MT ALIMUNNISA BIBI Vs. MOHAMMAD ABDUR RAHMAN

JUDGEMENT

(1.) This is a first appeal by Mt. Alimunnisa Bibi, the plaintiff, against a decree of the Civil Judge of Azamgarh dismissing her suit asking for possession of 7/88 sehams share of the estate of her deceased father Alauddin in Schedules A and B, the zamindari property, and Schedule 0, houses. The father, Alauddin, died on 5th February 1932. The defendants comprise the two sons of Alauddin, Abdur Rahman and Abdur Rahim, who are of full age, and minor sons and daughters and the two wives of Alauddin, defendant 7, Mt. Amina Bibi, and defendant 8, Mt. Sakina Bibi, who was the mother of the plaintiff. The mother of the plaintiff naturally supported the claim of the plaintiff but on behalf of the other defendants the claim was contested on the ground that the zamindari property in Schedule A had been the subject of a wakf by Saheb AH Khan, the great-grandfather of the plaintiff, on 4th February 1864, by the document printed on pp. 91 to 94, and that the property in lists B and C had been the subject of a wakf by Alauddin, the father of the plaintiff, on 2 September, 1916, pp. 95 to 103. The Court below held that these two deeds of wakf were genuine and had been carried out. No mention had been made of the first deed of wakf in the plaint but in regard to the second it was alleged that the deed of wakf of 1916 was one which was fictitious and had not been intended to be carried out and that it was executed by Alauddin because his wife Mt. Sakina Bibi had sent him a registered notice on 25 August 1916 and on 1st September 1916 she had filed a suit claiming her dower in form a pauperis. The question of the validity of these two deeds of wakf has been argued before us in appeal and these are the only grounds on which the appeal has been argued. The document beginning on p. 91 of 4 February 1864 is a registered document and has been proved by a certified copy. Learned Counsel argues that a certified copy was not admissible as there was no statement of any witness on the record that the original had been lost. This is incorrect because on page 35, line 15 it is stated by defendant 1, Abdur Rahman, in evidence: The wakfnama executed by Saheb Ali Khan could not be found as also the original wakfnama executed by my father.

(2.) That the original document could not be found is not surprising after a lapse of 70 years. The certified copy obtained from the registration office is therefore admissible in evidence. This point, we may note, was not taken in the Court below. Much argument has been addressed to us in regard, to the document of 4th February 1864 and learned Counsel for appellant argued firstly that the document was a mere deed of partition and not a deed of wakf at all. This argument is founded on the words on page 91, line 22: I...have divided the entire milak land owned and possessed by me as given below between my heirs. I have set apart a portion of my property for charitable purposes.

(3.) We consider that these words mean that part of the property was set apart and what was divided was the remainder. The document therefore is a partition deed so far as the remainder is concerned but that does not prevent it being a deed of wakf so far as the portion for charitable purposes is concerned. The next argument addressed to us was that the document only provided for the dedication of the profits of certain villages to be used for religious and charitable purposes and did not provide for the villages themselves to be made into wakf property. This is purely a question of construction of the document. The following clause is important: Dafa 2. - Hissa Mawaze Jamalpur waghaira mutaaleqa taluqa Milk Abdullah wa chhatwin hissa mauza Sarai Sadi pargana Ghosi wa chhatwin hissa mauza Deokali pargana Muhammadabad aur sawa nau anna (9 1/4 annas) hissa mauza Lawasath pargana Nathupur zila Azamgarh ke munafe ho bad waze malguzari wa ekhrajate zaruri ke ham muqir ne mai kitabhae kutubkhana waste masarife khair he waqf moabbad kiya wagean sarihan aur sharan mutawalli uska apni aulad men Maulvi Abdul Aziz Khan ko qarar diya chahiye mutawalli maskur hamesha mahasile dehat mauqufa mazkura ko sarfe masjido madarsae haramaine Sharifain wa zadrahe warido sadir waghaira hasb fard alaheda nzwishta omuhri hamare kiya karain aur hamesha mutawalli ashyae mauqufa ka hamare aulad se jo ahl horahe kare wa ghair shahs ya khelafe mazhab ba zariae tauliat dast andaz na hoga aur kisi shalchs ko hamare aulad se nisbat ashyae mazhhura he ekhtayar bai o rehan waghaira inteqalat ka haq ba hoga.