(MOULVI SYED) MAHEBUB HUSSAIN Vs. NASIRUDDIN

JUDGEMENT

(1.) THE suit out of which this appeal arises was instituted by Moulvi Mahebub Husain as mutawalli and trustee of a wakf alleged to have been created by Mt. Kulsambi the widow of a Sunni Mohammdan. Certain other persons alleged by the defendant to be co-trustees were subsequently joined as plaintiffs. Admittedly the property claimed, valued at Rs. 40,700, belonged to Mt. Kulsambi who died on 9th September 1919. The plaint alleges that on 19th July 1912, she executed a deed styled a wasiyatnama by which the property became the wakf property and Mt. Kulsambi, the mutawalli : by a subsequent deed dated 27th May 1915, styled an amanatnama, she entrusted her property to the plaintiff, directing that he should consult certain other persons; a list was given of the property, and it was directed that the income should be utilised in accordance with the prior wasiyatnama and in other suitable works. This later deed constituted the plaintiff the mutawalli and trustee of the wakf. The plaint makes mention of four deeds of gift, dated 5th May 1913, 5th March 1918, 20th June 1919 and 20th June 1919. It is urged that as a wakf was created on 19th July 1912, Mt. Kulsambi had no power to give away the property after that deed. The execution of the deeds is also challenged, and it is alleged that the deeds are invalid as they were not accompanied by delivery of possession. It is stated that the three last deeds were obtained by undue influence, and that Mt. Kulsambi was not in her senses on 20th June 1919. It is alleged that Mt. Kulsambi died, leaving no heirs.

(2.) THERE are three sets of defendants (1) representatives of Aliuddin, who claimed certain property under three of the gift deeds, one dated 5th March 1918 and the others dated 20th June 1919; (2) representatives of Mt. Kamarunnissa Begum, who claimed possession of other property under the gift deed, dated 5th May 1913 and one of the deeds dated 20th June 1919; (3) persons (with their representatives) who took possession of the remaining property of Mt. Kulsambi at her death, claiming to be her heirs.

(3.) THE findings of the learned Additional District Judge are as follows : (1) The deeds dated 19th July 1912 and 27th May 1915 were duly executed and attested and Mt. Kulsambi executed them of her free will when in full possession of her senses. (2) The deed dated 19th July 1912 is a will, and the deed dated 27th May 1915 merely gives certain persons authority to act as Kulsambi's agent and managers during her lifetime, and modifies the directions in the will. (3) Mt. Kulsambi thus retained power to give away her property, She did effectively give away the property by the deeds dated 5th May 1913 and 5th March 1918. (4) The two deeds dated 20th June 1919 are of no effect. It is difficult to say that the necessary formalties regarding execution and attestation were duly observed or that Kulsambi clearly understood the substance of the deeds. Apart from this no possession was delivered. (5) Mt. Kulsambi left no heirs and, therefore, was competent to dispose of all her property by will.