JUDGMENT Sulaiman, J.
1. This is a defendants appeal arising out of a suit for declaration that the property in suit is endowed property and is not liable to be attached and sold in execution of decrees held by the defendants. The plaintiff relies on a wakfnama executed by himself on 16th July 1924. The wakf is in favour of his descendants and he has constituted himself the mutawalli of the property for his lifetime. The defendants challenged the validity of this dedication and pleaded that the deed had been executed fraudulently with the intention of defeating and delaying his creditors and was not binding on the defendants. Objections had been raised by the plaintiff Tahsin Ali Khan in the execution department which were decided against him; hence this suit.
2. The learned Subordinate Judge in a very short judgment has found the validity of the wakfnama in favour of the plaintiff. He has based his conclusion entirely on the oral evidence and has altogether ignored the documentary evidence that is on the record. We were not satisfied with his finding that at the time when Tahsin Ali Khan executed the wakfnama his assets were more than sufficient to discharge all the liabilities. We accordingly remitted two issues the findings on which have now been returned. There is considerable history previous to the present litigation which the learned Subordinate Judge has altogether omitted to consider but which in order to have a good perspective it is necessary to bear in mind. The pedigree to the family is as follows:
(For pedigree see p. 463.)
3. The plaintiff's father Maskoor Ali Khan died on 8th January 1904 leaving three sons and three daughters. Tahsin Ali Khan appears to have been the eldest son. On 14th March 1904 an agreement was executed by the three brothers jointly under which the management of the entire estate which was considerable was left with Tahsin Ali, and his two brothers were allowed Rs. 3,650 between them and were admittedly deprived of their power to transfer the property. This was followed by a lease for 60 years granted by the two brothers to Tahsin Ali on 15th January 1909. The position of Tahsin Ali, however, did not become absolutely secure. In 1912 his two brothers filed a suit for the cancellation of the lease and their suit was decreed on 28th January 1914. The judgment is printed on p. 17. The finding was that the two brothers were subject to attacks of epilepsy long before the execution of the disputed thekanama which fact was admitted by Tahsin Ali himself, and that their mental capacity had been considerably affected by illness. Although their share of the profits amounted to Rs. 20,000 a year they were only given Rs. 3,650. Not only was the lease to last for 60 years but it gave an Imdad Ali ________________|____________________ | | Masroor Ali Mumtazunnissa=Abdul Latif Khan | _____|_____________________________________________________ | | | | | | Tahsin Ali Mashkoor Tamkin daughter daughter daughter plaintiff Ali= Ali= wife Mt. wife Mt. Tamizunnissa Bismillah Begam defendant 3. defendant 1.
| Mt. Samiunnissa defendant 2.
unlimited power to Tahsin Ali to deduct a further sum for costs as he liked and to prevent an alienation by his brother. The Court found that the brothers were entirely under the control of the defendant who had dominated their will and procured an unconscionable bargain. The lease was accordingly set aside.
4. The brothers, however, did not have an easy course for realizing their arrears of the profits. Tahsin Ali Khan being the lambardar they had to institute suits for profits in the revenue Courts time after time. Some of the decrees for profits are printed on pp. 31, 33, 35 and 37. These decrees were for large sums of money and remained outstanding. On 22nd October 1915 Tahsin Ali executed a sale deed of a considerable part of his property in favour of his own sons. Objection was taken in the execution department on the strength of this sale deed and was disallowed. The sons then brought a suit for a declaration that the property had been validly sold to them and was no longer liable to be attached and sold in execution of the decrees for the profits. The suit was dismissed and the judgment is printed on p. 53. The Court found that the sale deed was an entirely fictitious transaction and was without consideration and had been executed with a view to defraud the creditors of Tahsin Ali Khan, namely his brothers. On p. 54 is a long list of the decrees for profits which the unfortunate brothers had obtained against Tahsin Ali and which had remained unpaid. In 1920 Tamkin Ali died leaving a widow Mt. Bismillah Begam defendant 1 and a daughter Mt. Samiunnisa, defendant 2. Part of the property of Tamkin Ali was inherited by Tahsin Ali. In 1922 the other brother Mashkoor Ali also died leaving a widow Mt. Tamizunnisa defendant 3 Tahsin Ali inherited a part of his estate also.
5. The position so far as the realization of profits went did not improve in any way. There are numerous decrees for profits printed which show that year after year the trouble of non-receipt of profits continued as usual. Some of such decrees are printed on pp. 59, 61, 157, 159, 161, 233, 235 and 238.
