HUSSEINBHAI CASSIMBHAI Vs. ADVOCATE GENERAL OF BOMBAY

JUDGEMENT

(1.) The plaintiff applies by this Originating Summons for the construction of a deed of partition and particularly for a declaration as to whether a valid wakf has been created by it.

(2.) The deed of partition was executed by the heirs of Hussein-bhai Chimnaji Tamboli on the 29th of June 1899 and by it they divided his estate. The heirs were the widow, the sister and the paternal uncle; and the estate was divided into three parcels, one of which was allotted to each heir. The parcel allotted to the sister Lalbai consisted of two houses, one in Teli Gully and the other in Nagdevi Road. The uncle and widow relinquished all claims to this parcel and Lalbai covenanted that the entire parcel should become her property absolutely from the date of the deed and she further covenanted "to spend one-fourth of the same in charity and for the spiritual benefit of the deceased performing the ceremony of Agiari Maulood and other charities as the deceased used to make, and that she constitutes and declares herself a trustee of the said one-fourth for the said purposes." This is the portion of the deed to which the Originating .Summons relates.

(3.) Now, it seems to me clear that the surrender of the co-heirs in favour of Lalbai and Lalbai s covenant to become owner transferred the entire dominion of this parcel to Lalbai. This surrender and the covenant are equivalent to a gift and acceptance which is a valid transfer as between co-heirs of undivided property : Mahomed Bukuh Khan v. Hosscini Bibi (1888) I.L.R. 15 Cal. 684.