FAZAL AHMAD Vs. RBSHAR PRASAD

JUDGEMENT

(1.) I regret I am unable to agree with my learned colleague on one of the questions, arising in this appeal, which goes to the very root of the matter in controversy. I am of opinion that the deed of waqf, dated 23 June 1913, executed by Mt. Rahim Bibi does not affect the one-third share of villages Bhitaura Kalan and Amkhera, inherited by her on the death of her son, Manzur Ahmad who was admittedly the owner of the aforesaid villages. My learned colleague has so lucidly stated all the facts from which the proposition, on which we differ, emerges, that it would be needless repetition to recapitulate them in detail except in so far as is necessary to explain my views on that question. It is common ground that Manzur Ahmed executed a sale-deed, on 29 August 1912, only three days before his death, conveying the two villages to his mother, Mt. Rahim Bibi, in lieu of Rs. 2,00,000 of which a sum of Rs. 10,000 was paid at the time of the registration of the deed and the remaining sum of Rs. 1,90,000 was left with the vendor who was authorized to spend it on such charities as she determined. Manzur Ahmed left three other heirs, besides his mother Mt. Rahim Bibi. These were his uncle Fazal Ahmad the plaintiff-appellant and two widows Mt. Kamrunnisa and Mt. Jilani Bibi, the last named being the daughter of Fazal Ahmad.

(2.) On 23 June 1913, Mt. Rahim Bibi executed the deed of waqf by which she dedicated the two villages, professing to do so because she had been directed in the sale-deed to spend Rs. 1,90,000 on charities and the waqf of the two entire villages, instead of cash which would be diminished by user, was considered more desirable. The lady constituted herself mutawalli for her life and nominated Fazal Ahmad, the plaintiff-appellant, and several others as her successors to the office of the mutawalli. Mutation of names followed the execution of the deed of waqf but later, the heirs of Manzur Ahmad other than Mt. Rahim Bibi, successfully asserted their right of inheritance and obtained mutation of names to the extent of their shares. They repudiated the deed of sale dated, 29 August 1912 executed by Manzur Ahmad as no more than a gift, in disguise, to one of the heirs and therefore void under Mahomedan Law. Two suits were instituted in the Court of the Subordinate Judge of Pilibhit (1) by Mt. Rahim Bibi, for establishment of her right under the sale-deed, insisting on its validity and (2) by the other heirs headed by Fazal Ahmad the plaintiff-appellant for recovery of certain moveables left by Manzur Ahmad. Ultimately it was decided on 5 December 1917(p. 151) by a Bench of this Court that the so-called sale was a somewhat ingenious device to give the transaction the appearance of a sale so as to evade the Mahomedan law which forbade a Mussalman in his death illness to make a gift to one heir at the expense of the others.

(3.) The validity of the waqf made by Mt. Rahim Bibi was not directly in issue and apart from an obiter dictum nothing definite was ruled with regard to it. Subsequently there was an arbitration to which all the members of the family were parties in their personal capacity. The award declared that the waqf was invalid. I agree with my learned colleague that the question was not referred to the arbitrator and his decision thereon is not binding even if we ignore the fact that the Court refused to pass a decree in terms of it. In the meantime Mt. Rahim Bibi executed a sale-deed dated 20 June 1918 in favour of defendant 1 and Raja Lalta Prasad predecessor-in-title of the defendant-respondents 2 to 6. It recites that by the decree of this Court the two villages had been ultimately held to be part of the assets left by Manzur Ahmad and that her own share thereon, as his heir was one-third which she conveyed to the vendee in lieu of Rs. 80,000. Mt. Rahim Bibi died on 15 August 1921. The present suit was brought by Fazal Ahmad on 9 September 1924 in his capacity as mutawalli for establishment of the waqf as regards the one-third share to which Mt. Rahim Bibi was entitled at the date of waqf as heir of Manzur Ahmad, under the Mahomedan law. I am in entire agreement with my learned colleague in the view that the waqf was validly created in all other respects and all legal formalities including such delivery of possession as was possible under the circumstances, were observed. The waqf was fully intended by the lady to be operative in its inception. There is no satisfactory evidence to support the plea that it was a fictitious deed brought into existence to defeat the creditors of Mt. Rahim Bibi. I also endorse the view that Fazal Ahmad is not estopped from setting up the waqf as mutawalli, though in his capacity as Manzur Ahmad's heir he might have repudiated it in course of the litigation which ensued after his death.