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In Re: Halima Khatun

Court : Kolkata

Reported in : (1910)ILR37Cal870

..... consistently, with the statutes and the charter, be employed to subvert the native substantive laws, but they afforded a means of continually ameliorating them;' and he appears to consider that the condition precedent to the applicability of the act was fulfilled if the application was to be dealt with under some rule introduced as an improvement into the hindu law from the english law of trusts. ..... it has been argued that, inasmuch as mahomedan law relating to endowments has been preserved by virtue of 21 george iii, chapter 70, sections 17 to 19, and inasmuch as the kazi was able to make these orders, this court, administering justice in place of a kazi, should make such orders when applied for. ..... the first of these acts, by section 3, expressly provides that the act is only to relate to cases to which english law is applicable. ..... 21 by petition under these two acts for sanction by the court to the granting of a lease of certain premises the subject of a wakf by the mutwalli. ..... this is an application in the matter of a wakf executed by halima khatun to obtain the sanction of the court to the sale of a small piece of land in park street to mr. ..... 179, 187, as to whether the kazi could and the court can authorize a sale of wakf property. .....

Rahamat Ali and ors. Vs. Chikan Bibi Wife of Azgar Ali and ors.

Court : Kolkata

Reported in : 41Ind.Cas.684

1. the only question involved in this appeal is whether the wakfnama set up by the defendant is a valid document.2. in determining the question, we have to see whether the effect of the deed was to give the property in question substantially to religious and charitable uses, or whether the effect was to give the properly in substance to the donor's family. see mujib un-nissu v. abdur rahim 28 i. a, 15 : 5 c. w. n. 77 : 23 a. 233 : 11 m. l. j. 58 : 3 bom. l. r. 114 : 7 sar. p. c. j. 829 (p. c.).4. the wakfnama enjoins the mutawalli to perform the acts and ceremonies mentioned in the documents and provides for the preservation and repair of the mosque. then it says that after deducting the expenses for all these acts from the income of the wakf property, the daughters of the founder would take the balance of the income as their remuneration.5. the dominating purpose and intention of the grantor in executing the deed evidently was to provide for religious and charitable purposes and the secondary and subsidiary object was to secure for his daughters any surplus that might remain after defraying the experses. we think, therefore, that the wakfnama, though not governed by the provisions of act vi of 1913, is valid.6. that being so, the decree of the lower appellate court is affirmed and the appeal is dismissed with costs.

MohiuddIn Chowdhury Vs. AminuddIn Chowdhury and ors.

Court : Kolkata

Reported in : AIR1924Cal441,72Ind.Cas.930

..... even in that case, however, the question whether the district judge, acting as kazi, might entertain an application to appoint a mutwalli, the office being vacant, or whether the only course available for the purpose was a suit under section 92 of the code, was left undetermined.9. ..... there, as the report shows, the wakfnama contained no provisions for the appointment of a mutwalli, and it did not appear that there was any executor of the original wakf who would be competent to make the appointment. ..... it was argued that he had no jurisdiction to entertain any petition or application for the appointment of a new mutwalli and that, in order to give him jurisdiction, a suit should have been instituted tinder the provisions of section 92 of the civil procedure code. ..... parties interested who question the propriety of the appointment made by the learned judge may or may not themselves have a remedy open to them by way of suit under section 92 of the code or otherwise. ..... the present case, as it came before the district judge and as it comes before us, raises, in my opinion, no such question as is contemplated by section 92 of the code. ..... the learned district judge in making the appointment has merely acted in accordance with the wishes and. .....

Sk. Akhtar Hossain and Ors. Vs. The Board of Wakfs, West Bengal and Or ...

Court : Kolkata

..... of mandamus commanding the respondent nos.1, 2, & 3 to cancel, withdraw or rescind the purported order or resolution of alleged regularization of the transfer of wakf property located on a portion of 96, baithakkhana road, calcutta 700 009 in favour of respondent nos.5 & 6 herein; (b) a writ or writs, order or orders.direction or directions in the nature of mandamus commanding the respondent nos.1, 2, & 3 to take immediate steps for prosecuting the transferer and transferee respondent nos.4, 5 & 6 in accordance with the provisions of wakf act, 1995. ..... has invited the attention of this bench to rule 1(5) of order xxiii of the code of civil procedure (hereafter the cpc).according to him, although the cpc is not applicable to writ proceedings in view of the explanation to section 141 thereof, it is settled law that the principles flowing from the cpc are applicable to writ proceedings so far as the same are practicable and, therefore, there is no reason as to why the petitioners 1a, 1b, 1c and ..... nature of mandamus commanding the respondents, their men servants, agents, assignees and each one of them to cancel, withdraw or rescind any purported order or resolution by the respondents number 1 to 3 or alleged regularization of the transfer of the wakf property in favour of the respondents number 5 and 6 in respect of a portion of 96, baithakkhana road, calcutta 700 009; (b) writ of writs, order or orders.direction or directions in the nature of certiorari calling upon the respondents, .....

