MAZHAR HUSAIN KHAN Vs. ABDUL HADI KHAN

JUDGEMENT

(1.) The plaintiff in the suit out of which this appeal has arisen claims possession of 286 out of 512 sihams of zemindari property situate in the villages of Mawaya and Surahi in the District of Shahjahanpur and also mesne profits. The property claimed belonged to Muhammad Altaf Ali Khan, the cousin of the plaintiff, who died so far back as the 27th of November, 1875. He had no issue, and on his death the following were his heirs: Abdulla Khan, father of the plaintiff, Husain Raza Khan, uncle of the plaintiff, and Musammat Barkat-un-nissa, his widow, who was step-sister of the plaintiff. The dower of Musammat Barkat-un-nissa is said to have been Rs. 1,25,000. On the death of her husband she entered into possession of his property, and amongst others the villages of Mawaya and Surahi. On the 21st of, June, 1898, Musammat Barkat-un-nissa executed a deed of endowment of the lands situate in these villages and appointed herself mutwalli during her life, and after her death she directed that her sister s son, the defendant, Mazhar Husain Khan, should be mutwalli of the property in mauza Mawaya and Muhammad Nurul Haq of the property in the village of Surahi. Abdulla Khan, father of the plaintiff, died on the 27th of May, 1880, leaving Abdul Baqi Khan, brother of the plaintiff, Musammat Muhammadi Begam, mother of the plaintiff, Musammats Barkat-un-nissa, and Naim-un-nissa, his daughters, together with the plaintiff as his heirs. Husain Raza Khan, uncle of the plaintiff, died during the life-time of Barkat-un-nissa, leaving Abdul Baqi Khan, brother of the plaintiff, Riazul Raza Khan and Ali Raza Khan, his nephews, Musammat Moti Bagam, his widow, and the plaintiff as his heirs. On the 2nd of February, 1906, and 5th of June, 1908, Abdul Baqi Khan transferred to the plaintiff his interest in the estate of his father and of Barkat-un-nissa; and Muhammadi Begam, the mother of the plaintiff, also transferred to him her interest by a deed of sale of the 4th of June, 1908. Thus the plaintiff claims to be the owner of 286 sihams of the estate of Muhammad Altaf Ali Khan. In his plaint he impeached the deed of waqf of the 21st of June, 1898, alleging that Musammat Barkat-un-nissa had no power to make the endowment, and that it was fictitious and colourable and was executed under undue influence. It was contended on behalf of the plaintiff that Barkat-un-nissa entered into possession of her husband s property for the purpose of satisfying her dower thereout and that she was, therefore, incompetent to make a waqf of it.

(2.) The Court below held that Barkat-un-nissa had been during her life in proprietary possession of one-fourth of her husband s properties by light of inheritance, and that in respect of this one fourth share she was competent to make a waqf. As to the remaining three-fourths it held that her, possession was in lieu of dower, and that she had no right to dispose of her interest in this share of, the property. It held that the waqf was valid as to one-fourth of the properties and gave a decree to the plaintiff for mesne profits.

(3.) This appeal was preferred and the main contention advanced before us on behalf of the appellant is that Barkat-un-nissa s possession of the entire, estate of her husband was proprietary and not to any extent in lieu of dower, and that the waqfnama was valid and effectual as regards all the property comprised in it.