TMI Blog1840 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... come the absolute property of the Defendant. On the 2nd of February 1810, Shah Shumsh-ooddeen, in consideration of a further sum of rupees 5,000, executed another instrument, Ikrar-namah, purporting to convey the villages to the Defendant absolutely, and on the 5th of the same month Shah Shumsh-ood-deen died. 3. On the part of the Plaintiff it was contended that the property in question being granted for the maintenance of a religious establishment, was to be considered as Wukf or appropriated, and therefore inalienable; that if not inalienable, the transfer of 1807 was conditional in the nature of a mortgage, which, by the Bengal Regulation XVII, of the year 1806, could not be foreclosed or made absolute without taking certain proceedings, which were admitted not to have been taken in this case; that the transfer of 1810, which purported to be absolute, in consideration of the payment of rupees 5,000, was fraudulent and void, having been made by Shah Shumsh-ood-deen in his last illness, and shortly before his death, and consequently that the transfer of 1807, which was originally conditional, had never become absolute. 4. On the part of the Defendant, it was contended that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sheikh Kubeer, who had succeeded him as the Sijjada-nashin, a Perwannah was granted by Mahomed Shah, enjoining the Chowdries, cultivators, c., to consider the said one lac of dams as an Altamgha-inam, by virtue of the Perwannah of His Majesty, for the purpose of being appropriated to the charges of the travelers to and from the Khankah of the said Sheikh Kubeer, as it stood before, to descend to the offspring in succession, and to refrain from taking from the said Gholam Shurf-ood-deen, as was the rule before, the true and fair revenue payable to the state, and the Dewanny taxes, and enjoining them not to deviate from what may be for the benefit of the person in question. 9. The terms expressing the grant to have been to made a for the purpose of meeting the charges of the Khankah, and the travelers who frequent the Sheikh Kubeer, Dervish, are repeated several times in the endorsement. 10. A similar Perwannah was granted on the petition of Sheikh Kiam-ood-deen, the son of Sheikh Gholam Shurf-ood-deen, after the death of his father, and it is declared that Sheikh Kiam-ood-deen is established in the Sijjada-nashin in the same manner as his father and grandfather were. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the decision pronounced by the Sudder Dewanny Adawlut, (i.e., in the suit against Beeby Ismut,) a conveyance like this is not legal. On consideration therefore of all the circumstances, he considered the conditional sale to stand in the character of a mortgage, that it was therefore necessary to take an account of the produce of the villages and of the principal and interest received by the Defendant, and therefore ordered him to file the Wasilaut papers. 15. On the 2nd of February 1826, the Defendant presented a petition to the Provincial Court, that witnesses might be examined in regard to the second Ikrar-namah. The cause coming on again before Mr. Fleming on the 19th of September 1826, be determined, that as the grounds on which the Ikrar-namah in question had been rendered null and void had been recorded in the proceedings holden on the 29th of December 1825, no further orders could be passed on that head; but on the Plaintiffs stating that the accounts of the Defendants were erroneous, it was ordered that the proceedings should be suspended: and Mr. Fleming having, on the 18th of November 1826, expressed suspicion respecting the genuineness of the accounts, thought p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nagement as procurator, who instituted a suit against her for these villages and others acquired by the profits of them; and that having proved their appropriation to religious endowments, (Wukf,) he obtained a Decree, which Decree, as proof of the property being an appropriation, (Wukf,) was affirmed by the Sudder Dewanny Adawlut; and after stating the proceedings instituted in the present suit, he proceeded thus:--As the villages in dispute were of the number mentioned in the two Firmans, according to which Firmans, on proof of the villages being Wukf, (appropriated,) the case No. 2,340 (Mussumat Kadira, Appellant, against) Shah Shumsh-ood-deen, Respondent) was decided by this Court on the 24th of August 1824, hence in this case two points demand consideration:- 1st. Whether Shah Shumsh-ood-deen, the villages in question being Wukf (appropriated) property, had or had not the right of alienating such Wukf (appropriated) proper by, either by Bye-bil-wuffa (conditional sale), by Bye-meady (absolute sale), or by any other sort of assignment. As to which be says, The Futwa (law opinion) of the law-officer of this Court makes this point clear and manifest, viz., that a Mutwaly (pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no case of the kind had ever been tried by the Court, consequently the passing of a final order in this case by one Judge did not appear expedient. It was therefore ordered, that the papers for a final order should be laid before the two other Judges of the Court. 