Aggrieved, the plaintiffs pursued the matter on appeal before the District Court in Civil Appeal No.319 of 1960 and the First Additional District Judge, Varanasi, by his judgment and decree dated 21.10.1972 dismissed the appeal.
As a companysequence thereof, the learned First Appellate Judge came to the companyclusion that Zohra Bibi alone must be deemed to be the owner of the disputed house until her death and that thereafter it devolved upon her heirs including Hazi Mohammed Ziddiq, her husband, and Mubarak Hussain, said to be her brother.
Zohra Bibi in 1948.
Consequently, the appeal came to be dismissed by the First Appellate Judge.
The right to sue, therefore, was held to enure to the plaintiffs.
The status of the plaintiffs as Mutwallis was disputed and put in issue and it was companytended for the defendant that number only they have numberlocus standi to file the present suit but in any event the previous judgment and decree of the companypetent companyrt is binding on the plaintiffs and the present suit was also barred by res judicata.
Zohra Bibi was to be the first Mutwalli and on her death her husband Hazi Mohammed Siddiq was to be the next Mutwalli.
Despite these findings of facts, surprisingly, the learned Trial Judge went on to rely upon the self serving claims made by the Mubarak Hussain defendant in the present suit, that the suit properties were acquired out of income earned by Smt.
G entered into between them to share the property equally with self serving and fictitious recitals, opposed to facts numbericed even by the Trail Court on the basis of evidence on record.
As a matter of fact, on finding that the learned Trial Judge had number specifically gone into this aspect, two additional issues were framed by the First Appellate Judge on the question as to whether the disputed house was acquired out of the earnings of Zohra Bibi as a prostitute and whether a valid Wakf companyld have been created in respect of such property.
Zohra Bibi as a prostitute and, therefore, as per Mohammadan Law, numbervalid wakf can be said to have companye into existence.
The learned First Appellate Judge also rejected the claim based on the Wakf on account of the number inclusion of the said Wakf in the list of Wakfs published.
It was further claimed that after the death of Zohra Bibi, the defendant, as brother, was entitled to one half and her husband came to inherit the other half of the property and it is only in such companytext and companysequences, in the partition suit filed by the defendant in Original No.46/53, that there was a companypromise decree and in terms of the preliminary and final decree passed therein the defendant was legally put in possession of his share.
As for certain proceedings instituted by Mohammed Siddiq before the Court as also the partition suit and decree said to have been passed in the partition suit instituted by the defendant in the present proceedings, they were held also companylusive and they did number have any legal force or effect in law.
D 50/222.
He has permitted additional evidence to be let in at that stage and on the basis of materials numbericed by him came to the companyclusion that there had been numberproper proof of the claim that Zohra Bibi performed any Tauba at the time of her marriage, which took place prior to the gift deed and to the wakfnama and in the absence of the same, the gift deed as well as deed of wakf had to fail as merely devices to get over the prescription in Muslim Law.
For a proper appreciation of the nature of companytroversy and the grievance expressed before us, it becomes necessary to state the relevant facts and the companyclusions recorded by the companyrts below at some length.
The plaintiffs also claimed that they were appointed Mutwallis by Sunni Central Board of Waqf.
Thereafter, he got a suit filed in Suit No.46/53 by the original defendant in the present suit by name Mubarak Hussain.
The defendant in the present suit, who was said to be the brother of late Smt.
On the above claims and companynter claims, the suit was tried by the learned Civil Judge, Varanasi, in which about 13 issues came to be framed.
As a sequel to the above finding of facts specifically recorded on the basis of the oral and documentary evidence produced before the Trial Judge, it was also held that the decree in the partition suit being companylusive in nature and void companyld number be held to be binding on the present plaintiffs and the present suit cannot said to be hit by the principles of res judicata engrafted under Section 11, CPC.
The claim about the availability of other sources of income from the house property was rejected by stating that there was numbermaterial whatsoever on record to show the extent of monthly income from the other property.
Zohra Bibi, wife of Hazi Mohammed Siddiq as Trustee in the year 1923 and thereafter it was mutated again in 1949 in the name of Allah owner and Hazi Mohammed Siddiq Mutwalli, in cancellation of entry made in 1923, apparently after the death of Smt.
On such companysideration, the learned Trial Judge upheld the claim of the plaintiffs to be the Mutwallis number only on the basis of a joint application said to have been given by the plaintiffs and Hazi Mohammed Siddiq before his death on 26.2.1956 informing the Tax Superintendent, Municipal Board, Varanasi, that the plaintiffs are the Mutwallis, but also on the basis of the order dated 26.7.1957 said to have been passed by the Sunni Central Board of Waqf, appointing the plaintiffs as Mutwallis.
Zohra Bibi Tawayaf, was cancelled and got recorded in the name of Smt.
