ABDUL RAJAK Vs. BAI JIMBABAI

JUDGEMENT

(1.) This suit was originally filed by Haji Sa , to Sidick and his son Mahomed to avoid a deed poll, dated the 12th of February 1904, executed by them and duly registered. The deed poll purports to be published by the executing parties and recites that Haji Saboo Sidick therein called the founder is absolutely entitled to the premises described in the 1st and 2nd Schedule, although those described in the 1st Schedule had been conveyed by various conveyances to the plaintiff Mahomed as nominee of Haji Saboo Sidick, the consideration moneys mentioned in the conveyances to have been paid by the plaintiff Mahomed having been paid out of the moneys of Haji Saboo. It then recites that the founder was desirous of settling all the premises in Wakf and it is declared that the founder and the trustees for the time being shall stand seized of all the premises upon the trusts thereinafter mentioned, the founder during his lifetime being the sole trustee and Mutawali to be succeeded in those offices by Jimbabai his wife and the plaintiff Mahomed upon trust to accumulate one-third of the income and invest the same from time to time in properties to be added to the trust fund and out of the remaining two-thirds to apply 500 rupees per mensem in certain specified charities according to the discretion of the trustees and Mutawalis and to apply the balance of the two-thirds in the maintenance of, the education and advancement of the trustees and Mutawalis for the time being and of the descendants of the founder and the wives of all the male descendants of the founder, and upon failure of all male and female descendants of the founder through his sons and daughters and the wives of his male descendants to hold the trust premises and accumulate them in trust for any charity recognized or allowed by the Mahomedan law and especially the building endowments and maintenance of hospitals for Mahomedan schools and Masjids and the relief of poor Cutchi Memons and any other kind of charity. And it declares that the trustees and Mutawalis for the time being should have all such rights and powers and be subject to all such liabilities and disabilities as should be allowed and provided by the Sunni Mahomedan law prevailing in British India in relation to Mutawalis and trustees of public charitable trusts and so far as the same should not extend by any other law in force in British India as might apply to the case.

(2.) The recital was inaccurate in respect of the premises described in the 2nd Schedule for they also had previous to the execution of the deed poll been transferred into the name of Mahomed.

(3.) At the date of the deed poll the properties with which it purported to deal were in the possession and under the management of the firm of Haji Saboo Sidick in which the executing parties were the sole partners. They had been purchased by the firm many years previously, and in 1899, after the death of one of the original partners, Haji Hasan Sidick, had been transferred into the name of Mahomed.