Rahmanul Hasan v. Zahurul Hasan — 1946 DIGILAW 240 (ALL)

JUDGMENT Malik, J. - This appeal arises out of original-suit No. 15 of 1937 which was filed in the Court of the Civil Judge of Allahabad and was tried along with suit NO. 47 of 1937 filed in the same Court by Syed Zahurul Hasan and another and the two suits were disposed of by a common judgment and two appeals have been filed in this Court. 2. The suit out of which First Appeal No. 377 of 1941 has arisen was filed by Syed Rahmanul Hasan for a declaration that the sum of Rs, 10,000 deposited by Saiyed Sirajul Hasan, the former mutatwalli, on 24-3-1936, in the Allahabad Bank.... forms part of the 'waqf' property and that the plaintiff as the mutwalli is entitled to recover it from the Bank aforesaid. 3. Dr. Sirajul Hasan died on 10.3.1937. The defendants respondents, Zahurul Hasan and Fatma Bibi, were his step-brother and step-sister. Mt. Azizunnisa, wife of Dr. Sirajul Hasan, died in December 1932. She had executed a waqf alal-aulad on 1-6-1920, under which she had appointed. Sirajul Hasan as the first mutwalli. The plaintiff's case is that Dr. Sirajul Hasan bad with him the sum of Rs. 10,000 which was the income of the waqf property which he had deposited in the Allahabad Bank. On the death of Dr. Sirajul Hasan, in accordance with the provisions made in the deed of waqf Rahmanul Hasan, the plaintiff, became the next mutwalli. He brought this suit claiming the sum of money on the allegation that the money belonged to the waqf and that he was, therefore, entitled to the same as the mutwalli. 4. The trial Court held against the plaintiff, on the ground that it was not proved that the sum of Rs. 10,000 was waqf money and dismissed the plaintiff's suit. Rahmanul Hasan has filed this appeal. 5. In the Court below though the plaintiff admitted that Mt. Fatma Bibi, defendant 2, was the step-sister of Dr. Sirajul Hasan, the paternity of Zahurul Hasan was denied and it was suggested that he was an illegitimate son of Shauran Bibi, widow of Syed Nurul Hasan, and was born several years after his death. The learned Civil Judge, however, held against the plaintiff and in favour of Zahurul Hasan that ha was the legitimate son of his father, Nurul Hasan. The learned Civil Judge, however, held against the plaintiff and in favour of Zahurul Hasan that ha was the legitimate son of his father, Nurul Hasan. The learned Civil Judge remarked that though the point was raised in the pleadings the matter was not seriously pressed at the time of arguments by learned counsel for the plaintiff. Mr. Mushtaq Ahmad, learned counsel for the appellant, did not challenge the finding of the Court below. The point, therefore, is no longer in dispute that Zahurul Hasan and Fatma Bibi are the step-brother and step-sister of Dr. Sirajul Hasan. 6. There is one more point which I may mention at the outset that though the point for decision before us is whether the sum of Rs. 10,000 is or is not waqf property, Mr. Mushtaq Ahmad learned counsel for the appellant has admitted that his case that the sum of RS. 10,000 is the waqf property depends entirely on the evidentiary value we attach to an admission in a will alleged to have been executed by Dr. Sirajul Hasan on 5-3-1937. The case, therefore, though it really is a case for a declaration as to whether the sum of Rs. 10,000 is or is not waqf property, has turned out to be a case where the only point for decision before us is the question whether the will propounded on behalf of Rahmanul Hasan was the last will and testament of Dr. Sirajul Hasan and was genuine. That was the issue which was hotly contested in the lower Court and that is the only issue which has been pressed before us. I may mention that it is unfortunate that the plaintiff instead of filing an application for probate and having the will proved in a probate Court should have attempted this circuitous method of getting a decision on the question of the genuineness of the will, specially in the absence or others who may claim to be beneficially interested under the will and who are not parties to this litigation, the result of which may be that our decision on the question of the validity of the will would not be the final decision on the point and further litigation by other parties, who are not parties to this suit, may be the result. 7. Dr. Sirajul Hasan originally belonged to Bharatpur. 7. Dr. Sirajul Hasan originally belonged to Bharatpur. He was born on 18-5-1859, and received some medical training in Agra and was then employed as a hospital assistant in military hospitals. He retired about the year 1919 from Allahabad and it may be that it was on that account that he settled here as a medical practitioner. He was married to Mt. Azizunnisa at an age when he was very young as we find that on 9-12-1879 she is mentioned as his wife. She was a resident of village Shahpur in the district of Fatehpur. They had a daughter, Qamrunnisa, who was married to Mohammad Salim. Qamrunnisa and Mohammad Saleem had two sons, Nurul Hasan and Qamrul Hasan. It is not known when Qammnnisa died. Quamrul Hasan died when he was about two years old. Nurul Hasan died in August 1922. Dr. Sirajul Hasan's