Shah Manzoor Hasan vs Bibi Shamshul Nahar

Manohar Lall, J.—This is an appeal by the defendant who is aggrieved by the decision of the Subordinate Judge of Bhagalpur dated 23rd January 1947 by which he affirmed the decision of the trial Court and decreed the plaintiff''s suit. The question for determination depends upon the proper construction of some Persian words in a wakf deed. As the rights of the parties were being finally: decided, I thought it desirable to send this case to a Division Bench for hearing.

We have heard the arguments at length and a number of Persian Dictionaries have been referred to in the course of the arguments by the learned advocates of both sides.

This geneological table is accepted as correct by the parties.

SHAH ENAYAT HUSSAIN ____________________|_______________________ | | Shah Asadullab Saheb Jahan ________________|____________________________________________________________ | | | | Noor Jahan Amir Alam Benazir Alam Fateh Alam widow _________|_______________ | | | | | ________|__________ Kutub Alam Noor Alam | | | | Fakhra Alam & 3 daughters _______________________________________________________________|_______________________ | | | | | | Shah Kumar Shah Jafar Shamsunihar Bibi Alima Sahebjadi Jaibunnissa Alam Alam | Hasina Bibi Shah Enayat Hussain created a wakf by a document dated 6th February 1872 by which inter alia he directed that a payment should be made for the maintenance of his nabiragan and also of such persons who may be born in future of his male descendants this interpretation of the document is the subject of keen controversy between the parties. Shah Enayat Hussain had two sons, Shah Asadullah and Saheb Jahan who died in his life time leaving no issue. Assadullah had three sons, Amir Alam, Benazir Alam and Fateh Alam, and a daughter Noor Jahan, who was the eldest of all. Noor Jahan had two sons, Kutub Alam and Noor Alam. Benazir Alam had two sons and four daughters. The plaintiff is one of the daughters of Benazir Alam. Fateh Alam had one son Pakhre Alam and three daughters.

The plaintiff''s case is that by the wakf deed Amir Alam, a grandson, was appointed as the first mutwalli and that as he was a minor at the time, his father Assadullah was appointed guardian to look after the wakf estate during his minority, but Amir Alam having died without attaining majority Shah Fateh Alam began to look after the estate till his death on 17th May 1925 and then his Bon Shah Fakhre Alam became the mutwalli with the consent of Benazir Alam. This Shah Pakhre Alam is the present mutwalli'' and is the defendant in the suit.

The cause of action of the suit was alleged to be that the plaintiff was receiving Rs. 20 a month and 20 maunds of rice per annum for her maintenance from the mutwalli who was also paying Rs. 40 a month and 40 maunda of rice annually to Benazir Alam this allowance to the plaintiff was stopped after she had been receiving it for some years and, therefore, the plaintiff instituted the suit giving rise to this appeal on 14th April 1944, for recovery of her allowance for three months, January, February and March, 1944, that is to say, Rs. 60 for the cash allowance and the price of five maunds of rice allocated to that period.

The defendant in the written statement resists the plaintiff''s suit and contends that the plaintiff is not entitled to any amount of maintenance from the estate upon the construction of the document. He also denied that the plaintiff''s father or the plaintiff ever received any maintenance as alleged.

The Courts below upon the construction of the document have come to the conclusion that the plaintiff is entitled to the maintenance as claimed as she answers the description of the person entitled to maintenance under the wakf deed. It has also been found as a fact that the plaintiff was getting a monthly allowance of Rs. 20 per mensem and 20 maunds of rice annually for about six years after the death of her father Benazir Alam. The suit having been decreed by the Courts below, the second appeal has been preferred by the defendant.

The wakf deed has been translated by the office, and I have perused and studied the document in the original. The relevant words are "Parvarish wa pardakht nabirgan wa jo ayinda ahle zokoor se payada howen kiya karen." This has been translated by the Court Translator as "maintenance of the grandsons and whoever may be born from the male line in future". The Court below has translated this clause as "for the maintenance and upkeep of the grandsons and those who may be born in future from the male descendants,"

Strenuous and able arguments were advanced by Mr. Syed Hassan appearing on behalf of the appellant to convince us that the word ''nabirgan'' which is plural of ''nabira'' cannot mean grand-daughters but can only mean grandsons.

Steingass Persian Dictionary defines nabira as grandson and grandchild specially a son''s child.

Richardson and Johnson define nabira as grandson or son''s son.

Farhang Jahangiri, vol. I, at page 251, published from Lucknow by Janaluddin Hussain defines nabira as Pisarzeda.

Nurul Logat, vol. IV of the year 3931 at page 792 says that the word is masculine; son''s son, but also includes daughter''s son.

Hafte Kulzam published at Lucknow in 1230 Hijri defines nabira in vol. VI at page 46, thus that the word generally means born of the farzand and specially of the son and son� people take it to mean born of the daughter, and it has also been seen in some farmans that nabira means the son of the daughter.

