P L D 1949 Lahore 60 (PLP)

(f) Waqf partly for maintenance of descendants of Waqif- Aliena tion of Waqf property-Members of family entitled to sue Mutwallis. I. L. R.

24. Bom. 170 rel. Yaqub Ali for Appellants. Akbar Ali and Muhammad Tazir, for Respondents. JUDGMENT.-This is a first appeal from an order of Mr. Muhammad Anwar, Sub-Judge 1st Class, Lahore, made in a suit brought by one Muhammad Afzal, for possession of certain property which has been the subject of prolonged litigation. The facts relevant to the present appeal are as follows. One Ghulam Rasul, on the 29th October 1917, executed a Waqfnama in respect of a portion of his property. The Waqf is described as Waqf Al-an-Nafs at Hayat wa Alal-Aulad Wal Ayal for the following purposes namely for my own maintenance, for the upbringing, educa tion, both religious and secular, and instruction of my descendants and their descendants from generation to generation and their heirs, for charity and for the help of orphans, the poor and widows and that the property may also subsist, whereby the name of my family may be preserved". The Waqif had two sons named Din Muhammad and Ghulam Mustafa and a daughter Mst. Mumtaz Begum. The deed of Waqf provided that the Waqif would be Mutwalli and manager during his lifetime, and after his death the secWd son Ghulam Mustafa, and thereafter the rule to be followed from generation to generation would be that " the eldest of the male descendants of both the aforesaid sons (provided he is educated and is qualified and befitted for the office of Mutwalli, according to the Muhammadan Law) shall became Mutwalli," Provision was made also for the appointment of a Mutwalli in case of default of male heirs and for other contingencies, but it is not necessary to recite these provisions for the purpose of this order. As regards the distribution of the property the scheme was that from the income a monthly sum was to be set apart and added to a fund until the sum reach ed Rs. 50,000 ; this money was to be used for improvement of the Waqf property. The balance of the income was to be divided into fifty shares, out of which three shares were to be devoted to charity, at the discretion of the Mutwalli, it being stated that the application of this proportion of the income to these purposes every year " shall be essential and compulsory " ; seven shares were to be deposited in a Bank to create a fund for repairs etc., to the Waqf property ; the remaining forty shares were to be divided as follows, viz., 16 shares to Din Muhammad, 16 shares to Ghulam Mustafa, and 8 shares to Mumtaz Begam ; and " in the same way order would shares be distributed in accordance with the Muhammadan Law, from generation to generation." There is a stringent provision in the deed regarding the effect of change of religion by any of the Mutwalli's male descendants, viz., that if any of them openly or secretly became inter alia a Shia, "he shall not only be deprived of his right to become a Mutwalli, but shall be permanently debarred from receiving his share of the income, which shall be distributed among other co-sharers". It appears that no part of the income was ever applied to charitable purposes as prescribed in the deed. Some six years after the execution of the deed, Ghulam Rasul executed a deed purporting to cancel the Waqf deed. At this time his daughter was dead, and it seems that Ghulam Rasul had already effected a number of alienation of property included in the Waqf deed. Ghu4am Rasul died in 1925 and his property was entered in the mutation register after his death in the names of his sons Din Muhammad and Ghulam Mustafa in equal shares, and thereafter these two persons made further alienations of the property included in the Waqf deed. In 1931, the sons of Din Muhammad including the present plaintiff Muhammad Afzal brought a suit for a declaration that the Waqf deed of 1917 was valid and that the alienations of the property made up to that time were null and void. This was followed in 1936 by a further suit by the same persons, for the same reliefs, which was eventually decided in the Privy Council on the 7th April 1948. Of the findings recorded by their Lordships of the Judicial Committee, it is necessary only to refer to two, viz., firstly as regards the deed of Waqf, that it was valid and the cancellation by the deed of 1923 was ineffective, and secondly, as regards the alienations that they were null, void and ineffectual as against the Waqf property. These conclusions were reached in confirmation of the conclusions recorded by this High Court, but their Lordships of the Judicial Committee added, in relation to the declaration that the alienations were null and void, that their order was " without prejudice to any claim which Beli Ram & Brothers, Lala Jia Ram, Mst. Sardar Begum and Lala