BIBA JAN Vs. KALB HUSAIN

JUDGEMENT

(1.) The plaintiff in this suit seeks to set aside a waqfnama, dated the 2nd of November, 1902, executed by one Musammat Najiban, and for possession of a half share in property dealt with by the waqfnama, and for mesne profits. The plaintiff alleged that the execution of the deed was brought about by the undue influence of Kalb Husain, that Najiban was insane when she executed the deed and that no valid endowment had been created (1) because the objects were not legal, and (2) because the endowment was illusory and really made for the benefit of Kalb Husain and his brother Ataullah, the mutawallis appointed by the waqfnama. This appeal is closely connected with First Appeal No. 341 of 1906 decide on the 27 November 1908, and also with another, First Appeal No. 340 of 1906, which it has been unnecessary for us to decide inasmuch as the parties compromised it. The evidence in all these cases was by consent read en evidence in each case. The two connected appeals Nos. 340 and 341 of 1908 arose out of suits to set aside a deed of sale, executed by Musammat Najiban on the 18 of February, 1903, in favour of Kalb Husain on the grounds of the insanity of Masammat Najiban and the undue influence of Kalb Husain. The case of the plaintiff, so far as the plea of insanity was concerned, completely failed, and we have given our reasons at length in First Appeal No. 341 of 1903 for holding that the case founded on undue influence has also failed. The court below decided in favour of the plaintiff in the connected cases on the ground that the transaction came under the provisions of Section 16 of the Contract Act. But the present suit was dismissed, the court below being clearly of opinion that Najiban was not insane and that undue influence was not proved. We agree with the court below in this finding and we do not think it necessary to discuss the evidence, particularly as we have already dealt with it in our judgment in First Appeal No. 341 of 1906.

(2.) There remains the question of the validity of the waqfnama. In the court below this was certainly not the main ground of attack on the waqfnama, but it was raised by the pleadings and has been argued by Mr. Abdid Majid in support of the appeal. Najiban, it is clear from the evidence, was piously and charitably disposed for a. number of years before her death. She had built an Imambara at a cost of several thousand rupees. She was inthe habit of keeping tazias and istributing gifts of food in charity. Her expenses in, these acts of charity amounted to Rs. 1,000 or Rs. 1,200 a year. She took a special interest in these matters. Before her death She made a pilgrimage to Mecca and after her return she continued the same pious course of action. All this clearly appears from the evidence. The endowed property, which of course includes the imambara, is Boated in the wakfnama to be worth Rs. 40,000. The lauded property exclusive of the imambara is worth Rs. 30,000. It appears that the tenants were some what unruly and there was considerable amount of litigation in realizing the rents. Part of the landed property consisted of a share in an alluvial mahal, the income of which was subject to fluctuation. The waqfnama is to the following effect: Whereas there are a 5 biswa zamindari share in 10 biswa patti surkh in the village Gurgawan, pargana Aonla, and a pacca newly built house used as Imambara No. 75/962 in Bareilly near the library, bounded as given below, worth Rs. 40,000, and I am up to this time in proprietary possession thereof without the participation of anyone, I have now in a sound state of body and mind without coercion and of my own accord made a toaqf of the whole of the said property, i.e. 5 biswas of the village Gurgawan and the house used as imambara together with all the original and appended rights, zamindari appurtenances, sir land, groves, collection houses, abadi, bazar (market), all the sewai items and muafts, etc., including mahruka lands, for religions and charitable purposes subject to the following conditions and have appointed Kalb Husain, general attorney, and Ataullah, sons of Shaikh Sanaullah, as mutawallis (superintendents) of the endowed property "and put the said mutatcallis in possession thereof like myself. I shall get mutation of names in respect of the said lamindari share duly effected in the revenue department (Court). 1. The said mutawallis should collect rent and every sum of money due in respect of the endowed property, and pay the Government revenue, the village expenses and the salaries of the servants and out of the remaining amount of net profits they should pay under their own management Rs. 600 annually for the expenses of milad (birth anniversary) of the last of the Prophets (may the mercy of God be upon him) and that of Ali Martain in the months of Rabi-ul-awwal and Kauizan respectively, Rs. 600 for the expenses of making offerings and keeping tazias in honour of the chief of the martyrs, namely, Imam Husain and Hasan (may peace be on them) in the month of Muharram, and Rs. 200 for the expenses of the death anniversary of the dead persons and the repairs of the Imambara. 2. The said mutawallis shall, in no case, have power to sell or mortgage the endowed property, nor shall the said property be liable to pay tine debt due by the mutawallis or to be told by auction.

(3.) Should the said mutawallis die without appointing anyone as mutawallis or their representative, a qualified male descendant of the present mutawallis shall be appointed as mutawallis no other person shall have a right to be appointed as mutawalli. On the other hand this order of succession shall remain in force for all eternity generation after generation. No committee or society can interfere in the endowed property, inasmuch as the profits of the said endowed property have been dedicated for the maintenance of charitable purposes and offerings so that my name may be perpetuated in this world as well as in the next world and my soul benefited in the next world.