F A SHIHAN Vs. ABDUL ALIM ABED

JUDGEMENT

(1.) In 1876 Shaikh Jummon Mistry, by a registered deed or towliatnama, made wakf of certain properties specified in the schedule thereto and laid down the rules and objects of the wakf. He stated that he had built a mosque on certain land and he dedicated other land for the purpose of a public burial ground. The main object of the wakf was the maintenance and. preservation of the mosque and burial ground and the income to arise from the dedicated properties was estimated at Rs. 1,360 per annum. The deed contains provisions for an annual expenditure upon certain specified objects-directly charitable of a sum of Rs. 285 apart from the allowance given to the mutwallis of the wakf. By the deed Jummon Mistry appointed himself and his second wife, Sm. Sundan Bibi, to be the first mutwallis and an allowance was provided for himself of Rs. 30 per month and for his wife of Rs. 40 per month. The deed further provided that after Jummon's death his son Umar Ali was not to be mutwalli but was to get monthly allowance of Rs. 30 per month for lifetime from the wakf property. It seems that Sm. Sundan Bibi was much younger than her husband and the deed contained elaborate provisions with respect to the office of mutwalli to take effect in the event of Jummon Mistry's predeceasing Sundan Bibi. No provision was made for the event of Jummon Mistry surviving his wife save that it was declared as regards Umai Ali, the son: He is not fit to be mutwalli of the properties hereby made wakf of during my lifetime or after my death, and he shall not be so, and I will not make him so, nor shall any Court make him so.

(2.) In or about 1879 Sundan Bibi died and in 1880 Jnmmon Mistry executed a second deed or towliatnama. By this be purported to annul and set aside those provisions of the deed of 1876 contained in paras. 5 to 11 thereof. In effect however by the terms of this deed, he dedicated the properties mentioned in the previous deed upon the same terms as before, save that he now declared that upon his death his son, Umar Ali, was to be mutwalli and to receive a salary of Rs. 60 per month. He provided also, as to Umar Ali that when he will be unable to carry on the work, he will, aooordiag to his discretion, appoint a trustworthy, pious and wise person as mutwalli.

(3.) Jummon Mistry died in 1884. In 1908 Umar Ali, the son, by a registered deed purported himself to dedicate the same properties all over again - one property had been sold and substituted by another, but this fact may be disregarded. Two new properties were however brought in by Umar Ali - those marked Una and Chha in the schedule - the one being the family dwelling house and the other a piece of laud upon which a building was in course of erection. By this deed Umar Ali purported to make the two properties "part of the wakf estate dedicated by my father." He provided that after his death his sister Aberjan Bibi and his nephew's son Samiruddin were to be mutwallis. He further provided that on the death of either of these two, his daughter's son Abdul Alim Abed (the plaintiff in the present case) would be appointed mutwalli in his or her place. The deed further proceeded to declare that the mutwallis were after his death to make various substantial payments. Thus, they were to spend Rs. 500 every year on charities and distribute Rs. 500 annually to the poor on the occasion of Bakr-Id. On Umar Ali's death they were directed to give feasts at an expenditure of Rs. 1,000 and to spend Rs. 250 every year in giving feasts to the poor in his and his father's name. Not content with this, Umar Ali went on to provide that certain family expenses of his own were to be paid by the wakf, that certain family and ceremonial presents were to be given to relatives and that various allowances were to be given to various relations. In 1911 Umar Ali died leaving as his heirs his sister Aberjan Bibi and, one Karim Bux, a grandson of Jummon Mistry's brother.