MT SALIMAN Vs. HAKIM MUKHDUM BUX

JUDGEMENT

(1.) This is a second appeal by the representative of the original plaintiff who sued for a declaration that the wakf deed of 20 June 1921, alleged to be executed by Mt. Sakina, mother of the original plaintiff Baqridi, was inoperative against the plaintiff. The property in suit consists of two shops and one house and originally belonged to Qadir, the father of Baqridi, the original plaintiff, and of Mt. Saliman, the present appellant. It is alleged that Qadir was displeased with his children and that he executed a deed of gift on 15 December 1909 leaving the property entirely to his wife Mt. Sakina. Both the lower Courts have held that deed of gift is proved. On second appeal it was argued that the production of a certified copy of the registered deed, of gift was not sufficient proof. We consider that the gift is sufficiently proved because from the nature of the circumstances the original of that deed of gift would have been in the possession of Baqridi or Mt. Saliman and they did not produce it.

(2.) The second point which was argued was in regard to the validity of the deed of wakf. It is admitted that the deed of wakf was executed by Mt. Sakina. If was argued that she executed it under circumstances of undue influence, but we are bound by the finding of fact of the lower appellate Court that there was no undue influence.

(3.) The next point which was argued was that Mt. Sakina did not intend that the deed of wakf should be carried into effect. For this argument reliance is placed on Mahomed Azizuddin V/s. Legal Remembrancer [1893] 15 All. 321, but in that case the waqf had destroyed the deed of waqf and had not taken any steps to carry it into effect and though he himself was not a mutawalli under that deed of wakf yet he retained possession of the property. In the present case the deed of waqf of Mt. Sakina appoints herself as the first mutawalli, and, therefore, it was natural for her to remain in possession of the property. The argument has been addressed to us that during the two years before her death she did not pay any of the profits of the property to the mosque which is the object of the wakf. The deed of wakf provides that the income shall be used in the first instance to keep the shops and house in repair. It is not shown that there was any surplus left over which could be devoted to the mosque after these objects had been accomplished. It is, therefore, not shown that there was any failure on the party of the mutawalli to carry out the purposes of the wakf. We are also referred to Abdul Jalil Khan V/s. Obedullah Khan A.I.R. 1921 All. 165, where it is held that the "subsequent conduct of the wakf mutawalli would not invalidate the wakf." For these reasons we dismiss the appeal with costs.