ZAMIR AHMAD Vs. MTQUAMAR-UN-NISA

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit in which the plaintiff prayed for the following reliefs: (a) That it may be established that the document known as the wakfnama, dated 20 July 1929, executed by Sheikh Fazal Ahmad is null and void and illegal and that the plaintiff is entitled to and is the owner of a three-eighth share in the property specified below, and also it may be established that the parties are bound by the agreement, dated 6 November 1931, and registered on 11 January 1932, and on 2 March, 1932, and that the plaintiff may be awarded possession over a three-eighth share of the property specified below, and that defendants 1 and 2 may be dispossessed therefrom; Laid at Rs. 26,250. And if the right and possession of defendant 11 is proved, in that case possession may be awarded on dispossession of defendant 11. (b) That a decree may be passed awarding Rs. 1125 as mesne profits on account of the plaintiffs share for three years from 1337 Fasli up to 1339 Fasli at the rate of Rs. 375 per annum, in respect of the zamindari property in Mauza Amkhera specified below, as against defendants land 2. And if the right of possession and ownership of defendant 11 is proved in that case it may be awarded as against defendant 11.

(2.) The wakf deed referred to in relief (a) was executed on 20 July 1929 by one Fazal Ahmad. The agreement referred to in relief (a) was executed by the heirs of Fazal Ahmad. The plaintiff is a cousin of Fazal Ahmad. Defendants 1 and 2 are Fazal Ahmad widows. Defendants 3 to 10 are the husband and the children of Mt. Jilani, the daughter of Fazal Ahmad. It is not in dispute that by right of inheritance the plaintiff-appellant is entitled to a three-eighth share in the estate of Fazal Ahmad. The main question for decision in this appeal is as to the validity of the aforesaid wakf deed. Upon a consideration of the evidence the learned Civil Judge has held that the deed is valid. In appeal it was contended that inasmuch as the deed had been executed by Fazal Ahmad when he was financially embarrassed the deed must be held to be invalid. There is no doubt that Fazal Ahmad was in financial difficulties in 1929 when he executed the wakf deed; his entire moveable property with the exception of the wakf property was mortgaged. Furthermore, Fazal Ahmad had contracted a number of personal debts. His biggest creditor was one Ramsarup and on 17 July 1929 Ramsarup brought a suit (No. 16 of 1929) to recover the sum of Rs. 23,660 due upon an unsecured bond. On 18 July 1929 an application was made for an injunction restraining Fazal Ahmad from alienating his property. On 19 July 1929 the summons in Ramsarup's suit was served upon Fazal Ahmad. On 20 July 1929, Fazal Ahmad executed a deed of wakf which the plaintiff in the present suit maintains is invalid. Ex facie the wakf-deed is a validly executed deed. Application for mutation was not made immediately after execution. On 29 October 1929 Fazal Ahmad did apply for mutation. He died however on 29 November 1929 before mutation was effected. Mutation, it appears, was not effected until 21 March 1930.

(3.) In addition to the debt of Rs. 23,660, further sums were due to Ram Chander and to Sri Ram, and as already observed apart from the wakf property Fazal Ahmad's entire moveable property was mortgaged. Learned counsel for the appellant contended that in these circumstances the wakf-deed was void. No provision in the deed, it was pointed out, was made by Fazal Ahmad for his daughter Mt. Jilani. Further it was pointed out that the deed made no provision for the payment of the executant's personal debts. These facts learned Counsel maintained clearly established that Fazal Ahmad had no real intention of creating a wakf and that therefore the deed of 20 July 1929 was a fictitious document. We are unable to sustain this contention. Firstly, we would observe that it is not accurate to say that no provision has been made in the wakf-deed by the executant for his daughter. There is provision in the deed for his children. It is true that there is no specific provision for the payment of the executant's personal debts but as will be seen hereafter the claims of Fazal Ahmad's debtors were eventually satisfied. It is true that no application for mutation was made by the executant until three months after the deed was executed, but we do not consider this a matter of any importance. The fact is that an application for mutation was made and further it is to be observed that under the wakf-deed Fazal Ahmad himself was the first mutwalli. In these circumstances, it was unnecessary to apply for mutation. In this connexion we would refer to the decision in Alimunnisa Bibi v. Mohammad Abdur Rahman . Shortly put therefore the real question in this appeal is as to whether a Mahomedan who is in embarrassed circumstances can make a wakf of his property. It was contended by the appellant that a Mahomedan who had not paid his debts could not validly make an endowment of his property. It was urged that Section 53, T.P. Act, did not apply to Mahomedans and it followed therefore that a wakf-deed executed for the purpose of defeating or defrauding creditors was ipso facto void. We are unable to sustain this contention. Learned counsel for the appellant was unable to point to any authority in support of the proposition. The question was considered in Bismillah Begam V/s. Tahsin Ali Khan . In the course of his judgment, Sulaiman J. referred to the various authorities on the law of Mahomedan wakfs. These authorities are also referred to by Mr. Ameer Ali in his work on Mahomedan Law, Vol. 1, p. 207. After reviewing the authorities the learned author observes: It follows from this 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.