HAKIM SYED WAHAJUDDIN Vs. HAKIM SYED ALI AHMAD

JUDGEMENT

(1.) This is a second appeal by a plaintiff Syed Wahajuddin whose suit has been dismissed by both the lower Courts. The plaintiff sets up the validity of a certain document, a translation of which is printed on p. 29 of the paper book in First Appeal No. 247 of 1925. That document was executed by Hakim Saiyid Mubarak Ali on 23 October 1913. The document purported to be a wakf of all his property and in para. 4 (b) it is stated as follows: Similarly out of the aforesaid 2/3 of the income, my grandson by my daughter, Syed Wahajuddin, will be entitled to get Rs. 5 for maintenance generation after generation.

(2.) The document in question was subject of a suit and it was eventually held by this Court in Irfan Ali V/s. Official Receiver Agra 1930 All. 837, that the document was invalid as a wakf, the chief ground, being that there was no ultimate deed of gift for religious pious or charitable purposes and therefore that the document could not be valid under the terms of Act 6 of 1913 which had come into force at the time of execution of the document. The document authorised three mutwallia to administer the wakf and on the decision in question those mutwallis gave up their office and apparently the heirs of S. Mubarak Ali entered into possession of the property. The present suit has been brought by the plaintiff against three defendants, of whom defendants 1 and 2 are sons of Mubarak Ali and defendant 3 is a daughter of Mubarak Ali. The plaint merely sets out the fact of the execution of the wakf bil wasiyat and the fact that defendant 2 became insolvent and that certain creditors brought the suit In which it was held that the document was invalid as a wakf. Para. 5 set out that the defendants had not been paying maintenance to the plaintiff since the decision of the High Court. The plaint asked for the relief against the defendants that they should be ordered to pay Rs. 5 per mensem arrears to the plaintiff. It is to be noted that the plaint nowhere sets out what is the cause of action against these defendants who are the heirs of Mubarak Ali. It is admitted by learned Counsel that these persons were not the mutwallis. The Court below has held that to recognize the plaintiff's interest in the deed would be to go against the decision of this Court, and that the heirs have no obligation to pay the allowance to the plaintiff und the plaintiff had no right of a charge of Rs. 5 per mensem on the property.

(3.) It in true that in the former suit this Court decided in Letters Patent Appeal that the document was invalid as a wakf and that it will also be invalid as offending against Section 14, T.P. Act, because under certain circumstances there would be a perpetual accumulation. Now, as regards the particular claim of the present plaintiff it appears to me that the Court below was correct in holding that the heirs are not bound to make this payment. The heirs are not in possession under the will, but in their capacity of heirs. Even if the document of 23 October 1913 is considered to be valid as a will the difficulty remains in the way of the plaintiff that the present defendants are in no way bound to carry out its provision. They are not executors and they are not trusses. Further the amount of Rs. 5 per mensem granted by the document to the plaintiff cannot be considered as a charge on the property which the heirs would be bound to pay. Another difficulty is that Sec. 14, T.P. Act, is directed against any transfer of property creating an interest which would amount to a perpetuity. The particular interest in question is stated to be in favour of the plaintiff for generation after generation, Clearly this is a perpetuity and as such offends against Section 14. Learned Counsel has not shown that although this would be invalid for the heirs, of the plaintiff for generation after generation still it could be treated as valid for the lifetime of the plaintiff. For these reasons I consider that the decision of the Courts below is correct and accordingly I dismiss this second appeal with costs.