Bulaqi Mal & Son may have to obtain relief against Chaudhri Din Muhammad and Chaudhri Ghulam Mustafa or either of them in respect of their beneficial interests in the Waqf or otherwise." The present suit was instituted in 1939, and its progress has been retarded to a great extent by the pendency of the proceedings in the suit of 1936. The principal reliefs sought by the plaintiff Chaudhri Muhammad Afzal are declarations that the alienations made by Ghulam Rasul and his sons, Din Muhammad and Ghulam Mustafa, of property included in the Waqf deed were void, and for possession of these properties in the right of Mutwalli. A claim was also added for mesne profits. After the proceedings had been revived at or about the time when the previous case terminated in the Privy Council, the plaintiff presented an application for appointment of receiver of the suit properties pending the decision of the suit, and applied at the same time for attachment of properties belonging to the alienees who were alleged to be in wrongful possession. The application was resisted. The learned Sub-Judge in his order appointing a receiver has taken his stand on the following grounds, firstly, that the alienations have been held to be void, secondly that the plaintiff was asking for mesne profits and it would lead to multiplicity of suits if a receiver were not appointed, thirdly that not to appoint a receiver would debar one party from taking advantage of the property to which it might be held entitled, and on the other hand the defendants would not be deprived of any legal right, and that in view of the history of previous litigation, the present suit might be expected to continue for a lengthy period, and therefore it would be unfair to the plaintiff, assuming that he was the Mutwalli, not to appoint a receiver. The learned Sub-Judge selected an Advocate named Khawaja Saleem Mazhar as the receiver and made certain direc tions as to the steps to be taken by him and the security to be furnished by him and iii other respects. The (prayer for attachment before judgment of properties belonging to the defendants alienees was rejected, but they were called upon to furnish security in the sum of Rs. 400,000 for satisfaction of any decree that might ultimately be passed against them. From this order the following alienee-defendants have appealed, viz., Roshan Lal and Roop Lal sons of Kirpa Ram, and Balak Ram son of Beli Ram. One of the alienees namely Jia Ram has not appealed. The grounds on which the appeal is brought are as follows. It is said that the plaintiff has failed to make out a prima facie case entitling him to a decree for possession or mesne profits of the property. Din Muhammad and Ghulam Mustafa, sons of the Waqif, are both alive, and they are described as having "an indefeasible right to receive 29 per cent of the total income of the Waqf property "and during their lifetime, their descendants have no beneficial interest in the estate. Reliance is placed upon the modification in the decree in the former suit made by the Privy Council, whereby the right of the alienees to obtain relief against Din Muhammad and Ghulam Mustafa " in respect of their beneficial interest under the Waqf" was preserved, and it is urged that on this ground alone, the alienees can claim to continue in possession of the suit property. It is further contended that in the lifetime of Din Muhammad and Ghulam Mustafa, the plaintiff has no right to the position of Mutwalli of the Waqf, and therefore no locus standi to maintain the suit. Moreover, Ghulam Mustafa in his written statement has averred that the plaintiff was merely a figure-head and the suit was in fact filed at the instance of and in collusion with Din Muhammad. It is contended that there is no truth in the allegations that the alienees in possession were likely to alienate the property further or to cause waste and damage to it, and in any case, by furnishing security in the sum of Rs. 400,000 under the Court's order, they have avoided these allegations altogether. On a technical ground it is urged that the suit has been grossly undervalued and cannot proceed until the deficit of Court-fee has been made good. On these grounds, it is urged in terms of Order 40 rule 1, Civil Procedure Code, that it is neither just nor convenient to appoint a receiver for the property. ' Learned counsel' on behalf of the appellants has pressed each of these grounds of appeal before me. He cited a judgment of the House of Lords published as Owen v. Homan (94 R. R. 516) in regard to the principles which a Court should follow in exercising its power to appoint a receiver of property, penedente lite. The. Lord Chancellor in the precedent case observed that the principle of such appointments is that of "preserving property pending the litigation which is to decide the