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Ali Raza Vs. Sanwal Das and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAllahabad
Decided On
Judge
Reported in(1919)ILR61All34
AppellantAli Raza
RespondentSanwal Das and ors.
Excerpt:
muhammadan law - shia sect--waqf--waqf created by trust-deed--ownership in property not divested from date of execution of deed. - .....belonging to the executants and that this management is to continue under the deed. but a mere power of management may be revoked at any time by the owners of the property. the document also contains provisions as to what is to happen on the death of the executants, but those provisions do not operate so as to divest the executants of their ownership from the date of execution of the deed. the other points taken in the memorandum of appeal are covered by the authorities relied on by the trial court. murtazai bibi v. jumna bibi (1890) i. l r., 13 all. 261 and hamid ali v. mujawar husain khan (1902) i.l.r., 24 all., 257. it is true that a certain portion of the reasoning on which the decision of the learned chief justice of this court in the latter of these two cases proceeds is.....
Judgment:

Piggott and Walsh, JJ.

1. The question in issue in this appeal, as it was in the court below, is whether a valid waqf is created by a certain sipurdnamah, or trust deed, of the 27th of December, 1863, executed by a Shia gentleman of the name of Syed Maqsud Ali Khan and his wife, Alwah Bibi. We have been taken through the document in question. It does not divest the executants in praesenti of their ownership or power of alienation in respect of the property therein dealt with. It is true that it contains a recital to the effect that Syed Moazzam Ali, the eldest son of Syed Maqsud Ali Khan, has already been entrusted with the management of the landed properties belonging to the executants and that this management is to continue under the deed. But a mere power of management may be revoked at any time by the owners of the property. The document also contains provisions as to what is to happen on the death of the executants, but those provisions do not operate so as to divest the executants of their ownership from the date of execution of the deed. The other points taken in the memorandum of appeal are covered by the authorities relied on by the trial court. Murtazai Bibi v. Jumna Bibi (1890) I. L R., 13 All. 261 and Hamid Ali v. Mujawar Husain Khan (1902) I.L.R., 24 All., 257. It is true that a certain portion of the reasoning on which the decision of the learned Chief Justice of this Court in the latter of these two cases proceeds is invalidated by a subsequent decision of their Lordships of the Privy Council in Baqar Ali Khan v. Anjwman Ara Begam (1903) I.L.R., 25 All., 236, by which the right of a Shia to create a waqf by will was recognized, assuming of course that the testamentary disposition of the property amounted in other respects to a valid waqf under the Muhammadan law. This, however, does not seriously affect the weight of the decisions above referred to. We do not feel at all disposed to re-consider at this time of the day the question of law disposed of by the two decisions above referred to. The effect of the Musalman Waqf Validating Act of 1013 can be considered hereafter when the court has before it a document executed in virtue of the power recognized by that enactment. We are content to say that, so far as this appeal is concerned, the pleas taken in the memorandum of appeal either depend upon the construction of the deed of 1863, on which point our, decision is against the appellant, or are concluded by authorities of this Court which we are in no way disposed to re-consider. We, therefore, dismiss the appeal with costs.


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