ABUL FATA MAHOMED ISHAK Vs. RUSSOMOY DHUR CHOWDHRY

JUDGEMENT

(1.) THE object of this suit is to establish as a valid wakfnama a settlement of property effected by deed dated the 21st of December, 1868. The settlors were two brothers called Abdur Rahman and Abdool Kadir, Mahomedan gentlemen belonging to the Hanifa sect of the Sunnis. The Plaintiffs, now Appellants, are sons of Abdur Rahman, to whom interests are given by the settlement. The Defendants, a hundred and more in number, are the settlors themselves, and persons claiming interests in portions of the settled property by virtue of transactions with Abdur Rahman subsequently to the date of the settlement. Some of these claimants are Respondents to the present appeal.

(2.) THE Subordinate Judge of Sylhet held that the settlement was valid as a wakfnama, and gave the Plaintiffs a decree on that footing. On appeal the High Court took a different view, and dismissed the suit. The great mass of the record relates to subordinate disputes---what parcels of property fall within the settlement, and what inferences are to be drawn from the way in which the settlors dealt with the property after the settlement. But the only question argued here has been the nature of the settlement itself; for in the view taken by their Lordships all others are immaterial.

(3.) THEN are stated various incidents and duties attaching to the office of matwali, amongst which occur the following: In order to maintain the name and prestige of our family, we, the matwalis, will make reasonable and suitable expenses according to our means and position in life. We will at our own choice and discretion fix allowances for the support and maintenance of the persons intended to be benefited by this wakf, who are now living or who may be born afterwards, and we will pay the same to them every month, and also the expenses for their festive and mourning ceremonies, when required. It will be competent for us the matwalis and our successor matwalis to enhance or reduce the allowances of the persons for whose benefit the wakf is made, who are now living, or who may hereafter be born, in consideration of course of their position and circumstances and the state of the income of the wakf properties. It will be competent for us the present matwalis and the matwalis who will be appointed after us, to use the wakf properties as security and to grant putni, dur-putni and permanent and temporary ijara settlements in respect of them, and with the money to be received as salami for the aforesaid settlements, to purchase some other properties and to exchange any of the lands of this wakf with some other lands, and to include the lands so acquired by purchase or in exchange in the wakf, and to spend the profit of the same towards the expenses of the wakf, and to keep the surplus profit in stock in the tehbil, and to try always to increase the wakf properties and the amount in cash. Whatever properties may be acquired by us the matwalis and our successor matwalis after execution of this document, shall be included in this wakf. We the matwalis and the matwalis who will be appointed in our place hereafter shall have no power to make gift of any property in favour of relatives or strangers.