HAR PRASAD Vs. FAZAL AHMAD

JUDGEMENT

(1.) This is an appeal from a judgment and decree dated 19 March 1929, of the High Court of Judicature at Allahabad, which reversed a judgment and decree of the Court of the Subordinate Judge of Pilibhit dated 6th July 1925. The question involved in the appeal is as to the effect of a wakfnama executed by a Mahomedan pardanashin lady under the following circumstances : On 29 August 1912, Manzur Ahmad, a Sunni Mahomedan governed by the Hanafi law, executed a document purporting to be a sale of two villages, one situated in Pilibhit District and the other in Bareilly District, in favour of his mother Rahim Bibi for a consideration of Rs. 2,00,000. It was recited in the deed that Rs. 10,000 had been paid by Rahim Bibi. As to the balance of Rs. 1,90,000, it was stated in the deed that it was left with Rahim Bibi "with instructions that she should spend it at her discretion in charitable purposes for the eternal benefit of my (i. e., Manzur Ahmad's) soul."

(2.) Manzur Ahmad died on 2 September, 1912, leaving him surviving as his heirs according to Mahomedan law two widows, his mother Rahim Bibi, and a paternal uncle Fazal Ahmad On his death the widows became entitled between them to one-fourth of his estate, the mother to one third, and the uncle as a residuary to the remaining five-twelfths. On 23 June 1913, Rahim Bibi executed a wakfnama of the villages transferred to her by the sale deed by which she constituted herself the first muttawali, and appointed Fazal Ahmad, who is respondent 1 in this appeal, and three others who are respondents 3 to 5 as muttawalis after her death. It was recited in the deed that she had already spent Rs. 15,000 in charity, and a charge was created by the deed on the income of the wakf property for the payment of Rs. 25,000. The material part of the wakfnama is as follows : "My son Manzur Ahmad, deceased, sold the zamindari property in Bhitaura Kalan and Amkbara mentioned below to me for Rs. 2,00,000, took Rs.10,000, a portion of the consideration money, from me and left the remaining amount of Rs.1,90,000 with me as an amount dedicated for religious purposes and authorised me to spend the same. Out of the said amount Rs. 15,000 has been spent up to this time. Instead of spending the amount of consideration after which the charity shall come to an end, it is more beneficial to make a wakf of the said property and utilize the income therefrom in charitable deeds as it will be a continual gift and permanent charity. I therefore while in a sound state of body and mind, and of my own accord, withdraw my possession from the entire 20 biswas "asli"zamindari property in the village of Bhitaura Kalan, pargana and District Pilibhit and the entire 20 biswas "asli"zamindari property, together with the cultivated lands in mauza Amkhera, pargana Richha, tahsil Baheri, District Bareilly, together with all the rights appertaining thereto and make a "wakf"of the same in the name of the Almighty."

(3.) After the death of Manzur Ahmad; litigation ensued between the heirs, the result of which was that the sale of the villages was in December 1917, held to be void, as being, under the cloak of a Bale, in reality a death bed gift in fraud of the heirs. The effect of this decision was that Rahim Bibi took nothing by the sale deed, but was entitled, as an heir, to one-third of the villages. This one-third was sold by her on 20 June 1918, to appellant 1 and the father of appellants 2 to 6. The question for decision in the appeal is whether this was a good sale, or whether the one-third share of Rahim Bibi had already been validly disposed of by the wakfnama. Rahim Bibi died on 15 August 1921, leaving her surviving as her heirs respondents 2 and 3.