Sulaiman and Sen, JJ.:— This is a defendants' appeal arising out of a suit for declaration that the property in suit is endowed property and is not liable to be attached and sold in execution of decrees held by the defendants. The plaintiff relies on a waqfama executed by himself on the 16th of July, 1924. The waqf is in favour of his descendants and he has constituted himself the mutwalli of the property for his lifetime. The defendants challenged the validity of this dedication and pleaded that the deed had been executed fraudulently with the intention of defeating and delaying his creditors and was not binding on the defendants. Objection had been raised by the plaintiff Tahsin Ali Khan in the execution department, which were decided against him; hence this suit.
The learned Subordinate Judge in a very short judgment has found the validity of the waqfnama in favour of the plaintiff. He has based his conclusion entirely on the oral evidence and has altogether ignored the documentary evidence that is on the record. We were not satisfied with his finding that at the time when Tahsin Ali Khan executed the waqfnama his assets were more than sufficient to discharge all the liabilities. We accordingly remitted two issues, the findings on which have now been returned.
[The judgment then proceeded to set forth at length the history previous to the present litigation, as well as the documentary evidence, which the trial Judge bad omitted to consider, but which were considered by his successor in office who decided the issues remitted by the High Court.]
The plaintiff comes to court to seek a declaration after an order has been passed against him by the execution court. Both on the ground that there is a previous order against him as well as on the ground that he is a plaintiff coming to court for a declaration, the burden lies on him to satisfy the court that he is the trustee of the property in suit.—
It has been contended on behalf of the plaintiff that section 53 of the Transfer of Property Act, which is in chapter. II, cannot apply to the case of Muhammadan waqfs, because section 2 expressly leaves intact rules of Muhammadan law. A passage from Mr. Ameer Ali's book on “Muhammadan Law,” volume I, page 207 (fourth edition) is cited in order to show that according to the Patawai Kazi Khan and some other authorities the creditors cannot ask the waqf made by a debtor to be cancelled, because they have no claim on the property of the debtor whilst in health. But Mr. Ameer Ali himself on page 206 has remarked that on this point the authorities to some extent differ. The Durr-ul-Mukhtar states that the waqf of an insolvent mortgagor is void. There is another authority quoted on the same page to the effect that if a person was heavily involved in debt so as to be-absolutely insolvent, and with the object of defrauding his creditors consecrates his property, the Qazi has the power of not recognizing the waqf and of compelling him to sell the property to pay his debts. The Radd-ul-Muhtar, a comprehensive work of great authority, lays down that if the waqif has no means to discharge his debt, then the Qazi would declare the waqf cancelled and the property would be sold for the payment of the debt. Mr. Ameer Ali has noted on page 210 that Tanwir-ul-Absar has reconciled these authorities by saying that the waqf of a person whose debts surround his assets should be maintained either by giving him time to pay off his debts or appointing a manager to realize the rents and profits and to pay the debts therewith. If it be wholly impossible to discharge the debts by that process, the Judge has the option of directing the sale of the property consecrated. Mr. Ameer Ali therefore concludes at page 211, that “it follows from this that the waqf of a person involved in debt is not ipso facto void, it is only voidable if he acts fraudulently to defeat his creditors.”
It seems to us in the first place that there is no rule of Muhammadan law which allows an indebted person to make a waqf of his property with intent to defraud his creditors. In the second place, under the Muhammadan law the Qazi had the power to make the debtor pay all his debts before he maintained the waqf. In the third place the rule under which a manager can be appointed by the Judge to realize the rents and profits and to pay the debts is a mere rule of procedure and not of substantive law, and therefore is not as such enforceable. Thus the provisions of section 53 in no way offend against any rule of Muhammadan law and are not inoperative by virtue of section 2. This was the view expressed by one of us in Ahmad Husain v. Kallu Mian(1). With that view we fully agree.
The findings on both the issues returned by the learned Additional Subordinate Judge are against the plaintiff respondent. They are challenged before us on his behalf.
[The judgment then considered the findings and the evidence.]
Under these circumstances it is impossible to hold that the learned Additional Subordinate Judge (who decided the issues remitted) is not right in finding that the liabilities of the respondent exceeded his assets at the time when he made the waqf. The previous history and the circumstances, under which the waqfnama was executed have already been set forth by us in the opening portion of the judgment. There can be not the least doubt that the main purpose of the execution of this deed, was to defeat and delay creditors and that, if this document were to be upheld, the plaintiff's creditors would, without doubt, be not only delayed but also defeated. The document is therefore voidable under section 53 of the Transfer of Property Act as against defendants Nos. 1 to 3.
Holding that the deed of waqf is not binding on the creditors, we allow this appeal and setting aside the decree of the court below dismiss the suit with costs in both the courts.