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Abdul Foatim Mohamed Vs. Ijjatannessa Khatun and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.782
AppellantAbdul Foatim Mohamed
Respondentijjatannessa Khatun and ors.
Excerpt:
muhammadan law - dedication invalid as wakf whether valid as trust--district judge, order of, removing trustee and appointing new one, legality of--trusts act (ii of 1882), sections 73, 74--musalmam wakf validating act (vi of 1913). - .....of 1882. it should be mentioned here that the order of the district judge was one not made in a suit but one made on a petition, and it is suggested by the opposite party that the discharge of the previous trustee and the appointment of a new trustee can be justified under sections 73 and 74 of the indian trusts act. this contention, however, overlooks the fact that this wakf having been created before the enactment of the musalman wakf validating act of 1913, being invalid as a wakf, is also illegal as a trust, the creation of a succession of maintenance allowances from generation to generation in favour of unborn persons apart from a scheme of valid wakf not being recognized by muhammad an law.3. that being so, this rule must be made absolute and the orders of the district judge made.....
Judgment:

1. This Rule is directed against an order by which on the 27th November 1919 the District Judge of Sylhet made or confirmed an order removing the mutwalli of a certain Wakf and appointing in his place one of the beneficiaries who is the opposite party before us. From the judgment delivered by the District Judge it appears that he was of opinion that the dedication in question was not a valid Wakf or a grant for religious and charitable purposes.

2. It is common ground before us that as a matter of fact this Wakfnama is not a valid Wakf, being one made in favour of the family of descendants of the settler without any ultimate substantial trust for charitable purposes. But the opposite party has endeavoured to support the order that has been made by reference to Sections 73 and 74 of the Indian Trusts Act of 1882. It should be mentioned here that the order of the District Judge was one not made in a suit but one made on a petition, and it is suggested by the opposite party that the discharge of the previous trustee and the appointment of a new trustee can be justified under Sections 73 and 74 of the Indian Trusts Act. This contention, however, overlooks the fact that this Wakf having been created before the enactment of the Musalman Wakf Validating Act of 1913, being invalid as a Wakf, is also illegal as a trust, the creation of a succession of maintenance allowances from generation to generation in favour of unborn persons apart from a scheme of valid Wakf not being recognized by Muhammad an Law.

3. That being so, this Rule must be made absolute and the orders of the District Judge made on the 17th September and 27th November 1919 set aside, The matter in controversy between the parties must obviously be investigated, if investigation be desired by them, in a suit properly framed for the purpose.


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