ZAFRUL HASAN Vs. FARID-UD-DIN

JUDGEMENT

(1.) THIS is an appeal from a decree of the High Court of Judicature at Allahabad, dated November 21, 1935, which set aside a decree of the District Judge of Badaun, dated November 6, 1929, under which the suit of the plaintiff-respondents had been dismissed. No appearance has been made for the respondents in this appeal.

(2.) THE principal question is whether a wakfnama, dated June 28, 1915, is valid and operative. It was executed by Chaudri Salah Uddin, who was original defendant No. 2, and was the father of the present respondents Nos. 1, 2 and 3, who now represent him. Before the Board the validity of the deed was challenged by the appellants on two alternative grounds, viz. that it was a fictitious and colourable deed, never intended to be operative, but made with the intention to avoid payment of debts, or, alternatively, that Chaudri Salah Uddin, who may be conveniently referred to as the settlor, had become a Shia prior to the making of the deed, and was not authorised by the Mussalman Wakf Validating Act (VI of 1913) to make such a deed.

(3.) AS regards the indebtedness of the settlor at the time of his execution of the wakfnama, the District Judge relied on (1) mortgage debts amounting to Rs. 26,000, (2) dower debts to his two wives, amounting to Rs. 1,00,000 and Rs. 1,50,000 respectively, and (3) unsecured debts amounting to Rs. 40,000. The High Court held that there was no justification for taking the secured debts into account, as there was no evidence that the security was insufficient and they would not be prejudiced by the execution of the wakfnama, and this finding was accepted by the appellants. The District Judge treated the dower debts as prompt, i. e. already due at the date of the wakfnama, but the High Court held, on the documentary evidence, that they were deferred, and this finding was accepted by the appellants. In 1917 the settlor divorced his second wife, Musammat ASghari Begum, and she thereupon brought a suit for dower, in which she restricted her claim to Rs. 50,000, and stated that the cause of action arose upon the divorce. The suit was compromised for Rs. 5,000, and she did not seek to avoid the wakfnama; on the contrary in April, 1919, she accepted the wakfnama as valid, in an application to the District Judge of Badaun for the appointment of a guardian to her minor children. The first wife, Musammat Tahir-un-nisa, died in 1918, whereupon her parents brought a suit for dower on August 18, 1920; as such parents they claimed half the dower debt, Rs. 50,000, and stated that the cause of action arose on her death. The suit was compromised for Rs. 10,000. It is true that there is an allegation in the plaint that the wakfnama was fictitious, but, not long after, on February 25, 1921, the settlor executed an ibtalnama, or deed of cancellation, purporting to cancel the wakfnama of 1915 on various grounds-strained relations with his two wives, fear of suits for recovery of their dower debts, and of their minds being poisoned against him by his enemies, which led him to execute a fictitious document. There is no mention of any debts other than the dower debts and no mention of creditors other than his two wives, whose dower debts admittedly had not been due at the date of the wakfnama and at the date of the ibtalnama had, in fact, been already compromised for comparatively small sums before the execution of this ibtalnama.