KHAJEH HABIBULLA Vs. KAVIRAJ JOGENDRA NATH SEN

JUDGEMENT

(1.) This is an appeal by the judgment-debtor against the order of the Subordinate Judge directing that a certain interest of the judgment-debtor should be sold. The application of the decree-holder was to attach and sell something which has been described in this way: As Khaza Soleman Quader along with 116 others has executed a wakfnama...and appointed the present judgment-debtor Nawab Khaza Habibullah as mutwali of the said wakf properties; it is prayed that the decretal amount may be realized by the attachment and sale of all the interests and profits with regard to the money to which the said judgment-debtor has been and is entitled as mutwali by virtue of the said wakfnama. Under the provisions contained in Clause3 of the aforesaid wakfnama,. the revenue, rents, cesses due to the superior landlords, taxes and collection charges, monthly allowances of the beneficiaries etc., are to be deduoted from the annual proceeds of the properties mentioned in the schedule below and covered by the wakfnama, and after a further deduction of 5 percent from the remaining sum the judgment-debtor Nawab Khaza Habibullah is entitled to a 4 annas share of the surplus. It is prayed that the decretal amount be realized by the attachment and sale of the aforesaid 4 annas share. A sum of Rs. 2,000 at least becomes due to the judgment debtor on account of the Said 4 annas share. And the same is distributed every year in the months of Aswin and Chaitra amongst the mutwali and beneficiaries.

(2.) The objection of the judgment-debtor was that this property is not saleable, as the money receivable by the judgment-debtor under the terms of the wakfnama is an unascertained sum and, therefore, not capable of being attached. The Sub-ordinate Judge held that the right of the judgment-debtor to 1/4 share of the profits in the wakf properties which is sought to be attached is transferable; it is immovable property and so should be attached and sold in the manner laid down in the Civil P. C.. He says it is not a moveable property: It is not the money which is receivable by the mutwali, but the right to get the money which is sought to be attached in this case. It is really difficult to understand what the Subordinate Judge meant by the observation that this right of the mutwali to receive an 1/4 share of the surplus income of the property after defraying all expenses is an immoveable property. If the property is really wakf property then the mutwali has no interest in the property itself, because as it is often said the property is dedicated to God. It may be called payment of an allowance to the mutwali for his trouble in managing the property, distributing allowances to the beneficiaries and for the performance of other works which might have been imposed upon him by the wakfnama. This allowance of 4 annas share of the surplus after defraying the expenses cannot from the nature of it be a fixed amount. It is an unascertained amount which must be fluctuating from time to time according to circumstances. The question is, is this property a saleable property? Because unless it is so it cannot he attached under Section 60, Civil P.C.

(3.) Various cases have been cited before us in support of the contention of each party. The learned advocate for the appellant relies upon the case of Sher Singh V/s. Sri Ram [1908] 30 All. 246. In that case it was decided that the future profits which the judgment-debtor is likely to get is not saleable. In that case the Calcutta cases on the point have been referred to and followed. The nearest approach, however, to the present case is the case Jagarnath Roy v. Kishen Pershad [1867] 7 W.R, 266. In that case the right to the surplus profits of a shebait from debuttar property was apparently sought to be sold. Loch, J., observes with reference to this claim to sell the profits: The thing itself is also of so uncertain a nature that its sale would be a source of constant litigation. The rents and profits may be sufficient only for the support of the temple services, or the surplus after paying the charges may be considerable. It may fluctuate year by year; and a stranger purchasing such a right, if legally saleable, would be obliged to enforce that right by annual litigation to discover what he had to receive. I think, therefore, that the sale of such an undefined right, if right, it can be called, should not be allowed.