1937 (3) TMI 20 - Other - Indian Laws

Court Invalidates Oral Will & Wakf, Upholds Partition Suit, Dismisses Appeal

Mahabir Prasad and Ors. Versus Syed Mustafa Husain and Ors.

The court concluded that the oral statement by Mir Fida Husain did not constitute a valid will, determining it was merely advice to his heirs. The wakf ... - Issues Involved:1. Validity of the oral statement by Mir Fida Husain as a will.2. Validity of the wakf created by Mt. Azmat-un-nisa.3. Impact of the partition suit on the wakf.4. Effect of the compromise in Mt. Shabbir's suit.5. Validity of the wakf provisions concerning mutawalli allowances.Issue-wise Detailed Analysis:1. Validity of the oral statement by Mir Fida Husain as a will:The court examined whether the oral statement made by Mir Fida Husain shortly before his death constituted a will. The Chief Court believed it was an oral testament for a wakf (wasiyat bil wakf), while the trial judge thought it was advice to his family to secure the protection of a wakf by constituting his widow as the owner in lieu of her dower debt. The court noted that Mir Fida Husain, being a lawyer, was aware of the legal implications and unlikely to rely on an oral will without explicit testamentary intent. The court concluded that the oral statement did not amount to a testamentary disposition, rejecting both the Chief Court's and the trial judge's views, and determining that it was merely advice to his heirs.2. Validity of the wakf created by Mt. Azmat-un-nisa:The wakf created by Mt. Azmat-un-nisa on 28th January 1922 was scrutinized. The court found that the wakf could not stand if it rested upon an agreement involving only the widow and the five major children, as the four minor children were not bound by it. The court held that the wakf must fail altogether because applying its provisions to only thirteen-twentieths of the property would produce unintended results. Additionally, the court noted that if the dedication by the widow and major children was conditional upon the minors' future consent, the dedication was not absolute and thus invalid.3. Impact of the partition suit on the wakf:The partition suit filed on 21st October 1924 by five sons against the widow and the sixth brother resulted in a preliminary decree for partition on 13th February 1925, and a final decree on 22nd October 1925. The property ceased to stand in the name of the widow as mutawalli and was recorded in the names of the widow and sons according to the partition decree. This partition effectively nullified the wakf, as it was no longer possible to apply the wakf's provisions to the divided property.4. Effect of the compromise in Mt. Shabbir's suit:Mt. Shabbir's suit, filed on 10th September 1926, was compromised on 7th May 1929 on the basis of the wakf's validity. However, the court found that the compromise did not bind the parties as the wakf itself was invalid. The court also rejected the argument that the compromise decree could be considered res judicata, binding Mt. Shabbir to the dismissal of her suit.5. Validity of the wakf provisions concerning mutawalli allowances:An argument was made that the wakfnama was void because Mt. Azmat-un-nisa had provided herself an allowance of Rs. 600 per annum as mutawalli, while other mutawallis were to receive Rs. 300 per annum. The court distinguished this case from Abadi Begam v. Kaniz Zinab A.I.R. 1927 P.C. 2 and found that this contention did not affect the overall validity of the wakf. However, since the wakf was already deemed invalid for other reasons, this issue was not pressed further.Conclusion:The court advised that the appeal be allowed, the decrees of both lower courts be set aside, and the suit be dismissed. The plaintiffs were ordered to pay the appellants' costs throughout, with the possibility of recovering one-ninth of such costs from each of defendants 15 to 21. No other costs were ordered.