LALIJAN Vs. MAHOMED SHAFI KHAN

JUDGEMENT

(1.) Musammat Tamanna Begam executed a tamliknama, whereby she made one- third of certain property waqf and pro-vided as follows with regard to the remaining two-thirds: My son, Naki Khan, will remain owner (malik) of the remaining two- thirds and of the said two-thirds, Naki Khan will remain fall and absolute owner of one-third (malik kamil o katai), and he shall have the powers of an owner with respect to it, and Naki Khan will be owner (malik) of the other third also, and his name will be entered in the khewat, but the income of it is given for the maintenance of my minor grandson, Muhammad Shaft Khan, son of Muhammad Taqi Khan, deceased. According to law, Naki Khan is guardian of Shaft Khan, he must give the income of that one-third for the maintenance of the minor and Naki Khan will not have the power of transfer over that one-third during the life of the minor.

(2.) Soon after, Naki Khan sold the whole two-thirds of the property to the respondent, Lalijau, who is said to be a prostitute. In the present suit, the appellant, Shaft Khan, suing by his next friend, prays for possession of one third of the property and for cancellation of the deed of sale in favour of the respondent. The defence is that the whole two-thirds of the property were given to Naki Khan and under the Muhammadan Law, the conditions that he should not have power to transfer portion of the property and should make over the profits of that portion to Shaft Khan, are invalid and must be disregarded.

(3.) The Munsif held that Shaft Khan was entitled to the profits of one-third of the property but act to possession of that share and passed a decree accordingly.