, learned counsel appearing for the respondents on the substitution application as well on the merits of the petition.
2. This petition was filed by Rukunuddin Khan, challenging the order dated 14.6.1995 (Annexure-25 to the writ petition) passed by the Controller of the U. P. Sunni, Central Board of Waqfs, Lucknow and for issuing a writ of mandamus commanding the opposite parties not to give effect and not to implement the impugned order dated 14.6.1995. The sole petitioner died on 29.4,2001. After the death, his son Sri Nisaruddin Khan has moved this application for substitution, claiming himself, to be mutawalli of the waqf in question through a Will dated 9.4.2001 executed by his father Rukunuddin. He has further claimed himself to be in actual control and management of the waqf in dispute. A photocopy of the Will dated 9.4.2001 was also filed. On the other hand, learned counsel for the respondents has opposed the application and urged that the petitioner had no right to execute a Will appointing his son as a mutawalli of the waqf in question and cause of action does not survive after the death of sole petitioner and the petition is liable to be dismissed.
3. Admittedly late Nizamuddin alias Chhotey Miyan Saheb created a waqf, which was registered in the office of Controller, U. P. Sunni Central Board of Waqfs, Lucknow at serial No. 58, District Hamirpur. He died on 1.3.1989. Sri Qamaruddin respondent No. 3 moved an application dated 9.3.1989 for his appointment as mutawalli. He was appointed as mutawalli by the Waqf Board. Aggrieved by the order of the Board the petitioner filed a Civil Misc. Writ Petition No. 19650 of 1990, challenging all the three orders passed by the Board. This Court vide its order dated 17.5.1991 quashed the orders and directed the Controller of the Board to decide the matter of mutawalliship on merits. The petitioner based his claim on the Will said to have been executed by his late father on 13.11.1986. Admittedly Sri Nizamuddin was appointed by the Board, but he had no power/authority to appoint his successor. The Controller vide his order dated 14.6.1995 rejected the claim of the petitioner and appointed respondent No. 3 as mutawalli. Aggrieved by this order passed by the Board, this petition was filed.
4. Admittedly, after creation of the waqf the property vests in the Almighty and the founder has no interest therein. Mutawalli is a manager of the waqf property and this office is neither heritable nor transferable. It is also settled that a waqf can be created through a deed of waqf executed by the founder and the founder has powers to appoint first mutawalli and lay down a scheme for the administration of the trust and for successor of the office of the mutawalli. He may nominate the successor by name or indicate the class together with their qualification from whom the mutawalli may be appointed. Admittedly Sri Nizamuddin had executed no waqf deed and he was appointed mutawalli by the Board. He was, however, given no power to appoint/nominate his successor. Sections 204 and 205 of the Mulla's Principles of Mohammedan Law provides that if the founder and the executor are dead and there is no provision in waqfnama for succession to the office, the mutawalli for the time being may appoint a successor on his deathbed.
5. Section 19 (2) (o) of the U. P. Muslim Waqfs Act, 1960, provides that the duty of the Board shall be to remove a mutawalli, or appoint a mutawalli. Section 48 of the Act further provides that the Board in case of vacancy in the office of the mutawalli of a Waqf appoint any person to act as mutawalli for such period and on such conditions as it thinks fit provided that in case of Waqf created by a deed, the Board may act under this section only if there is no one competent to be appointed as mutawalli under the terms of such deed.
6. Reliance was placed by the parties on the following decisions :
(1) Pir Bux v. Sher Mohd. and Ors., 1969 ALJ 169 ;
7. In the instant case, the petitioner himself was not appointed mutawalli by the Board and he had prayed for quashing the order appointing the respondent No. 3, as mutawalli of the Waqf. Even" if it be assumed for the sake of argument that he was a mutawalli, he had no right to execute a Will appointing his son Nisaruddin as mutawalli. In the absence of any waqf deed and the order of the Board appointing anybody a mutawalli and giving him powers to nominate his successor also, nobody has a right to execute a will appointing his heirs as a mutawalli. The office of mutawalli does not devolve upon the heir of the deceased mutawalli by inheritance. Succession to the office of mutawalli is regulated either by terms of the deed by which the waqf was created or by the customary practice or traditions pertaining to the waqf. The vacancy can also be supplied by an appointment of the successor mutawalli by a statutory body (Waqf Board) created under a Central Act or State Act. Further, the applicant did not file the original Will and a photocopy was filed, which is not admissible. Secondly, the Will nowhere indicates that the testator (Rukunuddin) was on the deathbed. He was physically weak and was suffering from diabetes. This does not mean that the testator was fighting for his life at the time of execution of the Will on 9.4.2001. We further find force in the submissions of the learned counsel for the respondents that the petitioner's claim for appointing him mutawalli of the waqf was rejected by the Controller of the Waqf Board and thus, the grievance and cause of action was personal, which came to an end after his death. In our opinion, none has right to prosecute this petition and the cause of action does not survive.
8. Therefore, the application for substitution is not maintainable and is liable to be dismissed. The application for substitution is hereby rejected.
9. We have held above that cause of action was personal to the sole petitioner, who had died and the application for substitution had been rejected. This petition is also not maintainable and it is accordingly dismissed.