MARIAM BAI Vs. MOHAMED JAFFAR ABDUL RAHIMAN SAIT

JUDGEMENT

(1.) THE main question for consideration in this appeal is whether or not a valid wakf has been created under the preliminary and final decrees in the suit for administration of the estate of the deceased S. M. Zacharia Sait O. S. No. 159 of 1951, on the file of the Subordinate Judge's Court, Nilgiris. Zacharia Sait died in may 1950 without issues, leaving his widow Saffura Bai, two brothers S. A. Rahiman Sait and Ismail Sait and his sister Rabia Bai. The suit O. S. 159 of 1951, on the file of the Subordinate Judge's Court, Nilgiris, was filed by S. A. Rahiman sait against the other heirs of his brother Zacharia Sait and some creditors of the estate of Zacharia Sait and it ended in a compromise as evidenced by the preliminary decree Ex. A-5 S. A. Rahiman Sait died on 14-2-1952 subsequent to the preliminary decree on 16-11-1951 and the present defendants 1 to 4 and the fifth plaintiff, who are the sons and daughters of S. A. Rahiman Sait, were impleaded as his legal representatives and as plaintiffs 2 to 6 in that suit. Saffura bai, the widow of Zacharia Sait also died in 1953. On 14-2-1955 there was a final decree in O. S. 159 of 1951, on the file of the Subordinate Judge's Court, Nilgiris as evidenced by Ex. A-1. The decision in the suit depends on the finding on the point for determination whether a valid wakf has been created in respect of the suit properties by virtue of the following clause 6 of the final decree Ex. A-1 which almost is identical in terms; as clause 5 of the preliminary decree Ex. A-5 : "it is further ordered and decreed that the plaintiff and the first defendant to take the following properties free from all encumbrances, for the purpose of constituting a proper and valid trust for establishment of a maternity hospital in the name of the deceased S. M. Zacharia Sait. " the present suit O. S. No. 104 of 1961, on the file of the Subordinate Judge's court. Nilgiris has been filed by the widow, sons and daughter of Ismail Sait and one Hava Bai one of the daughters of S. A. Rahiman Sait against the other daughter and sons of S. A. Rahiman Sait and Rabia Bai, the sister of Zacharia Sait, for partition of the suit properties on the ground that there was no valid wakf. One abdul Kareem, an agent of Zacharia Sait, was impleaded as the sixth defendant in the suit on the ground that he managed the estate of Zacharia Sait. The State wakf Board, Madras, was impleaded as the 8th defendant in the suit. The suit was contested mainly by the State Wakf Board Madras, and the first defendant Abdul rahiman Sait, son of S. A. Rahiman Sait. The learned Subordinate Judge found that a valid wakf was created by the decree in the prior suit for administration and held that the present suit was not maintainable for the said and other reasons and dismissed the same. Aggrieved with this decision, the fourth plaintiff Mariam Bai alone has preferred this appeal impleading the other parties to the suit as respondents.

(2.) IN paragraph 6 of the plaint it is stated that the suit properties were taken by the two brothers, S. A. Rahiman Sait and Ismail Sait on account of their share in order to enable them to create the intended trust on a future date and that there was no immediate dedication of the said property by the two brothers to charity. But in paragraph 5 of the written statement of the contesting first defendant, which has been adopted by the State Wakf Board, it is specifically pleaded that the suit properties were given to the two brothers S. A. Rahiman Sait and Ismail Sait for the purpose of constituting a trust for the maternity benefit in memory of the late Zacharia Sait and the plaint allegation that the said properties came out of the share of the two brothers has been denied. In fact, the 7th defendant Rabia Bai, the sister of Zacharia Sait has pleaded that, by virtue of the compromise decree a valid trust was created and that if for any reason the Court finds that there was no valid dedication of the suit properties for a charitable purpose she is also entitled to a share in the suit properties. It is true each of the two brothers. S. A. Rahiman sait and Ismail Sait took immovable properties worth Rs. 1,40,000, for their respective 6/20th share in the estate of Zacharia Sait. whereas the widow and sister of Zacharia Sait took immovable properties of the value of Rs. 2,00,000 and rs. 1,20,000 for their 5/20 and 3/20 shares in the estate of Zacharia Sait. If the immovable properties of the estate of Zacharia Sait were worth Rs. 8 lakhs as would appear from the shares given to the widow and sister of Zacharia Sait, each of the two brothers S. A. Rahiman Sait and Ismail Sait should have got immovable properties of the value of Rs. 2,40,000. But it is not clear how the properties worth rs. 1 lakh alone was set apart for the wakf in the administration suit as there should be a residue of properties worth Rs. 2 lakhs, if each of the two brothers, S. A. Rahiman Sait and Ismail Sait took properties worth Rs. 1,40,000 and left a balance of Rs. 1 lakh. Though the fact each of the two brothers S. A. Rahiman Sait and Ismail Sait took only immovable properties of the value of Rupees 1,40,000 in the estate of their brother Zacharia Sait might lend some support to the claim of the plaintiffs in the present suit that the suit properties were set apart for a trust from out of the properties to which the two brothers S. A. Rahiman Sait and Ismail sait were entitled it is not possible to make any such inference from the terms of the compromise decree. It is not stated in the compromise decree that the suit properties were set apart for the wakf from out of the shares of the two brothers s. A. Rahiman Sait and Ismail Sait. Further, it is clear from the compromise decree that apart from the immovable properties allotted to the brothers there was an arrangement under which Ismail Sait had to collect the outstanding due to the estate of his brother Zacharia Sait and also discharge certain liabilities and pay some amount to his brother S. A. Rahiman Sait. The first defendant has pleaded in paragraph 6 of his written statement that the deceased Zacharia was very anxious to constitute a maternity charity and this was known to all the members of the family and the friends and legal advisers of Zacharia Sait and that it was in deference to such wishes that the maternity benefit charity was undertaken by the plaintiffs and the first defendant in O. S. 159 of 1951, on the file of the subordinate Judge's Court, Nilgiris, and consented to by the other heirs of zacharia Sait.

(3.) D. W. 1 Mohamed Jaffer Abdul Rahim Sait is the first defendant in the suit and he is the son of S. A. Rahiman Sait. He deposed that his father, who filed the suit for administration. told him and others that he wanted to create a trust in the name of his deceased brother Zacharia Sait who wanted to create a trust and in fact had created some trusts, that all the heirs of Zacharia Sait knew this and hence they agreed to the compromise which led to the preliminary decree and the final decree in the administration suit. P. W. 1 Razack Sait is the son-in-law of ismail Sait. He claims to have been present at the time of the compromise talks in the prior suit. According to him S. A. Rahiman Sait gave out that he did not want the trust that Ismail Sait pressed him to agree and that in order to please him, S. A. Rahiman Sait agreed to the compromise. P. W. 2 Abdul Sathar Sait is the son of p. W. 1 and he also stated that no trust was created in accordance with the compromise in the prior suit. P. W. 1 was not a party to the compromise in the prior suit and P. W. 2 was only a lad of fifteen years at that time and their evidence has been rightly rejected by the learned Subordinate Judge. It is clear from the evidence of D. W. 2 Kalyanarama Iyer, the legal adviser of S. A. Rahiman Sait, that the compromise was brought about in pursuance of the agreement between the parties that certain properties should allotted to charity. When the evidence of p. W. 1 that S. A. Rahiman never wanted to create a trust, was put to him, he categorically stated that nothing could be farther from truth. Thus the setting apart of the suit properties for charitable trust in the prior administration suit was made in pursuance of an agreement between all the parties to that suit and it formed the basis of the compromise decree.