father was also known as Nural Hasan. He died in the year 1877. By his first wife, Hayatunnisa, he had Dr. Sirajul Hasan. By his second wife, Shauran Bibi, he had a daughter Fatma and a son, Zahurul Hasan. Mt. Azizunnisa was a daughter of Ghulam Ali and her mother was one Zainab Bibi. Her sister was known as Nasiban Bibi and Rahmanul Hasan, plaintiff, is the son of Nasiban Bibi. Rahmanul Hasan has another brother, Nizamuddin, whose name we find sometimes mentioned in the evidence though that is not of very much importance. Dr. Sirajul Hasan seems to have flourished in his profession and he made some money. As is usual in Indian families, his relations who were not so well off as himself lived with him and were brought up and maintained by him. Zahurul Hasan who was probably a posthumous son, was brought up by Dr. Sirajul Hasan and was admitted into the C.A.V. High School, Allahabad, on 10-7-1896. His residence in the application was given as Shahpur, district Fatehpur. Mt. Fatma Bibi must have been living with her husband, Mukhtar Ahmad, who belonged to village Airayan, district Hathgaon. We do not know when Azizunnisa's relations, that is, Nasiban Bibi's sons, Rahmanul Hasan and Nizamuddin, came to live with Dr. Sirajul Husan, but there is no doubt that they had for some time been living with him before his death and so was Mohammad Salim, his son in law. It appears, however, that as Zahurul Hasan grew up, Dr. We do not know when Azizunnisa's relations, that is, Nasiban Bibi's sons, Rahmanul Hasan and Nizamuddin, came to live with Dr. Sirajul Husan, but there is no doubt that they had for some time been living with him before his death and so was Mohammad Salim, his son in law. It appears, however, that as Zahurul Hasan grew up, Dr. Sirajul Hasan found him spiteful and the relations between the two became extremely strained and by about 1914 or 1915 they were on terms of enmity. The position, therefore, in the year 1920 when Mt. Azizunnisa executed a deed of wakf was that the entire interest of Dr. Sirajul Hasan and Azizunnisa were centred round Nurul Hasan, their daughter's son. Besides, they had Nasiban Bibi's sons in whom also they were interested. 8. On 1-6-1920, Mt. Azizunnisa executed a deed of waqf under which she made Dr. Sirajul Hasan, the first mutwalli. It is provided in this waqf that Rs. 30 per annum was to go towards charitable objects and the rest of the income was to go towards the maintenance of Nurul Hasan and his descendants who were to be the mutwallis after Dr. Sirajul Hasan and Mt. Azizunnisa, generation after generation. If the branch of Nurul Hasan failed, the next mutwalli was to be from among the descendants of Nasiban Bibi. They were to spend one fourth of the income for charitable purposes and spend the rest on the maintenance of the descendants of Nasiban Bibi. After Nasiban Bibi's line was also exhausted the waqif was not interested in any one else and it is provided that any Hanafi Mussalman could be mutawalli of the waqf property but he would get only ten per cent, after repairs to the houses, payment of taxes, etc., as his remuneration and the rest of the income would be spent towards the education of Muslim children and other charitable objects. Nurul Hasan predeceased Dr. Sirajul Hasan and Nasiban Bibi and died in August 1922 without having waft any descendant. The wakif had not foreseen this possibility. The deed is silent as to what is to happen in that contingency. According to the terms of the waqf deed, Dr. Sirajul Hasan, so long as he was mutawalli, was bound to spend only Rs. Sirajul Hasan and Nasiban Bibi and died in August 1922 without having waft any descendant. The wakif had not foreseen this possibility. The deed is silent as to what is to happen in that contingency. According to the terms of the waqf deed, Dr. Sirajul Hasan, so long as he was mutawalli, was bound to spend only Rs. 30 annually for charity and there is no provision in the deed of waqf about the expenditure of the rest of the income, which was meant, for the maintenance of Nurul Hasan and his descendants, in case Nurul Hasan died in the lifetime of Sirajul Hasan and left no descendants. I am doubtful whether this income, if Sirajul Hasan had allowed it to accumulate in his hands, would foam part of the waqf property. There is no direction in the deed of waqf that it should be spent for any charitable object. If Nural Hasan or any of his descendants had been alive and only part of the income had been spent by Dr. Sirajul Hasan, they could have claimed from him the rest of the money in his hands as their money which had belonged to them. It could not be then urged by Dr. Sirajul Hasan that the accumulations out of the balance of the income after spending RS. 30 per annum for charity belonged also to waqf and in the view that I take about the genuineness of the will it is not necessary for me to express any definite opinion on the point. Learned counsel for the appellant has clearly stated before us that he relies entirely on the admission in the will to prove his case and if he has failed to prove the will his case must fail. An admission is not conclusive evidence against any party. If from the facts it could be shown that the admission was wrong it would fail to have any effect (see (1829) 9 B.