GHULAM HAZRAT Vs. GULZARI LAL

JUDGEMENT

(1.) One Chaudhri Ghulam Hamid died, somewhere in 1877, possessed of considerable landed property. On July 16th, 1879, his heirs executed what is in substance a deed of partition dividing amongst themselves the property of the deceased, with the exception of a certain share in village Nagar, which they admitted to have been dedicated by Chaudhri Ghulam Hamid, in his life-time, to a certain religious purpose. Under the terms of the deed of partition, Musammat Riazunnissa, one of the widows of the deceased, obtained possession of certain property In village Sirsa Dabri. This is described in the specification appended to the deed as consisting of a certain share in the zemindari of the village, together with a certain area of muafi land. On August 8th, 1905, this lady, purporting to act as proprietor, co-sharer and muafidar of village Sirsa Dabri, executed in favour of Gulzari Lal and Shib Charan Lal a twenty years lease of some three biswas and odd of her zemindari share together with 32 bighas and 4 biswas of the muafi land. The lessees were to pay the Government revenue and other expenses and were to pay the lessor a net rent of Rs. 60 per annum. On May 25th, 1909, Musammat Riazunnissa aforesaid executed in favour of Chaudhri Ghulam Hazrat a deed which is described as a tamliknama and sipurdnama by which she purported to transfer to him whatever rights she herself possessed in the zemindari share or in the muafi lands in village Sirsa Dabri. This Chaudhri Ghulam Hazrat is a son of Chaudhri Ghulam Hamid by another wife, and on the face of it, Musammat Riazunnissa s deed of May 25, 1909, purports to be a transfer in his favour without consideration. It is significant, however, that on May 25, 1909, Ghulam Hazrat, in his turn, executed a deed by which he covenanted to pay Musammat Riazuanissa the sum of Rs. 60 per annum for her life as a consideration for the transfer made in his favour. The present suit was filed on July 1, 1910, Chaudhri Ghulam Hazrat being the plaintiff and the defendants being Gulzari Lal and Shib Charan Lal, the lessees and Musammat Riazunnissa the lessor under the deed of August 8th, 1905. The relief sought is possession of the 32 bighas, 4 biswas of muafi land, together with a declaration that the lease of August 8th, 1905 is ineffectual in so far as it relates to this particular land. This relief was sought substantially upon two grounds. In the first place, the plaintiff pleaded that the execution by Musammat Riaz-un-nissa of the lease of August 8th, 1905, was obtained by undue influence, misrepresentation and fraud. The particular fraud alleged was that the defendants, Gulzari Lal and Shib Charan Lal, had obtained the inclusion of the 32 bighas, 4 biswas of muafi land in the lease in question, without explaining the fact that they were doing so,to Musammat Riaz-un-nisa, the lessor. It was pleaded, in this connection, that the value of the entire property leased was such as to make the annual rental of Rs. 60 altogether inadequate. In the second place, it was contended that the 32 bighas, 4 biswas of muafi land appertained to a wakf created by the heirs of Ghulam Hamid under the terms of the deed of July, 16, 1879 already referred to. The plaintiff contended that Musammat Riaz-un- nisssa was in possession of this particular area merely as mutwalli of the aforesaid wakf and that in this capacity, she had no right to grant a lease of the wakf property for any period exceeding three years. The plaintiff s case further was that he had succeeded Riaz-un-nissa as mutawalli by virtue of the deed of May 25th, 1909, in his favour, and that he was, therefore, entitled to sue for possession in his capacity as mutwalli and for cancellation of the lease granted by his predecessor-in-office so far as that lease included property appertaining to the wakf.

(2.) In so far as the suit was based upon allegations of undue influence, misrepresentation or fraud, it is concluded against the plaintiff by the findings of fact arrived at by the lower Appellate Court. In the memorandum of appeal to this Court, the only paragraph referring to this part of the case is paragraph 6, in which it is suggested that the Court below might have arrived at a different conclusion on the point, if it had properly considered the principles of law ordinarily applied by the Courts in India to transactions in which one of the parties is a pardanashin lady. With regard to this point, I see no reason for holding that the learned District Judge has failed adequately to consider the position of Musammat Riaz-un-nissa. The plaintiff s case regarding these pleas of undue influence, misrepresentation and fraud was of the flimsiest character, and I do not see that any evidence was led which could be regarded as having the effect of shifting the burden of proof on to the defendants. If the plaintiff himself had seriously believed in his own allegations of fraud, he would have sued for the cancellation of the entire contract of lease, and not merely of the portion of it, relating to the muafi land. Moreover, there is against the plaintiff a clear finding of limitation as affecting this part of the case. In so far as relief is sought on the ground of fraud, the suit would be governed by Article 95 of the first Schedule to the Indian Limitation Act. The prescribed period of limitation would begin to run from the time when the fraud became known to the party wronged. There is no allegation regarding Musmmat Riaz-un-nissa s having come to know after execution of the lease of any fact which convinced her that she had been wronged, and as regards Ghulam Hazrat himself, the learned District Judge entirely refused to accept his assertion that he only came to know of the lease after the transfer in his favour, but was of opinion that he must have known of it all along.

(3.) The other part of the plaintiff s case depends on the question whether the 32 bighss, 5 biswas of muafi, land in question were made the subject of a valid wakf, by the heirs of Chaudhri Ghulam Hamid, as alleged in paragraph 1 of the plaint. It must be conceded to the appellant that no form of words is prescribed by Muhammadan Law as necessary to the creation of a valid wakf, and there may be an actual dedication of specific property to religious or charitable purposes, without any such words as wakf, or "mutwalli" being employed. The deed of July 16th, 1879, contains a recital by Musarnmat Riaz-un-nissa, that out of all the property assigned to her under this deed of partition, she will undertake to spend the income of the muafi, land in Sirsa Dabri " on the tomb and the fateha and urs ceremonies of the deceased Chaudhri, and in paying the salary of the hafiz who will read the Quran at the tomb of the deceased Chaudhri." There is also a special provision that her daughter Musammat Irshad Batul shall after her death become the owner of the property in the same way, and shall defray the aforesaid expenses. Then, finally, comes a provision that in certain events, the other heirs of Chaudhri Ghulam Hamid shall have powers to take possession of the property allotted to Musammat Riaz-un-nissa and to defray the expenses afore-mentioned out of the income of the same.