JUDGMENT 1. This is an appeal against a decision of the District Judge of Patna, dated the 8th June 1903. The suit out of which the appeal arises one brought by the Plaintiff, Amir Ali, to be declared mutwalli of a certain property. 2. The learned District Judge has set forth the facts of the case very fully in his judgment. At the commencement thereof he says:--"In and about the year 1849 Wahid Ali set apart three properties by three separate assignments as wakf for the maintenance of a certain mosque. On 3rd March 1864, after Wahid Ali's death, his heirs divided his remaining property among them by an ekrarnamah to which Sangi Jam was a party. The wakf properties were excluded from partition, and it was declared among the parties that no female should have the management of them." Then, in the second paragraph of his judgment, he says:--Out of the three sets of wakf property one was vested in the Plaintiff, one in the three then major brothers, Syed Ali, Plaintiff and Feda Ali, and one, the property at present in dispute, was vested in Syed Ali as mutwalli. 3. Now it is the last-mentioned property, namely, the property which was vested in Syed Ali, to which the suit relates. The suit has no reference to any other property. 4. The Plaintiff brought the suit be recover possession of the disputed property vested in Syed Ali as mutwalli against Moulvi Wazir Hyder, the son in-law of Musst. Sangi Jan, the daughter of Wahid Ali, and who is alleged to have been appointed mutwalli of the share of the property in question by Syed Ali shortly before his death. The Plaintiff claims to be the rightful mutwalli, and maintains that Wazir Hyder has not been validly appointed. 5. The learned District Judge has dismissed the suit firstly, because he finds that sec. 539 of the CPC applies to the case; and, secondly, because he finds that Wazir Hyder was validly appointed mutwalli of the property in dispute by Syed Ali shortly before his death. 6. The Plaintiff now appeals to this Court; and on his behalf three contentions have been raised before us, namely, firstly, that sec. 539 of the CPC applies to the case; and, secondly, because he finds that Wazir Hyder was validly appointed mutwalli of the property in dispute by Syed Ali shortly before his death. 6. The Plaintiff now appeals to this Court; and on his behalf three contentions have been raised before us, namely, firstly, that sec. 539 of the CPC does not apply; secondly, that, on a proper construction of the deeds in the case the Plaintiff is the mutwalli, and, thirdly, that the Defendant, according to Mahomedan law, cannot be the mutwalli as he was not validly appointed, and, even if he was validly appointed, the Plaintiff's claim is to be preferred. 7. It is unnecessary for us to discuss the first and second of these grounds of appeal, because we think that on the third ground the appeal must fail. It appears to us that it has been found, as a matter of fact, that Wazir Hyder was validly appointed mutwalli by Syed Ali shortly before his death, and that he has been in possession ever since. The learned pleader for the Plaintiff-Appellant contends that, Wazir Hyder could not have been validly appointed mutwalli, because Syed Ali, when he appointed him, was not suffering from a death-bed illness. It is to be noted that there seem to have been two appointments made by Syed Ali before his death. The first of these was made about a year and-a-half before he died, when he was, no doubt, suffering from epileptic fits (which, however, were not frequent) but when he was in fairly good health. This is not the appointment upon which the learned District Judge relies. He relies upon the second appointment, made by Syed Ali six weeks before his death, and effected by a letter addressed to Mohamed Kareem, his mukhtear and dated 4th July 1898. Now this letter has been laid before us; and, in our opinion, it fully justifies the conclusion arrived at by the District Judge. He relies upon the second appointment, made by Syed Ali six weeks before his death, and effected by a letter addressed to Mohamed Kareem, his mukhtear and dated 4th July 1898. Now this letter has been laid before us; and, in our opinion, it fully justifies the conclusion arrived at by the District Judge. In this letter Syed Ali says :--"The fatal desease, epilepsy, that at first used to attack me at intervals of 2 or 3 months, and then of one or one and-a-quarter months, and again of one or two weeks is now attacking me at intervals of one or two days, while my weakness and infirmity have increased to such an extent as to render standing and sitting even difficult for me. In short I think my end is near now." Now this shows that Syed Ali, when he wrote the letter, was in apprehension of approaching death; and, as a matter of fact, he died in six weeks. The District Judge was, therefore, clearly justified in concluding that when the letter was written, Syed Ali was suffering from a death-bed illness. Then it is also clear from this letter that he intended to appoint Wazir Hyder his successor as mutwalli. It will be observed that he speaks of the previous appointment of Wazir Hyder as mutwalli. He says:--" It is well-known to you that since a long time I have made over the entire control and management of the Musjid and Katra of Abdul Momin alias Bagh Hadrom to Moulvi Syed Wazir Hyder and his wife." This of course refers to the appointment made about 11/2 years previously. He then goes on to say. For these reasons I have made Moulvi Wazir Hyder my sole trustee and successor. It was my desire to execute a deed of wakf in the name of said Moulvi Wazir Hyder, but it appears to be quite useless, for he is already discharging the duties of trustee from a long time. So we think that Syed Ali meant by this letter to reappoint Wazir Hyder his sole trustee and executor. 9. It was my desire to execute a deed of wakf in the name of said Moulvi Wazir Hyder, but it appears to be quite useless, for he is already discharging the duties of trustee from a long time. So we think that Syed Ali meant by this letter to reappoint Wazir Hyder his sole trustee and executor. 9. The pleader for the Plaintiff-Appellant, however, contends that Syed Ali had no right, even on his death-bed, to appoint Wazir Hyder as his successor, because he did not come under the term "Ahl-i-bait," that is to say, a member of the family of the deceased founder of the wakf; and he cites a passage from Baillies' "Digest of Mahomedan Law" in which, on the authority of a work called " Asul," it is said " that the Judge cannot appoint a stranger to the office of mutwalli so long as there are any of the house of the appropriator fit for the office." That may be quite correct, if the appointment is to be made by the Judge. The passage does not lay down that when a mutwalli appoints a successor he has only the same powers as a Judge and we cannot find that there is any passage which in any way prohibits a dying mutwalli from appointing one who is, so to speak, a stranger, to the office of mutwalli. On the contrary, we find it laid down in the next paragraph that a Superintendent may at death commit his office to another in the same way as the executor may commit his to another." Then it goes on to say, " A Superintendent when alive and in good health cannot lawfully appoint another to act for him, unless the appointment of himself were in the nature of a general trust." In this case Syed Ali, who appointed Wazir Hyder, was not in good have and, in fact, it was found by the District Judge that he was suffering from death-bed illness and was near his end. In these circumstances, we think, that the finding of the District Judge as to the appointment of Wazir Hyder being valid has not been arrived at in an incorrect manner. 10. In these circumstances, we think, that the finding of the District Judge as to the appointment of Wazir Hyder being valid has not been arrived at in an incorrect manner. 10. The learned pleader for the Appellant contends, however, that the District Judge has not entered into the question of the claim of the Plaintiff to be appointed mutwalli, But we do not think it necessary to consider this plea, seeing that there has been a valid and express appointment by Syed Ali of the Defendant as his successor. For these reasons we dismiss this appeal with costs.