6. There are also two mortgage decrees which are worth mentioning separately. On p. 81 is the decree for Rs. 1,042,56-4-0 dated 30th June 1990 in favour of Kunwar Man Singh, and on p. 89 is a decree dated 8th November 1921 for Rs. 35,130-6-0 in favour of Pearey Lal. Under these decrees Tahsin Ali Khan was liable to pay a substantial portion of the decretal amounts. On the death of his brothers an attempts was made by Tahsin Ali Khan to get himself appointed guardian of his minor nieces although he himself was indebted to them heavily. Tahsin Ali was not appointed guardian of his nieces but their mother was so appointed in August 1923 (vide p. 117). Tahsin Ali also failed in the succession certificate case against defendants 1 and 3 on 11th January 1924 (p. 119). Another act of Tahsin Ali, which we may mention in this connexion, was an attempt on his part to marry his niece Mt. Samiunnisa to one of his sons or anybody else. A suit for an injunction restraining him from doing so was decreed. This suit had been pending for some time and was decreed on 1st September 1924 shortly after the execution of the wakfnama (p. 153.) We now come closer to the creation of the wakf. On pp. 98 and 104 we have two applications for execution of her decrees by Mt. Bismillah Begum against Tahsin Ali Khan printed as samples for showing that the numerous decrees outstanding were being kept alive. On 20th June 1924 Mt. Mumtazunnisa who had considerable property of her own and was the aunt of Tahsin Ali died, so that another inheritance devolved upon him.
7. On 5th July 1924 Mt. Bismillah Begam got an application filed in suit No. 68 of 1928 to the effect that Tahsin Ali judgment-debtor had inherited some property on the death of his father's sister Mt. Mumtazunnisa and was contemplating a transfer of the property in order to evade payment of her decretal amounts. She accordingly prayed that the property may be attached and sold and in the meantime an injunction may be issued to the judgment-debtor immediately (p. 121). This application was supported by an affidavit (p. 123) stating that he was contemplating a transfer of the property very soon. An exactly similar application was filed on the same date in suit No. 24 (p. 125) supported by a similar affidavit (p. 127). A third application and an accompanying affidavit are to be found on pp. 129 and 131. These applications were filed on the same date in the revenue Court where the executions of the decrees for profits were pending. The order sheet dated 7th July 1924 printed on p. 133 shows that Tahsin Ali Khan's pleader came to know of these applications on that date and put in an appearance, or perhaps was called by the Court, but he stated that he had no previous intimation and was not prepared to rebut those applications. The Court ordered that the case should be put up on 17th July and the parties be informed to appear again with their documentary evidence. We think there is no ground for supposing that Tahsin Ali Khan's pleader did not take any steps to inform his client specially as the date fixed was 17th July 1924 and documentary evidence had to be produced on that date, and accordingly it would have taken time to procure such evidence.
8. On 15th July 1924 Bismillah Begam made another attempt to ask the Court to issue an injunction to the defendant restraining him from transferring his property in any way, stating that he was heavily encumbered and was intending to transfer his property. The application is printed on p. 135 and the affidavit in support of it is on p. 137. This was done in a pending suit. It is a great pity that the Court on neither of these occasions thought it fit to issue an injunction which seems to have been fully called for. Had such an injunction been issued the protracted litigation which followed would have been avoided. On 16th July 1924, i.e.. one day before the date fixed for the appearance of Tahsin Ali Khan in the execution Court to show cause why the injunction should not be issued, he proceeded to purchase a stamp paper of the value of Rs. 500, got a deed of wakf engrossed upon it, duly executed it and got it attested by a number of witnesses and managed to present it for registration between 4 and 5 p.m. on that very day.
9. Armed with this deed of his own creation he boldly appeared in Court on 17th July 1924 and filed objections. (p. 145) under Section 47, Civil P.C., stating that the property had been given away in wakf to his children and although mutation of names had not been effected (indeed there had been no time to get it done). the property had become dedicated property and could not be seized by the decree holder. As can be expected the objections of Tahsin Ali Khan were disallowed by the Court on 21st November 1924, the Court holding that the wakf was invalid as the judgment-debtor had executed it in order to defraud his creditors (p. 171). Another objections raised by the sons of Tahsin Ali Khan, the alleged beneficiaries under the wakf were also disallowed on the same ground. The sons have not thought fit to institute any suit for a declaration in order to establish their rights. It may also be mentioned that the actual order for mutation of names on the basis of the deed of wakf was in some cases not made till 28th July 1925: vide p. 211. This is a summary of the documentary evidence which has been entirely ignored by the former Subordinate Judge, and has been considered by the second learned Subordinate Judge.