Abul Fata Mahomed Ishak and ors. Vs. Rasamaya Dhur Chowdhuri and ors.

Court : Kolkata

Reported in : (1891)ILR18Cal399

..... states as follows: 'for perpetuating the names of our fathers and forefathers and for protecting our properties, we...of our own free will and accord and without reluctance or compulsion make perpetual wakf of all our shares and rights in the immoveable properties pergunnahs, zemindaries, taluks, that are in our possession and enjoyment for the benefit of our children and grand-children and the ..... the opinions of the moulvies to whom the questions of mahomedan law were referred, is certainly entitled to very great weight; but all that that judgment decides in respect of the validity of a wakf is that an endowment to charitable uses is valid, though qualified by a reservation of the rents and profits to the donor himself during his life; and that the donor may appoint himself mutwali ..... lecturer of 1884 seem to favour this interpretation of the law; but the hedaya, as translated by hamilton, and most of the cases laid before us, seem to us to establish the fact that wakf must be in favour of a religious or charitable purpose, although there may be a temporary intermediate application of the whole or part of the benefits to the appropriator's family. ..... is stated that 'the principal object of this wakf is that there be no loss to the properties; that the name and prestige of the family be maintained; and that the property be appropriated towards the maintenance of the name of the family and the support of the persons for whose benefit the wakf is made; and for acts of religion', etc. .....

Soofi Munshi Azahar HossaIn and anr. Vs. Amir Ahmed and ors.

Court : Kolkata

Reported in : AIR1937Cal261

..... of the contemplated suit and he pointed out the reasons why: in particular the transactions between the members of nawab jan's family since 1907, the fact that nobody raised the question of wakf in the suit filed by one ahad in 1899 which was decided in 1904 and he suggested that some female member for these reasons should be made plaintiff. ..... documents an ingenious point that, taking these documents together, we must assume a finding that the rest of the property, that is, the balance after deducting 15 cottas 8 chataks, was wakf, or, alter, natively, we must at any rate draw the inference from these proceedings and documents that is the case. ..... mahomed maki's suit was filed, a suit of a similar nature in this respect that it was brought to establish the wakf character of these properties, the only difference being that in that case mahomed maki claimed to be in some way a member ..... a finding or it is a transaction which is admissible in evidence under section 13, evidence act, and i propose to assume that is the case. ..... of limitation or otherwise should turn upon the question of the purchaser being unaware of the wakf nature of the property (on the assumption that it is wakf) i should have been prepared to hold that ameer ahmad had such knowledge. ..... be drawn from evidence that a person is living in property alleged to be wakf, subject to proof of a provision in the wakfnama, is that it is not being used as wakf property, and, in my opinion, the sooner that is recognized the better. .....

Dewan Anwar Reza Choudhury Vs. Dewan Hachinur Reza Choudhury Through M ...

Court : Kolkata

Reported in : AIR1945Cal189

..... expenses mentioned in the wakffor the maintenance of his own family and to purchase other properties from the balance of the income and the properties newly purchased will be treated as wakf property and the income thereof will be spent in the manner described abovethat 'no mutwalli will ever be entitled to violate the rules mentioned in the ..... , etc.under the deed defendant 1 is appointed mutwalli and is directed as 'bound in every way and always to act according to the rules laid down below': certain allowances are fixed and provision is made for their disposal upon the death of the recipients; 'from the income of the one anna share' of the wakf lands it is directedthat the expenses of sinnis (offerings of food) ziarats, offering of lights, readings of the koran, cleaning ..... 1 schedule 1 item 3 and the mutwalli being authorised 'to sell any lands out of the properties constituted into wakf' for the purposes of repaying the debts of the wakif, the trial court was in error in not considering the matter from the point of view that dewan ganiur reza ..... 498 the high court thought that although 'the intention of the deed was not to create an entire wakf of the properties' it wasto create a charge on them for the maintenance in the customary manner of the brick built musjid and of two madrassas and sadir wazid (travellers).it appears that the charitable ..... opinion the decision of the court below that the wakfs fail both under the wakf validating act of 1913 as also under the law prior to .....