Goyasul Lugat at page 467 defines nabira to be generally an issue born of the farzand and specially born of the son, but sometimes also it is taken to mean born of the daughter.

The word farzand is a Persian word meaning a son, a daughter, child, offspring (Richardson and Johnson and also Gayasul Lugat.)

It is clear to me upon a consideration of the various definitions that although the word ''nabira'' originally signified grandson or a son''s son it has come in common parlance to mean any issue of the son, and is not confined only to grandson but is applied to grandchild. Fazl Ali, J., as he then was, in Second Appeal No. 871 of 1932 in deciding a dispute of maintenance, amongst the members of this very family was inclined to take the same view although the question was not necessary for him to decide. He took the view that the plaintiffs in that suit did not come within the expression ''nabirgan'' as used in the document.

The plaintiff cannot come within the description of nabirgan because she is not the, child of Shah Asadullah, but she is the grand-daughter of Shah Asadullah.

The plaintiff, however, in my opinion comes clearly within the meaning of the second, sentence in the quotation above, namely, that she;, is a descendant from the male line of the wakif, she being the daughter of Benazir Alam who was grandson of Shah Enayat Hussain.

It was strongly contended before us that the wakif could not have intended to give any maintenance to his female descendants, other wise he would have made a provision for Saheb Jahan, his daughter, and for Noor Jahan, the daughter of Shah Asadullah. Even if this argument is accepted so far as Saheb Jahan is concerned, I am unable to accept the correctness of the contention so far as Noor Jahan and the plaintiff are concerned. It is not necessary to consider whether Noor Jahan was or was not receiving any maintenance during her lifetime because that question is not before us; nor is it necessary to decide whether the sons of Noor Jahan would be entitled to maintenance. But if it was necessary to decide, I am prepared to hold that the sons of Noor Jahan could not claim any maintenance because they are not the descendants from the male line of the wakif.

For these reasons I agree with the decisions of the Court below that the plaintiff answers the description of the second part of the clause under quotation and she is entitled to maintenance.

It was then contended that the words ''Parvarish'' and ''Pardakht" can only mean the maintenance during the minority of the person, and as the plaintiff is a major she is not entitled to any maintenance. I do not agree with this contention which also did not appeal to Fazl Ali J. in the second appeal referred to above. The words ''Parvarish'' and ''Pardakht'' are well known words of the Persian language and mean maintenance and upkeep in general of any person and cannot be confined to mean maintenance during the minority of a person only.

The next contention advanced was that the suit of the plaintiff was not maintainable because in the suit as framed originally she had asked that the maintenance allowance should be fixed with due regard to the income of the estate, and therefore, the Court was not justified in allowing the plaint to be amended and giving a decree to the plaintiff for the fixed amount claimed by her. The suit was certainly maintainable, but whether the plaintiff has proved that she was entitled to this sum depended upon the evidence adduced.

It was then argued that in the absence of any amount fixed in the document, how can the plaintiff be entitled to a fixed sum unless the total income of the estate and the expenditure are first found and then the number of dependants who have to be maintained is determined? There is some force in this contention, but here on the findings of the Courts below which are findings of fact binding in this Court in second appeal the plaintiff has succeeded in establishing that, as a matter of fact she was getting Rs. 20 a month and 20 maunds of rice annually from the mutwalli. On these findings, the plaintiff''s suit so far as the period in suit is concerned must be decreed. But the question whether the plaintiff is entitled as of right to this particular sum or a larger sum or a lesser sum is left undetermined. We were informed that this question will now be dealt with by the proper persons appointed under the Wakf Act to administer such an estate. If that is so, the parties will no doubt take recourse to proper proceedings before that Tribunal.

The suit of the plaintiff, however, so far as she has asked for a proportionate amount in the quantity of rice cannot be decreed, because on the plaintiff''s own allegation she was getting 20 maunds of rice annually and this amount is not payable to her every month.

Mr. Syed Hassan also contended that there is no evidence in the case that the plaintiff was ever getting Rs. 20 a month and 20 maunds of rice annually from the wakf estate. But there are clear findings of the learned Subordinate Judge who relied upon the evidence of the plain, tiff and also on the evidence of P.W. 2 and P.W. 3. It is, therefore, not correct to say that there is no evidence in the case in support of the plaintiff''s allegation. The learned Subordinate Judge has drawn attention to the fact that it is significant that the defendant himself did not come and challenge this allegation of the plaintiff which is supported by the evidence referred to above.

The result is that the appeal is allowed in part to the extent that the plaintiff''s claim for recovery of the price of rice is dismissed, but in other respects the decree of the learned Subordinate Judge is upheld and the question for future pleads (sic) is left at large.

Having regard to all the circumstances the plaintiff will be entitled to get half of the costs in all the Courts from the mutwalli defendant. The costs will come out of the estate.

Mahabir Prasad J.

I agree.