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Sk. Abdul Mannan and ors. Vs. Mutwali of Sm. Janebali and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberAppeal from Original Decree No. 125 of 1949
Reported inAIR1956Cal584
ActsContract Act, 1872 - Sections 16 and 19A; ;Evidence Act, 1872 - Sections 101 to 104; ;Muhammedan Law
AppellantSk. Abdul Mannan and ors.
RespondentMutwali of Sm. Janebali and ors.
Appellant AdvocateLala Hemanta Kumar and ;Sudhir Kumar Dutta, Advs.
Respondent AdvocatePrasun Chandra Ghose and ;Rebati Nath Sarkar, Advs.
DispositionAppeal dismissed
Cases ReferredBank of Khulna Ltd. v. Jyoti Prokash Mitra
- .....claim to the mutwalliship. this claim was resisted on two grounds, namely, (1) that under the relevant deeds of wakf (exs. c and c(1)) the plaintiff could not claim the mutwalliship and (2) that the plaintiff's title, if any, to the said mutwalliship had become' extinguished by reason of a transfer (vide ex. e dated 6-10-1942) made by her in favour of the defendant 1's predecessor behatar mondal. both the defences were negatived by the court below. hence this appeal by the contesting defendants nos. 1 to 5 and 8.2. there is no dispute that the suit properties (along with other properties) originally belonged to one ematulla from whom they devolved on his daughter's son dianat mondal and, eventually, upon the matter's death some time in 1275 b. s., they devolved upon his (dianat's).....

P.N. Mookerjee, J.

1. On 29-1-1946, the plaintiff respondent brought the present suit for declaration of her title to the suit properties as Mutwalli of the Waqf, to which the said properties were admittedly dedicated. The two deeds of Wakf covering the disputed properties were not challenged by either party to the suit but the controversy centred round the plaintiffs's claim to the Mutwalliship. This claim was resisted on two grounds, namely, (1) that under the relevant deeds of Wakf (Exs. C and C(1)) the plaintiff could not claim the Mutwalliship and (2) that the plaintiff's title, if any, to the said Mutwalliship had become' extinguished by reason of a transfer (vide Ex. E dated 6-10-1942) made by her in favour of the defendant 1's predecessor Behatar Mondal. Both the defences were negatived by the court below. Hence this appeal by the contesting defendants Nos. 1 to 5 and 8.

2. There is no dispute that the suit properties (along with other properties) originally belonged to one Ematulla from whom they devolved on his daughter's son Dianat Mondal and, eventually, upon the Matter's death some time in 1275 B. S., they devolved upon his (Dianat's) two daughters Hiraman and Jiraman by right of inheritance. In Sravan 1296 B.S. Hiraman and Jiraman executed two deeds of Wakf in respect of the suit properties, Hiraman's deed, which is Ex. C(1) in the present case, being dated Sravan 10, 1296 B.S. corresponding to 31-7-1889, and Jiraman's deed (Ex. C) being dated Sravan 15,1293 B.s. corresponding to 30-7-1889. The construction of these two documents is one of the points in dispute in the present appeal. As to the alleged deed of transfer (Ex. E), the plaintiff contends that it is invalid and not binding upon her. There was another deed (Ex. B) executed by Hiraman's daughter Khelaman in favour of the plaintiff Janebali purporting to transfer the Mutawalliship to her but it is not of much importance in the present case and the plaintiff respondent, although she relied upon it in the court below, did not at all refer to it in this Court.

3. It will be convenient at this stage to set out the relevant provisions in the two deeds of Wakf (Exts. C and C(1)) laying down rules of succession to the Mutwalliship. These are to be found in Para 5 which in Hiraman's deed (Ext. CD runs thus :--

^^----er vkfyj vcrZekus er vkfyjiq= er vkfyj gksbZcsu vks rr~ yksdkUrs rgkj iq= bZ'oj uk djsu tksnh ervkfyj ca{k yksd gksbZ;k tk; rgk; gksbZyks fudVcfrZ c;kRds er vkfyj lk vkf'kcsd-------**

and in Jiraman's deed (Ext. C) (under which her husband Mobarak was appointed the first Mutwalli the relevant provisions were in the following terms:

^^-------er vkfyj vcrZekus vFkkZrvkiukj vcrZekus vkekj xesZ ts iq= vkfn gksbZcsd rgkjkb er vkfyj gksbZcsu vksrr~ yksdkUrs rgkj iq= bZ'oj uk djsu tfg er vkfyj ca{k vkfn yksd gksbZ;ktk; rgk gksbZys fudVofrZ Hkk;kRds er vkfyj lk vf'kcsd**

4. It will be necessary also to set out here the relevant genealogy to determine the question of succession to the Mutwalliship. That geneologs stands as follows:








| |

Hiraman Jiraman

| |

Khelaman (daughter) Mobarak

| |

Lalchand Sademan (wife)

| |

Janebali (daughter) Sidiqu (Son)

(Plaintiff) (Siddique Hossain Chowdhury

to whom the plaintiff

janebali was married).

