BIBI JINJIRA KHATUN Vs. MAHOMED FAKIRULLA MEA

JUDGEMENT

(1.) This is an appeal by the first two defendants in a suit instituted by the plaintiffs for a declaration that a wakf executed by the late Mahomed Elahi Buksh Sarkar on the 31 January 1915 is valid, that the first plaintiff is the duly appointed mutwalli thereof and that no title accrued to the seventh defendant under the conveyance executed in his favour by the first six defendants on the 11 April, 1916. The defendants resisted the claim upon every conceivable ground; the chief objections are indicated in the following three issues: 6. Was Elahi Buksh Sarkar at the date of execution of the wakfnama suffering from death-illness? Was he physically and mentally incapable of executing the wakfnama when it is alleged to have been executed? Did Elahi Buksh Sarkar execute the wakfnama, if at all, with his free consent and with that of his hem? 7. Did Elahi Buksh Sarkar belong to Shafi sect of Muhammadan? If so, is the alleged wakf valid? 8. Is the wakfnama propounded by the plaintiff genuine and legally valid?

(2.) The Subordinate Judge has found in favour of the plaintiffs upon all the points in controversy and has decreed the suit. Upon the present appeal, his decree has been challenged substantially on four grounds, namely, first that the wakf as is indicated by its terms was illusory and inoperative in law, secondly, that the wakf was invalid because the settlor was at the time heavily involved in debts and the properties dedicated were tinder mortgage; thirdly, that the wakf was invalid, as possession of the properties dedicated was not transferred to the mutwalli during the lifetime of the settlor; and fourthly, that the wakf in excess of a third share was invalid, as it was executed when the settlor was suffering from marz-ul-maut or death-illness and without the consent of his heirs.

(3.) As regards the first point, it is plain that the legality of the dedication which, it is not now contested, was in the present case made by a Hanafi Mussalman, must be tested with regard to the provisions of the Mussalman Wakf Validating Act (Act VI of 1913), This Act same into force on the 7 March 1913, and in Secs.3 and 4 provides as follows: 3 It shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Mussalman Law, for the following among other purposes: (a) for the maintenance and support wholly or partially of his family, children or descendants, and (b) where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated: Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman Law as a religious, pious or charitable purpose of a permanent character. 4 No such wakf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the wakf.