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1953 Supreme(All) 296

HIGH COURT OF ALLAHBAD
MALIK, C.J., V. BHARGAVA, J
Maqsood Ali
Versus
Zahid Ali Sabzposh
Second Appeals Nos. 2273, 2274 and 2277 of 1946, Second Appeals Nos. 83 and 84 of 1947 and Second Appeal No. 2612 of 1946
Decided On : 13-11-1953

Advocates:
M.H. Beg, for Appellant; C.S. Saran and K.L. Misra, for Respondent.

Judgement

MALIK, CJ. :- These six appeals arise out of three suits and the first three of them have been tiled on behalf of the plaintiffs in the three suits and the other three on behalf of the defendant.

2. Suit No. 566 of 1941 was filed by Syed Maqsood Ali, alias Arif Ali, against Syed Zahid Ali. It was decided by the Additional Civil Judge on the 27th November, 1942, and the District Judge on the 20th of March, 1946. Against the decree of the lower appellate court the plaintiff has filed the Second Appeal No. 2273 of 1946 and the defendant has filed the Second Appeal No. 84 of 1947.

3. Suit No. 581 of 1941 was filed by Syed Sadiq Ali against the same defendant, Syed Zahid Ali. It was decided by the Additional Civil Judge on the 27th November, 1942, and the District Judge on the 20th of March, 1946. Against the decree of the lower appellate court Second Appeal No. 2274 of 1946 has been filed on behalf of the plaintiff and Second Appeal No. 83 of 1947 on behalf of the defendant.

4. Second Appeal No. 2277 of 1946 has been filed by the plaintiff Shahid Ali and Second Appeal No. 2612 of 1946 by the defendant Zahid Ali against the decree in Civil Appeal No. 6 of 1943, arising out of Suit No. 483 of 1S42. It will probably be convenient to take up all these appeals together and dispose them of by one judgment. To explain the facts of the case it will be necessary to give the relevant portion of the pedigree of the family of Syed Shah Qayam Uddin.

Amna Bibi, wife of Wajid Ali, executed two deeds of waqf, the first dated the 10th of December, 1920 and the second dated the 22nd of December, 1920. Under these deeds she purported to make a waqf of her entire property. The mutwalli appointed under these documents was Syed Zahid Ali and the beneficiaries were to be first her son Mohammad Ali and his descendants and failing them the descendants of Syed Qayam Uddin. As to who the beneficiaries are and what are their shares is a point in dispute. We will deal with this point in greater detail when we come to determine the shares of the plaintiffs.

5. On the 2nd of December, 1921, Abida Bibi widow of Khurshed Ali, made a waqf of her property. She again appointed Syed Zahid Ali as the mutwalli and she named the beneficiaries. So no question arises as to who the beneficiaries under this deed were. There was a fourth waqf created by Wajib Ali, husband of Amna Bibi, on the 8th of December, 1921. He too appointed Zahid Ali as mutwalli and made certain specified persons the beneficiaries under the waqf. A filth waqf was created by Zahid Ali himself on the 16th of February, 1931, under which he appointed himself as the mutwalli. The other waqfs were created on the 20th of August, 1922, by Syed Shahid Ali, brother of Zahid Ali.

6. It is not necessary to deal with the last two mentioned waqfs of the 20th of August, 1922, executed by Syed Shahid Ali as the suit filed on the basis thereof, No. 535 of 1942, giving rise to Second Appeal No. 2061 of 1946, on behalf of the plaintiff, was disposed of by us yesterday.

7. A large number of points were raised in the lower Court with the result that the hearing of the suits was delayed for a long period and the cases have been pending in this Court also for a number of years. We have, however, asked counsel to confine themselves to the points that they wanted to raise before us and we shall, therefore, deal with only such points as have been raised and with no others.

8. In Suit No. 566 of 1941, out of which the two Second Appeals Nos. 2273 of 1946 and 84 of 1947 arise - one by the plaintiff and the other by the defendant - the court was concerned with four waqfs, the first two by Amna Bibi, the third by Abida Bibi and the fourth by Wajib Ali. So far as Amna Bibis waqf deeds were concerned, only two points were raised on behalf of the plaintiff appellant firstly, what was the share of the plaintiff Maqsood Ali, and, secondly, what was the period for which the defendant must render accounts. On behalf of the defendant it


















































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