for the sake of companyvenience hereinafter in this judgment by the respondent would be meant the original respondent.
a 463 ext.
appeal by special leave from the judgment and order dated 17 5 1968 of the allahabad high companyrt in first appeal number 13 of 1956.
as regards four other receipts the high companyrt was inclined to believe the explanation of the defendant that the plaintiff had surreptitiously obtained their possession.
he had neither any money of his own to invest in acquisition of the property number was the property acquired by the plaintiff with her personal fund.
she was a resident of asgharabad in the district of aligarh.
60/ per month.
the companystruction of this kothi bad been companypleted by may 1938 after which the plaintiff herself used lo stay in that kothi whenever she came from asgharabad to aligarh.
the plaintiff at the time of her marriage with the raja was a young lady of seventeen.
50000/ at the time of the death of her husband which sum was her total savings out of the money paid to her monthly or from time to time by the raja.
he occupied the kothi as a mutawalli and number as a tenant.
a 460 ext.
it was a waqf property.
20000/ .
a 486 ext.
he had constructed the kothi out of the income of the waqf property.
on october 6 1928 she created a waqf of the entire properties dividing them in three qurras.
the trial companyrt accepted the case of the defendant rejected that of the plaintiff and 6 329sci/78 dismissed her suit.the allahabad high companyrt has dismissed her appeal.
a 449 series ext.
it was decreed in 1942.
80/ since the execution of the lease.
the defendant was inducted as a tenant of the kothi an and from 1st of march 1947 on a rental of rs.
2917/10/ the amount which was number paid during the life time of the raja.
shri lal narayan sinha companybated his argument on behalf of the respondent.
all documents for obtaining permission from be municipal board and for electric companynection etc.
between the years 1937 and 1939 a kothi bungalow was constructed on the said land which was named as mahmood manzil.
a 450 series ext.
first mutawalli of qurra number 1 had acquired the lease of the land and companystructed the kothi with the waqf fund as mutawalli of the waqf.
a 28 and a 27 written by the raja to the supervisor of the building operations indicating that if the foundation of the kothi was number laid within a certain time loss would be caused to the riyasat namely the waqf estate.
obviously stood in the name of the plaintiff as the lease wag standing in her name.
a 518.
the plaintiff bad only one daughter born to her out of the wedlock with the raja.
he died during the pendency of the appeal and on his death his legal heirs and representatives were substituted as respondents.
bibi saddiqa fatima the appellant was the plaintiff in suit number 86 of 1952 filed in the companyrt of the civil judge it aligarh in which the defendant was saiyed mohammad hasan.
on january 22 1935 a permanent lease was executed on behalf of one saiyed anwarul rahman in respect of the disputed land in the name of the plaintiff.
in other words she meant to companyvey in her examination in chief that she had acquired the land and companystructed the kothi out of the savings she had from the various amounts of money given by the raja monthly or from time to time.
the raja as mutawalli was the real lessee of the land.
she died in the year 1931 leaving behind four sons and six daughters.
then companyes the evidence regarding the companystruction of the kothi.
she was married on the 25th may 1950 to one saiyed mohammed raza ali khan.
she has preferred this appeal in this companyrt on grant of special leave.
these documents are ext.
akbari begum.
pursuant to the said suggestion an offer was made on behalf of the substituted respondents to pay a sum of rs.
786/spent on nazrana etc.
a property companyld be acquired in the name of any beneficiary like the plaintiff but she would be merely a benamidar of the mutawalli and the property will be a waqf property.
the high companyrt as also the trial companyrt has rightly remarked that the entry like ext.
on the other band the defendant filed four rent receipts of the period when the raja was alive.
over and above this he used to send money on the occasions of id and bakrid and also gave her money whenever she demanded.
thus in her evidence she companyld number explain as to out of which personal fund she claimed to have acquired the disputed property.
he has said further thus the only point on which the parties were at issue was with respect to the source of the money out of which the patta was obtained and the building companystructed and the plaintiff could succeed only if she proved that she had obtained the patta and built the kothi out of the money given to her by her late husband as pocket expenses etc.
a 452 ext.
he paid rent upto may 1950 but did number pay any rent thereafter.
lal narain sinha d. p. singh s. c. agarwal a. gupta s. mohdkazum and p. p. singh for the respondent.
the waqifa appointed herself the mutawalli of the third qurra.
a 493 series ext.
civil appellate jurisdiction civil appeal number 2462 of 1968.
after the death of the raja the respondent became the mutawalli of qurra number 1 including the kothi in question.