5. Before we turn to the crucial points in the case, we may just refer to a minor argument put forward by Mr. Lala in support of the appeal at an early stage of the hearing. That argument raised the plea that, there being no evidence of Behatar'sdeath, in his absence the impugned deed Ext. E, which was in his favour, could not be held invalid or not binding upon the plaintiff. The argument, however, has little substance as admittedly Behatar has not been heard of since about 1943 which justifies the presumption that he is dead and when further the written statement of the contesting defendants 1 and 7, who are Behatar's son and widow, clearly supports the view that Behatar is dead although their suggestion appears to be that he Was, murdered by interested people (vide paras 23 and. 26 of the written statement).

6. We have set out above the relevant provisions of the two Wakfnamas Exs. C and Clause We have detailed also the relevant geneology. Clearly, the plaintiff's title, if any, must be found from the said materials and if she fails there her claim would fail irrespective of any question of transfer-by her. If, however, the plaintiff succeeds in establishing her claim to the Mutwalliship under the two Wakf deeds (Exs. C and CD she can be defeated in this suit only if her alleged transfer of Mutwalliship by deed (Ex. E) be held to be valid and binding upon her. For this purpose the nature and construction of the deed (Ex. E) and the circumstances, attending its execution, would be highly relevant and we shall presently refer to these aspects and the materials bearing upon the same.

7. Of the two questions again, requiring deci-sion in this appeal, the point, arising on the deed of transfer (Ex. E), is much simpler and admits of a ready answer. We shall, accordingly, take up this point first.

8. From the materials before the Court, it is abundantly clear that Behatar Mondal had some hand in keeping up the estrangement between the plaintiff and her husband Siddique Hossain Chow-dhury. Evidently also he had considerable influxence on the plaintiff at the time the deed Ex. E was obtained by him from her (plaintiff) and he had, to all appearances, some sort of dominion over her. He was admittedly her Ammuktear (vide Ex. 2)who was in charge of her properties and was looking after her estate and litigations. The litigations were many and they included various criminal proceedings instituted by the plaintiff against her husband and also a suit for dissolution of marriage.

At the time of execution of the impugned deed Ex. Ewhich is dated 6-10-1942, the plaintiff's marriage with her husband Siddique Hossain Choudhury hadbeen dissolved by a decree of court (although it appears that there was an appeal against that decree pending at the time) and the plaintiff's said husband was then undergoing a sentence of imprisonment inflicted upon him in one of the criminalcases, brought by the plaintiff. These are stated in the document, Ex, E, itself and the evidence tends to support and does not certainly disprove any ofthose statements. The deed (Ex. E) also mentions that Eehatar was, the. plaintiff's cousin (paternal ancle's son) and 'save and except him' the plaintiff had 'no one else who may be called a near relation.' The deed recites further that 'he (Behatar) comes and looks after and takes care of me (the plaintiff) and all my (the plaintiff's) affairsetc. are managed and supervised by him.' In thiscontext it is only reasonable to hold that Behatar (who was the recipient of the deed, Ext. E) was in some sort of fiduciary relationship with the plaintiff and was in a position to dominate her will. There is no doubt also that the plaintiff is an illiterate Purdanishin woman. A heavy onus thus lies upon the contesting defendants who are setting up the deed, Ext. E, against the plaintiff to prove that it was validly executed so as to be binding against an illiterate Purdanishin woman and the evidence will have to be scanned from that point of view in the light of the principles laid down in the casesof Satis Chandra Ghosh v. Kalidasi Dasi, 1922 Cal 203 (AIR V 9) (A) ; Farid-un-nisa v. Mukhtar Ahmad, 1925 PC 204 (AIR V 12) (B) and Sm. Karunamoyee Debi v. Mayamoyee Debi : AIR1948Cal84 . Vide also Bank of Khulna Ltd. v. Jyoti Prokash Mitra .

9. We may make it clear here that the plaintiff's extreme case that she executed the impugned deed, Ext. E, believing it to be a power of attorney and not knowing that it was a deed of transfer of Mutwalliship cannot be accepted. In support of that case the plaintiff has no doubt examined herself, -- and that is practically all her evidence on the point, -- but we have no hesitation in rejecting the same. The plaintiffs evidence on this point which is entirely uncorroborated is clearly untrustworthy and circumstances also very much militate against it. Behatar was already her constituted attorney at the time (vide Ex. 2) and there can be no reason, no occasion and no explanation for a second power of attorney in his favour. There is also some evidence adduced by the defendants to the effect that the plaintiff's present lawyer Mr. Md. Ismail Khan acted for her on that occasion too and that he actually drafted the impugned deed. Ex. E, and, although we are not prepared to believe that the drafting was made according to the plaintiff's instructions, there can be little doubt that the plaintiff was aware of the contents or at least the purport of the deed, Ext. E, namely, that it was a purported transfer of Mutwaliship and not a power of attorney.

