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TMI Blog1948 (11) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ur from Akola married one Hasan Khan. It does not appear that Abdul Rahman inherited any property from Hasan Khan. On the other hand, the family house was sold by the heirs of Hasan Khan in 1916, when Abdul Rahman shifted to Drug as there was a quarrel between him his brothers sisters. At Drug Abdul Rahman acquired large properties, these properties are described in the schedule attached to the plaint. They included three houses other movable property. The plffs. claimed to be the heirs of Abdul Rahman entitled to share in his property. 2. Three days before his death Abdul Rahman executed a Will (Ex. 1 D-2), in which he stated that all through his life he was under the impression that he was the son of Hasan Khan but that two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was inoperative, no appeal has been filed by the mutawalli of the mosque. That question therefore need not concern us at all. As regards the wakf in favour of the 'Madarsa' it was held that the wakf would operate only to the extent of the widow's share in the property. Sheikh Ismail was not made a party to the suit his claims to the property were never considered. It was held that the plffs. were entitled to a three-fourth share in the property of Abdul Rahman the widow was entitled only to an one-fourth share. The question of 'benami' purchase of the big house was decided against Zainab Bi, the other heirs were held entitled to a 3/4th share in it. It was also held that Abdul Rahman was the son of Hasan Khan. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maung Po Shein 4 Rang 518: Of course, where parties have led evidence the question of onus becomes academic. In the present case, the brothers sisters of Abdul Rahman led no contrary evidence, we have therefore to examine whether the evidence led by Zainab Bi, the appellant, satisfies the burden placed by law upon her. 7. Reliance was placed upon the testimony of one of the vendors of this house, who stated that the money for the purchase was given by Mt. Khairunnisa. In determining the question whether a transaction is 'benami' the Court has to see all the surrounding circumstances, the most important point is the source of the money required for the transfer. (Their Lordships after discussing the evidence confirmed the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;hiba-bil-iwaz' amounts to a sale requires a registered document: See Mahabir Prasad v. Mustafa Hussain AIR 1937 PC 174, at p. 177. This point was not seriously pressed before us after the Privy Council ruling was pointed out to the learned Counsel for the appellant. He, however, relied upon Section 53A, T.P. Act. That section has no application here because the widow has done no act in furtherance of the contract as required by the section. 10. This brings us to the question of the wakf in favour of the 'Madarsa.' The case of the appellant is two-fold. She urges that the wakf should operate either in its entirety or fail totally. For the second proposition she relies upon Mahabir Prasad v. Mustafa Hussain AIR 1937 PC 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ammad, who differed on this point from Abu Yusuf. According to Abu Yusuf a bare dedication of the property in favour of a defined charity is enough without actual delivery of possession. According to Imam Muhammad delivery of possession is essential. The view of the Allahabad High Court has now changed, in Mahomed Yasin v. Rahmat Ilahi AIR 1947 All 201 a F.B. of that Court has specifically overruled the earlier case. Thus all the High Courts in India are now unanimous that a bare dedication of the property is enough to constitute a 'wakf.' The Nagpur view was based upon the Allahabad case, which, in our opinion was wrong. It is well known that the opinion of Abu Yusuf is mostly preferred to that of the other disciple of Abu Hanifa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bind not only the share of the widow but also of the other heirs In our opinion, the 'wakf' in respect of the 'Madarsa' must be given effect to in its entirety. In view of this finding the other aspect of the case urged by the widow, to which we have adverted to above, needs no discussion. 13. The question of the funeral expenses was not urged because the matter never went beyond the stage of pleadings, the widow in her evidence did not refer to the expenses incurred by her over the ceremonies. Pleadings do not take the place of evidence, therefore we hold that the additional funeral expenses pleaded by the widow were not proved. 14. The suit was for joint possession, but the trial Judge has given a decree for sep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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