Judgement

Appeal (No. 26 of 1925) from a decree of the High Court (March 13, 1923), reversing a decree of the Subordinate Judge of Bhagalpur (November 28, 1918).

The suit was instituted by the three first respondents to set aside deeds of wakf executed by one Musammat Asmatunnissa on February 15, 1882, and December 7, 1897, and to recover the property thereby dealt with, on the ground that the first respondent was heir thereto ; the other plaintiff-appellants were assignees from her. The parties were Shia Mahomedans.

The facts appear fully from the judgment of the Judicial Committee.

The Subordinate Judge dismissed the suit on the ground that it was barred by the Indian Limitation Act, 1908, Sch. I, art.91, and on the ground that it was not established that the first respondent was heir.

The decision was reversed on appeal to the High Court. Das J. (with whose judgment Adami J. concurred) held that art. 91 did not apply, as the case made was that the wakfnamas were void, not merely voidable; he held that the first respondent had established that she was heir and that the wakfs were invalid since they had not been perfected by possession being given. A decree for possession was made.

1926. July 12, 13, 15, 22. Wallach for the appellants.

De Gruyther K.C. and Dube for the plaintiff-respondents.

Nov. 1. The judgment of their Lordships was delivered by

SIR JOHN WALLIS. This is an appeal from the judgment of the High Court of Patna reversing the decision of the Subordinate Judge, and giving the first plaintiff Musammat Bibi Kaniz Zainab (hereinafter referred to as " the plaintiff ") and the other plaintiffs her assigns a decree as sole heiress of one Musammat Asmatunnissa, who died in 1910, for possession of certain lands in respect of which that lady during her lifetime had executed three wakfnamas dated February 15, 1882, December 7, 1897, July 17, 1907, dedicating them to religious and charitable uses, and providing for the appointment of mutawallis. Before coming to the points on which the lower Courts have differed, it may be mentioned that the plaintiff also attacked these transactions unsuccessfully on the ground that they were brought about by fraud without the knowledge of the settlor, who was incapable of understanding them, and also on the ground that the wakfnamas were merely nominal transactions, but there are concurrent findings of both Courts against the plaintiff on these issues, and they have not been questioned before their Lordships.

On this appeal it has been contended for the appellants that the Subordinate Judge was right in holding that the plaintiff has not established her right to sue as heiress of the deceased, and in rejecting the plaintiffs contention that the wakfs were invalid because the endowed lands had remained all along in the possession of the settlor as owner. For the respondents it was contended that the High Court was right in differing from these findings, and it was also argued that the wakfnamas were bad on the face of them, as they did not sufficiently divest the settlor of all interest in the endowed properties in accordance with the requirements of the Shia law. This contention was not specifically pleaded, but was raised in the general allegation in the eleventh paragraph of the plaint, that the wakf was not valid under the British and Mahomedan law, and was covered by the concluding portion of the sixth issue.

Their Lordships will deal, in the first place, with the question of heirships and give their reasons for agreeing with the finding of the High Court that it is sufficiently proved. The following genealogical table shows how the plaintiff traces her descent from Bibi Sonia, the grandmother of the deceased.

BIBI SONIA

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Fazalunnissa Ameerunnissa

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|| | Nawabunnissa, Azizunnissa, Asmatunnissa, died 17th July, 1910, married married died without Kazi Mahamad Hossain (he predeceased his Asrat Ali issue wife).

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| Ata Husain. (He predeceased his parents.)

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Sakat Hossain, Kani