MOHAMMAD ABU ZAFAR MOHAMMAD IBRAHIM Vs. ISRAR AHMAD

JUDGEMENT

(1.) THIS case has come before me for opinion on a difference between brethren S. N. Dwivedi and Hari Swarup on a question of law. The ques tion referred for opinion is:- "Whether a person who is a bhumi dhar of land under the U. P. Zamindari Abolition and Land Reforms Act can make a valid waqf of his bhumidhari rights in the land?" This question has arisen in a second ap peal which arises out of a suit filed by the plaintiff respondent for the cancella tion of a waqf deed dated February 20. 1955, executed by his father, Mohd. Asad-ullah.

(2.) THE waqf deed relates to a 1/4th share in the Bhumidhari land which con stituted an intermediary's grove before the abolition of the zamindari. The ad mitted facts of the case are that the mother of the plaintiff respondent was the pro prietor of the aforesaid land. She died before the date of vesting and her 1/4th share in the proprietary right was inherit ed by her husband. Mohd. Asadullah and the plaintiff respondent inherited 3/4th share of hers. On the passing of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the U. P. Z. A. and L. R. Act) the plaintiff respon dent and his father Mohd. Asadullah be came Bhumidhars of the land in dispute by virtue of Section 18 of the U. P. Z. A. and L. R. Act. The father of the plain tiff respondent executed a waqf deed im pugned in the suit on February 20. 1955 for the maintenance of a mosque and ap pointed the defendant appellant as Mut- walli of the waqf. Mohd. Asadullah. Father of the plaintiff respondent died on 8th of September 1955 and on his death the suit giving rise to the second appeal was instituted.

(3.) THE trial court as well as the first appellate court found against the plaintiff respondent on the question of fraud and undue influence. The trial court was of the opinion that the waqf of an undivided share in the property cap able of division for the maintenance of a mosque was not invalid. The lower ap pellate court, however, took a contrary-view on this question and decreed the suit of the plaintiff respondent. A second ap peal was filed against the decision of the lower appellate court decreeing the plain tiff respondent's suit.