Sir John Beaumont.-

This is an appeal from a judgment and decree of the High Court of Judicature at Fort William in Bengal, dated 28th May, 1941, confirming a decree of the First Class Subordinate Judge, 24-Parganas, Alipore, dated 31st May, 1934.

Respondent No. 1 (hereafter referred to as “the plaintiff”) instituted this suit on the 18th July, 1931, claiming a declaration of title to the property in suit Nos. 2, 2/1, 2/2, and 3, Rowland Road, Calcutta, and possession of the premises other than No. 2/2, Rowland Road, of which the plaintiff was already in possession. The present appellant was the first defendant, and he claimed that the property in suit was wakf property, and that he was the Mutwalli of the wakf estates having been appointed to that position by the will of Abdul Alim Abed (who will be referred to hereafter as “Abed”) the alleged former Mutwalli. The second respondent was the second defendant, and claimed to be in possession under a lease granted by the first defendant of the premises of which the plaintiff sought possession.

The facts giving rise to this appeal are these: On the 28th January, 1876, Juman Mistry, a Mohammedan inhabitant of Calcutta, executed a Towliatnama (deed of trust) by which he purported to create a wakf of certain pieces of land and appointed Mutwallis of the wakf. The properties in suit which Juman owned were not included in the wakf. On the 21st June, 1880, Juman executed a fresh.

Towliatnama by which he varied the deed of 1876. In the year 1884, Juman died intestate leaving as his heirs his son Umar Ali and his daughter, Aberjan, and Umar Ali thereupon acted as Mutwalli of the wakf properties. On the 5th April, 1888, Umar Ali and Aberjan executed a deed of partition dividing between them the properties left by Juman other than those the subject of the two deeds. The properties allotted to the share of Umar Ali included the property in suit. On the nth November, 1908, Umar Ali executed a wakfnama by which he purported to make wakf, for the purposes and as part of the wakf created by Juman by the deed of 1880 above mentioned, of certain properties including the property in suit. He appointed Aberjan and Samiruddin, son of his cousin Karim Bux, to be Mutwallis, on his death, of the entire properties. He also purported to provide that on the death of either of the said Mutwallis, Abed, son of his daughter, should be appointed Mutwalli in his or her place. On either the 7th September or the 7th November, 1911, Umar died intestate leaving as his heirs Aberjan and Karim Bux. Both dates are given in the record, but nothing turns on the exact date of Umar Ali’s death.

In the year 1912, Aberjan instituted Title Suit No. 36 of 1912 in the Court of the First Subordinate Judge at Alipore. The defendants were Karim Bux, his sons, Samiruddin and Aminuddin, the minor sons of Samiruddin, Abed the minor grandson of Umar Ali, and Muhammed Buksh. The minor defendants were represented by their guardian Karim Bux. The relief sought was a declaration that Aberjan, as co-heir with Karim Bux of Umar Ali. was entitled to a share of the properties purported to have been made wakf by Juman and Umar Ali, and a declaration that the said wakfs were invalid and did not affect the title of Aberjan to the properties, and for partition. The final decree in the suit, passed on the 5th October, 1912, declared the wakfs of 1876, 1880 and 1908 to be invalid, set them aside, and partitioned the property of Umar Ali between Aberjan and Karim Bux, the property in Rowland Road now in suit being allotted to the share of Aberjan. On the 2nd March, 1913, in execution of this decree Aberjan was put in possession of the properties decreed to her including the property in suit. On the 22nd June, 1913, by a Heba-bil-ewaj, or deed of gift, Aberjan gave the property in suit to Badruddin, grandson of her husband’s brother.

In the year 1915, Samiruddin, his minor three sons and four Mohammedan members of the public, instituted Title Suit No. 19

Click Here to Read the rest of this document