JUDGMENT

R.C. Mitter, J. - Prince Qamar Qadar Mirza Mohammad Abed Ali Bahadur, hereafter called the Prince, a muslim governed by the Shia law died on 3lst January 1919 leaving him surviving his wife Shah Banu Amir Begum, a son Mirza Mohammad Syed Ali and a daughter, Nawab Zinat Ara Zinab Begum alias Juhi Begum as his heirs. His widow, Amir Begum died in 1928 leaving her son Mirza Mohammad Syed Ali and her daughter Juhi Begum as her heirs. The Prince in his old age was infatuated with a mistress of his named Shaheba Khatoon in whose favour he executed a lease for a term of ten years on 12th July 1916.. That lease comprised twenty eight items of immovable property in the suburbs of Calcutta but mostly within the local limits of the Calcutta Municipal Corporation. By its terms Shaheba Khatoon undertook to pay the Prince a clear sum of Es. 500 as rent per month. This lease was in supersession of an earlier lease which the Prince had executed in her favour for the selfsame properties under which Rs. 1500 was payable as the net monthly rent. On 14th June 1917, the Prince executed a wakfnama (Ex. E-A 38) which covered those twenty-eight items of immovable property included in Shaheba Khatoon's lease and eleven more items of immovable property. The principal question involved in these three appeals is the validity of this wakf. By this wakfnama, the Prince appointed himself the first mutwalli and his son Mirza Mohammad Syed Ali his successor to that office. His daughter Juhi Begum is the central figure in these litigations.

2. Juhi Begum married Humayun Kadar, on whose death in March 1918 she became a widow. She married again on 20th December 1918 and her second husband's name is Nawab Hashem Ali Khan. On the allegation that her first husband Humayun Kadar had undertaken to pay her a dower (den-mohar) of twelve lacs of rupees she purported to assign her claim thereto for an alleged consideration of rupees one lac to one Hashem Ibrahim Saleji on 28th September 1918. Saleji instituted a suit in the original side of this Court (No. 1515 of 1918) against her and the other heirs of her deceased husband Humayun Kadar on 6th December 1918 to recover the said amount of rupees twelve lacs (plaint Ex. H-A 319). Saleji became an insolvent in December 1921. The Official Assignee of Calcutta in whom the estate of Saleji had vested on his insolvency got himself substituted in Saleji's place and continued the suit. As in her deposition in that suit Juhi Begum took up the position that she had before her conveyance to Hashem Ibrahim Saleji relinquished her claim to the dower in favour of the other heirs of her deceased husband, the plaint was amended at the instance of the Official Assignee who then prayed for a decree for the sum of rupees one lac with interest against Juhi Begum only on the ground that he was entitled to recover the same as there was a failure-of consideration. The plaint was amended and he obtained an ex parte deeree against Juhi Begum for the sum of Rs. 1,28,266-2-8 and costs on 2lst August 1923 (Ex. I-A 343). Khatija Bibi, the wife of Saleji purchased this decree from the Official Assignee for Rs. 3000. She had this decree transferred to the Court of the District Judge, 24-Parganas and applied for execution of the same by attachment and sale of one-third share in the properties now in suit on the ground that Juhi Begum had inherited the same from her father the Prince and her mother, Amir Begum, who in turn had inherited a share therein from the Prince. As those properties were included in the Prince's wakf-nama (EX. R), Mirza Mohammad Syed Ali preferred a claim to them as mutwalli. The said claim of Mirza Mohammad Syed Ali was allowed by an order of the executing Court dated 15th February 1930. Title Suit No. 8 of 1931, later numbered as Title Suit No. 1 of 1934, was instituted under the provisions of Order 21, Rule 63, Civil P.C., by Khatija Bibi on 12th February 1931. Mirza Mohammad Syed Ali and Juhi Begum were made defendants.