MUKARRAM ALI KHAN Vs. ANJUMAN-UN-NISSA BIBI

JUDGEMENT

(1.) THE only point which requires decision in the present appeal is whether the properly in dispute is wakf property or not. THE plaintiff-respondent, Musammat- un-nissa, purchased the property in suit from Asghar Ali Khan, defendant- respondent No. 2 on the 14 November 1917. Soon after her purchase, she made an application to the Revenue Court for mutation of names in her favour. THE defendant appellant, Mukarram Ali Khan, who is a cousin of Asghar Ali Khan, objected to the mutation of names in favour of the vendee on the ground that the property in respect of which mutation of names was sought was wakf property, and hence the vendor of the plaintiff-respondent No. 1 had no right to convey it.

(2.) BOTH parties gave evidence and the claim of the plaintiff was decreed. The decree of the First Court was upheld in appeal. Mukarram Ali Khan has came up in second appeal before us and contends that the property in suit was dedicated prior to 1854 to certain charitable purposes and that the decisions of the Court below as to the validity of the wakf are erroneous. It appears from the materials on the record that there has been litigation in respect of this property prior to the present dispute, The former litigations were in 1901-1902 and 1915-1917. In the former litigation of 1901, which arose out of partition proceedings, the decision of the District Court was adverse to the contention of the defend-ant appellant. On the other hand, in the litigation of 1915-1 17, which ended in this Court, the decision was in favour of the contour in of the defendant appellant. BOTH parties to she presents appeal call to their and the decisions of 1902 and 1917 contending that the matter is res judicata. We think that the question of res judicata does not really arise in the present case, as some of the parties to the former litigation's were different. The real point, us we have already remarked, for consideration is, whether the property in question is wakf. We find from the papers on the record that one Mardan Ali Khan was the owner of the property in suit and some other considerable landed property. According to the statement of the defendant appellant, he (Mardan Ali Khan) dedicated the property in suit to certain charitable and religion objects. After his death there was a dispute between his descendants and the matter was referred to arbitration. The award given by the arbitrators found the property now in suit as wakf property dedicated by Mardan Ali Khan for the purposes of charity including maintenance of his relatives and his dependents and for the reading of the fateha for the salvation of his soul, Now, we have to consider whether the above mentioned objects would constitute as objects of a valid wakf. The contention on behalf of the plaintiff respondent No. 1, the vendee, is that the dedication was really for the benefit of Mardan Ali Khan's descendants and for keeping the property in his family, and that the mention of the dependents, the charitable purposes and the fateha was merely a presence to evade the law under which a dedication for the maintenance of the members of a family was, at that time, invalid, We have given due consideration to the argument of the learned Counsel for the plaintiff respondent No. 1 but we find ourselves unable to agree with him. We think that the real object of Mardan Ali Khan was to dedicate a portion of his property for the reading of the fateha and for amur khair, (charitable purposes) including the maintenance of his poor relative and dependents. Such a dedication is, it is not denied, valid under the Muhammadan Law. The opinion of the learned Judge of the lower Appellate Court that the object of the wakf were uncertain and is not sound and is not supported by any valid reasons. We, therefore, hold that the wakf in question was a valid wakf. We allow the appeal and set aside the decree of the Courts below and dismiss the suit of the plaintiff-respondent No. I with costs in all Courts.