HAZI MOHAMED NAGOR Vs. ABDUL JALIL

JUDGEMENT

(1.) The plaintiff sued for declaration that he was entitled to a 12 annas share of the properties left by his brother, Mahommed Chhaber. He challenged two wakfs executed by his brother, one on the 17th Jane 1904, and the, other on the 12th January 1912. He also challenged a hiba bil ewaz in favour of the 4th defendant, an infant. This infant is the son of one Jalil, who is defendant No. 2, Jail was taken into the family by the settlor when he was quite a young boy and Jail was brought us in his family. The defendants are the settlor wife, Jail, Jail s wife and this infant son. The documents were all challenged in the plaint as having been executed secretly and in collusion, and it was said that the settlor was not in possession of sound sense and he did not execute them honestly and independently and knowing their purport and meaning. The bulk of the evidence given in this case was on those points, to show his mental incapacity and secret and collusive dealing with the properties. The learned Subordinate Judge has found that the documents were properly executed by the settlor and that he had sufficient mental capacity when he executed them.

(2.) Those findings are not now challenged. The ground now taken is that both the wakfs are illusory, and so far as the heba is concerned, it is not valid and operative inasmuch as the necessary formalities were not carried out and there was no intention of immediate transfer.

(3.) These wakfs have been created by documents, and it seems to us that the language employed in them is not ambiguous. The documents in terms establish religious and charitable trusts and evidence is not, therefore, admissible to show that the settlor had no intention to give effect to the trusts or that the trusts were not in fact given effect to. That was decided in the case of Kulsom Bibee v. Golam Hossein Qasim Anff 10 C. W. N. 449.. The learned Subordinate Judge has held that so far as the first wakf is concerned, it is not a valid document inasmuch as substantial property was not given by it to charitable purposes. He comes to that conclusion from the facts that only 1/4th of the income of certain properties was given for religious purposes, and he relied upon the observations made by Lord Robartson in Mujib-un-nissa v. Abdur Rahim 23 A. 233 (P.C.)s 5 C. W. N. 177; 28 I. A. 15; 11 M. L. J. 58,- 3 Bom, L.-B-. 114; 7 Sar. P. C. J, 829.and held that the deed did no show that substantial property was given for charitable purposes. So far as that case is concerned, it dealt with a document which was described as a deed of family endowment. It began with the words that it was a family endowment and ended in the same way. There was a provision made in it for charitable purposes after defrayal of necessary expenses set out in detail therein and it was held, having regard to the terms of the endowment for charitable purposes, that it was Dot a proper wait}. That case does not by itself give us sufficient help.