JUDGMENT Henry Griffin, J.
1. This appeal arises out of a suit to enforce a claim under an indemnity bond, executed in favour of one Abdullah by Kishun Chand and Gokul Chand on the 12th of November 1889. On that date, Kishen Chand and Gokul Chand executed a sale-deed of a village named Lasra in favour of Abdullah. The latter apparently had some doubts as to the validity of his vendors' title, for on the same date he took from his vendors an indemnity bond, the conditions of which have given rise to the present suit. By this indemnity bond the vendors undertook to make good to Abdullah the sale price together with any loss he might sustain on account of any defect of title in the property conveyed by the sale-deed. Apparently, Abdullah entered into possession of the property sold and remained in possession until the 27th of May 1897, when he made a dedication of this village along with others for certain religious purposes. Under the waqfnamah, he appointed himself the first mutwalli and nominated his son, the appellant before us, his successor. In the life-time of Abdullah, Musammat Naraini appeared as a claimant of the ownership of the village Lasra. She was the adoptive mother of one Ramgopal, a nephew of Abdullah's vendors. Her suit was decreed by this Court on the 21st of December 1905 and Musammat Naraini obtained possession of the village Lasra in May 1906. This suit was instituted on the 3rd of August 1910, to recover a sum of Rs. 52,000 on account of the price of the village Lasra and the loss incurred by the plaintiff owing to the village having passed out of his possession. The defendants Nos. 1 to 5 are transferees from the vendors of Abdullah of the village hypothecated under the indemnity bond mentioned above. Musammat Naraini, the sixth defendant, is the person who, under a decree of this Court, obtained possession of the village Lasra. The defendants Nos. 7, 8 and 9 are representatives of the vendors. They have not appeared to defend the suit and no relief was asked as against them. Abdullah died during the pendency of the appeal in this Court in the suit brought by Musammat Naraini and his son who is the appellant here was brought on the record as his representative. The present suit was defended on various grounds and we are concerned here with two only. The lower Court has upheld the contention of the defendants, first, that the waqf is invalid and, therefore, the plaintiff is not entitled to maintain the suit, and secondly, that Abdullah, the vendee, at the time he created the waqf, did not at the same time convey to the mutwalli his rights under the indemnity bond. In appeal it is contended that the Court below was wrong in holding that the waqf was invalid and that the plaintiff has no right to maintain the suit because the waqfnamah contained no mention of a conveyance to the mutwalli of the vendee's rights under the indemnity bond. It is further contended that if the present suit cannot be maintained by reason of any defect in the plaintiff's position as mutwalli, he ought to be allowed to continue the suit as heir of the vendee Abdullah. This Court, in its decision of the 21st December 1905, held that the sale to Sheikh Abdullah was not a valid sale and that Abdullah was not a bona fide purchaser under that sale. The Muhammadan Law on the subject of waqf, which it is necessary to refer to in this case, will be found at page 134 of Ameer Ali's Muhammadan Law Volume I: "The subject-matter of the dedication must be the property of the waqif at the time the waqf is made, that is, he mast be in a position to exercise dominion over it. Consequently, if a waqf is made by a person of Some property of which he is in unlawful possession, but which he subsequently purchases from the rightful owner, such waqf is invalid. So also, when a man makes a waqf for certain good purposes of land belonging to another, and then becomes the proprietor of it, the waqf is not lawful but it would become validly dedicated if ratified by the proprietor. Accordingly, when a person purports to make a waqf of property which does not belong to him and such waqf is subsequently ratified by the true owner, the dedication is valid." Here it will be seen that Abdullah made a dedication of certain property of which he was not the true owner. There has been no ratification of the waqf by the true owner and I am not satisfied that according, to the Muhammadan Law, as set out above the so-called waqf, so far as the particular village Lasra was concerned, was valid. I agree, therefore, with the lower Curt in dismissing the plaintiff's suit on that ground. I do not consider it necessary to go into the second ground as to what was the exact intention of Abdullah in regard to his rights under the indemnity bond at the time he executed the waqfnamah. As to the plea advanced on behalf of the appellant that he should be permitted to continue the suit in his capacity as heir of the deceased Abdullah, I do not think that the request is one which, should be acceded to at this stage of the case. It is not pretended that the plaintiff is the one and only heir of Abdullah and I am not prepared at this stage of the case to allow the plaintiff to continue the suit in an entirely different capacity. In my opinion, the suit was rightly dismissed by the Court below and I dismiss this appeal with costs including fees on the higher scale.
Chamier, J.
2. I agree that the appeal should be dismissed but I should prefer to rest the dismissal of the appeal on the ground that even if the waqf was valid, the plaintiff has no right to sue on the deed of indemnity as mutwalli of the waqf. The right to sue on that deed does not appear to have been transferred to the mutwalli for the time being. Under the waqfnamah, Abdullah abandoned his title to Mouza Lasra, but did not mention, or in any way refer to the deed of indemnity. The right to sue on that deed is not appurtenant to the interest of Abdullah in Mouza Lasra and did not pass to the mutwalli for the time being under Section 8 of the Transfer of Property Act or under any other provision of which 1 am aware. If it was intended that the mutwalli for the time being should have the right to sue on the deed of indemnity, I can only say that, in my opinion, no such intention has been expressed in the waqfnamah. I agree that the plaintiff should not, at this stage, be allowed to convert the suit by him as mutwalli into a suit by him as one of the heirs of Abdullah.
3. The appeal is dismissed with costs including fees on the higher scale so far as defendants Nos. 1 to 5 are concerned.