BISMILLAH BEGAM Vs. TAHSIN ALI KHAN

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for declaration that the property in suit is endowed property and is not liable to be attached and sold in execution of decrees held by the defendants. The plaintiff relies on a wakfnama executed by himself on 16 July 1924. The wakf is in favour of his descendants and he has constituted himself the mutawalli of the property for his lifetime. The defendants challenged the validity of this dedication and pleaded that the deed had been executed fraudulently with the intention of defeating and delaying his creditors and was not binding on the defendants. Objections had been raised by the plaintiff Tahsin Ali Khan in the execution department which were decided against him; hence this suit.

(2.) The learned Subordinate Judge in a very short judgment has found the validity of the wakfnama in favour of the plaintiff. He has based his conclusion entirely on the oral evidence and has altogether ignored the documentary evidence that is on the record. We were not satisfied with his finding that at the time when Tahsin Ali Khan executed the wakfnama his assets were more than sufficient to discharge all the liabilities. We accordingly remitted two issues the findings on which have now been returned. There is considerable history previous to the present litigation which the learned Subordinate Judge has altogether omitted to consider but which in order to have a good perspective it is necessary to bear in mind. The pedigree to the family is as follows: (For pedigree see p. 463.)

(3.) The plaintiff's father Maskoor Ali Khan died on 8 January 1904 leaving three sons and three daughters. Tahsin Ali Khan appears to have been the eldest son. On 14 March 1904 an agreement was executed by the three brothers jointly under which the management of the entire estate which was considerable was left with Tahsin Ali, and his two brothers were allowed Rs. 3,650 between them and were admittedly deprived of their power to transfer the property. This was followed by a lease for 60 years granted by the two brothers to Tahsin Ali on 15th January 1909. The position of Tahsin Ali, however, did not become absolutely secure. In 1912 his two brothers filed a suit for the cancellation of the lease and their suit was decreed on 28 January 1914. The judgment is printed on p. 17. The finding was that the two brothers were subject to attacks of epilepsy long before the execution of the disputed thekanama which fact was admitted by Tahsin Ali himself, and that their mental capacity had been considerably affected by illness. Although their share of the profits amounted to Rs. 20,000 a year they were only given Rs. 3,650. Not only was the lease to last for 60 years but it gave an unlimited power to Tahsin Ali to deduct a further sum for costs as he liked and to prevent an alienation by his brother. The Court found that the brothers were entirely under the control of the defendant who had dominated their will and procured an unconscionable bargain. The lease was accordingly set aside.