The main legal point established in the judgment is the interpretation and validity of the Trust Deed, and the determination of whether the properties were partible amongst the heirs.

JUDGMENT

Altamas Kabir, J.

One Mohammed Imam Saheb owned various immovable properties in Malleswaram in Bangalore. He had three wives, namely, Ghouse Bee, Hafiza Bi and Zeenath Bee. Mohd. Imam Saheb had one son and two daughters by his first wife- Ghouse Bee since deceased, namely, Mohd. Dastagir, Rahamat Bee and Maimoon Bee. He also had three daughters and one son by his second wife, Hafiza Bi, since deceased, namely, Fathima Bee, Mahaboob Bee, Kathija Bee and Mohammed Khasim. Through Zeenath Bee, his third wife, Mohd. Imam Saheb had two sons, namely, Anwar and Nazeer.

2. From the materials on record, it appears that besides owning several immovable properties, Mohd. Imam Saheb also owned a cloth business for which he had obtained a licence in the name of Mohd. Dastagir, his son by his first wife. On 18th August, 1958, Mohd. Dastagir executed an unregistered Release Deed in favour of Mohd. Imam Saheb, acknowledging the fact that all the properties, including the cloth business, belonged to Mohd. Imam Saheb and that on receipt of a sum of Rs. 5,000/- he had voluntarily released and relinquished all his rights and title over the properties belonging to Mohd. Imam Saheb, including the shop.

3. After execution of the said Deed of Release, Mohd. Imam Saheb executed a Deed of Trust on 29th February, 1960, in respect of his various properties both movable and immovable. The said deed has also been referred to as a Hiba. The trust deed indicates that during his lifetime, Mohd. Imam Saheb would act as trustee-in-management along with his second wife, Hafiza Bi, and in the event of death of either of them, the survivor would continue to be the trustee and manage the trust properties according to the terms of the trust deed. It was also stipulated that since the wives and children of Mohd. Imam Saheb were under his protection, he would be free to enjoy the properties according to his will and desire and that he would also have the liberty to alienate the trust properties and to purchase fresh properties for the benefit of the trust. Whatever properties were acquired in future were also to be included with the trust properties. The trust deed further provided that on the death of the executant and his second wife, Hafiza Bi, his son, Mohd. Khasim alias Jani Sab, would become the trustee and would manage the properties in accordance with the terms of trust deed.

4. Apart from providing for the management of the trust properties, Mohd. Imam Saheb also stipulated that certain charitable works, which were recognised by Islam to have religious connotations, were to be performed. One of the religious ceremonies to be performed was to adorn with flowers and sandal paste the tomb of the executant and the holy Quran was to be recited every year during the month of Barvi Shareef from the date of the first moon till the 11th day of the moon and on the day of Milad-Un-Nabi large number of people were to be provided with food.

5. Similar directions have been given for recital of the Quran during various other periods of the year when also food was to be provided to large numbers of people. Provision was also made for the trustee to arrange for good marriages for the daughters of the family. It was also made clear that except for the executant himself, none of the other trustees would have the power to alienate the trust properties. The management of the textile shop was left to Mohd. Khasim after the death of the executant. The executant also made provision for his daughters and a statement was made in the trust deed that the Will which the executant had executed on 9th January, 1959 was also being cancelled by virtue of the trust deed.

6. After Mohd. Imam Saheb's death, his son Mohd. Dastagir, by his first wife, brought a suit for partition and separate possession, being Original Suit No.273/1972, subsequently renumbered as Original Suit No.381/1980, in the Court of the Vth Additional City Civil Judge at Bangalore City against all the surviving heirs of Mo