MT RUKEYA BANU Vs. MTNAZIRA BANU

JUDGEMENT

(1.) These two appeals arise out of a single suit for partition which has been dismissed by the learned Subordinate Judge. Appeal 175 of 1925 is by defendants 4 and 14 to 17. The contesting respondents are defendants 1, 8, 11, 18, 34 and 66. The representatives of defendants 13 and 27, as well as defendant ?6, appear in this Court by their guardian ad litem, the Deputy Registrar. These respondents support the appeal made by the appellants. Appeal 261 of 1925 is by the plaintiff. Defendant 1, who appears as one of the respondents, resists this appeal. There is one common ground between the two appeals, and there are certain different grounds in the appeal preferred by the plaintiff which will be dealt with separately. The property in question originally belonged to the ancestor of the parties, a gentleman named Syed Bakht Majumdar. He created a wakf of some of his properties by a deed, dated the 28 August 1867.

(2.) The plaintiff asked for partition of the properties comprised in that document in her plaint, and the defendants, who are appellants in appeal 175 of 1925, and the other defendants who also support the plaintiff's suit for partition, also asked for partition of those properties. In the appeal, however, the claim for partition with regard to those properties, is given up by both sets of appellants, and it is conceded that a valid wakf was created by that deed with regard to the properties included in it. The dispute now in with regard to the question whether the other properties included in the plaint, both moveable and immovable, are capable of being partitioned. The Subordinate Judge has dismissed the suit mainly upon the ground that the immovable properties were constituted a valid wakf by Syed Bakht Majumdar, by a deed, dated the 6 April 1869, which is Ex. 5 in the suit. That being so these properties are not liable to be partitioned. The Subordinate Judge further found that the claim of the plaintiff was barred by the rule of res judicata and the plaintiff was also estopped from questioning the validity of the wakf on account of certain transactions which will be stated later on. The Subordinate Judge, however, did not give any reason for dismissing the claim for partition of the moveables. Two other points were raised before us on behalf of the contesting respondents which were mot decided by the Subordinate Judge. The first point was that the suit of the plaintiff was barred by limitation and the second was that the Court had ho jurisdiction to direct the partition having regard to Section 154(1)(e), Assam Land and Revenue Regulation.

(3.) I shall first deal with Appeal 175 preferred by the defendants. Their case is that they are entitled to certain shares in the properties as the heirs of the original owner, Syed Bakht Majumdar. The dismissal of the plaintiff's suit has affected their right to partition and so they are entitled to present the appeal against the judgment of the Subordinate Judge and to have it declared; that the property is liable to be partitioned and to have their shares ascertained. The most important question in this case is with regard to the validity of the wakfnama, dated the 6 April 1869, Ex. 5. I do not think it is necessary to recite the contents of the document in detail. I think it will be quite sufficient to give the important provisions of the deed. These are as follows: In order to perpetuate the names of my ancestors and to keep the properties intact for ever, I, with full reliance on God, do hereby make wakf of all my properties, etc...for the benefit of my children, etc. how low so ever; and in their absence, of the poor kinsmen and relatives, mendicants people destitute of all moans, widows and orphans for all time to come etc. etc. Para. 3. - That so long as I shall be alive, the family expenses and the allowances, etc., of the beneficiaries shall be what I have mentioned today in the list which I have made over to the mutwalli, and the amounts mentioned therein shall remain fixed, or the same may be varied in future, if I think fit.