P L D 1957 (W (PLP)

KAIKAUS, J.‑

This is an appeal against an order of Chaudhri M. Anwar, Senior Civil Judge, Sialkot, passed under section 47, Civil P. C., holding that the property in dispute was not liable to attachment and sale in execution of a decree passed in favour of Muhammad Yaqub appellant against Shahab‑ud‑Din, the deceased judgment‑debtor. Muhammad Yaqub appellant and Shahab‑ud‑Din deceased were running a business in partnership. Muhammad Yaqub filed on the 14th of June 1948 a suit for rendition of accounts against Shahab‑ud‑Din, who died during the pendency of the suit and his heirs were brought on the record as his legal representatives. On the 3rd of January 1953, a decree for Rs. 81,975 was passed in favour of Muhammad Yaqub against the estate of Shahab‑ud‑Din deceased in the hands of his legal representatives. In execution of this decree, the appellant got attached one house, eight shops and a plot of land in Sialkot City. At this two applications objecting to the attachment were filed, one by Ali Muhammad, son of the deceased, and the other by Mst. Barkat Bibi, daughter of the deceased. Ali Muhammad alleged in his application that the deceased had created a Waqf‑alal‑aulad of the whole of his property by means of a waqfnama and that he was the mutawalli of the waqf. The basis of the application of Mst. Barkat Bibi too was the same waqf‑alal‑aulad, only the right to object to the attachment was founded on Mst. Barkat Bibi being a beneficiary under the waqf. In reply to these objections, the decree‑holder denied, in the first place, that a waqf had in fact been created and added that the waqf deed had never been acted upon. He alleged further that the waqf deed had in any case been subsequently cancelled. He contended too that the deceased was entitled under the waqf deed to run the partnership business and that the decree of which execution was being sought having been passed in respect of that business, even waqf property was liable to attachment and sale in execution of this decree. The learned Senior Civil Judge framed the following issues :‑ (1) was the waqf cancelled by Haji Shahab‑ud‑Din and could it be cancelled ? (2) was not the waqfnama acted upon and did it remain a paper transaction and what is its legal effect ? (3) Was the matter relating to cancellation of the waqf decided between the parties and what is its effect ? (4) Was the business in connection with which Shahab ud‑Din suffered the loss and the decree was passed also a waqf property and how does it affect the other property, the subject of waqf ? (5) Relief. The learned Senior Civil judge found all the issues, except issue No. 3, in favour of the objectors. He held that the waqf had been acted upon and that though there had been cancellation in fact, it was ineffective, being illegal. On issue No. 4, he held that, in the first place, it was, not proved that the decree related to that business which had been declared waqf and in any case the waqf property was not liable to attachment and sale in execution of a personal decree against Shahab‑ud‑Din. It may be explained before I proceed to discuss the points raised that Haji Shanab‑ud‑Din had, by a waqfnama dated the 11th of December 1930, (registered on the 2nd of January 1931) created a waqf of the whole of his property. By a subsequent deed, registered on the 27th of April 1935, he confirmed the provisions of the earlier deed and added to it the property which he had acquired in the meantime. The need for the execution of the second deed arose, not only because he had subsequently acquired property which too he wanted to make waqf, but because some property, which did not belong to him, had by a mistake been entered in the earlier deed. As the later deed only amplified and did not vary the provisions of the previous deed it is only the later deed which has been referred to by both parties during arguments. It is clear from this deed that the founder had created a waqf‑alannafs‑wal‑aulad of the whole of his property. The main provisions of the waqf will appear from the following extract from the waqf deed :‑ (1) As regards the property purchased after 1930, the position of the executant from the date of the purchase is only that of a mutawalli and the true possession is with the Almighty. Neither I nor any of my heirs has any pro prietary right or power or possession over that property. The property is owned and possessed solely by Him. (2) During the time that I am the mutawalli of this property, I shall be entitled to have full control over the income of this property and can spend it on such charitable and religious objects or on the needs of my descendants as I may think fit in pursuance of this waqf deed and no person shall have any authority to call upon me to render accounts of the waqf nor shall any person be entitled to place obstacles in the way of my spending it in accordance with my own wishes. (3) As I explained in paragraph 3 of the earlier waqf deed, I have a coffee shop business in British Platoons in a number of places. This business is also waqf. I want to continue this business for the purpose of the waqf during my own life. Therefore, during my life when I continue to be its mutawalli, I shall have the right for the benefit of this property and to mortgage or sell any portion of the property if on account of increase in business I need. more money for running it or for the proper management of it, purely keeping in view the benefit of the waqf. (4) Neither I nor any of my heirs shall be entitled, on account of the above provision, to get this waqfnama cancelled, for tile only owner and possessor of this property is the Almighty, and my own possession till my life will not be as an owner, but as a mutawalli. The object of business is only to secure more swab and to protect and increase the waqf property ; otherwise, by the grace of God, the present income of the property