EBRATANNESSA BIBI Vs. SARAT CHANDRA SEN

JUDGEMENT

(1.) The plaintiff's title which has been found in his favour In the Court below rests for its validity upon the invalid character of a wakf which was executed by one Moriunnessa Bibi. The Subordinate Judge has found in favour of the plaintiff. Some of the defendants have preferred this appeal.

(2.) The wakfnama, was executed by the lady on 24 January 1902, and was registered on her own admission on 28 January 1902. Upon the evidence which is on the record, the circumstances under which she executed it were the following: She was at first married to one Syed Mehdi, who was a Police Sub-Inspector. He died in July 1901, when she was about or a little over 20 years of age. In 1899 under a partition amongst the members of her father's family, her father having died before, she had got some properties of her father amongst which were two houses in the town of Hooghly. In respect of these two houses the wakf was created by her. By the terms of the deed she was to remain mutawalli so long as she would remain alive, and on her death one Sujat Ali and one Kalimulla would be muta-wallis. The provision was that 4-annas of the rents and profits of the said two houses would belong to the mutawallis, another 4-annas would go towards repairs, and the remaining 8-annas would be spent in charities, it being laid down as a rule that the poor will be fed once every month and will be given cloths once every year. Certain other provisions were made for superintendence of the wakf after failure amongst the two mutawallis named.

(3.) In 1920 the plaintiff purchased from the lady the property in suit, which is admittedly included in this wakf but which she purported to sell as belonging to her personally and as having been obtained by her as an heir of her father and upon a partition with her coheirs in 1899. This is the title on which the plaintiff's suit rests and he has sought to establish it upon evidence, the most important of which is that of the lady herself. The case which she has sought to make out is very well described by the Subordinate Judge in these words taken from her deposition: People flocked round her to marry her for the sake of her properties. Her brother was a bad character; and he ran into debts and squandered his properties; and creditors sued him and got decrees. It was under the advice of Sujat Ali who used to look after her affairs and who once wished for her hand that a nominal document was created to protect the properties if (they were) attached by the creditors of her brother. She did not know that it was a wakf. She did not know the meaning of wakf andi she was not explained the true import of it and nobody explained the true import of it and nobody explained the terms to her. Young as she was she wished to marry again and she never wished to renounce the world and worldly affairs and never wanted to divest herself of her rights over the properties. In fact she never transferred her rights and she remained malik as before and enjoyed the properties for herself and realized the rents and spent the same for her own maintenance and she did not spend the income in distributing alms to the poor and in feeding them.