SYED MOHAMMAD HASAN Vs. SYED MOHAMMAD HAMID HASAN

JUDGEMENT

(1.) Bibi Sughra, Begam, daughter of Baja Saiyed Mohammad Baqar Ali Khan, defendant 11 in the suit No. 22 of 1941, was the owner of considerable property. On 6 October 1928, she executed a deed of waqf. The waqf property was divided by her into three lots. Of the first lot she appointed her son Haji Saiyed Mahmudul Hasan, as the mutwalli, of the second lot she appointed her second son, Haji Saiyed Wasudul Hasan, as the mutwalli and of the third lot she was to be herself the mutwalli. Haji Saiyed Mahmudul Hasan died on 28 September 1939. Haji Saiyed Masudul Hasan is not a party to this litigation and we are informed that he is still alive. Bibi Sughra Begam, we are told, has died during the pendency of this appeal. Under Para. 18 of this deed of waqf she gave Saiyed Mahmudul Hasan the right to fix wazifa or lay down any conditions in his lifetime for the sake of his descendants, wives or other descendants and their descendants. This was to be done either by executing a registered document or by a writing deposited with the District Judge. Haji Saiyed Mahmudul Hasan purporting, to act under the authority given to him in this paragraph executed, a will dated 2 February, 1938, by which he appointed his son, Saiyed Mohammad Hasan, who is defendant 1 in this litigation, as the mutwalli after him of the entire property. He further directed that a sum of Rs. 200 per mensem was to be paid to each of his four sons and Rs. 25 per mensem to each of his five daughters, who are defendants 6 to 10. His first wife, Bibi Akbari Begam, had died in the year 1932. He provided that in case he remarried a second wife, she would get Rs. 50 per mensem as maintenance allowance during her lifetime and if any male or female issue was born of the second wife he or she was to get maintenance allowance at the same rate as the sons and daughters by his first wife. Soon after this will Haji Saiyed Mahmudul Hasan married Bibi Siddiq Fatma, defendant 2. On 25 February 1936, Haji Saiyed Mahmudul Hasan executed another will by which he cancelled his former will. He had reserved to himself the right to cancel his first will by para. 17 of that will. Under this new will he maintained the rate at which allowances were to be paid to his sons and daughters but increased the allowance to his wife from Rs. 50 to Rs. 250 and provided that, if the mutwalli did not pay her the allowance for a period of six months, then she would be entitled to claim maintenance at the rate of Rs. 400 per mensem. In this will too the testator reserved to himself the right to modify or alter its terms, if he wished to do so (see Para. 16). On 17 June 1938, Haji Saiyed Mahmudul Hasan executed his last will under which he made substantial changes in the allowances to be given to his sons and daughters. The allowance of Mehdi Hasan and Ali Hasan, two of his sons, defendants 4 and 5, was fixed at Rs. 375 each per month. The allowance of Hamid Hasan, plaintiff in the suit, was reduced from Rs. 200 to Rs. 75. No allowance was fixed for Saiyed Mohammad Hasan, the mutwalli nominated by him. His wife, Bibi Siddiq Fatma, defendant 2, was to get an allowance of Rs. 375 per month. Abrar Fatma, his daughter by Bibi Siddiq Fatma, defendant 3, was to get an allowance of Rs. 100 per month. The other five daughters, defendants 6 to 10 were to get allowances, at the rate of Rs. 25 each as provided in the previous wills.

(2.) Haji Saiyed Mahmudul Hasan died, as we have said, on 28 September 1989, and Saiyed Mohammad. Hasan, defendant 1, became the mutwalli of the waqf property. Saiyed Hamid Hasan on 20 August 1940, claiming Rs. 2146-11-6 as the maintenance allowance payable to him from 29 September 1939 to 20th August 1940, filed Suit No. 22 of 1941. This claim for the recovery of the money was filed against Saiyed Mohammad Hasan, defendant 1. According to the plaintiff, Saiyed Mahmudul Hasan after he executed his first will dated 2 February, 1933, exhausted the power given to him under para. 18 of wakf deed and had no right to execute the second and the third wills. He, therefore, brought the suit on the basis of the first will and claimed a declaration that the second and the third wills were invalid and inoperative and impleaded all those who were interested in the estate of Saiyed Mahmudul Hasan, i.e., his sons, his daughters, his widow and his mother.

(3.) The defendants filed a number of written statements. Three distinct defences were raised by separate sets of defendants to this action. The contention of one set was that the wakif had no right to delegate the authority, to nominate beneficiaries, to Saiyed Mahmudul Hasan who had, therefore, no right to execute any of the three wills. The second set supported the plaintiff and pleaded that para. 18 of the wakf deed de-legating the authority to Saiyed Mahmudul Hasan to nominate the beneficiaries was perfectly valid and he had, therefore, the right to execute his first will dated 2 February, 1933, but after having done that he had exhausted his powers and had no right to execute the second and third wills which were, therefore, invalid, the first will being the only operative will. The last set which consisted of Mehdi Hasan, defendant 4, Ali Hasan, defendant 5, Bibi Siddiq Fatma, defendant 2, and Abrar Fatma, defendant 3, urged that it was the third will which was effective, being the last will and testament of Saiyed Mahmudul Hasan, and the plain, tiff was entitled to get nothing more than Rs. 75 per menssm. The written statement of Saiyed Mehdi Hasan is at page 12. He urged that the plaintiff was not entitled to get a declaration that the second and third wills were invalid and if he was to be given a decree for maintenance, he could only be paid that sum at the rate of Rs. 75 per mensem as provided for in the third will dated 17th June 1938. During the pendency of this suit by Saiyed Hamid Hasan, which was filed on 20 August 1940, Saiyed Mehdi Hasan filed a suit, No. 27 of 1941, on 3rd May 1941, claiming a sum of Rs. 5925 being the maintenance allowance at the rate of Rs. 375 per mensem, from 28 September 1939 to 29 April 1941, as provided for in the third will. These two suits were heard and decided together by the learned Civil Judge of Aligarh in a judgment dated 3 September 1941.