NESAR ALI Vs. ASHRAF ALI

JUDGEMENT

(1.) On October 27, 1824 one Aminuddin Ahamed, who was a resident of Sealdah executed a deed of Wakf in respect of the property described therein. The said deed was in Persian language. An English translation of the said deed is on record of the present case. He declared by the said deed that incomes arising therefrom after defraying expenses shall be spent in charity of the beggars and remainders and the remaining one-third shall be applied for maintenance of his two wives in the manner indicated therein. After the death of the widows, the income arising from his house shall be applied to the expenses of beggars. The said Wakif further declared that the Tawalist (Trusteeship or Management) shall remain in him during his lifetime and after his death Tawali shall rest upon his two nephews (sister's sons), Hossain Ali and Amjad Ali 'nusland bad nuslan'.

(2.) The principal question in the present second appeal is in what manner the office of Mutwalliship or Tawalist under the above deed is to devolve upon 'descendant after descendant' or 'generation after generation'. The answer to the said question would depend upon the interpretation of the above expression 'nusland bad nuslan' in the aforesaid wakfnama.

(3.) After the death of two nephews, Hossain Ali and Amjad Ali, Fatima Khatun had become the Tawalist. Fatima died leaving three sons, Ashraf Ali, the plaintiff-respondent in this second appeal. Ali Hossain, the father of the defendant-appellant and Akram Ali and two daughters, Nurjahan Begum and Asrannessa Begum. According to both parties, Akram Ali migrated to Pakistan. Nurjahan Begum and Asrannessa Begum did not act as Mutwallis or Tawalists. Ali Hossain brought Title Suit No.65 of 1950/9 of 1946 inter alia for removal of the present plaintiff-respondent from the office of the Mutwalliship. The said suit was originally decreed and the appeal by Ashraf Ali was dismissed by the Lower Appellate Court. This Court allowed the second appeal preferred by Ashraf Ali and remanded the case to the Trial Court. After remand, the Trial Court had again decreed the suit in favour of Ali Hossain declaring him as a joint Mutwalli. The Trial Court ordered that Ashraf Ali be removed from Mutwalliship and also directed him to render accounts from April, 1946. The lower Appellate Court dismissed the title appeal of Ashraf Ali. Thereafter, he filed a second appeal. This Court allowed the said appeal in part. It upheld the decree declaring that Ali Hossain was a joint Mutwalli. But the wakf in question was found to be public one. Therefore, this court set aside the decree for rendition of accounts and for removal of Ashraf Ali from Mutwalliship on the ground that S. 92 of the Code of Civil Procedure stood as a bar. Thereafter, Ali Hossain died. The present defendant-appellant who was an heir of Ali Hossain had applied to the Wakf Commissioner, West Bengal, for mutation of his name in place of Ali Hossain in the Enrolment Register as a Joint Mutwalli with the present plaintiff-respondent. The Wakf Commissioner, West Bengal ordered that the name of the present appellant be recorded as a joint Mutwalli with the plaintiff-respondent, Ashraf Ali.