NAIM-UL-HAQ Vs. MUHAMMAD SUBHAN-ULLAH

JUDGEMENT

(1.) The plaintiff in this case is the daughter s son, and the defendant the son s son, of one Maulvi Habib-ullah Khan, who died on the 3rd of April, 1891. The plaintiff s case is that the said Maulvi had, in his life-time, made a waqf, or dedication for religious and charitable purposes under the Muhammadan law, of certain property specified at the foot of the plaint; that the defendant is in possession of the said property as mutawilli, or trustee of the endowment, but is misconducting himself in various ways, and principally by wasting and alienating the endowed property and by refusing to make payments which he is bound to make under the terms of the endowment. The plaintiff claims to be interested in the trust as a beneficiary under the same, and to be entitled to maintain the suit independently of the provisions of Section 92 of the Code of Civil Procedure. The reliefs sought are a declaration that the property specified at the foot of the plaint is "the waqf property," the removal of the defendant from the post of mutawilli, or managing trustee of the endowed property, and the appointment of a new mutawalli, to be selected by the court in its discretion from amongst the persons entitled to be so appointed under the terms of the alleged deed of endowment. A list of these persons, including the plaintiff himself, is append ed to the plaint; but none of the other persons-in the list has been impleaded as a party to the suit. In the defendant s written statement as originally filed the suit was resisted on a variety, of grounds; but it was admitted that a valid endowment or waqf had been made by Maulvi Habib-ullah Khan of the property, in suit. At a later stage the defendant applied to the trial court for permission to amend his pleadings in this respect, his case being that his admission above referred to had been made upon defective legal advice and amounted to nothing more than, an erroneous admission upon a point of law. He was allowed to file; an amended pleading, in which he denied that Maulvi Habib-ullah Khan had ever made a valid waqf of any property, and pleaded more particularly that, on no possible view of the facts or the law, could it be held that there had ever been any dedication to religious or charitable purposes of the property specified in the lists (B) and (C) appended to the plaint. The case went to trial on issues framed upon the pleadings as thus amended, and the plaintiff has no valid ground for complaining of the exercise of a discretion undoubtedly inherent in the trial court. It may indeed be pointed out at once that it has had to be conceded in argument before us that no waqf was ever made of the property specified in list (B).

(2.) The court below framed a number of issues, but has dismissed the plaintiff s suit, in the main, upon a finding that there was never any valid waqf or dedication of any of the property in suit to religious or charitable purposes. The memorandum of appeal to this Court is a prolix and argumentative document; but in substance three points only are taken and have been argued before us. (a) It is contended that the defendant is estopped from denying that there has been a valid waqf of the property in suit. (b) It is claimed that a valid waqf under Muhammadan Law was created by three specified documents, admittedly executed by Maulvi Habib-ullah Khan; or in the alternative by the first two of these documents or again in the alternative by the third document, which is the will of the said Habib-ullah Khan. (c) It is pleaded that, even if the court should repel the second of the above contentions, in view of the law as laid down, by sundry authoritative decisions prior to the passing of the Musalman Waqf Validating Act (No. VI of 1913), the said Act is retrospective in its effect and that the arrangement effected by the will of the deceased Maulvi Habib-ullah Khan amounts to a valid waqf under the provisions of this Statute. On behalf of the respondent each of the above propositions is denied, and it is also sought to support the decision of the court below on a plea decided by that court against the defendant, namely. (d) that the suit as brought, for the reliefs specified in the plaint, is one which a person claiming an interest in the alleged trust could only maintain under the provisions of Section 92 of the Code of Civil Procedure, so that the plaint ought to have been rejected as it stood, on the ground that it contravenes the provisions of that section and was filed without the consent of the prescribed authority.

(3.) Strictly speaking the questions raised in the pleadings (a) and (d) above set forth are in their nature preliminary to the consideration of the appeal on its merits, as the questions raised in pleading (b) and (c) could not arise if point (a) were decided in favour of the appellant or point (d) in favour of the respondent. The case has, however, been fully argued out before us; and I find it practically more convenient to proceed at once to the consideration of the main questions raised by the appeal.