10. The difficulty, however, of holding the plaintiff to the deed, Ex. E, arises from the fact that, as already explained, Behatar who was the recipient of the deed was in a position to dominate the plaintiff's will and the evidence before the courtis hardly sufficient for due discharge of the onus that law in such circumstances casts upon the claimant to dispel doubts and establish the fairness of the bargain and absence of vitiating or suspicious circumstances or sufficiently explain the same so as to make the deed effective and binding as against an illiterate Purdanashin lady like the plaintiff. It seems to us further that, although the plaintiff might have been, as a matter of fact, aware of the purport or the contents of the document, Ext. E, she had no sufficient intelligence to understand its full effect and implications. That Behatar was in charge of her estate and litigations at the relevant time is beyond dispute and the materials before us do also sufficiently prove that it was he (Behatar) who was guiding the plaintiff's actions at the moment. We are further inclined to hold that, in all likelihood, the suggestion for the deed, Ext. E, came from Behatar, -- may be, for the ostensible purpose of facilitating management of the properties, -- and that it was he who dictated its terms and ultimately got it executed by the plaintiff through his predominating influence.

11. In holding as above, we have not overlooked the defence evidence. We have also given due weight to the absence of the lawyer Mv. Md. Ismail Khan from the witness box. The defence evidence, to the extent that it is acceptable, only shows that the document, Ext. E, was read over and formally explained to the plaintiff and Ismail Khan's non-examination would not, in the circumstances of this case, justify any adverse finding against the plaintiff beyond holding that the said lawyer had, as a matter of fact, acted for the plaintiff in connection with the said transaction. That, however, would be no answer to the finding of Behatar's vitiating or undue influence over the plaintiff in the matter of the disputed transaction or to the other finding of the plaintiff's incapacity to comprehend the full effect and implications of the deedEX.-E.

12. We have already found in effect that there was no proper or intelligent execution of the document. Ext. E, by the plaintiff. To the circumstances, relied on by us for the purpose, we ought to add one more which appears in the deed itself. On a perusal of the document, Ext. E, it is abundantly clear that it was a deed of considerable disadvantage to the plaintiff, purporting as it did to divest her even of her ancestral residence. She was again transferring the Mutwaliship to a person who would certainly be outside the line, laid down by the founders, and she was also changing for ever that line of devolution contrary to the founders' documents (Exts. C and C1). These features of the disputed transaction would require the strongest evidence of intelligent execution on the part of illiterate female executant in order to support the validity of the deed as against her. (Vide the decision in the case of .) Of such evidence we have no indication in the present record and it is impossible to say that the impugned deed (Ex. E) was really the plaintiff's own mental act or that the onus that lay upon the defendants to prove that it was so has been sufficiently discharged.

13. We, accordingly, hold that the impugneddocument, Ext. E, is not binding upon the plaintiff.

14. There is another and a weightier consideration against the validity of the deed, Ext. B. That deed purports to transfer Mutwaliship for which no power or provision is to be found in the relevant Wakfnamas, Exts. C and C-1, and that again to a person who would not certainly be in the immediate lines of succession or devolution, as laid down in the said documents. Such a transfercannot be upheld under the Mohammedan Law and, the transfer being invalid, the deed must fail to have any legal effect.

15. An attempt was made before us to support the deed, Ext. E, by construing it as a deed of appointment which was valid at least during the plaintiff's life time. We are not impressed by this argument. It is difficult to hold that Ext. E admits of any such construction. There is again clear provision in the relevant Wakfnamas regarding succession or devolution of the Mutwaliship. It was not also a death-bed appointment. Thus, regarded as a deed of appointment also, Ex. E would be invalid. Indeed, no possible (legitimate) construction of the deed, Ex. E, would be of any advantage to the defendants.

16. Exhibit E being thus out of her way, the plaintiff would be entitled to succeed if she can prove that she ever acquired a valid title to the Mutwaliship. This will depend upon a proper construction of the two Wakfnamas, Exts. C and C-1. In either deed the relevant term, as already stated, is to be found in para. 5. As to Hiraman's Wakf-nama, Ext. C, which relates to 8 annas of the suit properties there is little scope for any dispute as to the plaintiff's claim to the Mutwaliship. Under this document, (Ext. C-1), Hiraman's daughter Khelaman and the latter's husband Sk. Lalchand were appointed the first Mutwalis. They did not leave any son, but, even holding that the word^^iq=ks** in the relevant part connotes only the son and would not include the daughter Janebali, who is the plaintiff before us, that, in our opinion, would not exclude the plaintiff from the line of Mutwaliship as she would obviously come within the group of persons who would be entitled to the said Mutwaliship under the terms of the deed (Ext. C1) before it goes to the general group of ^fudVcfrZ Hkk;kn-** Paragraph 5 of the deed contemplates extinction of the family of the first Mutwallis Khelaman and Lalchand before devolution of the Mutwaliship on the ^fudVcfrZ Hkk;kn-**, whatever be the interpretation of that expression, and, as the plaintiff Janebali was admittedly the daughter of the joint Mutwallis Khelaman and Lalchand and thus of their family, there can be no answer to her claim to the Mutwalliship under the deed, Ext. C-l. That is how we construe para 5 of this deed.