10. The plaintiff comes to Court to seek a declaration after an order has been passed against him by the execution Court. Both on the ground that there is a previous order against him as well as on the ground that he is a plaintiff coming to Court; for a declaration, the burden lies on him to satisfy the Court that he is the trustee of the property in suit, It has been contended on behalf of the plaintiff that Section 53, T.P. Act, which is in Chap. 2 cannot apply to the case of Mahomedan wakfs, because Section 2 expressly leaves intact rules of Mahomedan Law. A passage from Mr. Amir Ali's book on Mahomedan Law Vol. 1. p. 207 (Edn. i) is cited in order to show that according to the Patawai Kazi Khan and some other authorities the creditors cannot ask the wakf made by a debtor to be cancelled because they have no claim on the property of the debtor whilst in health. Mr. Amir Ali" himself on p. 206 has remarked that on this point the authorities to some extent differ. The Durrulmukhtar states that the wakf of an insolvent mortgagor is void. There is another authority "quoted on the same page to the effect that if a "person was heavily involved in debt so as to be absolutely insolvent and with the object of defrauding consecrates his property, the Kazi has the power of not recognizing the wakf and compelling him to sell the property to pay his debts. The Raddulmukhtar a comprehensive work of great authority, "lays down that if the wakf has no means to discharge his debt, then the Kazi would declare the wakf cancelled and the property would be sold for the payment of the debt. Mr. Amir Ali has noted on p. 210 that Tanwirulabsar has reconciled these authorities by saying that the wakf of a person whose debts surround his assests should be maintained either by giving him time to pay off his debts or appointing a manager to realise the rents and profits and to pay the debts therewith. If it be wholly impossible to discharge the debts by that process the Judge has the option of directing the sale of the property consecrated. Mr. Amir Ali therefore concludes (p. 211):
it follows from this that the wakf of a person involved in debt is not ipso facto void: it is only voidable if he acts fraudulently to defeat his creditors.
11. It seems to us in the first place that there is no rule of Mahomedan Law which allows an indebted person to make a wakf of his property with intent to defraud his creditors. In the second place under the Mahomedan Law the Kazi had the power to make the debtor pay all his debts before he maintained the wakf. In the third place the rule under which a manager can be appointed by the Judge to realise the rents and profits and to pay the debts is a mere rule of procedure and not of substantive law, and therefore is not as such enforceable. Thus the provisions of Section 53 in no way offend against any rule of Mahomedan Law and is not inoperative by virtue of Section 2. This was the view expressed by one of us in Ahamad Husain v. Kallu Mian A.I.R. 1929 All. 277. With that view we fully agree. The findings on both the issues returned by the learned Additional Subordinate Judge are against the plaintiff-respondent. They are challenged before us on his behalf.
12. It is now common ground that the debts of Tahsin Ali Khan amount to "two lakhs of rupees at least, if not more" and the parties also agreed that the value of the zamindari property should be calculated at the rate of 6 annas per cent per mensam on the net profits. The learned Additional Subordinate Judge has come to the conclusion that the total value of the assets available to the creditors would be Rs. 1,57,000. On behalf of the respondent it is suggested that there are several discrepancies in the figures which make up this total. It is suggested that the value of the sir land which is shown to be worth Rs. 2,170 really amounts to Rs. 21,070 and that the Court below has wrongly excluded the consideration of Rs. 21,232-2-4 as the amount of arrears due from various tenants. It is also stated that in calculating the total the learned Additional Subordinate Judge has arrived at the figure of Rs. 1,04,815-15-10 wrongly, the correct amount being Rs. 1,19,979. These are the only mistakes which are pointed out on behalf of the plaintiff-respondent.
13. We fully agree with the Court below that the alleged arrears of rent from the various tenants in the estate cannot be taken into account. In the first place the plaintiff is the lambardar of these villages and has not chosen to produce his own account-books and siyahas which would have shown the actual collections he realised. The entries in the patwari's siyahas cannot be reliable inasmuch as those entries are filed in at the dictation of the plaintiff's karindas and very often are neither exhaustive nor complete and correct. In the next place the creditors will have considerable difficulty in realizing these rents from tenants by attaching them and there can never be any possibility of the whole amount being actually realised, Such arrears do not stand on the same footing as immovable property which can be easily attached and sold.
14. We may for the sake of argument assume in favour of the plaintiff respondent that the learned Additional Subordinate Judge has committed the other two mistakes in making his calculations but oven then, on the plaintiff's own showing the total amount of his assets falls short of two lakhs of rupees by several thousands provided, of course, we exclude the alleged arrears of rent. It is well known that, if the property were sold at auction, it would have fetched far lass a value. Under these circumstances it is impossible to hold that the learned Additional Subordinate Judge is not right in finding that the liabilities of the respondent exceeded his assets, at the time when he made the wakf, The previous history and the circumstances under which the wakfnama was executed have already been set forth by us in the opening portion of the judgment. There can be not the least doubt that the main purpose of the execution of this deed was to defeat and delay creditors and that, if this document were to be upheld, the plaintiff's creditors would, without doubt, be not only delayed but also defeated. The document is therefore voidable under Section 53, T.P. Act, as against defendants 1 to 3. Holding that the deed of wakf is not binding on the creditors, we allow this appeal and setting aside the decree of the Courts below dismiss the suit with costs in both the Courts. No decree will be prepared so long as the deficiency in the amount of the costs of translation and printing money has not bean made good by the appellant.