LAWS(PVC)-1940-4-96

MAHAMMAD ALI Vs. DINESH CHANDRA ROY CHOUDHURY

Decided On April 22, 1940
MAHAMMAD ALI Appellant
V/S
DINESH CHANDRA ROY CHOUDHURY Respondents

JUDGEMENT

(1.) This appeal arises out of an application made by the Official Receiver of 24. Perganas under Section 53, Provincial Insolvency Act, for the setting aside of a transfer made by Altaf Ali, an insolvent, on the ground that it was a voluntary transfer made without consideration and not in good faith. The deed of transfer purports to be a wakfnama executed by Altaf Ali on 27 August 1934, just one day before he applied for insolvency. The deed is Ex. E. For a proper appreciation of the different points urged, it will be necessary to state the following facts. The property transferred together with other property belonged to Nawab Bahadur Nawab Ali Chaudhuri. In 1911 Nawab Bahadur Nawab Ali Choudhuri settled all his property under the Bengal Settled Estates Act (Act 3 of 1904) by which he became the first life tenant, Altaf Ali the second life tenant, and Mahammad Ali, Altaf Ali's eldest son, the third life tenant. In 1927 the Nawab wanted to revoke this settlement and to make a wakf of this property, and on 24 September 1927 he applied under Section 24 of the aforesaid Act for a revocation of the settlement. Altaf Ali opposed this application. Sir Provash Chandra Mitter, a friend of the family, intervened and the dispute between father and son was settled on certain terms. These terms were recorded in a document which is dated 20 October 1928, and which is described in the heading thus: Memorandum of points of settlement arrived at between the Hon ble Nawab Bahadur Saiyid Nawab Ali Ohaudhuri Khan Bahadur, C.I.E. and Nawabzada Saiyid Altaf Ali, in connexion with the application of the Nawab Bahadur to the Government of Bengal for permission for revocation of the settlement of certain properties of his settled estates and of other differences and disputes between the parties.

(2.) The document is referred to in the learned Judge's judgment as Ex. E. On 29 October 1928 a joint petition was filed by father and son by which both parties stated that they had come to terms and that they desired that the settlement under the Bengal Estates Settlement Act should be cancelled. They made the memorandum. Ex. E, a part of this petition. It will now be necessary to say something about the terms of compromise between Nawab Bahadur Nawab Ali Ohaudhuri and his son which were recorded in the memorandum of 20 October 1928. The terms substantially were these : The Nawab Bahadur proposed to execute a wakf of all his properties except a certain portion approximating roughly one-third. Regarding this one-third the Nawab Bahadur would remain in possession thereof during his lifetime, but without any power "to sell, transfer, encumber, deteriorate or damage it in any way." On the death of the Nawab Bahadur, Altaf Ali would take possession of part of this one-third immediately and of the remaining part after three years. The Nawab Bahadur also agreed to set apart an income of Rs. 500 out of his estate for specific charities the administration of which would be entrusted to Altaf Ali. Then comes a term which is embodied in para. 8 of the memorandum. As this is a most important provision regarding the interpretation of which there has been a great deal of discussion I consider that it should be set out verbatim. Para. 8 runs thus: "Nawabzada Altaf Ali agrees to make a suitable wakf of the interest allotted to him herein."

(3.) The memorandum goes on to state that the parties agreed that there should be an application filed before the Government asking for the cancellation of the settlement under the Bengal Settled Estates Act and that within one month of the date of the memorandum the parties, their heirs, executors and administrators would execute necessary documents to give effect to the compromise arrived at. If any party failed to do this the other would have the right to enforce the terms of the agreement through Court. The last paragraph of the memorandum states that the compromise has been arrived at on the mediation of Sir Provash Chandra Mitter and that if any difficulty or difference arose in regard to the drafting of the documents or in regard to any points not provided for in the memorandum the matter would be referred to him and his decision on the matter would be final. On 13 November 1928 the Government of Bengal gave effect to the joint application of the Nawab Bahadur and Altaf Ali and cancelled the settlement of properties of the Nawab Bahadur made under the Bengal Settled Estates Act. On 5 April 1929 the Nawab Bahadur executed a wakfnama with respect to two-thirds of his property leaving out the portion allotted by the compromise to Altaf Ali. In this document, which is Ex. D, there is a recital of the history of the family and property of the Nawab Bahadur. Mention is made in the wakfnama of the compromise between the Nawab Bahadur and his son with respect to the application for the setting aside of the settlement under the Bengal Settled Estates Act and the terms of the compromise are set out in para. 7 of the deed. These terms are in the main the same as those contained in the Memorandum of Points (Ex. E), but they are given in greater detail. The nature of the wakf which Altaf Ali agreed to create is described as a wakf-alal-aulad for the purposes of making proper provision for the maintenance of himself (Altaf Ali) and of all his children after his death : (vide para. 7 (ka) of the wakfnama, Ex. D).