RAM CHARAN LAW Vs. SHAHEBZADEE FATIMA BEGUM

JUDGEMENT

(1.) The question involved in this appeal is whether a Muhammadan lady, Shahebzadee Fatima Begum, had a saleable interest in a moiety of premises known as No. 63, Dhurumtolla Street, which the plaintiff claims to have bought in execution of a mortgage-decree in Suit No. 527 of 1908. The suit has been dismissed by Imam, J., and from his judgment the plaintiff has appealed.

(2.) The decision of this suit depends upon whether or not this property has been validly dedicated as wakf or not. If it has, then the suit must fail. The dedication is said to have been effected by a document of the 16th July 1864. It is in the form of an English indenture and is engrossed to be a conveyance to Fatima Begum and Fyezuddin, their heirs, representatives and assigns, of the entirety of the premises now in suit, upon trust that they, the said Fatima Begum and Fyenuddin, their, heirs or representatives or other trustees or trustee for the time being should, from time to time, demise the said hereditaments and premises to such persons or person on such terms and at such rent as they should think tit, and should from time to time appoint such person or persons to act as sircars or a sircar in the collection of the said rents as they should think fit with full power to discharge such sircars or sircar and to appoint others or another in his place, and should apply the rents and profits of the said hereditaments and premises, first, in payment of the expenses of the collections of the said rents and profits and of the management of the salary of the said sircars or sircar and otherwise and of the execution of the trust and next, in payment of the expenses of the repairs of the said hereditaments and premises and should apply the surplus of the said rents and profits after making the payments aforesaid in the due and proper observance of the annual Muhamadan festival of the Muhurrum. Fatima Begum is the defendant of that name. Fyezuddin is dead, and the other defendants are his representatives. On the 20th of October 1907, Fatima Begum executed a document by which there was expressed to be mortgaged to the plaintiff the half share now in suit, it being recited that she was absolutely seized and possessed of or otherwise well entitled to that half share. It was on the basis of this mortgage that the decree was passed, in execution of. which the plaintiff claims to have purchased this half share. Fatima Begum has appeared in the suit and put in a written statement alleging the wakf character of the property. She has, however, taken no part in the discussion before Imam, J., or this Court. The other defendants have appeared and contested the plaintiff s claim, contending that the property is wakf, or that at any rate what they describe as their moiety is unaffected by the mortgage and consequent sale. It is unnecessary to discuss any technical defect there may be in the form of the suit: the substantial question is, whether there has, been a valid dedication or not, and it is oil: these bases that the case has been fought before us.

(3.) The plaintiff has urged many objections to the validity of the wakf. The first point made is that the gift was to Fatima Begum and Fyezuddin on a condition, and that is inoperative because the Muhammadan Law does not permit a condition to be attached to a gift. The recital to the deed, however, makes clear the executant s purpose, for it runs in these terms; whereas the said Prince Mahomed Syeduddin is seized of or entitled to the hereditaments and premises hereinafter described for an absolute estate of inheritance and he is desirous of dedicating the same to the service of Imam Hassan and Imam Hossain and for religious purposes in the manner hereinafter mentioned." The object of the gift is plain, and the introduction of trustees is merely the employment of machinery whereby the gift is carried into effect. The trustees are not donees, and it would be far too narrow a view to hold that the gift is vitiated by a condition. Mr. Chakravarti would go the length of contending that all gifts through the instrumentality of trust are bad. It would be difficult to reconcile that view with the language of the High Court and the Privy Council in Bishen Chand Basawat v. Nadir Hossein 15 C. 329 : 15 I.A. 1 : 12 Ind. Jur. 170 : 5 Sar. P.C.J. 113. In my opinion, this objection fails, and I hold that the provision in favour of the due and proper observance of the annual Muhammadan festival is not invalidated by the introduction of trustees as part of the machinery for carrying it into effect.