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

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in48Ind.Cas.212
AppellantSyed Ali Raza
RespondentSanwal Das and ors.
Excerpt:
muhammadan law - shia school--waqf, creation, of--trust--deed not divesting settlor of ownership, whether constitutes waqf - .....or trust-deed, of the 27th of december, 1833, 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 presenti 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.....
Judgment:

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, 1833, 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 presenti 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. Murtazi Bibi v. Jumna Bibi 13 A. 261 : A.W.N. (1891)13 : 7 Ind. Dec. (n.s.) 163 and Hamid Ali v. Mujawar Husain Khan 24 A. 257 : A.W.N. (1902) 51. 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 oases proceeds is invalidated by a subsequent decision of their Lordships of the Privy Council in Baqar Ali Khan v. Anjuman Ara Begam 25 A. 236 : 30 J.A. 94 : 7 C.W.N. 465 : 5 Bom. L.R. 410 : 8 Sar. P.C.J. 397 (P.C.), by which the right of a Shia to create a waqf by Will was recognised, 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 1913 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 reconsider. We, therefore, dismiss the appeal with costs.


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