MT MUSHARRAF BEGAM Vs. MTSIKANDAR JEHAN BEGAM

JUDGEMENT

(1.) This is an appeal from a judgment of the Additional Subordinate Judge of Allahabad, giving the plaintiff-respondent a decree for a declaration that certain properties named in the plaint are wakf properties, and for possession thereof as mutwalli, and a sum of nearly Rs. 2,000 mesne profits which had been realized by some of the defendants from the property during the period of their possession and that of the Receiver. The property concerned was owned by one Arab Ali Khan, a resident of Allahabad city, it is mostly zamindari property in the three parganas of Arail, Sikandra and Chail, a consideration the importance of which will become clear later on. There is also some land occupied by the houses of tenants or lying waste in the city of Allahabad. The plaintiff-respondent Mt. Sikandra Begam is the daughter-in-law of Arab Ali Khan, and she claimed possession as mutwalli under the terms of a deed of wakf said to have been executed by Arab Ali Khan on 14 April 1919. The first three defendants are one of the widows and the two surviving daughters of Arab Ali Khan, and the defendant 4 is Khan Sahib Mahmud Ali Khan, to whom a small portion of the wakf property had been transferred before the institution of the suit. According to the contention made on his behalf before us he was unnecessarily impleaded, as he had parted with this property on 13 May 1925 after the institution of the suit but before the decision by the lower Court; he was included in the appeal by mistake and wished to withdraw at the time when the arguments started. To this part of the case we shall revert later on.

(2.) In 1918 Arab Ali Khan had attained an age of 70 years. He had been married four times, and two of his wives were still living, viz., the present defendant- appellant Mt. Musharraf Begam, who was living in a separate house from her husband, and Mt. Imtiazan who was living in the same house with him. There was one son Haidar Husain, who was at that time aged about 22 years, and two daughters, Mt. Sajida Begam, the sister of Haidar Husain, whose mother had died many years before, and Mt. Hatmi Begam, the daughter of Mt. Musharraf Begam. Both these daughters had been married, but Mt. Hatmi Begam was, we understand, separated from her husband and was living with her mother in Allahabad.

(3.) Arab Ali Khan arranged to marry his son Haider Husain to the present plaintiff- respondent Sikandar Jahan Begam, who is the daughter of Hakim Nazir Husain of Lucknow. There was at first some hitch about the wedding, as on the first occasion when the wedding procession went from Allahabad to Lucknow the ceremony was not completed, but there was a second wedding procession and the marriage was finally celebrated in July 1918. So far, the facts given have either been admitted as true or have not been contested before us. Mt. Musharraf Begam, the defendant, stated in evidence that the reason why the marriage was postponed on the first occasion was that Hakim Nazir Husain demanded a dower of 1 1/4 lakhs of rupees on behalf of his daughter from Arab Ali Khan, to be secured by a mortgage of all Arab Ali Khan's property, and that this was refused, but that on the second occasion it was agreed that the dower should be Rs. 25,000 and that some property should be mortgaged to provide maintenance for the bride, Arab Ali Khan promising to execute a document later on. Curiously enough Nazir Husain himself, who of course appeared as a witness for the plaintiff, his daughter, denied in evidence that there was any such agreement. It is possible that these two did not appreciate the bearing that this alleged agreement would have on their respective cases.