right of the litigant parties. In such cases- the Court must of necessity exercise a discretion as, to whether it will or will not take possession of the property by its officer. No positive unvarying rule can be laid down as to whether the Court will or will not interfere by this kind of interim protection of the property. Where, indeed, the property is .as it were in medio, in the enjoyment of no one, the Court can hardly do wrong in taking possession. It is the common interest of all parties that the Court should prevent a scramble. Such is the case when a receiver of a property of a deceased person is appointed pending a litigation in the Ecclesiastical Court as to the right of probate or administration. No one is in the actual lawful enjoyment of property so circumstanced, and no wrong can be done to anyone by taking and preserving it for the benefit of the successful litigant, But where the object of the plaintiff is to assert a right to property of which the defendant is in the enjoyment, the case is necessarily involved in further question. The Court by taking possession at the instance of the plaintiff may be doing a wrong to the defendant ; in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may by its interference have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation. In all cases, therefore, where the Court interferes by appointing a receiver of property in the possession of the defendant before the title of the plaintiff is established by decree, it exercises a discretion to be governed by all the circumstances of the case." The underlining in the above passage is mine ; I shall advert later to the importance of this passage in the determination of the present appeal. Learned counsel for the appellants then cited authorities, which need not be mentioned, and which lay down that in dealing with receivership matter, the Courts of India (as it then was) should follow the rules set by the Court of Chancery. In support of the contention that in order to obtain a receiver, the plaintiff must show not only that the defendant has no prima facie title but that he himself, i.e. the plaintiff, has the title, learned counsel cited Ali Raza Khan v. Nawazish Ali Khan 161 I C 838, a decision of a Single Judge of the Oudh Chief Court. That was a case in which application had been made to the Oudh Chief Court for the appointment of a receiver in a case pending before it. In the body of the judgment, the learned Single Judge made the observation which has been reproduced above but eventually did not decide the case on the basis that the plaintiff had failed to establish title in himself and absence of title in the defendant, but on the ground that "the action of the plaintiff in filing this application is not bona fide". As regards the limitations on the rights of de facto Mutwallis, a Division Bench decision of the Calcutta High Court, viz., ,Debindra Nath v. Sheikh Safatulla A I R 1927 Cal. 130 was cited. That case had been brought by the plaintiff to obtain a declaration of his title as Mutwalli and to recover possession of certain properties appertaining to the Waqf. It had been held by the lower appellate Court, which had confirmed a decree granted in the plaintiff's favour by the first Court, that that plaintiff was de facto Mutwalli of the Waqf properties. The learned Judges of the Calcutta High Court do not appear to have arrived at any clear finding as to the correctness or otherwise of this proposition, as they eventually returned the appeal to the lower appellate Court for re-decision on question other than those relating to the validity of the Waqf, whether the suit property was Waqf property and whether alienations had been for legal necessity. This left open the question of the powers of a de facto Mutwalli, but in the course of the discussion, the learned judges referred to a decision of the Bombay High Court in Kazi Hassan v. Sagun Balkrishna I L R 24 Bom. 170, and this case provides a certain measure of similarity with the facts of the present case. The suit in that case had been brought for recovery of possession of certain lands which had been granted in inam' to the family, to which the plaintiffs belonged, for the purpose of defraying the expenses connected with the service of a certain mosque, The defendants who were members of the same family had alienated certain of the inam properties, and recovery of these lands was sought on the ground that the alienors defendants were not performing services at the mosque and the lands had been specifically granted for performance of such service. The Waqif in that case had been given those lands partly for service and partly for maintenance, and the plaintiffs had a right in the maintenance along with the alienors defendants. The plea was taken inter alia that the plaintiffs had no