MAHAMMAD ESHAQUE Vs. MAHAMMAD AMIN

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and it arises out of a suit, commenced by him, in the Court of the Sub-Judge at Burdwan for declaration of his title, as mutwalli, to certain wakf properties and for recovery of possession of the same. The question for consideration in this appeal hinges primarily upon the interpretation to be put upon certain words used in a Persian document by which the wakf was created in the year 1849. The wakif was one Munshi Mahammad Muzaffar, a man of fairly large means, who was an inhabitant of Kusumgram in the district of Burdwan. Muzaffar married three wives, and had a son by each one of them. Modessar was the eldest of his sons, born of his first wife Osimannessa. The son by "his second wife, was Mahammad Ismail and Abdul Ohid was the son by his third wife. On 30th July 1849, Mujaffar executed a wakfnama in Persian language by which he created a public wakf in respect of certain properties included in Mouza No. 5297 of the Burdwan Collectorate whieh were purchased by him at an auction sale. The wakfnama provided that the wakif himself would remain in charge of the endowment so long as he would remain alive and after his death his eldest son Modessar would be the mutwalli. The provision in the deed of wakf, as regards devolution of the office of mutwalli after Modessar runs as follows: the said office shall devolve till the passing of ages (i.e. for ever) and repetition of months, as God the merciful wills upon the offspring of my son (ba farzandani fsrzandam) from generation to generation (Naslan baad naslin) womb after womb (batnam baad batnio).

(2.) The whole controversy in this case depends upon the meaning to be attached to the Persian words mentioned above, which I have placed within brackets. Muzaffar died in the Bengali year 1271, corresponding to the English year 1864, and after his death his eldest son Madassar became the mutwalli and possessed the wakf estate under the terms of the wakfnama. Madassar died in 1280 B.S. and thereafter his only son Munshi Mahammad Ebrahim became the mutwalli. Ebrahim died childless in April 1900 and upon his death his widowed sister Fatema laid claim to the office of mutwalli and filed a petition for registration of her name as mutwalli in respect of the landed properties, under the provisions of the Bengal Land Registration Act. Mahammad Ismail and Abdul Ohid, the two surviving sons of Mujaffar opposed the application. Ohid later on abandoned the contest and the Deputy Collector who heard the application granted the prayer of Patema and directed her name to be registered as mutwalli of the wakf properties. There was an appeal taken against this order by Ismail but the appellate officer confirmed the order of the Deputy Collector, leaving open the question of title, and directing Ismail to assert his rights in a civil Court if he so desired. No civil suit was filed by Ismail, and Patema acted as mutwalli till her death in November 1937. After Patema's death her son Ojhi who was the original defendant in this suit, had his name enrolled as mutwalli with the Wakf Commissioner, under the Bengal Wakf Act of 1934 and took possession of the properties. Thereupon on 20 April 1931, the plaintiff who is the eldest son of Ismail, who died during Fatema's life time, applied to the Wakf Commissioner for having his name enrolled as mutwalli after setting aside the previous order made in favour of Ojhi. This application was rejected and on 17 June 1939, this present suit was brought. The plaintiff's case as made in the plaint or rather during trial, was, that on a proper construction of the wakfnama the office of the mutwalli should be held to devolve, in the first instance on the male descendants of Madassar. Failing male descendants of Madassar the office would go to the other descendants of the wakif and the oldest and the most qualified among them should be appointed mutwalli, and no woman could hold the office so long as any male descendant was available. The position taken up by the plaintiff therefore was that after Ebrahim's death the proper person to hold the office was Ismail the father of the plaintiff, and Fatema had no legal title to mutwalliship. Now that Patema was dead, the plaintiff as the seniormost male descendant of Muzaffar was entitled to the office of mutwalli under the terms of the wakfnama, and Ojhi the son of Patema had no right to it. The younger brothers of the plaintiff were made pro forma defendants to the suit.

(3.) A written statement was filed by Ojhi the original defendant in the suit. Ojhi however died before the suit was heard and his son Mahammad Amin was substituted as defendant in his place. Amin adopted the written statement filed by his father, and his contention in substance was that under the terms of the wakfnama, the devolution of the office of mutwalli was to continue in the line of Madassar, and all his descendants through males or females were eligible to hold the office. So long as Madassar's line was not extinct, the plaintiff had no right to come in as mutwalli. The other contentions raised were, that on the plaintiff's own case, Patema having been in unlawful occupation of the office for more than twelve years the plaintiff's claim if any was barred by limitation, and that in any event, there wa3 Abdul Rashid, a son of Ohid, who was senior in age to the plaintiff and consequently had preferential rights to the office of the mutwalli.