MUHAMMAD IMDAD ULLAH Vs. MTBISHMILLAH ALIAS HALIMAN BIBI

JUDGEMENT

(1.) Stated as briefly as possible the question which we have to answer in this appeal is whether a Muhammadan who has acquired land for the construction thereon of school buildings, who has constructed those buildings, and who has over a period of several years caused everyone concerned to believe that he was doing this on behalf of a certain school, and to take certain action in that belief, is entitled to change his mind and dedicate the property for another object, namely an orphanage.

(2.) The learned Civil Judge of Cawnpore, from whose judgment and decree the appeal has been preferred, has answered this question in the affirmative. The proceedings-started on 3lBt October 1935, with an application to sue in forma pauperis, made by one Mohammad Usman Khan, purporting to act as mutawalli of the waqf connected with the school in question, namely the Madrasa Ashraf-ul- ulum. On the opposite side were Abdul. Latif, who acquired the land and constructed the buildings in question and the Muslim Yatim Khana (orphanage) through its President, Khan Bahadur Hafiz Hidayat Husain. This application, at first unsuccessful, was eventually allowed on the matter being taken in appeal to the High Court. But it was not until 1938 that the suit was registered, and in the meantime Mohammad Usman Khan, Abdul Latif and Hafiz Hidayat Husain had all died. We then find Mohammad Imdad Ullah, the present appellant, substituted for Mohammad Usman Khan (as the succeeding mutawalli); Abdul Latif's widow Mt. Bismillab, and another relative took Abdul Latif's place, and an Honorary Magistrate named K.B. Sheikh Mohammad Ibrahim took the place of Hafiz Hidayat Hussain as President of the Managing Committee of the Yatim Khana.

(3.) We have referred to Mohammad Usman Khan and Mohammad Imdad Ullah as mutawallis. No deed of waqf in connection with the Madrasa Ashraf-ul-ulum has been produced nor is there any evidence to show that there ever was one, but the existence of such a waqf has not been disputed before us. Abdul Latif (as also Mohammad Usman Khan) died in 1937. At the time when proceedings commenced in 1935 there was no other waqf with which the land and buildings in question might have been connected. It was not until 22 January, 1936, that Abdul Latif executed a deed of waqf in favour of the Orphanage (Ex, P-3.) In this he frankly admitted that his original object in acquiring the land and constructing the buildings was to open a school and that subsequently he changed his mind.