MOHAMMAD ISMAIL Vs. HANUMAN PARSHAD

JUDGEMENT

(1.) For the purpose of this judgment the facts may be stated quite shortly. In the main they are not in dispute. One Mahomad Sadiq, the father of the appellants, was (prior to the transactions hereinafter referred to) the owner of various immovable properties in Delhi. On 27 February 1922, he mortgaged a two-thirds share in a number of small buildings in the city to Chuni Lal, the father of the respondent, for Rs. 25,000. No payments having been made by the mortgagor Chuni Lal on 5 March 1926 served a notice on him demanding payment of the mortgage debt within 10 days. No reply appears to have been made to this demand, but the mortgagor thereupon proceeded to make dispositions of practically the whole of his other properties. On 23 March he executed a deed of sale in favour of a relation of his wife for a nominal consideration of Rs. 1500. On 29 April following he executed : (1) a deed of gift of another house valued at Rs. 15,000 in favour of his wife's sister, and (2) a wakf-alal- aulad purporting to settle other property of the value of about Rs.12,000 upon himself and his children and their descendants, with an ultimate, but somewhat remote, remainder to charity. It is the validity of this wakf that is in dispute in the present appeal.

(2.) On 9 August 1926, Chuni Lal instituted a suit on his mortgage, claiming Rupees 41,968 for principal and interest to that date. A preliminary decree in the usual form was passed on 28 March 1927, and a final decree on 28 April of the same year. The mortgaged property was brought to sale in due course and eventually fetched only Rs. 14,000 leaving a large deficit for which the mortgagee in July 1923 obtained a personal decree against Mahomad Sadiq. In execution the mortgagee attached all the alienated properties including those comprised in the wakf. The transferees objected and applied to raise the attachments, but their objections were in each case disallowed, the Court holding the transactions to be fraudulent. Suits were then instituted by the claimants under O.21, R.63, Civil PC, which were all eventually dismissed by the High Court at Lahore. In one of them, that concerning the wakf, an appeal has been brought to His Majesty in Council, the appellants being the sons and daughters of Mahomad Sadiq now deceased. Chuni Lal also died during the proceedings in India, and is now represented by his son, the respondent.

(3.) The wakf suit, out of which the appeal arises, was heard by the Additional Subordinate Judge of Delhi who delivered his judgment on 31 October 1930. He held that the wakf was valid, and passed a decree in favour of the appellants. His conclusion was that at the time the wakf was executed the value of the mortgaged property was amply sufficient to cover the mortgagee's claim. In arriving at this conclusion, he relied mainly on the fact that in certain interlocutory proceedings in the mortgage suit the property had been valued by a commissioner appointed by the Court at over Rs.50,000, a sum which would admittedly have sufficed to discharge the mortgage debt in full. The appeal to the High Court was heard by Coldstream and Jai Lal JJ. The judgment of the Court was delivered by the latter, his learned colleague concurring.