NAWAB KHASEH HABIBULLAH SAHEB Vs. KHAJEH SOLEMAN QUADER

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for recovery of money claimed for arrears of maintenance allowance and for the cost of construction of a house. The claim for allowance has been decreed by, the trial Court, while the claim for cost of erection of the house has been dismissed. The plaintiffs have not preferred a cross, appeal with regard to the portion of the claim disallowed by the Court below, and we are consequently concerned in this appeal solely with the question of the validity of the claim for arrears of-maintenance allowance. That claim is based on a document called a deed of agreement" executed by the late Nawab Sir Asanulla of Dacca, father of the 1st defendant. A brief recital of the family history of the defendants and of the events which led up to the agreement in question is necessary for the appreciation of the questions in controversy between the parties.

(2.) Khaja Abdulla, who came from Cashmere, set up an extensive trading business in the town of Dacce, and settled there towards the and of the eighteenth century. He left four sons, Khaja Asanulla, Hafizulla, Khaja Abdul Azim and Khaja Abdul Karim. Hafizulla, after the death of his father, became the head of the family and died about the year 1831. He was succeeded by his son Abdul Gaffur who was followed by his cousin Alimulla, the son of Asanulla. On the 28th September 1835 this Alimulla made a gift of a sum t of two lacs of rupees in favour of his son Abdul Gani, followed, on the 26th December 1845, by a deed of gift of valuable immovable properties. On the 8th May 1846 the other members of the family created a wakf of which Abdul Gani was made the mutwalli. This document recited that the custom of the family had been to appoint one of the members as the head, who granted allowances to the others and was accepted by them as the leader of the family; it was stated explicitly that the object of the wakf was the maintenance of the members of the family. It was also provided that the mutwalli would not be liable to be removed and would have authority to appoint his successor. On the 11th September 1868 Abdul Gani executed a tuliatnama, whereby he transferred the mutwalliship to his son Asanulla and also executed a deed of wakf whereof he appointed his son Asanulla as a mutwalli. The wakf was created "in favour of all his sons, offspring and all the members and relatives descended from his grandfather, and was descendible to children in the male and female lines, and on their failure, in favour of the fakirs and the poor indigent of Dacca." There can be no doubt as to the purpose of the wokf, because it was expressly recited that the wakf was created for the maintenance of the members of the family, generation after generation. To remove the possibility of all doubt on this point, the founder added:

(3.) The object of the wakf of the properties is this, that they be protected from injury and ruin and that the name and dignity of the family be maintained and that the profits of the estate be, according to the practice and usage of the family, spent for the improvement of the position and dignity of the family, for the comfort and benefit of the persons in whose favour the wakf is made, and for the performance of worldly and religious affairs and of charitable acts."