& C. 577 : 109 E.R. 215, Heane v. Rogers). It is only prima facie evidence against the party making the admission and shifts the burden of proof: see ('07) 29 All. 184 : 34 I.A. 27 (P.C.), Chandra Kumar v. Chandhuri. Nurul Hasan died in 1922 and Sirajul Hasan in 1936. During this period of fourteen years the total sum to be spent for charity, according to the waqf deed, was Rs. 184 : 34 I.A. 27 (P.C.), Chandra Kumar v. Chandhuri. Nurul Hasan died in 1922 and Sirajul Hasan in 1936. During this period of fourteen years the total sum to be spent for charity, according to the waqf deed, was Rs. 420 and it could not, therefore, amount to Rs. 10,000. 9. Apart from that, however, I am not at all satisfied that the plaintiff has proved the will relied upon by him. The evidence produced on behalf of the plaintiff to prove this document consists of the statements of Mohammad Hasan Khan, an attesting witness, and Sakhawat Husain, the scribe. [His Lordship after considering the evidence proceeded:] 10. On the whole, I feel satisfied that the decision of the Court below was right and the will has not been proved to be the genuine will left by Dr. Sirajul Hasan. 11. On the statement made by learned counsel for the plaintiff that there is no other evidence to prove that the sum of Rs. 10,000 was waqf property and on my finding that the will is not a genuine document, the admission in the will cannot be relied upon as an admission of Dr. Sirajul Hasan and the plaintiff's case must, therefore, fail. I would, therefore, dismiss this appeal with costs. 12. As regards First Appeal No. 453 of 1941, this appeal arises out of suit No. 47 of 1937 which was brought by Syed Zahurul Hasan, appellant, and Mt. Fatima Bibi, respondent against Syed Rahmanul Hasan who was the plaintiff in the other suit. The relief claimed in the suit was that "it may be declared that the plaintiffs are the owners of the houses entered in list (A) annexed to the plaint." 13. One Dr. Sirajul Hasan was the half brother of the plaintiffs, Zahural Hasan and Fatima Bibi. He died on 10-3-1937. His wife, Mt. Azizunnisa, had predeceased him in December 1932. In her lifetime on 1-6-1920, she had executed a waqf alal-aulad. In the waqf she had included houses Nos. 1, 2, 4, 5 and 6 mentioned in list (A). Counsel for both parties are agreed that house No. 3 in list (A) which is described an house with site, previous No. 40 and recent No. 42, situate in mohalla Sabzimandi, Allahabad, was not included in the waqf. In the waqf she had included houses Nos. 1, 2, 4, 5 and 6 mentioned in list (A). Counsel for both parties are agreed that house No. 3 in list (A) which is described an house with site, previous No. 40 and recent No. 42, situate in mohalla Sabzimandi, Allahabad, was not included in the waqf. The plaintiffs' case was that these houses which had been purchased on various dates in the name of Mt. Azizunnisa really belonged to Dr. Sirajul Hasan and she had, therefore, no right to make a waqf of the same and the waqf was invalid. The plaintiffs, therefore, alleged that on the death of Dr. Sirajul Hasan who, they say, was the owner of the property in list (A), the property came by inheritance to the plaintiffs and they became the owners thereof. 14. Learned counsel for the appellant has relied on the finding of the Court below that the houses were purchased with the money of Dr. Sirajul Hasan and has argued that the law is now well settled that the beneficial ownership in the absence of anything to the contrary vests in the person who provides the purchase money and Mt. Azizunnisa must, therefore, be deemed to be a mere benamidar. The defendant's case was that the dower of Mt. Azizunnissa was one lakh out of which she had been paid from time to time about Rs. 50,000 and that it was with this money that she purchased the houses and rebuilt the same Learned counsel for the appellant hag argued that it was unlikely that a young man in the position of Dr. Sirajul Hasan, who was at the time of his marriage drawing a salary of about Rs. 12 as an assistant in a military hospital, would agree to a dower of a lakh of rupees. Mt. Azizunnisa, according to learned counsel, was the daughter of an ekka driver and her mother was a cook in the house of one Zakir Ali. According to the appellant, the marriage took place in 1881 and in support of this contention a document dated 341-1881, has been produced. It also mentions that her dower was only RS. 500. We have looked at the original document and I have no hesitation in agreeing with the finding of the Court below that the document is not genuine. An extract of the service book of Dr. It also mentions that her dower was only RS. 500. We have looked at the original document and I have no hesitation in agreeing with the finding of the Court below that the document is not genuine. An extract of the service book of Dr. Sirajul Hasan is printed at p. 77 and from that it appears that Azizunnisa was married to him even prior to 9-12-1879. In the waqf deed itself to which Dr. Sirajul Hasan was an attesting witness it is mentioned that the dower