MAHOMED ABDULLA JITAKER Vs. ABDUL REHMAN JITAKER

JUDGEMENT

(1.) This is a suit praying for the administration of the estate of one Moulvi Abdul Kader Jitekar who died at Bombay intestate on the 12 day of February 1905, leaving him surviving two sons Mahomed Abdulla, the first plaintiff and Abdul Rehman, the first defendant, a widow Ayeshabibi, the second plaintiff and a daughter Mariambibi, the second defendant. Apart from moveabies the deceased at the time of his death Was in possession of four immoveable properties detailed in Part II of Schedule A to the plaint and had also been held entitled to a share in two immoveable properties detailed in Part III of the same schedule. By a Wakfnama dated the 16 May 1900 the deceased purported to settle the said four immoveable properties upon certain trusts and the principal point in dispute in this suit is whether this deed is valid and binding upon the parties.

(2.) In effect the settlor conveys the properties to himself as Mutawalli then to the first defendant then to grand-sons in succession and so on to the eldest male lineal descendant upon trust to manage the properties and distribute the income according to the terms of the deed amongst the settlor's descendants and on absolute failure of the line of the several lineal descendants of the settlor in trust for charitable purposes in connection with the Sunni community of Mahomedans due regard being also paid and assistance given to any relatives by marriage of any descendant of the settlor who may be in the opinion of the Mutawalli deserving of assistance.

(3.) There can be no doubt that if this deed can be brought within the decision of the Privy Council in Abul Fata Mahomed Ishak V/s. Rasamaya Dhur Chowdhri (1894) I.L.R. 22 Cal. 619 it must be set aside. But it has been argued by counsel for the first defendant that the parties in that case and in all the previous cases therein mentioned were Hanafis governed by Hanafi law, that the parties to this suit were Shafeis and that the Shafei law of Wakf is quite different from the Hanafi law of Wakf. To this the plaintiff replied that in Mahomed Hassan V/s. Mahomed Ibrahim (1903) 5 Bom. L.R. 624 although the parties were Shafeis, the decision of the Privy Council in Abul Fatd Mahomed Ishak V/s. Rasamaya Dhur Chowdhri was followed. In rejoinder the first defendant says that in Mahomed Hassan V/s. Mahomed Ibrahim the point was never taken.