BELI RAM AND BROTHERS Vs. CHAUDRI MOHAMMAD AFZAL

JUDGEMENT

(1.) THIS is an appeal from a judgment and decree of the High Court of Judicature at Lahore dated January 29, 1945, which reversed a judgment and decree of the Court of the Senior Subordinate Judge, Lahore, dated January 81, 1942.

(2.) THE question in the appeal relates to the validity of a deed of wakf, or wakfnama, executed on October 29, 1917, by Ghulam Rasul. THE respondents 1-4, the plaintiffs in the suit out of which this appeal arises, are descendants of the wakif and claim a declaration that the wakf is valid and that alienations of the wakf property made by the wakif, and after his death by his sons, are null and void. THE appellants, defendants in the suit, claim under such alienations or some of them. THE questions which arise for decision are: 1. Whether the present suit is barred by res judicata under Section 11 of the Code of Civil Procedure, 1908? 2.If not, whether the deed of wakf of October 29, 1917, was an effective dedication of the property comprised therein as wakf, or was a mere paper transaction never intended to be acted upon? 3.If the deed of wakf was intended to be an effective dedication to wakf, whether on its true construction it is bad in law? 4.Whether the suit is barred by limitation ?

(3.) GHULAM Rasul was a Sunni Mohammadan of the Hanafi Sect and was possessed of considerable property. On October 29, 1917, he executed not only the said wakfnama, but also a will. The will disposed of part of his property described as part "a" and recited that the other part of his property described as "b" had been made wakf by a deed executed on the same day. The relevant passages of the deed of wakf are as follows : The preamble stated: I have to-day executed a Will with a view to the distribution of part 'a' of my property valued at Rs. 3,37,448 among my two sons and one daughter according to their shares under the Mohammedan law after my death. It is my desire that I should create a Wakf AI-an-Nafs Ta Hayat Wa Al-al-Aulad Wal Aval in respect of part 'b' of my property as I have mentioned in the said Will, so that the income from the said property may provide for my own maintenance, for the upbringing, education, both religious and secular, and instruction of my descendants and their descendants from generation to generation and their heirs, for charity and for the help of orphans, the poor and widows and that the property may also subsist, whereby the name of my family may be preserved. Accordingly, I fulfil my aforesaid desire to-day. After resigning myself to the mercy and indulgence of the God Almighty and trusting in Providence, I think it proper to state, in the first instance, that I am a follower of the Hanafi sect and abide by all its tenets. Hence, in accordance with the tenets of the Mahommedan Law and under Section 3 of the Act 6 of 1913,1, while in the enjoyment of my senses, without any coercion or compulsion on the part of anyone else and of my own accord and free-will, declare part 'b' of my property valued at Rs. 5,63,814, full details whereof are given hereinafter, which is my self-acquired property, and which is owned solely by me without the partnership of any one else, and which is free from all kinds of encumbrances and liabilities, as Wakf Al-an-Nafs Ta Hayat Al-al-Aulad Wal Ayal and with effect from to-day I have divested myself of the proprietary possession of the property, made Wakf, and taken over the management thereof in the capacity of a Mutwalli.