of Azizunnisa was a lakh of rupees out of which she had been paid from time to time Rs. 50,000. The sale-deeds of all the houses included in list (A) are in the name of Mt. Azizunnisa, They were recorded in the municipal khasras in her name. Some of these houses were rebuilt by her and the permission to build was applied for by her and was given to her. Under the waqf deed Dr. Sirajul Hasan was appointed as the first mutwalli and we have a large number of rent agreements and receipts for house-tax and water-rate in the name of Dr. Sirajul Hasan as mutwalli. The plaintiffs are only claiming as heirs of Dr. Sirajul Hasan and the admissions of Dr. Sirajul Hasan and his conduct are evidence against them. I feel satisfied that Mt. Azizunnisa was the owner of the property and Dr. Sirajul Hasan, even if be provided the funds, intended her to be the beneficial owner of the property. 15. Learned counsel bas argued that the waqf is bad as the effect of the dispositions was to give the income in substance to the testator's family and the charitable dispositions were illusory. Whatever may have been the position before the Mussalman Waqf Validating Act (6 [VI] of 1913), it is clear now that a waqf alal-aulad in which the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman Law as a religious, pious or charitable purpose of a permanent character, is valid. Under this waqf deed the wakif provided for the maintenance of Nurul Hasan, her daughter's son and his descendants. Under this waqf deed the wakif provided for the maintenance of Nurul Hasan, her daughter's son and his descendants. After Nurul Hasan's line was exhausted, the deed of waqf provided that one-fourth of the income was to be spent for charitable purposes and the rest was to be spent for the maintenance of the descendants of Nasiban Bibi, the sister of the wakif, and if no one was left among the descendants of Nasiban Bibi any Hanafi Mussalman could be appointed mutwalli and he was to get only ten per cent, as his remuneration and the rest of the income was to be spent towards the education of Muslim children and other charitable objects. 16. The Mussalman Wakf Validating Act (6 [VI] of 1913) set at rest two points on which there was divergence of opinion before the passing of the Act. Firstly, it settled the question that a Mohammadan can make a waqf for the maintenance of the members of his family and his descendants, generation after generation, so long as the ultimate benefit is, expressly or impliedly, reserved for the poor or for any other purpose recognised by the Musssalman Law as a religious, pious or charitable purpose of a permanent character. Secondly that it would net invalidate a waqf merely because the immediate benefit is to go to the wakif or the members of his family, his children or his descendants and the waqf would not be illegal on the ground that the effect was to give the property in substance to the testator's family and the waqf was illusory. 17. In the case before us there is no difficulty so far as the dedication for the maintenance of the wakif, her husband or her children is concerned. The question is whether Mt, Nasiban and her descendants could be included in the term 'family'. The word 'family' has not been defined in the Act. It is surprising that the Legislature should have used a term which, though in a sense has a well defined meaning, is a term of great flexibility and is capable of any different meanings according to the connection in which it is used. The meaning of the word came to be considered in two cases by this Court, see Mt. Musharraf Begam and Others Vs. Mt. Sikandar Jehan Begam, AIR 1928 All 516 Mt. Musharaf v. Mt. Sikandar Jehan and Ghazanfar Husain Vs. The meaning of the word came to be considered in two cases by this Court, see Mt. Musharraf Begam and Others Vs. Mt. Sikandar Jehan Begam, AIR 1928 All 516 Mt. Musharaf v. Mt. Sikandar Jehan and Ghazanfar Husain Vs. Mt. Ahmadi Bibi and Others It is no doubt true that the word 'family' has been interpreted in a very wide sense, but it could not be said that it would include any and every relation by blood or marriage howsoever remote and all their descendants should be included in that term. Though the rule against perpetuities may be inapplicable in the case of the lineal descendants of the wakif, I do not think the section was intended to give the same exemption to the descendants or members of his family, generation after generation, and yet unborn. Another question that still remains un-settled is whether it is necessary that the object of the waqf should be clearly specified so that the wakf may not be vague for uncertainty. Under the Wakf Validating Act the ultimate benefit must be reserved for the poor or for any purpose recognised by the Mussalman Law as religious, pious or charitable. The rule of English Law ( (1804) 10 Yea 522, Morice v. Bishop of Durham) that the object of the trust must be certain otherwise the truest would be invalid for uncertainty has been applied by their Lordships of the Judicial Committee to cases of Hindu trusts, (1899) ('99) 26 I.A. 71 : 23 Bom. 725 (P.C.), Ranchordas v. Parvatibai. The question, however, whether the same