17. The plaintiff's case under Jiraman's Wakfnama, Ex. C, presents some difficulty. Under that document, the Wakif's husband Mobarak became the first Mutwalli. As, admittedly, there was no child of Mobarak born of the Wakif Jiraman, thefirst line of devolution ^^vkiukj vcrZekus vkekj xesZ ts iq= vkfngksbZcsd rgkjkbZ er vkfyj gksbZcsd-------** failed to take effect. It is also clear from the words, quoted above, that the Wakif's intention was that so far as the Mutwalli Mobarak was concerned, his family or family line, relevant for the purpose of devolution of the Mutwalliship, would be the line through the Wakif Jiraman and not through another wife. This would rule out Sid-dique's claim to the Mutwalliship as Mobarak's son as his sonship was through his father Mobarak's second wife Sademan. As to the plaintiff also she cannot certainly claim except under the Clause

^^fudVcfrZ Hkk;ks ervkfyj 'kk vkf'kcs-----**


18. As to the meaning of the word ^^Hkk;kn** Mr. Lala has referred us to its Sanskrit derivative ^^Nk=hZ $ n;kn** to emphasise that it cannot extend to female relations. He has also drawn our attention to its technical dictionary meaning to support exclusion of females. We should not forget, however, that the parties here are Mohammedans, It is also admitted before us that the word ^^Hkk;kn** forms part of the colloquial dialect of the place from which the present case comes. We are, ac-cordingly, disinclined to give it a strict technical or derivative meaning and, having regard to the context in which the word appears and as to us the Wakif's intention appears to have been to exhaust her relations by blood before passing on the Mutwaliship to strangers, we would prefer to hold that the word ^^Hkk;kn** in the deed Ext. C means kindred in the wide sense, as set out above & includes the Wakif Jiraman's blood-relations (who would also be ipso facto Mobarak's relations by marriage through her), however distant. The plaintiff would certainly come within this group and she being the nearest of the lot, now surviving, wouldbe the ^fudVcfrZ Hkk;kn-** and thus entitled to the Mutwalliship in respect of Jiraman's 8 annas sharealso of the suit properties.

19. The plaintiff's title to the Mutwaliship in respect of the entire properties is thus clearly established and the decree of the court below in her favour on that footing should be maintained.

20. On behalf of the appellants an additional argument was advanced by Mr. Lala to the effect that under the Wakfnamas, Exts. c and C-1, the Mutwalli has to perform religious or spiritual duties in the shape of conducting Namaz (prayers) and other religious functions which cannot be performed by a female and, accordingly, the plaintiff was not entitled to be the Mutwalli. We are unable to accept this argument. The Wafks were no doubt created for inter alia the maintenance of a Daliz (Petkata Daliz) or Mussafir-khana and the Mutwalli was certainly entrusted with the duty of looking after the Namaz and other religious functions to be performed in the said Daliz, but there is nothing in any of the two deeds, Exts. C. and C-1, to indicate that the Namaz (prayers) was to be conducted by the Mutwalli personally, or that the other religious functions were to be performed by him or her. The duty was really to look after the Musafirkhana and its Mussafirs and to make arrangements for the holding of Namaz and other religious functions as may have to be done for the said Mussafirs. That certaily can be done by a female and, as a matter of fact, the deeds (Exts. C and C-l) themselves recite that the said duties were being performed by the Wakifs Jiraman and Hiraman, who were females, at the time when the said documents were executed. Similar and no different duties were imposed upon the Mutwalli and, accordingly, there can be no bar to the filling up of that office by a woman. This was not a 'Khankah' or religious institution where spiritual teachings had to be imparted and the prescribed duties under the deeds Exts. C and C1 were not of a 'Sajjadanashin' (spiritual head or superior) or even of a 'Khatib' (reader of sermons so as to excludefemales. We, accordingly, reject Mr. Lala's special or additional argument on this point.

21. In the result, this appeal would fail andit is dismissed. As, however, the documents, Exts. C and C1, on which the plaintiff respondent's title has been found, were somewhat obscure and ambiguous in character, we direct that the parties will bear their own costs in this Court and also in the court below.

Renupada Mookherjee, J.

22. I agree.

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