ALI ZAMIN Vs. AKBAR ALI KHAN

JUDGEMENT

(1.) The sole question in this appeal is whether a wakfnama, dated 25 May 1917, is valid and operative according to Shia law. The settlor was the late Nawad Haji Syed Nawab Mehdi Husain Khan, commonly known as Badshah Nawad. The suit was brought on 9 January 1920, in the Court of the Subordinate Judge at Patna by the respondent, Syed Akbar Ali Khan alias Syed Chhotey Nawab one of the two serviving brothers of the settlor. The main though not the sole purpose of the suit was, to obtain a declaration that the deed of 25th May 1917 was invalid, and did not'in law operate as a dedication of the properties comprised therein, and that, notwithstanding the deed, the plaintiff was entitled to possession of a third share of the properties by inheritance from his brother, the settlor, who had died on 19 March 1919. The appellant before their Lordships Syed Ali Zamin who was defendant 1 in the suit; by the terms of the deed he was appointed to be sole mutawalli on the death of the settlor. The other causes of action, and the other defendants need not now be detailed. The Subordinate Judge on 31 July 1922 decreed the suit declaring the deed to be inoperative and the properties therein mentioned to be part and parcel of the estate which Badshah Nawab left at his death. On appeal this decree was, in certain respects, modified by the decree of the High Court at Patna, dated 16 January 1928. But on the main question namely the invalidity of the deed, the learned Judges of the High Court, Dawson Miller, C. J. and Adami, J. concurred in the conclusion reached by the Subordinate Judge though not in all his reasons.

(2.) In 1917 Badshah Nawab was about 60 years of age; he bad a wife living (defendant 2 in this suit), but ho had no sons or daughters. His family had for long enjoyed the advantages of wealth and position, and his father had created a verbal wakf of three villages in Patna yielding an income of between Rs. 2,000 and Rs. 3,000 of which Badshah Nawab, after his father's death, was the mutawalli. This had provided for certain religious ceremonies in a mosque and imambara and Badshah Nawab had before 1917 been in the habit of adding money of his own to the income of his father's endowment for conducting the ceremonies. Since 1911 Badshah Nawab had suffered from paralysis, his second attack (in 1914) having impaired his ability to transact business of any difficulty : the third and last attack was in December 1918, two or three months before his death. In 1915 he found it necessary to sell property in order to meet his debts. A banking business in which he was a partner had failed, involving him in heavy liability. With the help of the appellant, Ali Zamin, whom he called in to help him in managing his affairs, by borrowing money on mortgage and by the sale of properties he had dealt with the position and at the date of his death though he owed about Rs. 74,000, he was not insolvent even if the dedicated properties be disregarded.

(3.) The wakfnama now in dispute is an elaborate document and the schedules thereof specify a large number of properties, moveable and immoveable, with fall details of the latter. The description of the objects upon which the settlor's bounty is to be expended and of the sums of money to be appropriated to each, is careful and lengthy. The net income from the dedicated properties is stated in the deed to be just under Rs. 20,000 per annum; according to the High Court the properties comprised in the deed are, substantially speaking, the whole of the unincumbered property which the settlor at that time possessed. The learned Chief Justice has given a short description of the nature and effect of the deed as follows: The properties dedicated by the settlor are situated in the districts of Shahabad, Patna, Monghyr and Purnea and included his two houses known as Badshah Manzil and Badshah Mahal together with the effects and jewellery therein which were valuable. The former was to be the residence of the mutawalli and the latter the residence of his wife who was also to receive during her lifetime Rs. 3,600 per annum out of the income of the endowed properties. The mutawalli was to receive Rs. 3,000 per annum and two other annuitants Rs.1,200 and kb. 360 respectively. The municipal taxes and repairs of the houses are estimated at Rs.1,872 and the auditors feeat Rs. 312. Rs. 2,288 were to be spent in celebrating religious ceremonies (majlises and mahafils), Rs. 624 were to be spent on an orphanage, Rs. 468 on the burial of the dead, Rs. 312 in connection with a mausoleum, Rs. 104 for breakfasts in Ramzan and Rs. 728 on the upkeep of horses and camels for religious processions. About Rs. 1,600 were to be spent on leaders of the prayers and servants of the mosque and imambara and the balance, about one-seventh of the whole, was to go to reserve fund, to be dealt with as provided in the deed in buying further property. The settlor was to be the first mutawalli and was to be succeeded on his death by Ali Zamin. A managing committee was to be appointed to come into existence after his death with certain powers of control and the right of appointing and dismissing future mutawallis. The wife's annuity after her death was to be spent on the maintenance and education of orphans and widows and any large accumulations in the reserve fund were to go in acquiring immovable properties to be treated as part of the wakf.