BIRJIS MAHAL BEGUM Vs. HUMAYUN REZA CHAUDHURY

JUDGEMENT

(1.) This is an appeal by defendant 2 in a suit for a declaratory decree, the declaration sought by the plaintiffs being in substance, that they are mutwallis with regard to the disputed properties described in the schedule to the plaint and that the entries in the record of rights in respect thereof are wrong. The schedule in the plaint consists of 7 items of properties of which the first 5 are shares in zamindaris bearing touzi Nos. 110/1, 110/2, 110/4, 110/5 and 110/B, respectively, of 9 the Dumka Collectorate. Item 6 is patni interest comprised in touzi No. 110/S and the seventh is 16 annas proprietary interest in touzi No. 111 of the same Collectorate. It will be convenient to refer to the following genealogy which shows the relationship between the parties:

(2.) It will be noticed that of the two brothers, Sajjad and Zohad, the former died on 24 August 1928 and the latter on 21 July 1929. It is also to be mentioned that both the wives of Sajjad predeceased him. Besides the five defendants shown in the genealogy, there are three other defendants, that is, defendants 6, 7 and 8, of whom No. 6 is said to be a Hindu widow and concubine of Sajjad Ahmed Choudhury and Nos. 7 and 8 his illegitimate sons by her. The plaintiffs case may be briefly stated as follows: Defendant 1 and his two sons Sajjad and Zohad created a wakf in respect of several properties including items 2 to 6 and a patni interest in item 7 (in the plaint there is a mistake about the numbers of these items) of the disputed properties under a registered wakfnama dated 28th December 1922. The properties belonged to defendant 1, but his sons joined in the execution of the wakfnama, so that no question might be raised as to its validity.

(3.) Under the terms of the wakfnama Sajjad and Zobad acted as joint mutwallis, and after Sajjad's death Zohad became and acted as the sole mutwalli till his death. After Sajjad's death, defendant 1 and Zohad executed a deed on 12th October 1928, confirming the wakfnama dated 28 December 1922. On 3 April 1929, a partition deed was executed by defendants 1, and 2 and Zohad by which, amongst other properties, item 1 of the disputed properties was allotted to Zohad. On 19 July 1929, defendant 1 and Zohad executed a wakfnama in respect of item 1 and the zamindari interest in item 7 of the disputed properties with the result that so far as the patni interest comprised in item 7 was concerned, it merged in the zamindari interest. After Zohad's death, plaintiff 1 became mutwalli under the terms of the first wakfnama and plaintiff 2 was selected as joint mutwalli by the majority of the descendants of the wakifs in accordance with the provisions of the wakfnama.