AHMAD ALI KHAN Vs. MOHAMMAD AITZAD ALI KHAN

JUDGEMENT

(1.) This is a first appeal by the defendants against a decree of a learned Subordinate Judge in favour of the plaintiffs. Defendant 1, appellant, Khan Bahadur Munshi Ahmad Ali Khan, executed a deed of wakf in favour of himself and his descendants and his family on 18 May 1916, and appointed himself mutawalli of the endowed property during his lifetime. He provided for a share of the profits of the property for his two daughters who were then surviving, Mt. Rabia Khatun and Mt. Taswir Fatma, and the plaintiffs claim that the plaintiffs are the descendants of these two ladies. The two ladies died during the lifetime of the wakif. On 21 November 1931 M. Ahmad Ali Khan executed what he called a supplement to the wakfnama by means of which he cut off the descendants of his two daughters from inheriting any profits in the wakf.

(2.) These descendants of the two ladies have now sued for a declaration that this supplementary deed of wakf of 21 November 1931 be held to be void and ineffectual and that it be declared that after the death of defendant 1 the plaintiffs are entitled to realize the share which was given by the original deed of wakf to the two daughters, Mt. Rabia Khatun and Mt. Taswir Fatma. Other points were raised in regard to undue influence, etc., but the main contest in the case is simply this: what was the moaning of the deed of wakf originally executed by defendant 1 on 18 May 1916. Learned Counsel for the appellants did not contest that as the deed of wakf did not make any reservation of power for a supplementary deed, therefore the supplementary deed of 21 November 1931 is entirely void and without legal effect.

(3.) The learned Subordinate Judge, himself a Mahomedan, has construed the terms of the wakfnama and has come to the conclusion that the terms of the wakfnama are in favour of the case for the plaintiffs. Now it is admitted by the learned Subordinate Judge, and we agree that in Wilson's Anglo-Muhammadan Law, para. 326, and Tyabji's Muhammadan Law, p. 632, the term "aulad" includes males as well as females but does not include the descendants of females. Further the term "aulad-dar-aulad" which is synonymous with the term aulad-ki-aulad" used in the wakfnama, has been held by the High Court of Bombay in Abdul Ganne Kasam V/s. Hussan Miya Rahimtula (1873) 10 Bom HCR 7, not to include the sons of a daughter. There are however no less than five provisions in the wakfnama of 1916 which indicate that the heirs of the daughters of the executant were to have a share in the benefits under the wakf. The first of these paragraphs is para. 8 and it provides: All my heirs shall have a right of easement in respect of and of residence in the residential house, but no co-sharer ("Sharik aur uska waris") or his heir shall be entitled to get it partitioned.