principles are to be applied to a Muslim waqf is not free from doubt. According to Abu Yusuf (see, Baillies Digest, p. 559, and Hedaya, vol. II, Book xv, p. 341 et seq) even if the object is not expressly mentioned, it may be implied that the waqf is for the benefit of the poor. Fatawa Alamgiri has accepted the view of Abu Yusuf in preference to the views of Abu Hanifa and Muhammad, Before the Wakf Validating Act the law had been, more or less, well settled that it was necessary that there should be an express mention of the object of the waqf before the waqf could be valid. The Wakf Validating Act, however, seems to have accepted the other view as it provides that the ultimate benefit may be expressly or impliedly reserved. The Wakf Validating Act, however, seems to have accepted the other view as it provides that the ultimate benefit may be expressly or impliedly reserved. This question, however, need not be seriously considered in this case as apart from the fact that they were not clearly raised at the Bar, the suit must fail on the ground of s. 42, Specific Relief Act. The plaintiffs were not in possession of the property. They could have and ought to have asked for possession as against the mutwalli. They merely claimed a declaration that the property was not included in the waqf and the wakif had no, right to make a waqf of such property. The lower Court had rightly held that the suit was barred by S. 42, Specific Relief Act. There is no force in this appeal and I would dismiss it with costs. Wall Ullah J. 18. I have had the advantage of reading the judgment of my learned brother. I regret, however, that I am not able to share his views re the genuineness of the will. This appeal has arisen out of Suit No, 15 of 1937 for a declaration that a sum of RS. 10,000 deposited by one Dr. Sirajul Hasan (now deceased) as mutawalli of a waqf in the Allahabad Bank on 24-3-1936 forms part of the waqf property of which he was the mutawalli and that the plaintiff as the present mutawalli of the waqf was entitled to recover the same from the said Bank. 19. The waqf referred to in the relief was admittedly created by Mt. Azizun Nisa, wife of Dr. Sirajul Hasan, on 1-6-1920 and the deed relating to it is printed at p. 149 of the paper book. It comprises certain house properties which formed the subject-matter of a connected suit--suit No. 47 of 1937 brought by two of the defendants of Suit NO. 15 of 1937 against the present plaintiff-appellant in the same Court for a declaration that they were the owners of certain properties as heirs to Dr. Sirajul Hasan who, according to them, was the real owner of those houses and not his wife Mt. Azizun Nisa, who had purported to dedicate the same under the deed dated 1-6-1920. 20. Both the suits mentioned above were disposed of by the learned Civil Judge by a common judgment and they were both dismissed. 21. Sirajul Hasan who, according to them, was the real owner of those houses and not his wife Mt. Azizun Nisa, who had purported to dedicate the same under the deed dated 1-6-1920. 20. Both the suits mentioned above were disposed of by the learned Civil Judge by a common judgment and they were both dismissed. 21. First Appeal No. 377 of 1941 was filed by the plaintiff, Syed Rahmanul Hasan, against the decree passed in Suit No. 15 of 1937. First Appeal No. 453 of 1941, which is a connected appeal was filed by the plaintiff against the decree passed in the later Suit No. 47 of 1987. The relationship of the parties with whom we are concerned will appear from the pedigree set out below: Shaooran Bibi 2nd wife Nurul Hasan (1877) Hayat unnissa 1st wife Fatma Bibi Zahurul Hasan Ghulam Ali Dr. Sirajul Hasan (d. 10-3-37) Azizun Nissa (d. Dec. 32) Nasiban Bibi Mt. Qamrun Nissa Mohd. Salim Nurul Hasan (Aug. 1922) Qamrul Hasan Rahmanul Hasan Nizam Uddin. 22. This pedigree is admitted except in respect of the position of Zahurul Hasan. The case of Rahmanul Hasan, the plaintiff, in Suit No. 15 of 1937 was that Zahurul Hasan was not an, heir to Dr. Sirajul Hasan inasmuch as he (Zahurul Hasan) was born to Shaooran Bibi not by Nurul Hasan but by someone else with whom Mt. Shaooran Bibi had lived as a mistress. Zahurul Hasan's case, on the other hand, was that he was the son of Nurul Hasan by Mt. Shaooran just as Fatma Bibi was the latter's daughter and, as such he was an heir to Dr. Sirajul Hasan like Fatma Bibi herself. 23. In the Court below, plaintiff Rahmanul Hasan, who is the appellant in this Court, did not press his plea of Zahurul Hasan's illicit birth nor was this point stressed in this Court by the learned counsel who appeared for him. It may, therefore, be taken that these cases should be dealt with on the footing that the pedigree set out above represents the common case of the parties. 