she was possessed of vast zamindari and other properties.
since the lease had been taken in the name of the plaintiff naturally all the receipts were in her name.
m. qamaruddin m. y. omar n. aly khan and v. m. phadke for the appellant.
sughra begum was a shia muslim lady.
the defendant was quite obedient and faithful to the plaintiff until the marriage of her daughter.
hence the appellant instituted the suit for realisation of arrears of rent damages and recovery of possession of the suit property.
the suit was instituted in the year 1941.
shri m. n. phadke advanced a very strenuous argument in sup port of this appeal.
she pleads in para 4 after the execution of the said lease the plaintiff with her personal fund built a kothi and the out houses on the land mentioned in paragraph number 3 above and named it as mahmood manzil after the name of her husband.
the civil judge framed for trial several issues out of which issues 1 and 5 were in the following terms whether the plaintiff is the owner of the property in suit as alleged and is she entitled to the possession claimed ?
in the year 1952 the plaintiff served a numberice on the defendant to pay the arrears of rent and deliver vacant possession of the kothi.
the dispute in this case relates to a property companycerning qurra number 1.
a 453 ext.
at a later stage of her deposition probably in cross examination she demolished her case and claimed to be in possession of rs.
the respondent inter alia pleaded that raja sahib the.
abrar fatima.
the appellant was examined on companymission as a witness to support her case at the trial.
this was on the footing as suggested by the companyrt as if the lease hold in the land upon which the kothi stands was the property of the appellant but the kothi was of the waqf.
his brother was appointed the mutawalli of the second qurra.
a 491 ext.
unfortunately this offer was number accepted by the appellant.
the recital was demonstrably false and companyld number bind the subsequent mutawalli.
n. phadke m. qamaruddin mrs.
the defendant in his reply refuted the claim of the plaintiff and asserted that the kothi did number belong to her number was be a tenant of the same.
raja died in september 1939.
30000/ to the appellant within a period of one year.
in short the plaintiffs case is that the disputed property belongs to her.
in her examination in chief she stated that her husband used to give her rs.
she companystructed the kothi at aligarh by investing about rs.
a 455 ext.
the civil judge has numbered in his judgement that the plaintiff did number put forth a plea that the kothi was built by late raja out of his personal money and that she was owner on the basis of the equitable deoctrine of advancement.
the suit property in this litigation is the said kothi together with the land appertaining to it.
the civil judge also remarked had she stated that she built the kothi out of the money which she had saved that would have been companysistent with her allegations in the plaint.
the plaintiff with the object of companystructing a kothi took on lease the disputed land measuring about 4 bighas and had been paying the annual rent of rs.
80/ per year.
she is smt.
the rent fixed was rs.
for taking the lease was paid by him from the income of the waqf property and he companystructed the kothi from the wakf fund of asgharabad estate.
but she admitted that the whole of her savings were still with her and that out of them she had spent a little when she filed the present suit.
a 495 and ext.
the judgment of the companyrt was delivered by untwalia j. this is an appeal by special leave.
the rajas first wife was smt.
a mutawalli is number an owner of the waqf property but whatever property of the waqf was there from before or acquired subsequently must ordinarily be in the name of the mutawalli.
but after the said marriage he gradually turned hostile and thereupon the plaintiff mostly lived with her daughter.
a 3 shows that ramlal a mason who had worked as a companytractor in the companystruction of the kothi instituted a suit for recovery of rs.
the high companyrt has also referred to the satisfaction of a decree for rent obtained by the lessor in a suit instituted against the plaintiff as well as the defendant and has companye to the companyclusion that the entire decretal amount the expenses of the auction sale and the costs were deposited in the companyrt out of the waqf fund.
whether the defendant possesses the disputed property as the mutawalli as alleged by him the defendants case was that the patta was obtained by the old raja tinder the influence of her young wife benami in her name though it was acquired with the waqf fund.
he was the sole respondent in this appeal also.
a 458 ext.
the case pleaded in the plaint by the appellant was like this raja sahib out of great love for the plaintiff used to pay her a handsome amount every month as pin money and also a good deal of money occasionally.
a 36 a 43 and a 44 are the receipts in proof of the fact that eventually the decree was satisfied by the defendant on payment of money to ramlal.
raja haji saiyad mohammad mahmood hasan was appointed by the waqifa as the mutawalli of qurra number 1.
raja sahib when he was about 50 years of age took the plaintiff as his second wife in the year 1933.
500/ per month as pin money besides meeting her expenses regarding food and clothing.
the high companyrt has also relied upon two letters exts.
one smt.
