MT LATIFUNNISSA Vs. NAJMUDDIN SHAH

JUDGEMENT

(1.) This appeal arises from a decree passed by the Subordinate Judge, Cawnpore, in a suit brought by the appellant, Mt. Latifunnisa, for a declaration that a "wakfnamah," dated 24 September 1926, purporting to have been executed by her, and a deed of agreement of even date also-purporting to have been executed by her, are void against her and do not affect her proprietary interests in the property detailed in Schedules 1 and 2, appended to the plaint, and for recovery of possession of a house mentioned in Schedule 3, which is identical with one of the four items of property mentioned in Schedule 1. It has been mentioned in a separate schedule in addition to its reference in Schedule 1, because the plaintiff claims possession of this house, while in respect of other property her suit is confined to a mere declaratory relief. The suit was dismissed by the trial Court which left certain issues undetermined. On the hearing of this appeal a Bench, of this Court remanded the suit for a finding on a number of issues stated in an order dated 8 November 1932. The findings on those issues have since been received, and we have heard learned Counsel for the parties on the whole case which is now ripe for a final decision.

(2.) The plaintiff impleaded as defendants to the suit seven persons. Defendant 1, Saiyed Najmuddin Shah, is admittedly the "sajjadianashin" of a "khanqah" at Fatehpur and the spiritual preceptor of the plaintiff. Defendant 2 is the son-in-law of defendant 1. Defendants 3 and 4 are the disciples of defendant 1. None of these defendants belong to the plaintiff's family. Defendant 6, Mt. Sughra Bibi, is the daughter of the plaintiff. Defendant 5, Allahdiya Khan, is the husband of defendant 6. Defendant 7, Fazal Hasan Khan, is the plaintiff's son. The contest lies between the plaintiff and her daughter, defendant 6, who is hereinafter referred to as the defendant. The latter's husband has been impleaded only because he is said to have been instrumental in bringing about the alleged "wakf" and the agreement impugned by the plaintiff. Defendant 7 did not contest the suit, and is apparently at peace with his mother.

(3.) The plaintiff is the widow of one Yar Hasan Khan, who was employed in the Commissariat and died in 1925, leaving the plaintiff, his widow, and defendants 6 and 7, his daughter and son, respectively. He left a sum of over Rs. 32,000 which was realised by the plaintiff. It was divided among the three heirs of Yar Hasan Khan after payment of Rs. 11,000 dower debt due to the plaintiff, and sundry other charges. Defendant 6, the daughter, received Rs. 6,231-11-4 as her share. The daughter laid claim to a share in five houses situated in Cawnpore, the first four of which are mentioned in Schedule 1, and the fifth in Schedule 2. She alleged that all the five houses belonged to her father. The plaintiff, on the other hand, claimed them to be hers, in which her husband or his heirs had no interest. House No. 4, entered in Schedule 1 (also mentioned in Schedule 3) is claimed by the defendant as her own property under an oral gift made in her favour by her father at the time of her marriage. It is common ground that the sites of the four houses, mentioned in Schedule 1, belonged to the plaintiff, who inherited them and the houses then standing thereon from her parents. The houses originally standing on them were partly "kachcha" and partly "pucca" which ware subsequently demolished, and the houses now standing on those sites were built at a considerable cost. According to the plaintiff, such cost amounted to Rupees 12,500; while according to the defendant, no less than Rs. 25,000 was spent on the new constructions. The plaintiff alleges that the money spent on the new buildings belonged to her while the defendant's case is that it was her father who constructed the existing buildings with his own funds.