is sufficient for the maintenance of myself and my family. It is even more than that. I am explaining this matter so that it should not be understood that I have, from any self‑motive, retained the power of selling and mortgaging. I understand that any provision by a waqif enabling him to sell or mortgage the land for his own benefit would invalidate the waqf. Let there be no doubt that, I retain no right for my own self, for, since the execution of the earlier deed and after 1930, my own connection with the waqf property is that of a mutawalli . . . . . (5) With the money of the waqf or with the income of the coffee shop mentioned above, whatever property I may purchase, that will also be regarded as part of the waqf and my possession during my life will be only as that of a mutawalli. The provision with respect to its income and expenditure is the same. No one shall have any authority to demand accounts from me. I shall have full power to spend the income. (6) I have no power to sell or mortgage this property, except in my capacity of a mutawalli, but the succeeding mutawallis, who are to be appointed after my death, shall not have power, in any circumstances whatsoever, to sell or mortgage the waqf property for any purpose. If any mutawalli so acts, he shall be removed from the mutawalliship and his alienation shall be void as against the waqf. The waqf deed then goes on to provide that, after spending one‑tenth of the income on certain charitable objects, the rest of income of the property shall after his death be divided among his heirs. Before me it has been conceded that the whole of the property in dispute is waqf. Two points have been argued on behalf of the appellant : (1) that although the corous of the property is waqf, over the income of the property the founder had a disposing power and he in fact gave directions as to how this income was to be distributed amongst his heirs after his death and the income should, therefore, be regarded as property of the deceased in the hands of his legal representatives, which is liable to attachment and sale, and (2) that the liability, on which the decree is based, was incurred in connection with and for the benefit of the business which was waqf and for such a debt waqf property is ‑liable to attachment and sale. I will take up the first contention. It should be remembered that the decree is against the estate of the deceased in the hands of his legal representatives. In order that the decree‑holder may succeed, he has to show that there is property which the deceased owned at the time of his death and which passed to his heirs. As the corpus had been made waqf, it would appear prima facie that there was no property which the deceased owned at the time of his death. The contention on this point of learned counsel for the appellant may be thus explained : "the deceased was the owner of the 'corpus' as well as of 'the usufruct of the property till eternity ; the corpus and the usufruct should be regarded as two separate properties ; when the deceased created a waqf of the corpus so that the corpus vested in the Almighty, he still retained the ownership of the 'usufruct till eternity' ; by the waqf deed he gave directions that this property (the usufruct) should pass after his death and continue to pass to certain persons ; those persons, therefore, are in possession by virtue of the disposition made by the deceased of the property that belonged to him ; their position is that of legal representatives and the property they hold is the property of the deceased in their hands which is liable to attachment and sale ; it is in fact a kind of a will of the usufruct by the directions in the waqf deed ; a person who takes by a will is also a legal representative of the deceased and the property in his hand is the property of the deceased and is liable for his debts ; there is no difference in the present case and the case of a will of property." In explaining the contention of the appellant, I have neither stuck to the words used by learned counsel nor have I limited my explanation to his actual argument. I have myself amplified and analysed the contention he has put forward. Now there may be force in the argument put forward if one were to accept that at the time when the testator gave a direction in the deed of waqf as to distribution of the income of the property after his death, he was still the owner of the income of the property till eternity and the direction which he was giving with respect to the distribution of income was being given by virtue of his right as an owner of the property who is entitled to make a testamentary disposition thereof. The assumption of this contention, however, that he was the owner of the property (the usufruct till eternity') at that time and that he was giving these directions by virtue of his right as owner is unwarranted. A waqf, according to its ordinary definition and according to its definition in section 2 of the Mussalman Wakf Validating Act VI of 1913, is "the permanent dedication . . . . . of any property for any purpose recognized by the Mussalman law as religious, pious or charitable." The moment a waqf is made, the waqf ceases to be the owner either of the corpus or of the usufruct of the dedicated property which, by a fiction, vests hence forward in the Almighty. This cessation of ownership takes place not only in the case of an ordinary waqf but even in the case of a waqf in which the waqif is to maintain himself out of the income of the waqf property That income he takes not as the owner of that income but as a beneficiary of the waqf. This will become clear by a reference to section, 3 of the Mussalman Wakf Validating Act, 1913. The section runs :‑ " It shall be lawful for any person professing the Mussalman faith to create a waqf which in all other respects is in accordance with the provisions of Mussalman law, for the following among