Judgement

Appeal (No. 55 of 1930) from a decree of the High Court (March 19, 1929) reversing a decree of the Subordinate Judge of Pilibhit (July 6, 1925).

Respondent No. 1, as one of the mutawallis under a wakfnama executed on June 26, 1913, by Rahim Bibi, sued after her death for a declaration that a one-third share in two villages was property dedicated by the deed, and that a sale thereof to the appellants by Rahim Bibi consequently was invalid. The defendants were the appellants, the heirs of Rahim Bibi, also the other mutawallis, who were joined as pro forma defendants.

The facts are stated in the judgment of the Judicial Committee.

The trial judge dismissed the suit. The learned judges who heard an appeal having differed in opinion, there was a reference to a Full Bench. As the result of the opinion of the Full Bench (Kendall and Mukerji JJ., Niamat-ullah J. dissenting) the appeal was allowed, and a decree was made as prayed by the plaintiff. The views of the learned judges appear shortly from the present judgment. The hearing by the Full Bench is reported at [ 1929] All. L. J. 620.

1932. Dec. 2, 5. Dunne K.C. and Wallach for the appellants. The terms of the deed show that the intention of Rahim Bibi was merely to carry out the instructions in the sale deed, and was not to deal with any interest which she had apart therefrom. The sale deed being invalid the wakfnama was inoperative. The High Court judgment was based upon s. 8 of the Transfer of Property Act, 1822. But having regard to the definition of " transfer " in s. 5, and to Muhammad Rustam Ali v. Mushtaq Husain (( 1920) L. R. 47 I. A. 224.) the Act did not apply. In any case the intention necessarily implied excluded the section. Further, the wakfnama was invalid in that Rahim Bibi was pardanashin, and it was not shown that she appreciated the effect of its terms Farid-un-nisa v. Mukhtar Ahmad (( 1925)

L. R. 52 I. A. 342.) ; Tara Kumari v. Chandra Mauleshwar Prasad Singh. (( 1931) L. R. 58 I. A. 450.)

[Their Lordships did not require argument as to the last point, as it had not been clearly pleaded, and no issue had been framed as to it.]

De Gruyther K.C. and Abdul Majid for the respondents. Mutation of names having taken place under the wakfnama the wakf was complete and irrevocable Wilsons Anglo-Muhammadan Law, para. 320. Rahim Bibi therefore was incompetent to sell the property or any interest in it. The operative words in the deed covered the one-third interest which Rahim Bibi took as heir. The effect of the operative words is not to be cut down by the recitals Elphinstone, Norton and Clark, Interpretation of Deeds, Ch. 10, rule 36, and cases there cited. There was a transfer by Rahim Bibi to herself as mutawalli, and accordingly s. 8 of the Transfer of Property Act applied, but in any case the section is a rule of construction generally applicable. The deed stated plainly the property conveyed and thus excluded speculation as to the intention Bijraj Nopani v. Pura Sundary Dassee (( 1914) L. R. 41 I. A. 189.) ; Gangabai v. Sonabai. (( 1915) I. L. R. 40 B. 69.)

Dunne K.C. replied.

1933. Jan. 13. The judgment of their Lordships was delivered by

SIR DINSHAH MULLA. This is an appeal from a judgment and decree dated March 19, 1929, of the High Court of Judicature at Allahabad, which reversed a judgment and decree of the Court of the Subordinate Judge of Pilibhit dated July 6, 1925.

The question involved in the appeal is as to the effect of a wakfnama executed by a Mahomedan pardanashin lady under the following circumstances On August 29, 1912, Manzur Ahmad, a Sunni Mahomedan governed by the Hanafi law, executed a document purporting to be a sale of two villages, one situated in Pilibhit district and the other in Bareilly district, in favour of his mother Rahim Bibi for a consideration of Rs. 2,00,000. It was recited in the deed that Rs. 10,000 had been paid by Rahim Bibi. As to the balance of Rs. 1,90,000, it was stated in the deed that it was left with Rahim Bibi