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1904 DIGILAW 119 (ALL)

Musammat Ilahi Begam v. Abdul Aziz Khan

1904-07-05

BLAIR

body1904
JUDGMENT : Blair, J.:— In this case the plaintiff, a Mohammedan lady, claims by heritable title certain property as being property to which she is entitled under the provisions of Mohammedan Law in relation to inheritance. What the defendants set up in defence is that this property has been made a waqf, and that all proprietary rights in it are now vested in them to the exclusion of the natural heirs of the maker of the document which is claimed on one side as a waqf, and on other side to be a document which has failed to create an endowment within the meaning of the Mohammedan Law. The document has been translated and the first paragraph badly translated, so much so that the wrong translation would point to a conclusion different from that suggested by a right translation. The contention on behalf of the appellant is that this document is invalid as a waqf because it does not dedicate that corpus of the property which is land but only the profits of it to pious and charitable uses. 2. It is quite true that in express terms the executants says that she has made a waqf of the annual profits just as they are, and she excludes not only herself but her descendants also from any ownership in or act of ownership over the property and its profits so dedicated. There are no words expressly set forth in which the executants purports to deal with what we in England call the legal estate, the equivalent to which we take to be the proprietary right in the land. Paragraph 2, however, of the document seems to me to be highly significant of its scope and tenor. It is couched in the following words:— "I, the executants, shall, during my life time, remain in possession of the aforesaid land as a Mutwalli (superintendent) from the date of the execution and completion of this deed of waqf, and spend the annual profits of it, amounting to Rs. 60, on the charitable objects mentioned below. Now, in my opinion these words by a natural if not an absolutely inevitable inference, convey the corpus of estate. To paraphrase them I, the executants, am in proprietary possession of the land from which these profits spring, and that possession I shall continue to hold to the day of my death as a Mutwalli. Now, in my opinion these words by a natural if not an absolutely inevitable inference, convey the corpus of estate. To paraphrase them I, the executants, am in proprietary possession of the land from which these profits spring, and that possession I shall continue to hold to the day of my death as a Mutwalli. That to my mind indicates clearly an intention to dedicate the corpus of the property as well as its income to religious and charitable uses, and so to create within the meaning of the Mohammedan Law a good and valid waqf. The Court below was therefore right, and this appeal must be and hereby is dismissed with costs.