ISMAIL HAJI ARAT Vs. UMAR ABDULLA

JUDGEMENT

(1.) THE plaintiffs are the present trustees under the will of one Hajee Jusab Haji Suleman who died at Bombay on March 7, 1926, having previous to his death made his last will and testament dated December 14, 1922. By his will the deceased inter alia directed his executors to divide all his moveable and immoveable properties in three equal parts and to set apart one of such one-third part and invest the same in the purchase of some immoveable property or properties in Bombay and settle by way of wakf for the following objects, viz, A. To pay one-fifth of the net income thereof (after deducting out of the entire income all rates and taxes dues and duties, expenses for ordinary repairs, amount to be set apart by way of reserve fund, and all other necessary charges and expenses) to his nephew Hoosein Noor Mahomed and after his death divide the same among his heirs in proportion to their shares according to Mahomedan law and on the death of each of such heirs to divide the amount of the share of such heir among, his heirs according to their respective shares and so on from generation to generation and in the event of there being no heirs of the said Hoosein Noor Mahomed or of any other heir of any generation the whole of the said one-fifth portion of the income or the amount of the share of any of the subsequent heirs dying heirless as the case may be, to utilise for the; charitable objects mentioned in clause (b) thereof. B. To spend the balance namely four-fifths of the net income of the said one-third part of his estate for rendering assistance to the poor syed and other deserving persons at Madinai Shariff, to the poor and deserving Mahomedans at Ajmer Shariff, to the widows and orphans of the Khatri Mahomedan community, preferably those among his relatives, for the education of Khatri Mahomedans and for such other virtuous and charitable purposes as his! executors or the trustees for the time being appointed for the purpose of carrying out the trust of wakf might think expedient and proper.

(2.) THE trustees in accordance with the directions of the will paid one-fifth of the net income of the one-third part of the trust properties to Hoosein Noor Mahomed, the sister's son of the deceased, till his death on February 13, 1941. Umar Abdulla, defendant No.1, is the paternal uncle's son of Hoosein Noor Mahomed, and he now claims to be the sole heir of Hoosein Noor Mahomed and also claims to be entitled to the one-fifth of the net income of the trust properties which was being paid by the trustees to Hoosein Noor Mahomed.

(3.) IN order, therefore, that a beneficiary under the wakf can claim the protection under this Act, he must establish that he falls in one of the three categories mentioned in the Act, viz., (1) the family of the settlor, or (2) the children of the settlor, or (3) the descendants of the settlor. It is clear that Hoosein Noor Mahomed cannot fall in either the second or the third category and, therefore, the question that arises is whether he can be considered to be a member of the family of the settlor.