other purposes:‑-- (a) for the maintenance and support wholly or partially of his family, children or descendants, and (b) where the person creating a waqf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated: Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character." I have already stated the definition of waqf which is accepted by section 2 of this Act. Section 3, it will be observed, does not create an exception to that definition. It does not say that a waqf even for a purpose other than "religious, pious or charitable" shall be valid. It only includes among such purposes the maintenance of the waqif and his family and descendants. When the waqif spends the income for his maintenance the income is simply being applied to a purpose for which the waqf was created. It should be remembered that the income, even during the lifetime of the founder, is not the personal property of the founder. The income is waqf ; only it is to be spent for maintenance of the waqif a purpose, which Hanafi Law regards as a charitable purpose. If, for instance, out of the income which accrued during the lifetime of the waqif some part remains unspent, it will not pass to his personal heirs. It will just be the income of waqf property in the hands of a mutawalli. The direction which the waqif gives in the waqf deed as to the application of the income to the maintenance of his descendants is not a direction in the nature of a will by a person who owns the property with respect to which he gives the direction. It is a direction by the founder of the waqf as to the purpose of the waqf and the manner of the application of the income. This direction he gives by virtue of the power granted by the Muslim law to the founder. The legal effect of this direction cannot be same as that of a will of owned property. The conception that the waqif while vesting the corpus in the Almighty retains the right to usufruct and the directions as to distribution of income which he gives are the directions of a person owning the usufruct is inconsistent with the idea of dedication for charit able purposes. I have stated above the general law relating to waqfs. As regards this particular waqf, there can be no doubt after a perusal of the extract from the waqf deed which I have reproduced above that the waqif retained no right whatsoever as an owner after creation of the waqf. His only connection with the property was, in his own words, that of a mutawalli. He had the right to sell or mortgage but only for the purposes of the waqf. He has stressed that since the creation of the waqf, the Almighty was the only owner and possessor. An argument has been addressed to me with reference to section 52, Civil P. C. which says that the property of the deceased in the hands of his legal representatives would be liable to attachment and sale in execution of a decree against the deceased. It is urged that even a successor is a legal representative. The word "succession" can no doubt be used in relation to the right to receive income but the mere use of this word will not carry the matter much further. Section, 52, Civil P. C. speaks of property of the deceased and in order that it may apply the deceased must be owner of the property at the time of his death. The right of the deceased should not be of a kind which ceases with his death. If the duration of the right be such that it comes to an end with the death of the deceased, there will be no property which may be said to be the property of the deceased within the meaning of section

52. A "legal representative" has been defined in section 2 (11), Civil P. C. as the person who in law represents the estate of the deceased and "eatate" necessarily means property which the deceased has left. In the present case, there is no property which the deceased has left. Learned counsel for the appellant has referred me to paragraph 200 of Mulla's Muhammadan Law, according to which, in the case of a waqf‑alal‑aulad amongst the descen dants of the testator, succession is per stirpes and not per capita in the absence of a direction by a waqif. Learned counsel argues that as the word "succession" is used, the descendants are in fact inheriting the income and they should be regarded as legal representatives who are in possession of the estate or property of the deceased. No argument can be placed merely on the use of word "succession" in this paragraph and in any case succession does not by itself make the property, which a person receives by succession, liable for the debt of the person to whom the person now in possession has succeeded. A remainder‑man does succeed to one having a life estate but the property certainly is not bound to pay the debts of the person who held the life estate. Learned counsel says paragraph 200 contains a rule of Muslim law by which property is being divided amongst heirs tier stirpes. The argument is misconceived. It is just a question of the intention of the founder. If the founder had said that the income of the property was to go to his descendants per capita, it will certainly go per capita. In the absence of any directions to the contrary, the founder has been presumed to have the intention that it will go per stirpes. This is the only correct interpretation of paragraph 200 of Mulla's Muhammadan Law. Learned counsel has relied upon Muhammad Omar Shah Khan v. Muhammad Salamat Ali Khan (A I R 1933 All. 407) for the pro position that waqf‑alal‑aulad is truly speaking only an ownership. In that case one of the joint mutawallis under a waqf‑alal‑aulad sued the other mutawalli for profits under section 164 of the U. P. Tenancy Act. A contention was raised that under section 164 only one who was a co‑sharer could file a suit for profits and that the plaintiff being a mutawalli was not a co‑sharer. The learned judges held that in order that a person may be entitled to sue for profits under that section, all that was needed