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Massood Ali Khan and ors. Vs. Ashfaq Mohammad Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 658 of 1950
Judge
Reported inAIR1957All395
ActsMuhammadan Law; Code of Civil Procedure (CPC) , 1908 - Sections 100 to 101
AppellantMassood Ali Khan and ors.
RespondentAshfaq Mohammad Khan and ors.
Appellant AdvocateJagdish Sahai, Adv.
Respondent AdvocateMukhtar Ahmad, Adv.
DispositionAppeal dismissed
Excerpt:
family - mohammedan law - validity of wakf - 'waqfana' was executed during illness amounting to 'marzulmat' - the deed would not be binding upon the court in the second appeal. - - alingering disease will be one in which ordinarily,the patient does not the immediately but takessome time like t......according to the finding of both the courts he was suffering from pneumonia before his death. the deed was executed on the 5th of february 1946, and he died a few days later i.e., on the 26th of february 1946. the appellate court has taken into considerationthe fact that he was an old man suffering with pneumonia and the deed was executed very nearhis death. the disease resulted in his death. it came to the conclusion that he was suffering from marzulmaut and, therefore, according to the mohammadan law the deed would not be binding. this is a finding of fact binding upon me in second appeal. learned counsel for the appellants has urged since he had continued to have this disease for three or four weeks it would be considered as a lingering disease and it would be exempted from.....
Judgment:

V.D. Bhargava, J.

1. This is a defendants appeal arising out of a suit for a declaration that a certain Waqfnama executed by Faqir Mohammad Khan was not binding on the plaintiffs, because, firstly, it was not properly executed and secondly, it was executed during the illness which amounted to marzulmaut. The defence was that this deed was not executed during the illness and was executed with the free will and free mind. The first court dismissed the claim with costs. The Lower appellate court reversed the decree and decreed the plaintiffs' suit. Aggrieved by that decision the defendants have come to this Court.

2. Faqir Mohammad Khan was an aged man of more than seventy years old and according to the finding of both the courts he was suffering from pneumonia before his death. The deed was executed on the 5th of February 1946, and he died a few days later i.e., on the 26th of February 1946. The appellate court has taken into considerationthe fact that he was an old man suffering with pneumonia and the deed was executed very nearhis death. The disease resulted in his death. It came to the conclusion that he was suffering from marzulmaut and, therefore, according to the Mohammadan Law the deed would not be binding. This is a finding of fact binding upon me in second appeal. Learned counsel for the appellants has urged since he had continued to have this disease for three or four weeks it would be considered as a lingering disease and it would be exempted from marzulmaut.

He may have lingered for a pretty long timebut the disease itself could not be called a lingering disease. Pneumonia is a disease in whichpeople may and sometime do the quite early. Alingering disease will be one in which ordinarily,the patient does not the immediately but takessome time like T.B. In my opinion 'pneumoniacannot be said to be a lingering disease and,therefore, that finding of fact arrived at by thelower Appellate Court is binding upon me. Thereis no force in the appeal. The appeal is accordingly dismissed with costs.


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