SIDDIQ AHMED CHOUDHURY Vs. SYED AHMED CHOUDHURY

JUDGEMENT

(1.) This is an appeal under Clause 15, Letters Patent and it is directed against a judgment of Henderson J., dated 22 May, 1944 passed in Second Appeal No. 1890 of 1943. The appellant before us is the plaintiff and the suit was one commenced by him for establishment of his title as mutwalli in respect of a wakf created by his father Osi Mia and for a permanent injunction restraining defendants 1 to 3 from interfering with his possession as mutwalli of the wakf estate. The material facts are not in controversy and may be stated as follows:

(2.) The plaintiff as well as the four defendants in the suit are all sons of Osi Mia, though, their mothers were not the same. Osi Mia, married three wives in succession; the plaintiff and the pro forma defendant 4 are the two sons by his first wife. By the second wife also Osi Mia had two sons and they are defendants 1 and 3 in the suit; defendant 2 is the only son born of the third wife of Osi Mia. On 30 January 1934, Osi Mia created a wakf in respect of certain properties and appointed himself mutwalli of the wakf estate. The provision in the deed of wakf was that after his death all his sons would become mutwallis by rotation and each one of them would hold the office for a period of four years only. It appears that Asgar Ali, the father of Osi Mia had also made a wakf in respect of his own property some time in the year 1885 and Osi Mia became the sole mutwalli of his father's wakf after the death of his brother Gani Mia. On 9 October 1939, Osi Mia executed, what has been called a deed of rectification and it is marked Ex. 0 in this case, and it was pro-vided by this deed that those of his sons who would be mutwallis in respect of the wakf created by his father Asgar Ali would not be competent to act as mutwallis of his own wakf. On 5 June 1940, another deed was executed by Osi Mia by which he purported to resign his office as mutwalli of both the wakfs and appointed his third and fifth sons mutwallis of his father's wakf and the first, second and fourth sons mutwallis of the wakf created by himself. In this document it was expressly laid down that any of his sons acting contrary to the provisions of this deed or the earlier deed of rectification would forfeit his title to act as mutwalli with regard to any of these wakfs. Osi Mia died on 16 April 1941, and after his death certain disputes arose regarding succession to mutwalliship in respect of both the wakf estates. The plaintiff being the eldest son of Osi Mia was undoubtedly entitled to come in first as mutwalli of his father's wakf and hold the office for a period of four years according to the terms of the wakfnama and after his period was over the next term would be that of his own brother, the pro forma defendant 4 who is the second son of Osi Mia. Defendant 1 and the other step brothers of the plaintiff however disputed his claim to act as mutwalli of Osi Mia's wakf on the ground that the plaintiff along with his full brother, defendant 4, had got themselves enrolled as mutwallis of Asgar Ali's wakf. At the objection of defendant 1, the order recording their names as mutwallis of the said wakf was vacated, but even then the plaintiff filed a civil suit to establish his right. As these acts amounted to violation of the terms of the deed of rectification and the subsequent document executed on 5 June 1940, the plaintiff, it was said, forfeited his right to be appointed a mutwalli of his father's wakf. As on these allegations defendants 1 to 3 denied the title of the plaintiff to act as mutwalli of Osi Mia's wakf and threatened to dispossess him, the present suit was brought.

(3.) The suit was contested by defendants 1 and 2, and their allegations in substance were that the two later deeds executed by Osi Mia on 9 October 1939 and 5 June 1940 should be taken as integral parts of the original wakfnama and the plaintiff having violated the express provisions of the later deeds, was not competent to act as mutwalli. The munsif who heard the suit overruled the defence and decreed the plaintiff's suit. It was held that the subsequent documents executed by Osi Mia could not alter the terms of the original deed of wakf, as the founder had not reserved to himself the power of making changes when he executed the wakfnama and divested himself of his ownership in the dedicated properties.