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testatrix) with children and property, and among my children there are a
son and a daughter, and life is uncertain, and there is a disagreement
between these two heirs of mine, therefore it is incumbent on me to make
whatever arrangements it may be advisable to make during my lifetime,
so that after my death there may be no dispute between. my heirs ; there-
fore whatever arrangenments it is advisable to carry out, and those matters
which it is necessary to state are sefe forth in paragraphs below, and I
desire to express my intention and wishes, whatever these are, in this
paper, and my heirs must not act contrary to them, and in the event of
their acting contrary thereto, the presiding officer of the time will carry
out and enforce my will."

The first paragraph of the will makes disposition of certain moveabla
properties and is unimportant for the purposes of this suit. [433] The
second paragraph, however, requires consideration. It enumerates the
properties of which the testatrix was then in possession, and it draws a
distinction between the four villages and the two houses which had
been made waqf by her father's will of the 3rd of November, 1863, and
other properties of which she was in possession as absolute owner. This
distinction appears in the first half of the paragraph, and in the latter
half the testatrix deals with the rest of her property which is not included
in this suit. The effect of this part of the will is to make a gift of a four-
anna share in the various properties to her son-in-law Altaf Hasan Khan
(defendant No. l), and another four-anna sbare to her daughter Musammat
Amina Begam (defendant No. 3), and it goes on to say that the gift in
favour of these two persons had already been completed by separate deeds
and delivery of possession. The last part of the paragraph expresses an
intention on her part to make a gift of tbe remaining eight-anna share in
the properties, and after enumerating them goes on to say : " Whenever
my son Agha Ali Khan wishes it, a deed of gift will also be executed
and completed in his favour. This property, belonging to me, the testatrix,
will not be considered as struck out (kharij) from my property until the
execution of the deed of gift, and it will continue to be my property."

The statement of these facts, however, is only introductory to what
will hereafter be stated as to the transactions between Musammat
Kanizak Fatima and her son Agha Ali (plaintiff No. 1) having a bearing
upon his right to maintain this suit. What is of great importance aa
relating immediately to the property now in. suit (namely, the property
declared as waqf by Muhammad Ali's deeds of the 3rd of November, 1863,
and the 27th of November, 1863) is the fourth paragraph of Kanizak
Fatima's will now under consideration. A considerable portion of the
paragraph requires quotation, as indicating the manner in which the pro-
perty now insuit was dealt with by the testatrix. It runs as follows :

" In addition to the property belonging to me the testatrix, a
detail of which is given above, there are mauzas Rampur, Batrana>
Narkhas, Pathri Patharhar and Hafigpvr, pargana [434] Rasulabad, zilla

640



1892

MAY 9.

FULL
BENCH.

14 A. 429

(F.B,)^
12 A.W.N,
(1892) 187.



All. 435



[Yol.



1802 Cawnpur, and two houses known as Anarwala situated in mohalla Ban-

MAT 9. jaritola one of the mohallas of Lucknow, a detail of which is given above.

This property was left by the will of my father Sheikh Muhammad Ali,

FULL deceased, which was separated for charitable purposes, as waqf. In regard

BENCH, to these, neither T, the testatrix, have any proprietary powers of enjoy-
ment and transfer, nor will my heirs have any. In accordance with the

14 A. 429 intention of my deceased father, as well as judgment of the Court, I, the
F.B.) = testatrix, have been held to be the executrix, and superintendent (walli)

12 l.W.N. of that property, and my duty is this, that I will continue to apply the