Rajah Janaki Nath Roy and ors. Vs. Nawab Khawaja Habibulla Saheb

Court : Kolkata

Reported in : AIR1927Cal359

..... the result of the decision is that the defendant will not be able to set up the validity of the wakf as against third persons and the property in his hands will be considered as his personal property and liable to attachment and sale in execution of decree against the defendant subject to ..... precluded from bringing a fresh suit in respect of the same subject matter under order 23, rule 1(3) of the civil procedure code which is practically the same in this respect as section 97 of act 8 of 1859, the code then in force. ..... belonging to the same family, among whom were the ancestors of the mortgagors, executed a deed by which they purported to create a wakf of certain properties including the properties now in dispute for the benefit of themselves and. ..... by a series of decisions from the year 1889 the privy council held that a wakf such as was sought to be made under the deeds of 1846 and 1868 was void under the mahomedan law : ..... sir abdul gani executed a heba-bil-ewaz in favour of his son ashanullah and his heirs, of the properties included in the wakfnamah of 1868, as he was advised that the wakf was invalid by reason of the decision of the privy council. ..... i have pointed out that the validity of the wakf of 1846 was directly questioned by the mortgagors in the suit of 1880 and they withdrew their suit without any permission to bring ..... the main argument of the appellants is that the wakf having been declared invalid no title to the property was conveyed to ashanullah by the document of .....

Mohammad Abdul Gani Fakir Vs. Mt. Kulsan Nessa Bibi and ors.

Court : Kolkata

Reported in : AIR1945Cal328

..... sen gupta rightly, it was to the effect that it was only the chief kazi who was vested under the mahomedan law with authority in regard to control of wakfs, and that inasmuch as the office of kazis is now abolished and the functions of kazis have been transferred to british indian courts, it is only such court in the british indian system as may be ..... that even assuming that the appellant was not guilty of laches in communicating with his advocate, no circumstance has been established which would justify the application of section 5, limitation act, so as to condone the failure of the deceased advocate to take necessary steps in time. ..... though the observations of the privy council are clear authority for holding that the jurisdiction in respect of wakfs, with which the mahomedan law had clothed the chief kazi, has now been vested in the tribunals which fall within the category of civil courts, no distinction was ..... courts have held, rightly in our opinion, that the suit did not require the consent of the commissioner of wakfs, and their finding of law on this point has indeed not been seriously challenged before us. ..... a cadi and that of a district judge, or of a judge of this court exercising original jurisdiction, must be more or less farfetched; and we can see no reason why an approval by a subordinate judge of a transaction by which wakf property is mortgaged, provided he has jurisdiction over the wakf property, should not be quite as effectual as a sanction by a district judge.9. .....

Nawabiada Khajeh Atikulla and ors. Vs. Nawab Khajeh Habibulla

Court : Kolkata

Reported in : 53Ind.Cas.773

..... as follows: first, that the first plaintiff may be declared to be the mutwalli appointed in accordance with the long-established custom and usage of the family and in conformity with the provisions of the deed of wakf; secondly, if the court should come to the conclusion that the first plaintiff has not been validly appointed mutwalli, the court may issue orders for the nomination and election of the mutwalli by the ..... test to be applied in oases of this character is, whether there is a substantial dedication of the property to charitable uses at some period of time or other the deed is a valid wakf if its effect is to give the property in substance to charitable uses; it is not so, if the effect is to give the property in substance to the testator's family: mahomed ..... in order to determine the rights of the parties, yet we most not form an opinion as to its legality, even though on the very fees of the document it was apparent beyond controversy that the object of the wakf was a perpetual family settlement with an ultimate illusory gift to the poor we are clearly of opinion that this contention cannot possibly prevail.3. ..... argued, however, that as in the court below the parties had proceeded on the assumed basis that the wakf was good and valid, this court was not competent to determine whether this assumption was or was not ..... also dispute that the musalman wakf validating act of 1913 was not retrospective in operation and could not validate the wakf which was invalid in its inception .....