HAFIZ WAZIR ALI Vs. LADLEY BEGUM

JUDGEMENT

(1.) This is a vendor and purchaser summons, taken out by the purchasers. The questions asked are somewhat peculiar in form. The real question is whether the vendors are in a position to convey a good marketable title, notwithstanding three points raised. The first and principal point is that indicated in questions 3, 4, 5 and may be formulated as follows: Can the vendors give a good and a marketable title, having regard to the fact that at the date of the applications and order for sale, one Dularu who was described as a minor, was actually a major, and had the right to be appointed mutwali, in preference to the first vendor, who was actually appointed. The second point is based upon the absence of title deeds, other than the wakf deed of 1901, which is the root of title, questions in the summons 1 and 2. The third point relates to the application of the purchase money, questions 6 and 7 of the summons. These are hardly questions to be asked by a purchaser, for, they cannot be regarded, under any view, as affecting title, but in the circumstances of this case which are peculiar, I shall probably express some opinion.

(2.) The vendors are two persons appointed by the Court mutwalis of the wakf estate, to which the property in question belongs, and who have been given liberty by the Court to sell the property. The second party to the proposed conveyance is Mr. O. U. Ahmad, an officer of the Court. As already indicated, the circumstances under which the said order came to be made, are somewhat peculiar and I set out such as are essential, to explain my opinion. In 1901, by a registered deed, one Khaja Wazir Ahmad made a public wakf of his properties, including those with which we are concerned. He appointed mutwalis and was himself the first mutwali. His eldest son, Khaja Noor Muhammad continued as mutwali until his death on 23 May 1928. Khaja Wazir Ahmad, the founder, had a daughter Mariunnessa; her son Ali Ahmad Khan, who died in October 1927 married the daughter of Munshi Abdul Jalil, and left him surviving four minor children Ladley Begum, Malka Bibi, Akhtari Bibi and Sultan Ahmed Khan alias Dularu. From the year 1928, these children went to live with their maternal grand-father Abdul Jalil at his house No. 24-1B, Buddhu Ostagar Lane and were, from that date until his death on 12 June 1936, maintained by him. On 8 August 1928, Jalil was appointed guardian of the minor's property, both secular and wakf, the wakf property being apparently regarded by the Court as a different species of property belonging to the minors.

(3.) As often happens with regard to wakf property, in what might be called, backward localities, many attempts were made by outsiders to obtain possession of or destroy the wakf property and Jalil was engaged in expensive litigation, both as complainant, plaintiff and defendant, for the purpose of saving the wakf estate. There is no doubt, also, as again is common among certain sections of the community, that the wakf estate was in some respects looked upon as private property. It is to be remembered that this wakf was made before the Act of 1913, whereby wakf-al-aulad were made legal. In the end Jalil appears to have succeeded. On 8 August 1935, Jalil having filed his accounts as guardian, showing the expenditure above-mentioned, obtained an order from the Court, giving him liberty to mortgage the wakf properties for Rs. 45,000. He had, before this, mortgaged his own property in Ostagar Lane. Jalil died before executing the mortgage and on 26 June 1936 his two children <JGN>Ameer Ali</JGN> and Kulsum Bibi obtained an order, appointing them guardians of the secular and wakf properties of the infants, subject to furnishing security and for similar liberty to mortgage. They obtained this order but were unable to find security and <JGN>Ameer Ali</JGN> was apparently unwilling to act. Hence on 28 May 1937, a further petition was filed by Kulsum Bibi and Ladley Begum, asking to be appointed guardians and mutwalis pending the minority of Dularu, Dularu therefore being recognised as having a preferential right to mutwaliship. They also asked for liberty to mortgage the wakf property for Rs. 45,000 and to sell a hut of small value, admittedly the secular estate of the minors. It is now said that at the date of this application Dularu was a major.