(1892) 187. profits of that property in such acts of charity as my deceased father's will
provides, and I, the testatrix, up to the time of the execution of this docu-
ment have been applying the profits of the villages which have been willed
as aforesaid in actual acts of charity. I do not save anything from it.
During my lifetime I will continue to act up to the intentions of the will as
executrix and superintendent (tauliat) to the best of my ability, and after my
death, Musammat Amina Begatn alias Aghai Jan, my daughter, and Agha
Ali Khan, my son, will be held to be the mutawalli (trustee to an endow-
ment and executors of a moiety each in the event of both acting in harmony
among themselves, and in the event of there being a disagreement, both my
son and daughter will continue to carry out the intentions of the will sepa-
rately in the proportion of a moiety each, and my representatives will always
continue to act in accordance with the terms of the will of my deceased
father as well as in accordance with the rules of practice written by me,
the testatrix and bearing my seal, which I will execute separately, and
whatever I the testatrix, will write out, the said heirs will be bound by it
and it will be incumbent on them to continue to apply the profits of the pro-
perty which has been willed for the purposes intended by the will in
accordance with the above writing and to keep a correct account of the same
as the officers and mujtahdins will have power to look into them. These
powers as tauliat (trustee of an endowment) and executors which both my
son and daughter have, will, after them, be transferred, in the same way
to their offspring from [435] generation to generation (naslan bad naslari)
whether both have issue, or out of both of them whoever may have issue,
and so long as there is a descendant of mine in existence, my heirs and
the presiding officer of the time will not have pflwer to appoint any
person as executor. And be it known that as I have no confidence
in my son's abilities and his proper management, and from motherly love
and affection I consider my son and daughter to be equal, and to the
best of my knowledge and belief the matters connected with the intentions
of the will, will be carried out in a better manner on behalf of my daughter
through her husband and children than by my son. Therefore I have
appointed both these heirs mutdwallis and executors in equal shares.
If the disagreement between these two heirs can in no way be removed,
then the presiding officer of the time will have the intentions of the
will carried out through mujtahdins (doctors of religion) and learned
men. Oat of these two heirs, one person only will, on [no account, be
the mutawalli and executor. And be it also known that my father did
not bequeath more than ird by will, and I got the remainder of the pro-
perty by right of inheritance, and a will under Muhammadan law (shara)
can operate to the extent of ird only, hence the property that remained
separate from the will and which devolved on me, the testatrix, by inheri-
tance, the will of my deceased father does not affect it in any way, nor
did I admit his will in regard to this property : hence my proprietary
enjoyment of the property in question is in every way proper and valid.

646



YII]



AGHA ALI KHAN V. ALTAF HASAN KHAN 14 All. 437



This will does not seem to have given satisfaction to Agha Ali
(plaintiff No. 1) as his shown by what followed : On the 1st of Novem-
ber, 1881, two deeds were executed by way of settlement of difference
between tbe mother and son.

One of these two docuiueuts is an ikrarnama executed by Agha Ali
Khan (plaintiff No. 1) of which the opening part may be quoted here, as
it recites the objects and motives with which the deed was executed. It
runs thus :

" I, -Agha Ali Khan, son of Hakim Mustak Ali Khan, deceased,
resident of Banjaritola, one of the mohallas in the city of Lucknow, [436]
do hereby declare that amity and unity would establish the family, while
disunion and disagreement would ruin it ; that the opinions expressed by
the prudent ancestor are conducive to the benefit and welfare of the
family ; that the dutiful children should be prevented from that; that there-
fore at the present time the respected far-sighted mother, in respect of the
disposal of the property owned by her, desired that it be so arranged that
on her demise there should not arise any quarrel or dispute between
myself and my real sister Musammat Amina Begam, alias Agbai Jan, the
only heira to her (the mother) : that for us, the heirs, it would be beneficial
to abide in every way by the will executed hy her, containing the necessary
particulars and proper directions ; that moreover, with a view of avoiding
future disputes she, out of the property owned by her, transferred a large
portion of the property to the two heirs during her lifetime under regis-
tered deeds of gift ; that the completion and maintenance of that arrange-
ment made by the said mother had thus been agreed upon that both of us
should remain bound by the directions given by her ; that we shall accept
all the directions given in the will and the deeds of gift ; that without
this the benefit and advantage contemplated by her to follow from such
an arrangement in respect of each of her heirs, cannot accrue as she
desired ; that I, the executant, in every way came to find it expedient
and conducive to my advantage that the establishment and completion of
that arrangement should come to pass by means of writings respectively
made by each of us, the heirs ; that, with an eye to my advantage, I,
the executant, of my own accord, while in a sound state of body and
mind, without any force or coercion, swear by God and the Prophet that
I have in sincerity and good faith bound myself to those terms that shall
be detailed hereafter ; that now and in future, I, the executant, or the re-
presentatives of me, the executant, shall have no power to deviate from
the conditions laid down in this document ; that should on behalf of me,
the executant, or on bahalf of my heira and representatives, anything be
set forth contrary to the terms and stipulation entered in this document,
it shall be void and shall not be entertainable."