right to sue in the lifetime of their father, and this plea prevailed with the first Court which dismissed the suit, and this order was upheld by the lower appellate Court. In further appeal, the learned judges of the Bombay High Court reversed the decrees of the - lower Courts, holding that the plaintiffs as beneficiaries and members of the family and next heirs, are entitled to sue the Mqtwallis and their assignees to have the alienations set aside and the Waqf pro perty restored to the Waqf, and they went on to observe that if the plaintiffs were also the holders of the office of Mutwalli, they could obtain the possession of the Waqf property themselves to be by them applied to the purposes of the Waqf. The present is also a case in which the plaintiff is a member of the family of the Waqif, to which, in all except the remote contingencies, the office of Mutwalli is reserved; the Waqf is for maintenance of the descendants of the Waqif, and consequently, the plaintiff is a beneficiary; the precedent case would thus furnish authority for the view that plaintiff in the present case is entitled to sue the earlier Mutwallis Muhammad and Ghulam Mustafa and their assignees to have alienations made by them and by the Waqif set as the and the property restored to the Waqf, and subject to the plaintiff being successful in establishing that he is the rightful Mutwalli he may also obtain possession of the Waqf property. Learned counsel for the appellants attempted to distinguish this authority on the ground that the case related to a mosque which was in essential respects a trust or charity of a public character. Every a worshipper could sue for restoration of the property of a mosque which had been illegally alienated. The contention is not wholly correct, for as was pointedly brought out in the judgment the Waqf in that case was also for maintenance of the descendants of the Waqif, and was not attached to the mosque solely for the service of the mosque. Therefore, although in the present case, the Waqf is exclusively in the nature of a private trust, it is possible to derive guidance in regard to this case from the observations made in the Bombay case. The grounds on which the plaintiff claims to be Mutwalli are that Din Muhammad has disqualified himself by becoming a Shia; and as for Ghulam Mustafa, not only has he made alienations to third parties, but in 1928 he sold his entire share in the major part of the Waqf property to Din Muhammad for two lacs of rupees, and by these acts of mismanage ment, he has totally disqualified himself for the Mutwaltiship. After Ghulam Mustafa, the person next entitled to the position of Mutwallis is the plaintiff. It is contended on behalf of the appellants that Muhammad Afzal's allegations have been traversed by the defendants in their written statements and apart from the fact that Ghulam Mustafa had done nothing which under the terms of the deed of Waqf constituted a dis qualification for the post of Mutwalli, there is also in Ghulam Mustafa's written statement in-the case a clear allegation that Muhammad Afzal's suit was collusive and had been brought for the: benefit of his father Dill Muhammad. These matters are relevant to the question of the strength of Muhammad Afzal's claim to be regarded as Mutwalli, as against the claims of Din Muhammad and Ghulam Mustafa. Now, I am aware that this is a point which is highly important in relation to the eventual result of the suit, but for the purposes of deciding whether or not a receiver should be appointed, under Order 40 rule 1, Civil Procedure Code, it is necessary to arrive at a conclusion whether such an appointment will be just or convenient, and an the present case, the point relates more to the justice of the case than to the mere convenience of the Court and, there . fore, it is necessary to reach a finding upon what might be described as the chances of the plaintiff's success. Whether or not the plaintiff succeeds will be decided at the trial, but at this stage I cannot avoid forming an opinion upon the materials before me as to the probability or otherwise of the plaintiffs success, but such an opinion is of course not to be regarded as in any sense binding upon the Court of first instance. Upon the material before me relative to the acts alleged on the part of Din Muhammad and Ghulam Mustafa and bearing in mind the stipulation in the deed of Waqf, I am of the opinion that the plaintiff has a prima facie case for being regarded as the rightful Mutwalli. This is so far as the contest lies between him on the one side and Din Muhammad and Ghulam Mustafa on the other, for the position of Mutwalli, but as was brought out in the Bombay case the right of suit for restoration of Waqf properties which have been illegally alienated does not vest exclusively in the Mutwalli