NOSH ALI Vs. SHAMSUNNESA BIBI

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit brought for the recovery of possession over three, fourths of the property owned by one Sheikh Nasru. Sh. Nasru died in July 1932 and his widow Mt. Fahimo Bibi assumed possession of the entire property left by Sh. Nasru in lieu of her dower. Mt. Fahimo under a deed dated 25 July 1932 dedicated the entire property as waqf for charitable purposes and appointed herself as mutwalli for life and on her death defendant 1 was nominated to succeed her as mutwalli. The plaintiffs came to Court on the allegation that they were entitled to succeed to three-fourths share in the property left by Sh. Nasru as residuaries; that Mt. Fahimo had no right to dedicate their share as waqf; that the waqf was illegal and opposed to Mahomedan law and that the dower debt was only Rs. 101 and not Rs. 2000. The plaintiffs accordingly prayed for a decree for possession. It appears that Mt. Fahimo died soon after the execution of the deed of waqf and defendant 1 succeeded in having her name recorded in village papers as mutwalli in succession to Mt. Fahimo. The suit was contested by defendant 1 who pleaded inter alia that the waqf was valid and operative and that the correct amount of dower debt was Rupees 2000. The trial Court held that the amount of dower debt was only Rs. 101 as alleged by the plaintiffs and decreed the suit for possession over the property in suit on payment of Rs. 75-12-0. The lower Appellate Court modified the decree of the trial Court and decreed the suit on payment of Rs. 1500 holding that the correct amount of dower was Rs. 2000. The plaintiffs have preferred an appeal from the decree of the Court below.

(2.) In second appeal the finding of the Court below on the amount of dower must be accepted as conclusive. The main point argued by learned Counsel for the appellants is that the waqf of the property in dispute is bad in law. The contention of learned Counsel is that it was not open to Mt. Fahimo to dedicate the property as waqf because she was not the full proprietor of the same. This question does not appear to have been argued before the Court below, but as the validity of the waqf was challenged in the written statement, we have allowed counsel to address us on this point. Before considering the legal aspect of the question we proceed to examine the form of dedication. In the deed Mt. Kahimo stated that she had inherited one-fourth of the property left by her husband as heir, that she was in possession of the remaining three-fourths in lieu of dower debt and that she dedicated the entire property as waqf in the name of God Almighty for charitable purposes. In para. 6 of the deed she stated: In case any of the residuaries brought a suit for possession over the three-fourths share of the property on payment of the proportionate amount of dower the mutwalli will include the amount so realized in the waqf estate and will spend the money on the objects of the waqf.

(3.) In para. 2 the mutwalli is directed to spend the income of the waqf estate on the requirements of Juma mosque of the town of Nizamabad and other religious purposes. Para. 4 directs that the mutwalli will not be permitted to transfer or otherwise encumber the dedicated property. It cannot be disputed that the right of a Mahomedan widow who has entered into possession of her husband's property peacefully and without force or fraud in lieu of her dower debt is heritable so as to entitle her heirs to remain in possession until the debt is Satisfied. It has been held in numerous cases that widow may transfer her right to possession if she also assigns her right to receive the unpaid dower. If the right to receive the dower and the right to remain In possession are transferred to the same person, ha cannot be ousted by the heirs of the husband until the dower debt is paid off : see Ali Bakifa V/s. Ailadad Khan (1910) 32 All. 551 and Amir Hasan Khan V/s. Mohammad Nazir Hasan . Learned Counsel for the appellants however contends that a Mahomedan widow is not allowed to dedicate a property of which ishe acquires possession in lieu of dower. Under the Mahomedan law the property dedicated must be of a reasonably permanent character and the waqif may make arrangements that the use of and income accruing from the specified property shall ibe permanently devoted to specified objects. Above all the waqif must be the owner of the property. Unless the waqif is the owner of the dedicated property, he has no permanent control over that property and a dedication thereof will be invalid under Mahomedan law. The Eight Hon ble Ameer Ali in his book on Mahomedan Law, Vol. 1 p. 266, Edn. 4, says: But the waqf of a building on land belonging to another of which the dedicator is in possession as bailee or lessee is not valid.