KHAJEH SAJIDULLA Vs. KHABIBULLAH

JUDGEMENT

(1.) The claim in the suit out of which this appeal arises is Rs. 5100, made up of a sum of Rs. 4770 being the arrears of allowance from Baisakh, 1326 B.S. (April 1919) to Chaitra 1337 B.S. (March 1931), payable by the Nawab Bahadur of Dacca under two documents dated 26th August 1881, and 17 September 1881, to be referred to hereafter as the agreements of 1881, and Rs. 330 being damages for detention of the money. The question is whether the plaintiffs or defendants 2 to 4 (the Roy defendants) are entitled to this sum. The Nawab Bahadur of Dacca at one stage appeared to side with the plaintiffs, but ultimately adopted a neutral attitude, as he should do, and his only concern was that he should not be made liable to pay twice over in the events which had happened since the institution of the suit. In the plaint, many allegations were made and quite a number of questions raised, but before us, the appeal is confined to a few points depending entirely upon the construction of the said agreements of 1881 and of the two judgments delivered by the Judicial Committee of the Privy. Council in Soleman Quadir V/s. Salimulla Bahadur (1922) 9 A.I.R. P.C. 107 and in Habibullah Saheb V/s. Janaki Natha Roy . The plaintiffs have lost in the lower Court and have accordingly appealed before us.

(2.) The material facts are these : On 8 May 1846, nearly all the members of the Nawab family of Dacca executed a Tow liatnama by which they purported to create a wakf in respect of four properties. Sir Abdul Gani was appointed the first mutwalli. The purpose of the wakf was to provide for the wakifs and their descendants, and the ultimate gift to the poor and the destitute was illusory (Ex. 5-B, p. 31). This wakf will hereafter be called Dhan Bibi's wakf and towliatnama as Dhan Bibi's towliatnama. There was another wakf created on 11 September 1868, by Sir Abdul Gani in respect of his self-acquired properties with the same purpose in view, but that wakf is not material for the purposes of the suit. This wakf will hereafter be called Sir Abdul Gani's wakf. After relin quishment of office by Sir Abdul Gani, his son Nawab Asanulla became the mutwalli in respect of both these wakfs. In 1880 however disaffections among the members of the Nawab family came to a head, and in that year some of them instituted a suit, being No. 189 of 1880, against Sir Abdul Gani and Nawab Asanulla as principal defendants, the other members of the family, quite a large number, being joined as pro forma defendants. The plaintiffs of the said suit claimed on account of the profits of the properties included in both Dhan Bibi's wakf and Sir Abdul Gani's wakf, from Sir Abdul Gani and Nawab Asanulla, on the footing that the properties were still secular and the principal defendants were mere managers. In para. (6) of the plaint, Dhan Bibi's towliatnama was attacked (Ex. 5-B, p. 39). This suit was compromised in 1881. In form the suit was withdrawn on the basis of an agreement among all the persons then having interest in the litigation. The memorandum of agreement was executed on 26 August 1881, (Ex. 5-B. Part. II, p. 1), and according to its terms Sir Abdul Gani and Nawab Asanulla executed on 17 September 1881 a document called the deed of agreement, which is a counterpart of the said memorandum of agreement. This memorandum of agreement is the principal document for consideration in this appeal.

(3.) It is only necessary to notice at this stage the principal terms of this memorandum of agreement. The pro forma defendants were transferred to the category of plaintiffs, and they also joined in executing the document with the original plaintiffs. All charges of fraud made against Sir Abdul Gani and Nawab Asanulla were withdrawn; Dhan Bibi's wakf and Sir Abdul Gani's wakf were admitted as valid and binding wakfs (Clause 4); the parties signing the agreement admitted that they had no claim or interest in the properties in the possession of Sir Abdul Gani and Nawab Asanulla, whether registered in their names or in the names of others (Clause 3); Nawab Asanulla "by virtue of the power vested in him as mutwalli" agreed to increase the allowances of the members of the family and to distribute Rs. 1,33,084-11-0 annually from the income of the "wakf" properties to the persons mentioned in Schedules C and D of the document in accordance with such proportions as might be determined by a com- mittee of four male members of the family, and on the accounts being fixed, Nawab Asanulla was within a fortnight thereof to execute in favour of each individual whose name appeared in Schedules G and D, an agreement securing the allowance (Clauses 6 and 7). On the death of any of such persons the allowance payable to him was to be distributed amongst his or her heirs and residuaries in such proportions as the family council would determine (Clause 11). The persons mentioned in Schedule C were those who were to have their allowances from the income of the properties described in Schedule A of the document, being the properties made wakf by Dhan Bibi's towliatnama of 8 May 1846.