ZAFRUL HASAN Vs. FARID-UD-DIN

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Allahabad, dated November 21, 1935, which set aside a decree of the District Judge of Badaun, dated November 6, 1929, under which the suit of the plaintiff-respondents had been dismissed. No appearance has been made for the respondents in this appeal.

(2.) The principal question is whether a wakfnama, dated June 28, 1915, is valid and operative. It was executed by Chaudri Salah Uddin, who was original defendant No. 2, and was the father of the present respondents Nos. 1, 2 and 3, who now represent him. Before the Board the validity of the deed was challenged by the appellants on two alternative grounds, viz. that it was a fictitious and colourable deed, never intended to be operative, but made with the intention to avoid payment of debts, or, alternatively, that Chaudri Salah Uddin, who may be conveniently referred to as the settlor, had become a Shia prior to the making of the deed, and was not authorised by the Mussalman Wakf Validating Act (VI of 1913) to make such a deed.

(3.) This alternative contention can be shortly disposed of. Under Section 3(b) of the above. Act, a person professing the Mussalman faith is authorised, where he is a Hanafi Mussalman, to include among the purposes for which he creates a wakf, provision for his own maintenance and support during his lifetime, or for the payment of his debits out of the rents and profits of the property dedicated. This sub-section applies to Sunnis, but not to Shias. This contention, therefore, turns on a question of fact namely, whether the settlor, who originally was a Sunni, had ceased to be a Sunni, and had become a Shia before the making of the wakfnama, which is expressed as made under Act VI of 1913. The District Judge held, on the evidence, that the settlor was a Shia at the time of execution of the wakfnama, but this finding was reversed by the High Court on the ground that the documentary evidence was all one way, in that it established at least as late as 1919, the settlor claimed to be a Sunni, and that the oral evidence given in 1928 and 1929 was of very little value to show whether the settlor was a Shia or a Sunni at the time of execution of the wakfnama on June 28, 1915. Admittedly, it is for the appellants to establish that the settlor had ceased to be a Sunni and had become a Shia by the material date. Mr. Khambatta, for the appellants, was unable to suggest any adequate reason for disregarding the documentary evidence, and, in the opinion of their Lordships, it is not necessary to reject the oral evidence, as its acceptance would not prove the appellants case, but would merely suggest tergiversation or a mere desire to please his company on the part of the settlor. Accordingly, this contention fails.