was that he should be entered in the revenue records as a co‑sharer, that it was not at all necessary that he should be a proprietor and that the Court had got no jurisdiction to go behind the revenue records. The learned judges did observe at the end of the judgment that it was doubtful whether in the case of a private waqf, the property vests in the Almighty, as it did in the case of public waqfs. These remarks were obiter, for the learned judges, as stated above, had found that the simple fact of a person being recorded as a co‑sharer, was irrebuttable proof of his right of suit and, with all respect. the observation that in the case of a "private waqf" property does not vest in the Almighty is not at all justified. There is no distinction between private and public waqfs in Muslim D law in this respect. In fact the word," private" waqf is used only by the learned Judges and does not appear in and work by any Muslim jurist. If this word has appeared in any present‑day commentary on Muslim law, it is probably due only to this judgment. In the Muslim law whether a waqf be a waqf‑alal‑aulad or otherwise, 'it is essential that there be a permanent dedication for a "religious, pious or charitable purpose" and that the property should vest in the Almighty. As already explained, Hanafi law regards maintenance of the waqif, his children and his family as charitable purposes. The next point to consider is whether the waqf property is liable to attachment and sale in execution of the present decree. The argument on behalf of the decree‑holder is that the decree was in respect of the waqf business and although it does not show that Shahab‑ud‑Din was being sued as a mutawalli the decree was in fact against him as a mutawalli. Under the provisions of the waqf deed, it is urged, the coffee shop business was to be a waqf business and Shahab ud‑Din was entitled to contract debts and even to alienate the waqf property if he needed money for the purpose of the waqf business. There is more than one difficulty in the way of the decree‑holder succeeding in this plea. The first is that, as observed by the lower Court, there is no proof on the file that the suit in which the decree was passed related in fact to the coffee shop business. On being questioned as to evidence of this fact, learned counsel for the appellant is only able to refer to the statement in the waqf deed that the coffee shop business will be a waqf business. That is hardly evidence of the fact that the decree related to the coffee shop business mentioned in the deed. The second difficulty is that the suit had been filed against Shahab‑ud‑Din in his personal capacity. He had died during the pendency of the suit and his personal legal representatives had been brought on the record. In fact the decree is against the estate of the deceased in the hands of his legal representatives. The decree is, therefore, obviously a personal decree against Shahab‑ud‑Din. It is executable A only against his estate and the waqf property is not his estate It is obvious that this decree could have been executed. against the personal property of Shahab‑ud‑Din and it can hardly be urged on behalf of the decree‑holder that he can in execution of the decree proceed against the personal property of the deceased as well as the waqf property. Learned counsel for the appellant has produced before me two judgments of the Calcutta High Court I L R 31 Cal. 1084 and I L R 60 Cal. 801, in which it has been laid down that when a trustee incurs a personal obligation on account of the trust property he can reimburse himself out of the trust property and that this right of indemnity can be claimed even by his creditor by subrogation. These judgments instead of helping the appellant go against him inasmuch as they show that an obligation incurred by the trustee is a personal one although it is on account of 'the trust property and that the decree passed in favour of the creditor and against the trustee can be executed only against the personal property of the trustee. So far as subrogation is concerned, both the cases lay down that the creditor has to file a separate suit against the trust property claiming in the right of the trustee a reimbursement out of the trust property and that this matter cannot be gone into in execution of a decree passed in favour of a creditor against the trustee. So the appellant will have to file a separate suit in order to enforce whatever claim he has against the trust property. Learned counsel for the appellant has expressed an apprehen sion that in the suit this question may not become res judicata on account of the present proceedings. It cannot be res judicata because obviously the question as to whether, the decree can be executed against the trust property is not a matter falling within section 47 although it has been regarded by the executing Court as such and I have dealt with it on the merits also. I could have simply dismissed the appeal in so far as this plea is concerned on the ground that the matter does not fall within section

47. Under section 47 the dispute must be between the parties to the decree. The parties to the decree are the personal legal representatives of Shahab‑ud‑Din. It is by an accident that they happen to be at the same time the mutawallis or the beneficiaries of the waqf. Their objection to non‑attachability of the waqf property is preferred either in their capacity aw mutawallis or beneficiaries and not as the personal legal representatives of Shahab‑ud‑Din. In that capacity they are not parties to the decree. Also, in view of my decision that the decree against Shahab‑ud‑Din was a personal one, a decision as to whether the decree was passed in respect of) a liability incurred on account of the trust business is unnecessary and cannot constitute res judicata. As a result, this appeal is dismissed but there is no order as to costs. A.H. Appeal dismissed.