KHATOON JANNAT BIBI Vs. SYED WALI ULLAH

JUDGEMENT

(1.) These are two connected matters. First Appeal no. 375 of 1945 arises out of a suit filed by Mt. Khatoon Jannat Bibi against her brother Syed Wali Ullah and his wife Mt. Humera Khatoon, for a declaration that the sale deed dated 24th November 1936, executed by Syed Wali Ullah in favour of Mt. Humera Khatoon is, so far as it relates to the property specified in List (b) at the foot of the plaint, invalid and null and void, and for possession of the said property to the plaintiff as mutwalli. She further claimed from Syed Waliullah accounts relating to all the amounts due to Syed Nabi Ullah mentioned in List (a) at the foot of the plaint and in List 4 of the will dated 11 May 1923 from the period beginning from 2nd July 1923, and it was prayed that the amount found due after rendition of accounts may be made over to the plaintiff by defendant 1. The suit was valued at Rs. 54,000.

(2.) The allegations of the plaintiff were that Syed Nabi Ullah father of the plaintiff and Syed Wali Ullah, died on 2 July, 1925. He had only one son defendant 1 Syed Wali Ullah, and one daughter the plaintiff. One 11 May 1928, Syed Nabi Ullah executed a will under which he gave certain properties to his son and certain others to his daughter and made certain bequests and also made a waqf of certain properties. Under the will Syed Wali Ullah was to be the mutwalli and in his absence the daughter Mt. Khatoon Jannat Bibi was to be the mutwalli. Plaintiff's allegations were that Syed Wali Ullah had committed several breaches of trust and she had made an application before the learned District Judge of Allahabad under Secs.73 and 74, Trusts Act (II

(2.) of 1882). On 26 August 1938, this application was rejected on the ground that the trust created by Syed Nabi Ullah was a public trust and the provisions of the Trusts Act, therefore, did not apply. The matter was taken up to the High Court in a civil revision and the High Court in its order dated 18 January 1940, held that the trust was not a public trust and the provisions of the Trusts Act were, therefore, applicable. The High Court set aside the order of the District Judge and remanded the case with direction that the case be re-admitted to its original number and heard and decided according to law.