SARFARAZ ALI KHAN Vs. AHMAD KAMIL MUSTAFA KHAN

JUDGEMENT

(1.) Having heard learned Counsel for the parties at length, we have come to the conclusion that this appeal must succeed. The suit which has given rise to this appeal was brought by the respondent, Ahmad Kamil Mustafa Khan, and asked for the following relief: It may be declared that the defendant shall have no right after the death of his mother, Bismillah Begum, or at any other time to get profits of the property made a wakf of by Mohammad Amir Mustafa Khan deceased, of which the plaintiff is a mutwalli, nor shall the defendant have any sort of right to realise any amount of profit of Rs. 200 by virtue of the agreement aforesaid as against the plaintiff mutwalli. The Court below has decreed the suit.

(2.) There are certain facts which are not in controversy. There was a gentleman of the name of Amir Mustafa Khan--(we shall for the sake of brevity refer to him in this judgment as Amir)--who resided at Aligarh and owned considerable landed property in the Districts of Aligarh and Etah. His first wife was a lady called--Bibi Fatima Begum (to be referred to hereafter as Fatima). We have not been told when the marriage with Fatima was contracted, and it is not material for the purposes of this ease. The plaintiff, Ahmad Kamil Mustafa Khan (to whom we shall hereafter refer as Kamil) is Amir's son by Fatima and appears to have been born about the year 1908. In 1918 Amir married a second time and the name of this second wife is Bismillah Begum. She will be referred to in this judgment hereafter as Bismillah. This lady had by a former husband a son called Sarfaraz Ali Khan, who is the defendant-appellant in this appeal. We shall refer to him as Sarfaraz. When Bismillah married Amir her son Sarfaraz also came with her to live with Amir.

(3.) In November 1925 Fatima instituted a Suit No. 314 of 1925, against her husband Amir praying for a decree for rendition of accounts and recovery of whatever might be found due to her from Amir. There was in this suit a compromise between Fatima and Amir on 7 July 1926. This compromise is incorporated in the decree which was passed in the suit and. paragraph 3 was in these words: As desired by the plaintiff, khula has been effected between the plaintiff and the defendant according to law, and the defendant has made an irrevocable divorce of the plaintiff and thus he has rejected her as his wife and the plaintiff has, in lieu of the khula and talaq, relinquished her claim to the dower debt. Now there does not exist the relation of wife and husband between the parties, and they have severed their connexion with one another for ever, and the plaintiff has no right left to claim the dower debt. The marriage of Amir and Fatima was thus dissolved and the plaintiff Kamil has stated that, on the expiry of the period of iddat, his mother Fatima married another man.