MOHAMMAD YUSUF Vs. AZIM-UDDIN

JUDGEMENT

(1.) On 20 November 1934, Mohammad Husain a wealthy trader of Basra in Ballia district, died leaving a valuable estate, partly real and partly personal, and a widow Kulsum Bibi and three sons, Azim-uddin, Sharfuddin and Amjad Ali and one daughter Aisha by different wives. He also left unto him surviving two persons named Mohammad Yusuf and Abdul Hamid who were interested in his affairs. Mohammad Yusuf had been the mukhtar-i-am of Mohammad Husain for a long number of years and Abdul Hamid's son, Abdul Hasan, and his daughter Fakhrulnisa were married to Mohammad Husain's daughter Aisha and to Mohammad Husain's son, Sharfuddin respectively. On 4 November 1932, Mohammad Husain is alleged to have executed a deed of wakf by which he settled portion of his estate and by which he appointed himself and Mohammad Yusuf as, joint mutwallis to administer the settlement and after the death of Mohammad Husain, Mohammad Yusuf was to administer the settlement solely. On the death of Mohammad Husain, disputes arose amongst his heirs as to the quantum and the division of the estate for the purposes of succession and inheritance and as a result three actions were raised in the Court of. the Additional Civil Judge of Ballia two of which related to that portion of the estate which had not been settled by him and one of which related to that portion of the estate which was the subject- matter of the waqf. The three suits were tried together and disposed of by one judgment and they were made the subject of five appeals to this Court. The two suits which related to the estate outside the waqf gave rise to four appeals to this Court which have been already disposed of by us by a separate judgment and the suit which related to the waqf property (suit No. 9 of 1936) and which is the subject-matter of this appeal is now before us for consideration.

(2.) In this suit the eldest son of Mohammad Husain, namely Azimuddin, is the plaintiff and Mohammad Yusuf, the mukhtar-i-am of Mohammad Husain and the mutwalli of the alleged waqf is defendant l, but the widow of Mohammad Husain as also the daughter of Mohammad Husain and his two other sons were also made defendants. The plaintiff's case, shortly stated, is that the alleged deed of waqf of 4 November 1932, was secured by Mohammad Yusuf as a result of fraud and undue influence practised upon Mohammad Husain and it was not properly and duly executed by Mohammad Husain and further that if it may be assumed to have been executed by Mohammad Husain the deed is void in law. The suit was mainly contested by Mohammad Yusuf who maintained its validity, but among the heirs of Mohammad Husain, apart from Azimuddin, the widow Kulsum Bibi and the son Amjad Ali supported the plaintiff's case for avoiding the waqf. The other son of Mohammad Husain Sharfuddin and his daughter Aisha supported the waqf. The sole question which arose in the case was the factum and validity of the waqf. If the waqf were to be found invalid, the plaintiff was entitled to a one-fourth share in the property which he claimed and as to this there was no dispute.

(3.) The trial Court has found that the waqf was duly executed by Mohammad Husain but it was void in law. The objections to the validity of the waqf in the view of the trial Court are (1) that no provision has been made in the deed for the appointment of mutwallis for all times on failure of the scheme of mutwalliship which is laid down in the deed, (2) that no provision has been made in the deed for disposal of funds which are allotted to certain beneficiaries on extinction of the line of those beneficiaries and (3) that the ultimate trust which is provided in the deed for pious, religious or charitable objects is void for uncertainty. Accordingly the trial Court has granted the plaintiff a decree for partition of the estate (the subject-matter of the waqf) which he claimed for. Against the said judgment and decree Mohammad Yusuf, Sharfuddin and Mt. Aisha have made this appeal to this Court and substantially the same questions which were canvassed in the Court below arise for our consideration in the appeal.