20. Mr. Turnbull, another Judge of the Sudder Dewanny Adawlut, before whom the cause was brought, having differed in opinion from Mr. Boss, on the 11th of February ordered the papers to be laid before another Judge. Accordingly it came before Mr. Leicester and himself on the 18th of February 1830, who after stating their opinion that Mr. Steer had no power to decide the case singly in opposition to the opinion of Mr. Fleming, but that he ought either to have postponed the case till the return of Mr. Fleming, or if he thought the inquiry by Mr. Fleming, incomplete, to have recorded his opinion, and referred the case to the final order of another Judge; that his decision, founded on the authenticity of the Ikrar-namah of the 2nd February 1810, which he pronounced to be authentic without evidence, and of the verity of which strong suspicions appeared, was indeed extraordinary: since therefore the Decree of the Provincia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be caused to be paid by the Plaintiff to the Defendant, after the latter shall have accounted for the Wasilaut (mesne profits) of the villages in dispute, yet as the estate in question was la-khiraj or rent free, and a profitable one, and has moreover been in the possession of the Respondent ever since the year 1806-7 up to the present time, a period of sixteen years, it is assumable that in such a length of time the purchase money (principal and interest) must have been realized by the Defendant from the Mahal (district) in question. For this reason, and also in consideration of the seizin of the Defendant in the property in question being illegal, and the pay me at not lying in the Plaintiff, who is the Mutwaly (procurator) and superintendent, an ascertainment of the Wasilaut (mesne profits) is deemed an necessary; but rather with a view of putting an end to the dispute, and the suffering of the parties, it is deemed proper that neither the purchase money be caused to be paid by the Plaintiff to the Defendant, nor the Wasilaut money be demanded of the Defendant by the Plaintiff. 23. The Court therefore decreed in favour of the Plaintiff's claim, reversing the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to the tenor of the grant; and in order that he may apply the produce of these lands to meet the charges of the students of his Madrissa and Musjid, and the present and future Hakims, the Amils, c., are enjoined to relinquish the Mouza in question to that person's occupation, to deem them Maaf, (exempt from tax,) and blotted with the pen in every respect, and not to require of him a fresh Sunud annually. Should that individual occupy anything in any other way, they are not to countenance him. Upon reading the Firman, the Kazi-ool-Rouzat and the Moofti gave their Futwa as follows : As in the Firman it is written that the produce of the lands specified therein is to be applied to meet the charges of students of Madrissa and Musjid of Moolla Dervish Hoossain, and as it is not written that the said Moolla shall appropriate the produce to meet the charges of his family and children, or that he shall enjoy the same with his family and children, it therefore appears to us that the lands in question have been paid as Wukf in the character of Maddad Mash, and are not liable to sale or gift. 27. Agreeably to the above Futwa, the Judges of the Sudder Dewanny Adawlut decreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s right in it is extinguished, and it becomes a property of God, by the advantage of it resulting to his creatures. The two disciples therefore hold appropriation to be absolute, though differing in this, that Aboo Yoosaf holds the appropriation to be absolute from the moment of its execution, whereas Mahomed holds it to be absolute only on the delivery of it to a Mutwaly, (or procurator,) and, consequently, that it cannot be disposed of by gift or sale, and that inheritance also does not obtain with respect to it. Thus the term Wukf, in its literal sense, comprehends all that is mentioned, both by Haneefa, and by the two disciples. 31. Again (page 344) it is said, Upon an appropriation becoming valid or absolute, the sale or transfer of the thing appropriated is unlawful according to all lawyers : the transfer is unlawful, because of a saying of the Prophet, ' Bestow the actual land itself in charity in such a manner that it shall no longer be saleable or inheritable.' 32. If the decision in the case of Kubeer-ood-deen v. Mussumat Kadira was correct, it follows that the transfer in this case, whether conditional or absolute, by the same person (Shumsh-ood-deen) t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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