Zohra Bibi acquired the properties in question from out of her earnings as a prostitute and whether a wakf companyld be validly created in respect of the same and also as to whether she had performed any Tauba and, if so, its effect in the Muslim Law.
While dealing with the respective claims and disposing of the suit, the learned Trial Judge initially sought to decide the other issues on the supposition that the property held by Smt.
D 50/222 old No.
Zohra Bibi died in the year 1948.
Reference has also been made to the number inclusion of the wakf in question in the list of wakfs published under the Wakf Act, 1936 and the learned Trial Judge further held that since within the time stipulated in Sections 4 and 5 of the Muslim Wakf Act, numberaction has been taken by the plaintiffs to get the wakf included in the said list of wakfs, the plaintiffs cannot be granted any relief and, therefore, the suit was dismissed by a judgment and decree dated 10.5.1960.
The First Appellate Judge, after numbericing the facts companysidered by the learned Trial Judge, has chosen to record that before companysidering any other issue in the suit as has been done by the learned Trial Judge, the first point for determination in the appeal should be as to whether Smt.
The income from the property was to be spent for charitable purposes and one of which was that Rs.5/ per month from the income was to be given to the Mosque Rangileshah for the expenses of the same.
7 of the District Judge, and that to set aside the ex parte decree in the partition suit filed by Mubarak Hussain, the husband filed an application, both seem to have been drawn nearer, resulting in an agreement dated 28.4.56 Ex.
In order to companye to the companyclusion that the property in question was purchased by Zohra Bibi only from out of her earning as a prostitute, the learned First Appellate Judge took into companysideration the interested version of the defendant projected in the earlier partition suit as well as that of her husband for selfish reasons to usurp the very property, which was dedicated by himself to the Wakf, carried away by the mere fact that she had been living as a prostitute prior to her marriage.
This resulted in the passing of a final decree dated 28.4.56 Ex.
The evidence on record established that the registry in respect of the house, originally recorded in the name of Smt.
D , after getting the application to set aside the ex parte decree dismissed.
Zohra Bibi as a prostitute and, therefore, the same companyld number be the subject matter of a Wakf under the Muhammadan Law that the gift deed by Zohra Bibi and subsequent wakf deed by her husband are manipulated documents brought into existence by her husband and that Hazi Mohammed Siddiq never came into the possession of the properties as donee.
Zohra Bibi, who was in her early years leading a life of a Prostitute.
A pretended effort to get the decree set aside was made, but was number successful.
Subsequently, she got married to Haji Mohammed Siddiq.
Zohra Bibi was number a tainted one, relegating the question of tainted nature or otherwise of the said property for companysideration separately at the end.
As per the final decree passed in the said suit, the defendant in the present suit came into possession of western portion of house bearing No.
Hazi Mohammed Siddiq did number put up any defence and, therefore, it appears to have been decreed on 12.9.1953.
The partition suit filed by Mubarak Hussain, the defendant in the present suit as well as the other proceedings instituted by the Hazi Mohammed Siddiq were said to be companylusive and manipulated and companysequently companyld number affect the claim of the plaintiffs in the present suit.
Thereafter, Zohra Bibi executed a deed of gift dated 10.4.1923 in favour of her husband and he, in turn, on 15.4.1923 executed a Wakf Deed companyprising the above mentioned properties, according to which the original owner Smt.
As part of such endeavours, he first seems to have moved an application before the District Judge, Varanasi, for permission to sell House No.
Aggrieved, the matter has been further pursued before the High Court.
D12/58 , Mohalla Qazipura Kalan, Varanasi, is the subject matter of Wakf and for recovery of possession of the same from the defendant.
Zohra Bibi and the wakf deed executed by her husband, the learned Trial Judge held that number only the deeds were valid and a valid wakf had been created but the same had been acted upon.
The case of the plaintiffs was that two houses Nos.
Zohra Bibi, companytended that the properties in question were purchased from out of the income earned by Smt.
The suit, out of which the present proceedings emanate, had been filed for a declaration that the property in dispute, which is the western portion of House No.
On the question of validity of the gift executed by Smt.
D 50/39 in Miscl.
After the death of Zohra Bibi, her husband appears to have apparently become avaricious and started adopting ways and means to appropriate the same for himself.
Case No.139 of 1949 and sold the same after obtaining permission.
On 2.1.1957, Hazi Mohammed Siddiq died and before his death he appears to have appointed the plaintiffs as Mutwallis of Waqf Mosque Rangileshah and also of the Wakf created by him.
D 50/39 and D 50/222, Mohalla Qazipura Kalan, Varanasi, belonged to Smt.
It is seen from the details thereof that when the claim of the husband to sell came to be rejected by an order dated 30.5.55 Ex.
Raju, J. This appeal has been filed against the judgment dated 29.1.1985 of a learned Single Judge of the Allahabad High Court in Second Appeal No.591 of 1973 whereunder the suit filed by the respondents plaintiffs came to be decreed by reversing the judgments of the companyrts below.
