MANCHANDA, J. - (1.) THESE two special appeals are against the common order of a learned Single Judge dismissing the appeals filed by the plaintiff, Abdul Qavi Khan and defendant No.5 Sehat Ali Khan and for the sake of convenience they are disposed of by a common judgment. L.P.A. No.50 of 1951 is by the plaintiff and L.P.A. No.80 of 1956 is by the defendant No.5.
(2.) IN order to appreciate the points involved the material facts may be stated. The relationship of the parties will be clear from the following genealogical table: The aforesaid table shows that the plaintiff is the brother of Smt. Maqbul -Unnisa, hereinafter referred to as Wakif No.1 and Smt. Mumtaz Begum, and these two sisters came to be married to two brothers. Wakif No.1 was married to Niaz Ali Khan whereas Mumtaz Begum was the third wife, after the demise of the two earlier wives of Mohd. Wali Khan, the brother of Dr. Niaz Ali Khan. Mohd. Wali Khan had a daughter by name Fatima from his second wife, who had died in child birth. Waqif No.1 had no issue of her own. She had brought up Fatima almost from birth in her own house and as a member of the family. That is the finding of the courts below and the learned single Judge endorsed this holding: "The reason why she made Smt. Fatima as the beneficiary under one of the waqfs is that Smt. Fatimas mother had died on the occasion of her birth and it was Smt. Maqbulunnisa who had taken up Smt. Fatima as her own child and had brought her up as her own daughter. It may be pointed out that Smt. Maqbul -Unnisa had no children of her own. She celebrated the marriage of Smt. Fatima and kept her along with her husband in her own house." On the 18th December, 1930 the first wakif executed a deed of wakf -alal -aulad Ex.1, in respect of six agricultural plots, some Zamindari property and four shops all belonging to her. The beneficiaries thereunder were Smt. Fatima and her descendants.
(3.) ON the 17th December 1930, i.e., a day prior to the execution of Ex.1 another wakf -alal -aulad (Ex.2) was executed jointly by wakif No.1 and her husband Dr. Niaz Ali Khan of the following properties: (1) Shares of Waqif No.1 and Niaz Ali Khan in a godown; (2) Zamindari rights in a village belonging to wakif No.1, and (3) Four houses, two belonging to wakif No.1 and the remaining two which were in possession of Dr. Niaz Ali Khan as mortgagee but transferred by Niaz Ali Khan to wakif No.1, treating himself as the full owner thereof, in lieu of her dower debt of Rs.10,000/ -. The beneficiaries under Ex.2 were the descendants of Smt. Fatima and Mohd. Wali Khan. ;