[437] This preliminary part is followed by the various clauses into
which the ikrarnama is divided. The first clause, referring to Musammat
Kanizak Fatima's will of the 14th of October, 1881, runs as follows :

" That the contents of the registered will and the deeds of gift executed
by my respected mother in favour of my sister Amina Begam, alias Aghai
Jan, and in favour of my brother Sheikh Altaf Hasan Khan, are approved
and accepted by me word for word, that neither have I now nor shall
have in future any objection in regard to any matter."

The next three clauses are unimportant for the purposes of this litiga-
tion, but the fifth clause refers directly to the property now in suit. It
runs fchus : :



1892

MAY 3

PULL
BENCH.

li 1. 429

(F.B.)-

12 A.W N.

(1892) 187.



647



14 All. *38 INDIAN DECISIONS, NEW SERIES [Yol.

" I shall continue to perform all acts and matters directed by the will

MAT 9. i n respect of the property endowed and willed by Sheikh Muhammad AH

Khan, deceased, after my mother's death, jointly with my sister, and under

FULL the management (sarbarahkari) of her husband, and on her death jointly

BBNCH. with her issue ; that I shall not through selfish motives interrupt or disturb

the arrangement ; that in no case whatever I shall have the power to

I A. 429 object to the mutawalliship of my sister or to that of her issue on her

(F.B.}= death ; that in no case I shall put forth my exclusive claim for discharging

* 2 *-f * the duties appertaining to that mutawalliship, and if I do so, it shall not

(1892) 187. be entertainable in a Court of justice."

Another clause of the ikrarnama is the eighth, which refers to the
intended dastar-ul-amal, which was subsequently incorporated in Musarn-
mat Kanizak Fatima's deed of the 22nd of October, 1884, which she exe-
cuted as a supplement to her will of the 14th of October, 1881. The
clause runs as follows :

" That I agree that I shall always follow all the directions which may-
be found in the dastur-ul-amal in respect of the villages willed, the inten-
tion of writing of which is expressed in the will by the mother, jointly with
my sister and under the management of her husband, and on her death,
jointly with her issue."

[438] The other document executed on the same day as Agba Ali's
ikrarnama of the 1st of November, 1881, is a deed of gift by Musammat
Kanieak Fatima in favour of her son, the aforesaid Agha Ali Kban (plain-
tiff No. 1). The deed after referring to the disposition of property made
by her in the will of the 14th of October, 1881, goes on to say :

11 1 had reserved half of the villages owned by me and certain bouses
detailed below to be given in gift to my son, Nurchasem. Agha Ali Khan.
Now as the said Nurchasem, having approved of the said will, has agreed
that a deed of gift in respect of the eight-anna share should, as is stated
in the aforesaid will, be executed in his favour completed with registration,
I, having executed this document on an adequate stamp, do declare that I
have of my own free will and accord and while in a sound state of body
and mind made without any external pressure and coercion a gift to my
son Nurchasem Agha Ali Khan, who is also my heir, through maternal
affection, of an eight-anna share in mauzas."

Matters seem to have rested thus for nearly three years, during which
period Musammat Kadizak Fatima appears to have remained in possession
ol the property now in suit, that is, the waqf property, to which the fourth
paragraph of her will of the 4th of October, 1881, related.

What followed is represented by two documents executed by Musam-
mat Kaniaak Fatima on the 22nd of October, 1884. One of these is a
codicil to her will of the 14th of October, 1881, to which it refers in the
opening sentence. The document has been described as dastur-ul-amal or
rules of practice and guidance for the administration of the waqf property
mentioned in the fourth paragraph of her will, dated the 14th of October,
1881, from which the above quotation has been made.

The other document executed by Musammat Kanizak Fatima on the
same day (22nd of October, 1884), is a lease of the four waqf villages in
favour of her daughter's son Sardar Husain (defendant No. 2) for a term of
25 years, on terms which are stated by [439] the plaintiffs to be unduly
favourable to the lessee, and to contravene the terms of the luaqf as
described in Muhammad Ali's deed of the 3rd of November, 1863.



VII] AGHA ALI KHAN V. ALTAF HASAN KHAN li All. WO

These two deeds' were duly executed and registered, but they do not 1892
seem to have given satisfaction to Agha Ali Khan (plaintiff No. 1), and MAY 9,
may be said to be the main reason for the institution of this suit.