24. The case of the plaintiff-appellant of suit No, 15 of 1937 was that Mt. Azizun Nisa, the wife of Dr. Sirajul Hasan, had validly executed a deed of waqf on 1-6-1920 in respect of a number of houses (with the exception of house NO. 42 (new) of the connected Suit NO. 24. The case of the plaintiff-appellant of suit No, 15 of 1937 was that Mt. Azizun Nisa, the wife of Dr. Sirajul Hasan, had validly executed a deed of waqf on 1-6-1920 in respect of a number of houses (with the exception of house NO. 42 (new) of the connected Suit NO. 47 of 1937) appointing her husband as the first mutawalli and after his death herself as the second mutawalli and after her own death her daughter's son Nurul Hasan, as the third mutawalli. It was provided that if Nurul Hasan did not leave surviving him any male or female children the children of her own sister Mt. Nasiban Bibi, were to be mutwallis. Admittedly Azizun Nisa predeceased her husband, Dr. Sirajul Hasan, and her daughter's son Nurul Hasan had died about ten years before the death of Azizun Nisa, so that on the death of Dr. Sirajul Hasan, which took place on 10-3-1937 Rahmanul Hasan, the plaintiff-appellant, became the next mutawalli under the deed of waqf in question and he filed the Suit No. 15 of 1937 in that capacity. His further allegation was that Dr. Sirajul Hasan on 5-3-1937 had executed a will with regard to his own properties and that he had clearly declared in that will that the sum of RS. 10,000 deposited by him in the Allahabad Bank formed the income of the waqf property and was waqf. 25. In this appeal, we are concerned with the will of Dr. Sirajul Hasan only so far that it may furnish evidence of a declaration by Sirajul Hasan that the amount of Rs. 10,000 belonged to the waqf and was not part of the testator's own property. It would for this reason, be wholly unnecessary either to raise the question of the validity of this will under the Mohammedan Law or to pronounce a definite opinion upon the same. It is for this reason that no arguments have been addressed to the Court on that aspect of the matter. The evidence and the circumstances of the case have to be care-fully weighed and considered only in so far as they may establish the will as a genuine document in the sense that it was actually executed by Dr. Sirajul Hasan so as to provide evidence of his own admission that the amount in dispute belonged to the waqf and was not his personal property. 26. Sirajul Hasan so as to provide evidence of his own admission that the amount in dispute belonged to the waqf and was not his personal property. 26. The defence taken by the two defendants to the suit viz., Zahurul Hasan and Fatma Bibi, who filed separate written statements, was that the properties covered by the deed of waqf had all been acquired by Dr. Sirajul Hasan with his own money, but ostensibly in the name of his wife Mt. Azizun Nisa. He was accordingly the owner of those properties, that the said properties had never been dedicated as waqf but were possessed and enjoyed by Dr. Sirajul Hasan as his own personal properties, that the will dated 5-3-1937, had never been executed by Dr. Sirajul Hasan but was a forged document. It was finally asserted that by reason of his mental condition and loss of eye-sight and also on account of the fact that he suffered from death illness (marzul maut) he was quite unable to execute a valid will. On these allegations, the defendants claimed the amount of Rs. 10,000 alleged by the plaintiff as waqf to be part of the personal assets of Dr. Sirajul Hasan and consequently liable to be inherited by his heirs, i.e., the defendants. 27. The learned Civil Judge found that the properties covered by the deed of waqf had been acquired by the waqif named Mt. Azizun Nisa with her own money which she had received from her own husband in part payment of her dower, that the waqf was valid and had been acted upon ever since its inception on 1-6-1920, and that it had been acknowledged as such by Dr. Sirajul Hasan himself as the first mutawalli under the deed. He further found that the deed of will dated 5-3-1937 relied upon by the plaintiff-appellant was not genuine but a forgery and that in the absence of any other evidence in the light of which the character of a waqf could be impressed upon the amount of Rs. 10,000 the same could not be held to be an amount belonging to the waqf. In view of these findings, the learned Civil Judge dismissed both the suits with costs as mentioned above. 28. 10,000 the same could not be held to be an amount belonging to the waqf. In view of these findings, the learned Civil Judge dismissed both the suits with costs as mentioned above. 28. The arguments of the learned counsel for the parties were confined so far as this appeal is concerned only to the question of the genuineness of the will and they cover not only an examination of certain general circumstances having a direct bearing on that question but also of the actual evidence in the case which is both direct and of a circumstantial nature. No arguments were addressed by the learned counsel for the appellant regarding the question of the alleged illegitimacy of Zahurul Hasan nor were any arguments addressed by the learned counsel for the respondents regarding the alleged mental or physical incapacity of Dr. Sirajul Hasan as affecting the value of the declaration made by him in the deed of will. [His Lordship after considering the evidence and the circumstances of the case and the criticisms of the Civil Judge regarding the same proceeded:] 29. The criticisms of the learned Civil Judge above