LACHMI NARAIN Vs. SYED IBRAHIM HUSSAIN

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Patna, dated 4 February 1931, which reversed an order of the First Subordinate Judge there, passed on an objection taken to an application by the present appellants for execution of a decree of theirs against the respondent. The decree which the appellants sought to execute was passed on 19 September 1922, as a, money decree. It was directed against the respondent Ibrahim Hussain Khan personally in a suit to which he alone was defendant. The objection to its execution was taken under S. 47, Civil PC 1908, and was made on behalf of the respondent through the general manager of the Court of Wards, Patna, as his next friend. The estate of the respondent had been under the management of the Court of Wards since 9 September, 1902, when on his own Application under S. 6 (e), Court of Wards Act (Bengal Act 9 of 1879), that Court assumed charge and took possession of all the property to which he was entitled. The decreeholders, the appellants, had before their present application made attempts to attach and sell in execution of their decree, properties of the respondent in charge of the Court, but, it being held that such action of theirs was in contravention of S. 60-A, Court of Wards Act, their execution petitions were struck off by orders of the High Court. This, the appellant's further 'application for execution, was directed pointedly against certain specified properties of the respondent inherited by him from his brother, Sayid Mehdi Hussain Khan, who died on 19 March 1919, the appellant's contention being that these properties have never in fact been in charge of the Court of Wards so that to them S. 60-A of the Act has no application. The sole question in the case therefore is whether the appellants in view of the relevant provisions of the Court of Wards Act and the action of that Court with regard to them are entitled to have recourse to these properties to satisfy their decree.

(2.) Ibrahim Hussain Khan, the respondent, was one of a family of three brothers and two sisters. Mehdi Hussain, the deceased, was the eldest of the brothers, Akbar Ali the youngest. On the death of Mehdi Hussain the respondent and his brother, Akbar Ali, became each entitled according to Mahommedan law to a one-third share of his estate, the remaining one-third devolved upon his two sisters. Mehdi had, in his lifetime, executed two wakf deeds, dated 25 May 1917, and 19 February 1919, respectively, and at his death one Ali Zamin was, as Mutwali, in actual possession of the property comprised therein. The property against which the appellants now seek to execute their decree is in effect the interest of the respondent in some of the properties included in the wakf, so that any right or interest of his in these properties depends upon the question whether or not the wakfnamas are void. In 1920 Akbar Ali instituted a suit against Ali Zamin as the Mutwali in possession to have it declared that the wakfnamas were void. In that suit the plaintiff claimed the recovery of possession of his one-third of the wakf property and to it he joined as co-defendants the respondent and his two sisters. The manager of the Court of Wards was not made a party but, as will he seen presently, that Court was clearly cognisant of all the proceedings. On 31 July 1922, Akbar's suit was decreed in his favour, and on appeal by the defendant Mutwali the High Court, on Ki January, 1928, affirmed the decree of the Subordinate Judge, declaring the wakfnamas invalid and inoperative. Against that decree of the High Court a further appeal to His Majesty in Council has been presented by the defendant. That appeal in February 1931, when this matter came before the High Court was, and so far as their Lordships know is still pending. It appears, however that so far as the plaintiff Akbar was concerned execution of these decrees in his favour has not been stayed; and possession of his share has been given up to him. But as to the remaining two-thirds shares the Mutawalli still remains in and retains possession of the pro-party.

(3.) It is convenient at this stage to state in detail the action taken by the Court of Wards for the protection of the respondent's interest in the property 'inherited by him from his brother. First of all the Court made early intimation that it treated the respondent's share in Hussain's estate as being in its charge. Medhi Hussain having died in March 1919 the Collector of Patna, on 12 November 1919, issued a notification that the Court of Wards had taken charge of the one-third share of the deceased's property inherited by the respondent. Then, on 31 July 1922, the day on which the decree of the Subordinate Judge in Akbar's suit was pronounced the Collector ordered the Manager of the Court of Wards to take possession of the respondent's one-third share. On the same day, the manager issued orders to his tahsildars to collect rents from tenants in respect of the respondent's share in the estate, and the High Court having, on 16 January 192s, affirmed the decree of the Subordinate Judge against the Mutawalli, the manager of the Court of Wards, in the respondent's name, instituted, on 18 August 192S, a suit against the Mutawalli to recover possession of his share of the wakf property. By a subsequent order of the High Court that suit has been stayed pending the result of the Mutawalli's appeal on the main issue to His Majesty in Council.