HAJI MOHAMMAD ABDUL AZIZ KHAN Vs. MAHBUB SINGH

JUDGEMENT

(1.) This is a first appeal by defendant 1, Haji Mohammad Abdul Aziz Khan, who claims that he is the mutawali of a wakf to which the property in dispute belongs. He appeals against a decree of the Additional Subordinate Judge of Muzaffarnagar, Mr. Nand Lal Singh, who granted the claim of the Hindu plaintiff's to succeed as reversioners of the last male holder, Chaudhri Mangal Singh, Jat zemindar of mauza Begharaz-pur in Muzaffarnagar District. The five plaintiffs are the sons of three brothers of Chaudhri Mangal Singh who predeceased him. He died on 29th October 1928, at the house of the appellant, where he had stayed for a month during his last illness. The plaint sets out in para. 5 that defendant 1 appellant, a Muslim, exerted undue influence on Chaudhri Mangal Singh, and, brought to his residence the District Magistrate of Muzaffarnagar through the Civil Surgeon of that place and presented to him some document, and having put into the mouth of the said Chaudhri what he liked, made him state that before the said officer. The District Magistrate took away the document and subsequently the said defendant sent for it and put it in some place. Defendant 1 got written, according to his wishes, a document purporting to be a deed of wakf, and had the same signed by the Chaudhri and, having apparently given it the shape of a document which had been executed and completed, effected the registration thereof. The said document was read over neither to the said Chaudhri nor to the District Magistrate. The Chaudhri was not capable of understanding the document or knowing its effect. All the proceedings were the outcome of the brain of defendant 1 and his confederates. 6. During his life-time, Chaudhri Mangal Singh was and remained all along a Hindu and acted as such.... The Chaudhri never embraced Islam nor did he ever change his name. 7. During his life-time Chaudhri Mangal Singh made no wakf of any property either orally or in writing.... At all events such an oral wakf was not valid according to statutory enactments. 8. Even assuming that Chaudhri Mangal Singh was a Muhammadan at the time of his death which is not admitted by the plaintiffs, the plaintiffs are, according to law, entitled to his estate after his death.... The mutation of names in favour of defendant 1 is altogether wrong. 9. If it be assumed that the document dated 25 October, 1928 was meant to create a wakf in future.... Chaudhri Mangal Singh was suffering from marz-ul-maut, the wakf can ...be valid only in respect of one-third share. 8A. Under an agreement dated 7 March 1893...the deceased aforesaid had no power to transfer his property to anybody.

(2.) The property was valued at Rs. 45,653. The plaintiffs asked for possession of the zemindari property, and for a declaration of ownership in regard to houses and documents. Defendant 1 pleaded that: 15. Chaudhri Mangal Singh alias Abdul Rahman, became a Muhammadan 32 years ago and from that time till his death he all along remained a Muhammadan. But on account of fear for his life and property he did not publicly give out his change of religion. 16. About 22 years ago (he) made...an oral wakf...of all his residential and culturable property mentioned in the document dated 25 October 1928, for purposes specified therein and appointed himself the mutawalli thereof. Since that day he remained in possession of the said property as the mutawalli and carried out the purposes of the wakf. 19. Chaudhri Mangal Singh, deceased, had for a long time been "thinking of causing a document to be written whereby the conditions of the oral wakf might be, reduced to writing, but he was afraid of the plaintiffs and other relations. Accordingly during the course of his treatment the said Chaudhri...gave two drafts of the document dated 25 October 1928 to Mr. R. Milner White, District Magistrate of Muzaffarnagar. 20, Subsequently the District Magistrate...told him it would be better if the said document was registered...therefore the said Chaudhri...caused the document to he written out and got the same registered in presence of the Civil Surgeon and the District Magistrate. 24. At the time of his death Chaudhri Mangal Singh was a Muhammadan. The plaintiffs neither are nor can be his heirs.

(3.) The important issues were: 1. Whether Chaudhri Mangal Singh was a Hindu at the time of his death. 3. Whether the document dated 25 October 1928, was obtained through the influence of defendant 1 from Mangal Singh.