referred to are not, in my opinion sufficient or cogent either to explain away the circumstances which have been pointed out and discussed earlier in this judgment or to adversely affect the testimony of the two classes of witnesses examined by the plaintiff appellant in support of the will relied upon by him. While it is always possible to conceive of hypothetical objections to the genuineness of a particular document on various grounds, the final decision of the issue viz., whether the will was a genuine document or not must depend on the value of the actual evidence produced in the case, the credibility of which must depend on its own intrinsic merit as well as corroboration, if there be any, by other materials on the record and circumstances of the case. 30. I have dealt with the entire evidence in detail and I have also considered what might be characterized as the circumstantial evidence in the case with care. In my judgment the case of the plaintiff appellant that Dr. Sirajul Hasan executed the deed of will in dispute and therein declared that the sum of Rs. 10,000 in deposit with the Allahabad Bank belonged to the waqf was fully established. In my judgment the case of the plaintiff appellant that Dr. Sirajul Hasan executed the deed of will in dispute and therein declared that the sum of Rs. 10,000 in deposit with the Allahabad Bank belonged to the waqf was fully established. Before concluding I may mention here that Zahurul Hasan himself admitted in his statement as quoted by the learned Civil Judge in his judgment (at p. 64) that "the income of the property which was included in the wakf was also deposited in the Allahabad Bank." A sum of RS. 10,000 was actually in deposit with the Allahabad Bank, City Branch, at the time of the alleged will as would appear from the Bank Pass-book (EX. 119) printed at p. 192 of the paper book. 31. Finally in view of all the circumstances and the evidence discussed above, I unhesitatingly come to the conclusion that the will dated on 5-3-1937, relied upon by the plaintiff appellant was a genuine will executed by Dr. Sirajul Hasan, that the sum of Rs. 10,000 which is the subject-matter of Suit No. 15 of 1937 was acknowledged by the testator as money belonging to the waqf. 32. I now take up the connected appeal No. 453 of 1941 filed by Syed Zahurul Hasan against Rahmanul Hasan impleading Mt. Patma Bibi, plaintiff 1, as a pro forma respondent. This appeal arises out of a suit No. 47 of 1937 filed by the appellant and the said pro forma respondent against Rahmanul Hasan for a declaration that the plaintiffs were the owners of the houses detailed at the foot of the plaint. Their allegations, as has been briefly stated, earlier in this judgment, were that Dr. Sirajul Hasan had acquired these houses with his own money ostensibly, in the name of his wife Mt. Azizun Nisa and that he was and remained throughout his life the owner of those houses, that the deed alleged to be a deed of waqf executed by this lady had neither been intentionally executed by her nor had she any right to execute the same and that the waqf had never been acted upon but that the income from the property was always treated as belonging to Dr. Sirajul Hasan, the husband of the executants. The plaintiffs claimed the reliefs as heirs of Dr. Sirajul Hasan. There was a further allegation in the plaint that Dr. Sirajul Hasan, the husband of the executants. The plaintiffs claimed the reliefs as heirs of Dr. Sirajul Hasan. There was a further allegation in the plaint that Dr. Sirajul Hasan having originally contracted intimacy with Azizun Nisa subsequently married her on ' what is known as Sharai dower, the amount of which later on was specified by the plaintiffs as Rs. 500 only. 33. The respondent Rahmanul Hasan denied these averments in his defence and pleaded that Mt. Azizun Nisa had been from the very beginning the lawful wife of Dr. Sirajul Hasan, that her dower was one lac of rupees as admitted by Dr. Sirajul Hasan himself, that out of this the latter had paid fifty thousand rupees on different occasions to his wife, that the properties in dispute had been acquired with this money from time to time by the lady herself, that she was thus their absolute owner, that she had validly and rightfully executed a deed of waqf on 1-6-1920, appointing herself as the first mutwalli and that the husband had up to his death on 10-3-1937, acted and acknowledged his position as such. He further pleaded that the waqf had been fully acted upon and that the plaintiffs were not entitled to claim the property as heirs of Dr. Sirajul Hasan. There was a further plea that Zahurul Hasan plaintiff, not being the son of Nurul Hasan, father of Dr. Sirajul Hasan could not be an heir to Mr. Sirajul Hasan. This last plea appears to have been abandoned in the Court below and was not pressed in this Court also. 34. The learned Civil Judge accepted the case of the defendant Rahmanul Hasan on all the above points except the last and dismissed the suit with costs. [His Lordship after considering the deed of waqf and other evidence proceeded:] 35. In view of the facts set out above, we find ourselves in complete agreement with the learned Civil Judge, that Mt. Azizun Nisa was not the owner of the properties dealt with by her under the deed of waqf in question, that she had willingly and rightfully executed that document which was duly enforced and acted upon, that the plaintiffs were not entitled to claim those properties as heirs of Dr. Sirajul Hasan. 