MAHABIR PRASAD Vs. SYED MUSTAFA HUSAIN

JUDGEMENT

(1.) On 13 April 1918, one Mir Fida Husain, a Mussalman of the Asna-Ashari sect of the Shias died leaving him surviving a widow, six sons of whom two were minors, and three daughters of whom two were minors. The appellants are judgment-creditors of three of the sons-viz., Mohammad Askari Hasan Askari and Baqar Mehdi - who were all of full age at the date of their father's death. In execution of money decrees against these sons the appellants in 1928 attached certain of the properties left by Mir Fida Husain, in consequence whereof they were impleaded as defendants 1 and 2 in the suit out of which this appeal arises. This suit was brought on 17 October 1929, by two of Mir Fida Husain's daughters seeking to establish that the whole of the properties left by their father, including the properties attached by the appellants, were wakf property. The learned Subordinate Judge has held that the shares (in all thirteen twentieths) which would ordinarily be inherited by the widow, and by the four sons and one daughter who were of age at the time of their father's death, had become wakf property; but that the remaining seven twentieths were not included in the wakf. The Chief Court of Oudh has held in effect that the wakf extends to the whole of the property left by Mir Fida Husain, which may be taken as worth about a lac of rupees and to have produced a gross income of over Rs. 13,000 per annum leaving a balance, after payment of land revenue, of Rs. 7,766.

(2.) A week or ten days before his death on 13 April 1918, Mir Fida Husain, as both Courts in India have found, made a statement, the precise effect of which is now in question. It is spoken to by five witnesses, two of whom gave evidence on commission, and' three at the trial before the learned Subordinate Judge. All his heirs are said to have been present when the statement was made, but though the five witnesses include a son-in-law, a nephew and a niece, none of his children have given evidence. Three witnesses at least are of good position- a Deputy Collector, a Hakim and an Honorary Magistrate. In fact after his death-in August 1918- Mt. Azmat-un-nisa, the widow, was, with her sons' consent, recorded by the revenue authorities as entitled for her life to the whole of her late husband's properties. Two and a half years after the death- viz., 16 December 1920, a registered deed was entered into by the members of the family in the following terms:

(3.) Whereas it was the desire of our father, the late Mir Fida Husain, that he should make a wakf of his property in favour of his children so that the property be saved from being wasted and with this particular object in view, the deceased got a draft prepared but owing to illness and the severity of his maladies, he could not get an opportunity to complete the deed and therefore a few days before his death, the deceased expressed his desire to all of us, his children, and made a will to us to the effect that after his death, mutation in respect of the entire property should be got effected in favour of our mother as absolute owner in lieu of her dower debt and he directed our mother to make a wakf in favour of children in respect of the entire property as her own; whereas after the death of our deceased father, the mutation of names was accordingly got effected in favour of our mother; but in the application for mutation, owing to a misapprehension of out intention, some such words came to be entered as seem to show that the ownership of our mother is limited to her life only and whereas this has given rise to complaint and displeasure on the part of our mother, so for the satisfaction and the removal of the complaints of our mother, and with a view to enforce the intention and will of our late father, we, the sons of the late Mir Saheb, do hereby affirm and reduce to writing that in conformity with the oral will of our late father, our mother, Mt. Azmat-un-nisa Begam, after the death of our father, has become the absolute owner of the entire assets of our late father and that we have no right in his assets. We, Mts. Amir Bano, Shabbir Bano and Safdari Bano, the daughters of the late Mir Saheb, do hereby declare and reduce to writing that under the will of our deceased father, our mother, Mt. Azmat-un-nisa Begam has become the absolute owner of his entire assets; that under custom we, the daughters, have no right to any legal share as against our aforesaid brothers nor do we wish to obtain any such right in the face of our late father's oral will and his desire and that our mother, Mt. Azmat-un-nisa Begam, is owner of the entire estate left by our deceased father, a detail whereof, so far as the immoveable property is concerned, is given below. Wherefore these few presents have been reduced to writing by way of a deed of relinquishment so that it may serve as an authority and be of use when required.