This is indicated by what followed. FULL

Agha AH Khan instituted a suit against his mother Musammab BENCH.
Kanizak Fatima, his sister Musammat Amina Begam, and her husband
Sheikh Altaf Hasan Khan, for cancelling his ikrarnama of the 1st of *** ** 9
November, 1881, on the allegation that it had been obtained by fraud and ( * f -
undue influence, and was otherwise illegal. This litigation is referred to 12 A-W.H
in the Subordinate Judge's judgment in this case, and forms the subject (* 882 ) *"
of second appeal No. 1144 of 1887, which is still pending in this Court
awaiting the decision of this case.

Mugammat Kanizak Fatima died on the 17th of November, 1886, and
on the 5th of March, 1887, the present suit was instituted by Agha Ali
Khan (plaintiff No. 1) jointly with bis cousin Amjad Ali Khan (plaintiff
No. 2), whose name appears in the genealogical table set forth at the
outset of this judgment. The defendants to the suit are Altaf Hasan
Khan, Sardar Husain and Amina Begam.

The claim as set; forth in the plaint proceeds upon the contention
that Muhammad Ali's deed of the 3rd of November, 1863, created a
valid waqf under the Shia law ; that it took immediate effect in the life-
time of the executant, who continued to hold possession up to his death
as mutaivalli of the loaqf property ; that upon his death, on the llth of
December 1863, his daughter Musammat Kanizak Fatima took possession
of the waqf property in the capacity of mutawalli or superintendent, and
up to the time of her death, on the 17th of November, 1886, she conti-
nued to apply the profits of the property to the charitable purposes [440]
mentioned in her father's will of the 3rd of November, 1863, and that; her
powers with respect to the waqf property must be regarded as subject to
the restrictions and limits prescribed for the mutawalli in Muhammad
Ali's will of the 3rd of November, 1863, and the general rules of the
Shia law on the subject;. It is further alleged in the plaint that Musam-
mat Kanizak Fatima exceeded her powers in dealing with waqf property
by her will of the 14th of October, 1881, and the codicil thereto, dated the
22nd oLOctober, 1884, as well as by executing the lease of the waqf villages,
dated the 22nd of October, 1884, and these documents are therefore null
and void, being opposed to the terms of Muhammad Ali's will of the 3rd
of November, 1863, and the provisions of the Muhammadan law. The
plaintiffs further asserted that both under Muhammad Ali's will and the
rules of the Muhammadan law they were entitled to the mutawalliship
of the ivaqf property jointly or severally, and upon this ground they
prayed for the followiLg reliefs as stated in the plaint :

(1) "Tbat the plaintiffs may be appointed jointly, or severally, as the
Court may think proper, superintendents of the endowed property, by
cancelment of a lease and by actual ejectment of the defendants.

(2) That the will and the lease executed by Musammat Kanizak
Fatima may be declared to be null and void.

(3) That such other relief as under the circumstances of the case may
seem proper to the Court may be granted to the plaintiffs.

(4) That the costs of the suit may be awarded against all the
defendants."

The suit was resisted by all the three defendants jointly by two
written statements, one dated the 7th of May, 1887, and the other dated
the 21st of May, 1887, the lattar being apparently the amended written

649

A VII 82



14 All. 441 INDIAN DECISIONS, NEW SERIES [Vol.

1892 statement. The pleas in defence raised in these written statements are
MAY 9. numerous enough to form the subject of no less than sixteen issues framed
by the lower Court, but it is unnecessary to repeat them here, for all of
them have not been pressed in [441] the argument addressed to us on
behalf of the parties in this Court, and those which have been pressed will
- be dealt with later on.

A. 42 -gi or j. nQ p resen (; it i s enough to say that the lower Court, after decid-

' '" ing the various issues raised by the pleadings of the parties indicated its

A.W.N. c| eoree j n j oe j a8 tj p ar {j o f t ne judgment in the following words :
892)187. "For the reasons recorded in disposing of the 12bh and the 14th

issues, the whole of the claim of Amjad Ali Khan is to be dismissed. The
claim of Agha Ali Khan for cancelment of the document;, executed by
Kanizak Fatima is so far decreed as the said documents relate to the grant
of the lease to Sardar Husain Khan, and so far as possession is given to
him as lessee, and Altaf Hasan Khan is invested with the power of
management and superintendence over the endowed property with an
allowance of Es. 300 per annum, out of the ivaqf property under the name
of expenses of conveyance. But the claim for exclusive possession
as superintendent by removal of Amina Begam is dismissed, and it
is directed that the lessees' possession be removed, and Agha Ali Khan, plain-
tiff, and Amina Begam remain io possession as superintendents. Should
it be shown in future that either of these persons has acted contrary to
the conditions laid down by Sheikh Muhammad Ali, the Court shall pass
suitable orders in respect of superintendentsbip. Having regard to peculiar
features of this case, each party will pay half the costs with interest thereon
at the rate of 8 annas per cent, per mensem. Amjad Ali Khan will get no
costs. As the pleaders on both sides have greatly exerted themselves, and
for several days argued the questions of law, they are entitled to a larger
fee, Ks. 300 each, from their clients. "

