BIBI KUBRA BEGUM Vs. JAINANDAN PRASAD

JUDGEMENT

(1.) This appeal has been brought by two plaintiffs from a judgment and decree of the Subordinate Judge of Monghyr, dated 17-5-1948, dismissing their suit.

(2.) The suit was framed under the provisions of Order 21, Rule 63, Civil P. C. The first plaintiff claims to be the mutwallia, and second, her son, the naib mutwalli, and they sought for a declaration that they are mutwallis of the properties in suit, and have been and are in possession of the same as proprietors, and that the defendant-first-party, who is a creditor of the defendant-second-party, the husband of plaintiff 1, may be restrained from taking any step in respect of these properties, as they are wakf properties dedicated by the defendant-second-party, by issuing an order for permanent injunction against the defendant-first-party.

(3.) The facts are shortly these. One Deokinandan Prasad of Madhopur, since deceased and now represented by his sons and legal representatives as the defendants-first-party, had advanced three sums of money as loan to Nawab Ali Jawad Khan (henceforth called the NawabJ the defendant-second-party, upon three handnotes on three different dates, that is, a sum of Rs. 800/- on 15-3-1935, a sum of Rs. 2,200/- on 9-8-1935, and again a sum of Rs. 2,200/- on 4-9-1935. The loan not having been paid, Deokinandan Prasad brought a suit, being Money Suit No. 26 of 1938, on 10-2-1938, for realisation of the same, and made a total claim of Rs. 6,795/-, inclusive of interest. The Nawab filed his written statement in the suit on 6-6-1938. The suit was decreed 'ex parte' on 17-1-1939, before the decree and within a fortnight of the written statement, the Nawab had executed a deed of wakf, alal-aulad (Ex. 4), on 19-6-1938, and had appointed his wife, plaintiff 1, as the mutwallia and his son, plaintiff 2, as the naib mutwalli. Under this deed, the beneficiaries were members of his family, excluding himself, to the extent of 14 annas, the share allotted for charitable purposes was 1 anna, and 1 anna share was kept for the protection of the properties. The valuation of the wakf properties was Rs. 15,000/-. It appears that, after the execution of this deed, the name of the mutwallia was mutated in register D not only in respect of the properties which were the subject-matter of the wakf but in respect of all other properties belonging to the Nawab as well. Her name thus came to be recorded over all the properties owned by the Nawab.