ABDUL GHAFOOR MIAH Vs. HAJI KHUNDAKAR ALTAF HOSAIN

JUDGEMENT

(1.) Musammat, Atibunnissa and her husband, Hossein Ali, jointly executed a deed of wakf on the 4th of Sravan 1270. Certain properties mentioned in schedule ka to the plaint were the subject of dedication. Under this deed Hossein Ali was to be mutwalli for his life and Atibunnissa after him for her life. After their death without children the nearest relative, who was also dianutdar or honest, was to succeed as mutwalh, but on his death the successor would bo not necessarily his heir-at-law but one amongst the near relatives of the dedicators who was dianutdar.

(2.) Hossein Ali died in 1279 and in 1282 Atibunnessa executed another deed of wakf in respect of the properties in schedule kha and additional properties in schedule kha. This towliaknama was revoked and in 1284, 1289, 1291, 1297, she executed different towliatnartias, but none of them came into operation and she continued to act as mutawalli until 1894, when she executed three documents one after another in favour of Abdul Gafoor, father of defendant No. 1. The first document was dated the 25th March, and relinquished some of the wakf properties in favour of Abdul Gafoor. The second document was a towliatnama in favour of Abdul Gafoor in respect of kit and Ma properties and the third document was an ekrarnama, dated the 27th September, confirming the lowliat, and agreeing that neither she nor her heirs or representatives would object to the same. In 1899 she applied for permission to sue as a pauper for setting aside the documents of 1894 as procured by fraud and undue influence. The permission was refused and she died in 1905 without bringing any suit. In 1907, Khoka Mia, the father of the plaintiff, brought a regular suit for declaration of his title to the wakf properties and recovery of possession. To that suit defendant No. 1 pleaded, saying he was in lawful possession as mutwalli under the towliatnama of 1894. Khoka died pending suit and the plaintiff and his brothers, defendants Nos. 2 and 3 were brought in as his heirs. The suit was decreed by the first Court, but was dismissed by the High Court on the ground that all the heirs of Khoka Mia could not be matwallis. A fresh suit by the person who would be the mutwalli was permitted, and accordingly this suit has been brought.

(3.) The pleas of the defendant, amongst other things, were that Khoka Mia was not the step- brother of Atibunnissa and that the suit was barred by limitation.