BIBI ZOHRA Vs. BIBI HABIBUNNISSA

JUDGEMENT

(1.) This is an application against an order of the District Judge of Darbhanga directing that a deputy mutwalli of a wakf be appointed in the manner indicated in the order. The facts are these. One Sheikh Shukrullah, along with one of his wives, Zaibunissa, made a wakf of certain properties for religious and charitable purposes. By the wakf deed he appointed himself to be the mutwalli for his life; on his death his wife, Zaibunissa, if she was alive, then, was to be the mutwalli, and after her, Wajihuddin, a son of his from another wife Habibunissa, was to be the mutwalli. In case Zaibunissa died during the lifetime of Shukrullah, Wajihuddin was to be the mutwalli if a major at the time of Shukrullab's death; but if he (Wajihuddin) be a minor at the time, then till he attained majority, Mt. Bibi Zohra, daughter of Sheikh Shukrullah from Zaibunissa was to be the mutwalli, but on his (Wajihuddin s) attaining majority he was, to become the mutwalli and the mutwalliship of Bibi Zohra was to terminate. Wajihuddin was given power to nominate the mutwalli after him from among the male members of the family of Shukrullah, and each successive mutwalli thereafter was given a similar power. This was to continue as long as capable and honest male members of the family, of Shukrullah were available. In case of extinction of the male descendants of Shukrullah, female members of his family who would be found capable were to be nominated mutwalli in accordance with the aforesaid arrangement, and the power pf nominating successors was given to them also.

(2.) Wajihuddin died during the lifetime of Shukrullah, who continued op work as mutwalli till his death in December 1929; Thereuppn Zaibunissa became the mutwalli. Her right to the mutwalliship was disputed by her co-widow Habibunissa who applied to be the mutwalli, but the District Judge in a proceeding (Miscellaneous Case No. 30 of 1930) overruled the objection of Habibunissa. Zaibunissa continued as mutwalli till her death. It appears that towards the end of the year 1935, one Razid Ali applied to the District Judge of Darbhanga for action under Act 14 of 1920 or Act 42 of 1923 calling upon the mutwalli, Mt. Zaibunissa, to submit accounts. Accounts were submitted on 10 February 1936, and they were being examined when Zaibunissa died on 23 May 1938. Mt. Zohra, the daughter of Shukrullah and Zaibunissa, appeared in that proceeding and intimated to the Court that her mother was dead, and stated that according to the deed of wakf she had succeeded to the mutwalliship of the wakf and had taken charge of it from the mukhtar- am, who had rendered all accounts to her.

(3.) She asked that her name should be substituted in the proceeding in place of the deceased Mt. Zaibunissa. To this Mt. Habibunissa, widow of Sheikh Shukrullah, objected. Her case was that according to the deed of wakf, Abdul Hai, son of Shukrullah from her, was entitled to be the mutwalli after the death of Zaibunissa, and she prayed that the application of Bibi Zohra be rejected and Abdul Hai who was :then a minor be recognized as mutwalli. Having on the death of Shukrullah been ^appointed guardian of the properties of Abdul Hai, Habibunnissa applied to be appointed guardian of the wakf properties also.