SK ABDUL MANNAN Vs. MUTWALI OF SM JANEBALI

JUDGEMENT

(1.) On 29-1-1946, the plaintiff respondent brought the present suit for declaration of her title to the suit properties as Mutwalli of the Waqf, to which the said properties were admittedly dedicated. The two deeds of Wakf covering the disputed properties were not challenged by either party to the suit but the controversy centred round the plaintiffs's claim to the Mutwalliship. This claim was resisted on two grounds, namely, (1) that under the relevant deeds of Wakf (Exs. C and C(1)) the plaintiff could not claim the Mutwalliship and (2) that the plaintiff's title, if any, to the said Mutwalliship had become' extinguished by reason of a transfer (vide Ex. E dated 6-10-1942) made by her in favour of the defendant 1's predecessor Behatar Mondal. Both the defences were negatived by the court below. Hence this appeal by the contesting defendants Nos. 1 to 5 and 8.

(2.) There is no dispute that the suit properties (along with other properties) originally belonged to one Ematulla from whom they devolved on his daughter's son Dianat Mondal and, eventually, upon the Matter's death some time in 1275 B. S., they devolved upon his (Dianat's) two daughters Hiraman and Jiraman by right of inheritance. In Sravan 1296 B.S. Hiraman and Jiraman executed two deeds of Wakf in respect of the suit properties, Hiraman's deed, which is Ex. C(1) in the present case, being dated Sravan 10, 1296 B.S. corresponding to 31-7-1889, and Jiraman's deed (Ex. C) being dated Sravan 15,1293 B.s. corresponding to 30-7-1889. The construction of these two documents is one of the points in dispute in the present appeal. As to the alleged deed of transfer (Ex. E), the plaintiff contends that it is invalid and not binding upon her. There was another deed (Ex. B) executed by Hiraman's daughter Khelaman in favour of the plaintiff Janebali purporting to transfer the Mutawalliship to her but it is not of much importance in the present case and the plaintiff respondent, although she relied upon it in the court below, did not at all refer to it in this Court.

(3.) It will be convenient at this stage to set out the relevant provisions in the two deeds of Wakf (Exts. C and C(1)) laying down rules of succession to the Mutwalliship. These are to be found in Para 5 which in Hiraman's deed (Ext. CD runs thus :-- ..(VERUNACULAR MATTER OMMITED)..