MT BIBI ALIMUNNISSA Vs. SHAIKH ABDUL AZIZ

JUDGEMENT

(1.) This appeal arises out of a suit for arrears of annuity. In 1905 Shaikh Imdad Ali, maternal grandfather of the appellant, executed a wakf of his property for the perpetuation, repairs and administration, etc., of a mosque and a madrasa built by him, and for "the maintenance and provision of his rightful relations." An allowance was fixed for the services of the mutawalli and for the expenses of the two institutions, and in para. 5 the deed of wakf provided that Rs. 800 will be given as stipend to the persons named below and after them to their descendants (aulad) according to the shares fixed by the Mahometan Law, and in case of absence of descendants (aulad) it will be included in the charities and furtherance of the object of the wakf.

(2.) The sum of Rs. 800 was initially payable as an annual "stipend" (wazifa) in the following manner: Rs. 200 to the wakif's wife, Mt. Bibi Hafiza, and Rs. 150 each to four daughters, Khairan, Idan, Khuban, defendant 3, and Kulsum. The appellant is daughter of Mt. Kulsum who died in 1912, leaving as her heirs the appellant, the parents Imdad and Hafiza, defendant 4, and the husband Hakim, defendant 2. The appellant's case was that all the other heirs of her mother made her a verbal gift of their shares in the annuity payable to Kulsum and that she thus became entitled to Kulsum's entire Rs. 150 a year. Imdad died in 1914, and in 1925 Hafiza, grandmother of the appellant, executed a hiba-bil-ewaz in favour of the appellant in respect of her annuity of Rs. 200. It was thus that the appellant sued for the recovery of Rs. 350 (besides interest) as her annuity for the year 1337 Fasli. The suit was resisted by the present mutwalli, defendant 1, who admitted the plaintiff's right to receive Rs. 75 only out of her mother's annuity but denied the oral hiba alleged by the plaintiff in respect of the shares of the other heirs of Mt. Kulsum and also denied the power of any annuity-holder to transfer his or her annuity. The trial Court found against the defendant on both points and decreed the suit. The lower appellate Court agreed with the trial Court as regards the factum of the oral hiba, but upheld the contention of the defendant mutwalli that Hafiza, in respect of her annuity of Rs. 200, and the heirs of Kulsum other than the appellant herself, in respect of their shares of the annuity that used to be paid to Kulsum, had no right to gift their annuities away. The Subordinate Judge accordingly allowed the appeal and reduced the decree in favour of the plaintiff to Rs. 75 only besides interest, it being common ground that this was the share in the annuity of Kulsum to which the appellant was entitled under the wakfnama.

(3.) It has been contended by Mr. Khurshaid Husnain who appears for the plaintiff, appellant that annuities are transferable under the general law, and that the wakfnama contemplates transfers within the circle of the wakif's dependents (or relations, as the word mutalliqin has been rendered) and does not in any way restrict the interest of the annuity-holders except that their shares are to go as an accretion to the charities (the mosque and the madrasa) on failure of aulad. Mr. Hasan Jan, who appears for the other side, has on the other hand argued that what we are dealing with here is maintenance grants--grants for "parwarish o nafqa," as the recitals in the wakfnama put it--and that they essentially import rights to be personally enjoyed and not to be transferred by those on whom they are conferred. He points out that transfers even within the family circle might bring in unintended remote heirs and thus defeat the provisions in the wakfnama making the allowances descendible to the aulad according to the shares fixed by the Mahomedan law and revertible to the charities on failure of such aulad. The difference between an annuity and a maintenance allowance is not a matter of dispute before me; it is agreed that the latter is referable to a duty to maintain, with a corresponding right to be maintained, while the former is not. The wakif was under no obligation to maintain his widow Bibi Hafiza or his daughters who, I am informed, had all been given away in marriage.