1. This is a plaintiff's appeal arising out of a suit for a declaration that the property mentioned in the plaint is waqf alalaulad (waqf in favour of the descendants) which is in possession of the plaintiff as mutawalli, and that it is not fit to be attached or sold in execution of a decree in favour of the defendant. The dates of the causes of action for the two declarations claimed were stated in the plaint to be the date of the execution of the deed of waqf and the date when the plaintiff's objection in the execution department to the attachment was disallowed. The plaintiff valued the suit at Rs. 1,489-10-3 for the purposes of jurisdiction and later on amended the valuation to Rs. 12,000. No objection was taken in the written statement as regards the over-valuation. It is possible that this was due to a mistake, as suggested in argument on behalf of the respondent, in not seeing that the copy of the plaint supplied to the defendant was also amended. That copy, however, has not been produced and it is impossible to say this definitely. The fact remains that the question of valuation was not raised or disputed at the trial. The main defence was that the dedication was fraudulent with a view to defeat the creditors of the plaintiff and was invalid under Section 53 of the Transfer of Property Act. The learned Subordinate Judge has accepted the plea and dismissed the suit. The plaintiff has appealed to this Court and not to the District Judge. A preliminary objection is taken on behalf of the defendant that the appeal should have been filed in the Court of the District Judge and that this Court had no jurisdiction to hear this appeal. Reliance is placed on the cases of Khetra Pal…Defendant v. Mt. Mumtaz Begum & Another…Respdts. . [1916] 38 All. 72 and Anandi Kunwar v. Ram Niranjan Das . [1918] 40 All. 505. There is one circumstance which may possibly distinguish this case from the reported cases. The plaintiff here in his plaint expressly claimed two distinct declarations, one with regard to the validity of the waqf and his possession as mutawalli, and the other as regards the property not being attachable or saleable in execution of the defendant's decree. He also professed that the causes of action in his favour in respect of these two declarations arose separately on distinct dates. The valuation in the plaint was not contested at the trial.
2. As, however, the plaintiff has himself chosen his forum for the purposes of this appeal and we are of opinion that his appeal should fail on the merits it is not necessary for us to go into the question in any greater detail.
3. The facts found against the plaintiff cannot be seriously challenged. In at least two previous litigations the present plaintiff had been found to be a partner of the firm Din Muhammad Chotu and liable for the debts of the firm, and decrees had been passed against him as a judgment-debtor. Ex. A also contains an admission of the plaintiff that he was liable for the debts of the firm styled Rashid Mian Pheku Mian of which he admits to be a partner. The Court below has found that the total liability of these two firms is about Rs. 6,000.
4. It is in evidence that part of the property of the plaintiff was attached in execution of the decrees on 18th July 1923, and while those decretal amounts remained unpaid the plaintiff made the waqf on 1st October 1923 dedicating the property for the benefit of himself and his descendants and constituted himself as mutwalli for his lifetime. The object of the waqf mentioned in the document was that the plaintiff was anxious to leave this country and go to Arabia for the purpose of a haj. It is an admitted fact that he has not gone on pilgrimage so far. Another significant fact against the plaintiff is that although the waqf was made in October 1923 mutation of names was not effected till 1925. We may also mention that before the suit the plaintiff made two attempts to get himself declared an insolvent but ultimately abandoned his application, Having regard to these facts and the circumstances, the Court below was quite right in holding that the deed of waqf dated 1st October 1923 was not a bona fide transaction and was executed as a device for defeating the claims of the creditors. It is accordingly invalid as against the defendant.
5. The learned advocate for the appellant has argued before us that S. 53 has no application and that such a dedication under the Mahomedan law is protected by Section 2 of the Transfer of Property Act. We are unable to accept this contention. Assuming that the dedication is in favour of God it would still be a transfer governed by the Transfer of Property Act as God is a juristic person. Under the Mahomedan law itself no person can make a waqf of his entire property without making arrangement for the payment of his debts. The provisions of S. 53 do not in any way infringe any rule of the substantive Mohamedan law.
6. The last contention is that instead of setting aside this transfer a receiver may be appointed with direction to pay off these debts out of the income of the property. Such a request cannot be accepted. In many cases the income of the property dedicated may not be sufficient to pay even the interest on the outstanding debts. It is impossible therefore to uphold the waqf and direct that the debt should be discharged from the income.
7. The appeal in our opinion has no force. It is dismissed with costs.
P.D/R.K
8. Appeal dismissed.