FAZAL HUSAIN KHAN Vs. ALI HUSAIN

JUDGEMENT

(1.) The suit which has given rise to this appeal was brought by the plaintiff respondent for possession of property the bulk of which belonged to one Gazanfar Husain. The remainder of the property is alleged to have belonged to Azima Bibi, sister of the plaintiff and aunt of Gazanfar Husain. The plaintiff claims as heir to both these persons.

(2.) Gazanfar Husain died on the 13th of May, 1907, but; two days before his death, that is, on the 11th of May, 1907, he executed a deed of waqf in respect of the whole of the disputed property under which the appellants were appointed trustees of the waqf. The validity of the waqf is disputed by the plaintiff on various grounds, the principal grounds being that the donor was suffering from death- illness, (marz-ul-maut); that he had no mental capacity to make the waqf, and that possession was not delivered under it. The court below has found that Gazanfar Husain was suffering from death-illness of which he died, that he was in the full possession of his senses when he made the waqf and that he delivered possession of the property to the mutawallis. On these findings the learned Judge has held the waqf to be valid only as regards a one third share by reason of marz- ul-maut (death-illness) and has granted a decree to the plaintiff for a pare only of the property claimed. The defendants have preferred this appeal, and the plaintiff has filed objections under order XLI, Rule 22, of the Code of Civil Procedure, as regards the portion of the claim dismissed.

(3.) Accepting the findings of fact of the court below, the appellants contend that as possession was delivered the waqf is valid in respect of the entire property, under the Shia law. It is admitted that Gazanfar Husain belonged to the Asna Asharya or Imamia sect of Shias. It is stated, however, that he was an Asuli and followed the tenets of that school among Imamias, but this is denied by the plaintiff. Holding the view that we do, we deem it unnecessary to determine whether he was an Asuli or an Akhbari.