BAQA ULLAH KHAN Vs. GHULAM SIDDIQUE KHAN

JUDGEMENT

(1.) One Wilayat Husain Khan executed a deed of wakf on 28 April 1925, and the sole question for consideration in the present appeal is whether by that deed a valid wakf was created in accordance with the provisions of the Mussalman Wakf Validating Act (Act 6 of 1913), and on the answer to that question depends the decision of this appeal. After the-execution of the deed of wakf Wilayat Husain on 10 August 1925, filed a suit for the revocation and cancellation of the deed and in the alternative for the rectification of the same. The suit was based mainly on the allegation that the execution of the deed. was brought about by the exercise of undue influence on Wilayat Husain by Ghulam Siddique Khan, one of the defendants-respondents, and that as, there was no ultimate dedication by the deed in favour of the poor or for some pious, religious or charitable purpose, as enjoined by the proviso to Section 3, Wakf Validating Act, the wakf was invalid. It was further stated in the plaint that Wilayat Husain intended to make provision by the deed for the maintenance, amongst others, of his nephew Imdad Husain and his descendants and that, in the event of the Court refusing to cancel the deed, provision for the maintenance of Imdad Husain and his descendants be also made in the deed by rectification of the same. The defendants to the suit were Mt. Taslimunnisa, the wife, and Kaniz Fatma, the daughter of Wilayat Husain and Ghulam Siddique, the husband of Kaniz Fatma, and these very persons were the principal beneficiaries under the deed of wakf. The suit was contested by the defendants and the learned Subordinate Judge directed Wilayat Husain to appear in person on the date fixed for striking issues. "For his examination for elucidation of material facts" Wilayat Husain did not attend in person on the date fixed and the Court on 12 October 1925, passed an order dismissing the suit for default with costs to the answering defendants.

(2.) Wilayat Husain died on 13 January 1930, and the suit giving rise to the present appeal was filed on 20 March 1930, by the plaintiff-appellants, who are the sons of Imdad Husain and the grand-nephews of Wilayat Husain. In the plaint the validity of the deed of gift was assailed on the very grounds on which Wilayat Husain had prayed for the cancellation of the wakf in the suit filed by him. The plaintiffs alleged that the execution of the deed of wakf was brought about by the exercise of undue influence on, Wilayat Husain and that as there was no ultimate dedication in favour of the poor or for some religious, pious or charitable purpose, the wakf was invalid.

(3.) Kaniz Fatma had died in the lifetime of Wilayat Husain and the defendants to the present suit were Ghulam Siddique and Mt. Taslimunnisa. Both the defendants contested the suit. They denied the allegation of the plaintiffs about the exercise of undue influence and maintained that the wakf was valid. They also pleaded that the order of the Subordinate Judge dated 12 October 1925, dismissing the suit filed by Wilayat Husain operated as res judicata and was a bar to the present suit in view of the provisions of Order 9, Rule 9, Civil P.C.