RASHIDUNNISSA Vs. ATA RASOOL

JUDGEMENT

(1.) This is a plaintiffs' appeal that arises out of a suit for a declaration and accounts. Sheikh Amanat Rasul created a waqf as permitted by the Muslim Waqf Validating Act (Act no. VI of 1913), on the 25th of February 1931. By the waqf deed of that date he dedicated the property in suit in perpetuity and the waqf was described by him as "waqf alal nafs khud wa alal ayal wa aulad Khud" (waqf for my own self, for my ayal and for my aulad). He appointed himself as the first mutwalli but reserved to himself the right of spending the income of the dedicated property, after making certain payments to specified charities in any way, he liked for his own support and maintenance and that of his descendants. He provided that after him, his son Ata Rasul would become the mutwaili and then laid down a line of succession for subsequent mutwallis. He further reserved to himself the right to make additions and subtractions to the conditions of the waqf in his own life time, and provided that if the line of the persons who were to benefit from the waqf at any time becomes extinct the dedicated property would vest in the Government and its income would be spent for public good and for the maintenance of his relations. By a subsequent deed dated the 12th of March 1932, he amended condition no. 6 of the original waqf in a certain manner. He subsequently died leaving Ata Rasul the defendant as his son, a daughter Smt. Sughra Begam by his first wife, two daughters Smt. Aisha Begam and Smt. Rabiya Khatun from his second wife and Smt. Rashid-un-nisa, his second wife. His first wife had died in his life time. Ata Rasul his son succeeded him as the rnutwalli of the dedicated property on his death. His wife Smt. Rashid-un-nisa and his daughter by her Smt. Aisha Begam then filed the suit out of which this appeal has arisen claiming a declaration that they were entitled to their shares out of the profits of the dedicated property which amounted to 12 sahams out of 40 sahams. They also claimed that the defendant mutwaili be ordered to render accounts of the profits of the waqf property. They valued their claim tentatively at Rs. 200 and Said that a decree may be awarded to them in respect of whatever may be found to be actually due to them after the rendition of accounts.

(2.) The defendant contested the suit. He admitted that his father Amanat Rasool had executed a deed of waqf on the 25th February 1931, but said that in that deed he had reserved his right during his own life time to change the conditions of the waqf. By the supplementary deed of 12th March 1932, he had changed the conditions. On account of that change the defendant became entitled after paying the Government revenue and spending specified amounts for charitable purposes, to retain the entire income of the dedicated property and was not bound either to render accounts to any one else or to pay to any one else any portion of the income. He further pleaded that the plaintiff No. 1 Smt. Rashid-un-nisa was in any case not entitled to sue as she was not one of the persons who were entitled to any benefits out of the income of the dedicated property. He questioned the plaintiffs' right to claim accounts and said that by separate deeds Amanant Rasul had made provisions for all his children and his wife.

(3.) In the plaint the plaintiffs had made a passing reference to the amending deed of 1932 and had pleaded that the amendment was invalid and contrary to Mohammedan Law and could not affect the rights of the plaintiffs as beneficiaries of the waqf. When, however, they found that in his written statement the defendant had based his case principally on that document they filed an application in which they said that Amanant Rasul had never executed the supplementary deed validly. Some interested persons had obtained that deed by practising fraud on him and representing wrong facts to him. He had not understood whether the nature of the waqf deed would be altered or not, nor had he understood what the effect of the amendment would be on the original waqf deed. They also said that the amendment amounted to an alteration of the objects of the waqf and the extinction of the rights of the beneficiaries for which there was no authority under the law or under the waqf deed. The amendment was therefore unenforceable and was void on account of vagueness and uncertainty.