From this decree two appeals have been presented to this Court. One
is this appeal filed by the two plaintiffs, Agha Ali Khan (plaintiff No. 1)
and Amjad Ali Khan (plaintiff No. 2). The other is a cross-appeal from
the same decree, and has been preferred jointly by all the three defendants,
Altaf Hasan Khan (defendant No. 1), Sardar Husain (defendant No. 2),
and Musammat Amina Begam (defendant No. 3). That appeal stands
upon the register of this [442] Court as first appeal No. 94 of 1888, to
which both the plaintiffs, viz., Agha Ali Khan and Amjad Ali Khan,
were made respondents. Notices however could not be served upon the
second respondent Amjad Ali Khan, and when the appeal came on for
hearing before my brother Young and myself, on the 6th of June, 1890, we
were asked by Mr. Conlan, the learned Counsel for the appellant, to hear
the appeal without notice being served on Amjad Ali Khan, who, the
learned Counsel stated, was not a necessary party to the appeal, and the
appellants did not therefore desire to prosecute the appeal against him.
We accordingly decided to hear the appeal, as mentioned in our order of
the 6th of June, 1890.

The two connected appeals have thus been heard together, and the
arguments on behalf of the plaintiffs have been heard in this case (first
appeal No. 85 of 1888), whilst the defendants' contention has been pre-
sented in the argument on their behalf in their appeal (first appeal
No. 94 of 1888) referred to above. It may be stated here that in neither of
these appeals did the respondents in their turn instruct Counsel, prob-
ably because they were represented in the cases as appellants, alternately
in the two oases, and the argument in support of one appeal would amount

650



YII] A6HA All KHAN V. ALTAF HASAN KHAN 14 All. 444

to argument on behalf of the respondents in the other appeal. I have 1892

stated this matter as affecting the question of costs, which may be awarded MAY 9.

in this litigation. -

The arguments thus addressed to us on behalf of the parties to the FULL

suit in both appeals place the entire litigation before us for decision, that BENCH,
is to say, the entire decree of the lower Court is subjected to our adjudi-
cation in the two appeals.

( Jb . 0) ^

The first four grounds of appeal on behelf of the defendants-appellants 12 A W.IT
in first appeal No. 94 of 1888, repeat certain preliminary pleas which (1992) is?,'
were taken in the lower Court and were disallowed by that Court in its
finding upon the 13th, 14th and 15th issues. Of those pleas the only one
on which Mr. Conlan for the defendants insisted in his argument relates
to the effect of section 539 of the Civil Procedure Code (Act No. XIV
of 1882) upon [443] the right of the plaintiffs to institute the suit
without having obtained the sanction of the Local Government.
Upon this point I am of opinion that the section referred to has no appli-
cation to suits such as the present in which the plaintiffs claim a right
vested in them personally by reason of their being related to Muhammad
Ali, and under the terms of his will of the 3rd of November 1863. They are
not suing on behalf of the public, but in their own individual right, which
is independent of the interests of the public at large, and is therefore not
in need of the consent either of the public or the Local Government. I
have recently had occasion to consider this question and to the views
which I then expressed I still adhere, and hold that this suit is not
affected by anything contained in section 539 of the Civil Procedure Code.

The other preliminary pleas relating to misjoinder, limitation, and the
effect of section 43 of the Civil Procedure Code as barring the suit have
not been pressed here, and it is enough to say that I agree with the
lower Court in the reasons for disallowing those pleas. Nor did
Mr. Conlan in arguing the case for the defendant-appellants in first appeal
No. 94 of 1888, press the fifth ground of appeal, which is to the effect thab
" because the document of the 3rd of November 1863 is not a will, but a
waqf-nama or deed of endowment, and not being executed on a duly



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 97 of 155)