36. In view of all that has gone before I would allow First Appeal NO. Sirajul Hasan. 36. In view of all that has gone before I would allow First Appeal NO. 877 of 1941 and set aside the judgment and decree of the Court below in suit No. 15 of 1937. I would decree the claim of the plaintiff appellant Rahmanul Hasan who will be entitled to his costs in both the Courts from the defendant-respondents who will bear their own costs. For the same reasons I would dismiss First Appeal NO. 453 of 1941 with costs. Allsop J. 37. The suit which has given rise to this appeal was filed by Rahmanul Hasan, the mutwalli of a waqf in order to obtain a declaration that a sum of RS. 10,000 in deposit in the Allahabad Bank was waqf property. The previous mutwalli was Sirajul Hasan. He deposited the money on 24-3-1936, in his own right and not on behalf of the waqf. The defendants, Zahurul Hasan and Mt Fatma, were the children of Nurul Hasan by his second wife, Mt. Shauran Bibi. Sirajul Hasan was the son of Nurul Hasan by his first wife, Hayatunnisa. Rahmanul Hasan's suit was dismissed by the trial Court. He appealed to this Court. When the appeal came before a Bench of two Judges, the learned Judges disagreed and they have consequently referred a question to me for my opinion. 38. The main, if not the only evidence that the sum of Rs. 10,000 belonged to the waqf was a statement contained in a will alleged to have been executed by Sirajul Hasan on 5-3-1937. The trial Court held that the execution of (his will was not proved. In appeal one of the learned Judges agreed with the trial Court and the other came to the conclusion that the will had been executed by Sirajul Hasan as alleged by the plaintiff-appellant. The question referred to me is: Is the will (wasiyatnama) dated 5-3-1937 a genuine document executed by Dr. Sirajul Hasan? Sirajul Hasan died on 10-3-1937, five days after the will is alleged to have been executed. He was about seventy nine years of age at that time. His wife, Mt. Azizunnissa, and his daughter, Mt. Qamrunnissa, were also dead. Mt. Qamrunnissa had married a man called Muhammad Salim who was alive. Sirajul Hasan's deceased wife had a sister Mt. Nasiban, who had two sons, the plaintiff, Rahmanul Hasan and a man called Nizam Uddin alias Munne. He was about seventy nine years of age at that time. His wife, Mt. Azizunnissa, and his daughter, Mt. Qamrunnissa, were also dead. Mt. Qamrunnissa had married a man called Muhammad Salim who was alive. Sirajul Hasan's deceased wife had a sister Mt. Nasiban, who had two sons, the plaintiff, Rahmanul Hasan and a man called Nizam Uddin alias Munne. Zahurul Hasan and Mt. Fatma ware Sirajul Hasan's heirs under the Muhammadan law, but Zahurul Hasan and Sirajul Hasan had been on bad terms for a number of years. Sirajul Hasan had not been very well for a considerable time. He was suffering from some heart trouble and some form of indigestion, but the evidence of some of the witnesses produced by the plaintiff was that he was not bed-ridden and had in fact visited some patients two or three days before he died. He was apparently a qualified doctor who was well known in Allahabad. [His Lordship after considering the evidence and circumstances of the case came to the conclusion that there were causes for suspicion about the validity of the will and proceeded:] 39. On the whole I am satisfied that the learned Judge of the trial Court was perfectly justified in refusing to accept the evidence that the will had been executed. Considerable argument was addressed to me on the points which I have mentioned and it was urged that all these causes for suspicion were not sufficient to justify the finding that the will was not genuine, but I must point out that it is not necessary to arrive at such a finding. If it was necessary to prove as a positive fact that the will was a forgery, as would be the case in a criminal trial, it might well be argued that causes for suspicion are not sufficient grounds of proof, but this is a case where the burden of proof is on the, plaintiff. He had to prove that there was no reasonable doubt that the will had in fact been executed by Sirajul Hasan. 40. In my judgment the matter is at least open to very grave doubt and, therefore, my answer to the question which has been put to me is that the execution of the will is not proved. My finding may be put before the Bench which has referred the question. 41. 40. In my judgment the matter is at least open to very grave doubt and, therefore, my answer to the question which has been put to me is that the execution of the will is not proved. My finding may be put before the Bench which has referred the question. 41. In view of the decision of the learned third Judge that the will relied upon by the plaintiff has not been proved according to law this appeal must fail and it is therefore, dismissed with costs.