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Hazi Mohamed Nagor Vs. Abdul Jalil and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal842,53Ind.Cas.597
AppellantHazi Mohamed Nagor
RespondentAbdul Jalil and ors.
Cases ReferredBazlul Ghani Mia v. Adak Patari
Excerpt:
muhammadan law - wakf for religious and charitable purpose--evidence to show contrary intention of settlor, whether admissible. - .....was quite a young boy and jail was brought us in his family. the defendants are the settlor wife, jail, jail's wife and this infant son. the documents were all challenged in the plaint as having been executed secretly and in collusion, and it was said that the settlor was not in possession of sound sense and he did not execute them honestly and independently and knowing their purport and meaning. the bulk of the evidence given in this case was on those points, to show his mental incapacity and secret and collusive dealing with the properties. the learned subordinate judge has found that the documents were properly executed by the settlor and that he had sufficient mental capacity when he executed them.2. those findings are not now challenged. the ground now taken is that both the wakfs.....
Judgment:

Asutosh Chaudhuri, J.

1. The plaintiff sued for declaration that he was entitled to a 12 annas share of the properties left by his brother, Mahommed Chhaber. He challenged two wakfs executed by his brother, one on the 17th Jane 1904, and the, other on the 12th January 1912. He also challenged a hiba bil ewaz in favour of the 4th defendant, an infant. This infant is the son of one Jalil, who is defendant No. 2, Jail was taken into the family by the settlor when he was quite a young boy and Jail was brought us in his family. The defendants are the settlor wife, Jail, Jail's wife and this infant son. The documents were all challenged in the plaint as having been executed secretly and in collusion, and it was said that the settlor was not in possession of sound sense and he did not execute them honestly and independently and knowing their purport and meaning. The bulk of the evidence given in this case was on those points, to show his mental incapacity and secret and collusive dealing with the properties. The learned Subordinate Judge has found that the documents were properly executed by the settlor and that he had sufficient mental capacity when he executed them.

2. Those findings are not now challenged. The ground now taken is that both the wakfs are illusory, and so far as the heba is concerned, it is not valid and operative inasmuch as the necessary formalities were not carried out and there was no intention of immediate transfer.

3. These wakfs have been created by documents, and it seems to us that the language employed in them is not ambiguous. The documents in terms establish religious and charitable trusts and evidence is not, therefore, admissible to show that the settlor had no intention to give effect to the trusts or that the trusts were not in fact given effect to. That was decided in the case of Kulsom Bibee v. Golam Hossein Qasim Anff 10 C. W. N. 449.. The learned Subordinate Judge has held that so far as the first wakf is concerned, it is not a valid document inasmuch as substantial property was not given by it to charitable purposes. He comes to that conclusion from the facts that only 1/4th of the income of certain properties was given for religious purposes, and he relied upon the observations made by Lord Robartson in Mujib-un-nissa v. Abdur Rahim 23 A. 233 (P.C.)s 5 C. W. N. 177; 28 I. A. 15; 11 M. L. J. 58,- 3 Bom, L.-B-. 114; 7 Sar. P. C. J, 829.and held that the deed did no show that substantial property was given for charitable purposes. So far as that case is concerned, it dealt with a document which was described as a deed of family endowment. It began with the words that it was a family endowment and ended in the same way. There was a provision made in it for charitable purposes after defrayal of necessary expenses set out in detail therein and it was held, having regard to the terms of the endowment for charitable purposes, that it was Dot a proper wait}. That case does not by itself give us sufficient help.

4. By the first document no doubt 1/4th only is given to charitable purposes and the remainder to certain persons. That the man had charitable intention cannot ( be disputed. He carried out the religious trust in his lifetime. He managed the charities for a great number of years, and it is dear from his conduct during his lifetime that he was pious and charitable. He was an old man and a Haji. He had other properties than those he dedicated at the time he made the first wakf. He made it at the same time as one of his brothers made one. Several years passed thereafter, and after his brother's death some question arose about the wakf which had been made by his brother, in consequence of whioh he appears to have taken legal advice about the wakf he had made and then made the second wakf. The learned Subordinate Judge says that it was probably due to the current decisions and the view taken by the Privy Council about the dedicated substantial property that he was advised that the first wakf was not a proper wakf and would not stand in a Court of law. The second wife, which was then made by him, includes properties of a larger value, in fact practically all his immoveable properties. He makes a settlement in respect of 12 annas of the income of these properties for religious purposes and gives t1/4h to the mutwalli for his maintenance.

4. We think the learned Subordinate Judge has rightly found that his object was not the aggrandizement of his family. In fact his family then consisted of his wife and Jail as adopted member of his family, who had a son, the 4th defendant. He had separated from his brothers and it cannot be said having regard to the terms of the second document that his idea was to keep the properties for the benefit of Jail. The terms are very clear. We think that the intention was to create a valid religious endowment, which ought to be given effect to. The document does not support the contention that it has been given a color of piety. It is practically an admitted fact that he was religiously inclined and that he actively supported charities during his lifetime. We think, having regard to the decision in Ramanadan Chettiar v. Vava Levvai Marayokar 39 Ind. Cas. 235; 40 M. 116; 32 M, L. J. 101; 15 A. L. J. 139; 5 L. W. 293; (1917) M. W. N. 180; 25 C. L. J. 224; 21 C. W. N. 52); t P. L. W. 394; 19 Bom. L. R.401; 44 I. A. 21; 21 M. L. T. 215 (P. C.). and also to, amongst others, the lists laid down in Abul Fata Mahomed v. Rasamaya Dhur 19 Ind. Cas. 896; 17 C. W. N. 1018. and the ruling in Bazlul Ghani Mia v. Adak Patari 19 Ind.cas,896; 17C.W.1018. that the decision arrived at by the learned Subordinate Judge is correct. The second wakf incorporates the properties dealt with in the first and we hold it is valid and operative.

5. So far as the heba bil ewaz is concerned, the gift is in clear terms. There is an intention expressed that it was to take immediate effect, and from the documents produced and the evidence given there is no doubt whatsoever that effect was given to it. The learned Subordinate Judge has found that there is no evidence to show that the minor did not get possession of the property. It is quite dear that Jail as the infant's guardian looked after the property which was given by this heba, that, rents were collected by a person employed by him, named Amal Majid, on his son behalf and that documents which have been produced, including receipts, show that they were both taken and given in the name of the infant through his guardian. The formalities were carried out, The evidence is practically one way. The Koran and string of beads were made over in exchange. The fact of the exchange is also recited in the document itself. We see no reason for taking a different view from that taken by the learned Subordinate Judge.

5. A question was also raised as regards the properties mentioned in Schedule 5. These properties are covered by the document Exhibit L. The document stands in the name of the plaintiff, his brothers and Jail. It was urged on behalf of the appellant that Jail's name was there as representing Mahammed Chhaber, as Mahammad Ghhaber, it was said, was absent at the time and Jail's name was used ; but in addition to this document there is the fact that the names of these persons were registered and the plaintiff knew of such registration in(4) 22 the name of Jail and not in the name of his brother Chhaber. He was a party to the document Exhibit L and the learned Subordinate Judge correctly held that the onus lay heavily on the plaintiff to show that the document did not show the real state of things.

6. We are unable to find that any ground has been made out in this appeal to vary the findings arrived at by the learned Subordinate Judge. We, therefore, dismiss this appeal with costs. We assess the hearing fee at Rs. 500.


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