ANJUMAN ISLAMIA Vs. LATAFAT ALI

JUDGEMENT

(1.) I have read the judgment of brother Desai and agree that this appeal should be allowed.

(2.) The lower Court was of the opinion that Wilait Ali had executed the waqfnama dated 21st January 1917, of the six shops with the object of defeating the claim of Mahmoodi Begum. Mahmoodi Begum filed her suit No. 192 of 1920, on 1st November 1920, and it is very unlikely that Wilait Ali would have made this waqf in 1917 with the object of defeating Mahmoodi Begum's claim. Further, there is no reason why Wilait Ali should have made a waqf of only six shops with the object of defeating Mahmoodi Begum's claim when he was possessed of considerable other property. To meet this argument it was stated that Wilait Ali had made a waqf of certain other properties under two waqfnamas of 1918. Those waqfnamas have been held to be valid and no one has challenged the validity thereof. There is no satisfactory evidence to prove that the waqfnama executed in 1917 by Wilait Ali was not intended to take effect. We are satisfied on the materials on the record that Wilait Ali had intended to make a waqf of the six shops and the waqf being, in other ways, valid has to be enforced.

(3.) The question whether the waqf was acted upon or not cannot affect the validity of the waqf. If the waqf was not acted upon it is a circumstance from which it can be deduced that the wakif had no real intention of making a waqf of his property. Apart from the oral evidence that the waqfnama had been acted upon, we have the leases executed of the six shops by various tenants soon after the waqf and the fact that accounts had been furnished, for three years, by the then mutwalli, of the income and expenses of the waqf in accordance with the provisions of the Mussalman Wakf Act (XLII [42] of 1923).