but may be exercised also by a person situated as is the plaintiff, namely belonging to the family to which the benefits of the Waqf office of Mutwalli exclusively belong. Such a suit would of course not be directly for possession of the suit properties, but for restoration to the Waqf of the alienated properties and it is evident that in a suit of the latter kind, the appointment of .a receiver would be eminently just, pro vided the case were as it is here, that the alienees had been finally held not to have any right whatsoever to continue in possession of the alienated property. The position of the present alienees after the decision of the Privy Council in the case, appears to me to be no better than that of tenants at sufferance. As is well known "a tenancy at sufferance arises, where' a person has held by a lawful title and continues the possession after the title has determined without either the agreement or disagree ment of the person then entitled to the property" (Hill and Rehman's Iraw of Landlord and Tenant, 10th Edition, page 14), and in Woodfall's authoritative work on the Law of Landlord and' Tenant (12th Edition), page 285, it is said that "a tenant on sufferance is one who entered by a lawful demise or title, and, after that has ceased, wrongfully continues in possession without the assent or dissent of the person next entitled." This is the highest level at which the status of the alienees in respect of the properties of the Waqf alienated to them can be placed ; it is of course also possible to regard them, with effect from the final decision in the previous case, as mere trespassers, whose further possession, of the suit properties is liable to be determined the moment. that the question is settled, who is the Mutwalli of the estate. That question has been raised in the present litigation and it is not unreasonable to suppose that its final determination will involve considerable delay, if not necessarily as much delay as in the suit of 1936, which was finally, determined twelve years after its institution. The circumstances would appear to be such as placed it in the power of the alienees, provided they are continued in possession, to enjoy their benefit for an extended period, unless it be terminated by some intermediate act of the Court, i.e., the appointment of a receiver. It is at any rate plain that as against such right of suit vesting in the plaintiff as has been indicated above, the best claim which the alienees defendants can put forward is that, even as trespassers, they are entitled to retain. possession against. any person except the person rightfully entitled. It is hardly necessary to say that on a balance, the claim of the plaintiff is certainly the higher of the two claims. As for the preservation of the rights of the alienees as against the beneficial interest of their alienor, that need not involve the possession by any person other than the Mutwalli of any properties of the Waqf since, in terms of the Waqf, the rights of the alienois are confined to specific shares in the income. More over, the alienees can have no claim to possession of. any of the properties of the Waqf for the preservation of such rights as they possess, in consequence of the avoidance of their alienations, as against the alienors' beneficial interest in the estate, unless they first bring suits to establish their claims on this score. Clearly they do not either by virtue of the declaration of their Lordships of the Judicial Committee or otherwise, enjoy any charge whether real or fancied in respect of the alienated properties. It is by no means certain that they are competent to raise in this suit, a claim for satisfaction of their rights as against the beneficial interest of the alienors in the Waqf properties, for, as is pointed out by learned counsel for the plaintiff-respondent, it may be open to Din Muhammad and Ghulam Mustafa to defeatsuch a claim on the plea that the fact of the pre-existing deed of Waqf was brought expressly to the knowledge of the alienees at the time when they accepted the alienations, and the alienees must, therefore, be fully responsible for any loss caused to them by reason of the drawback on the title of the alienors resulting from the Waqf deed. There is in my opinion some force in the argu ment that a question of this kind cannot be allowed to be raised by the defendants in a suit of this kind. I am inclined to agree with the learned counsel for the plaintiff that for establishing their rights as against 1'yi'ri Muhammad and Ghulam Mustafa for compensation for loss of title in the propert:y alienated to them, it will be necessary for the alienors to proceed by way of a separate suit. In this view of the matter, it would seem that the lower Court''s appointment of a receiver satisfies the principle relied upon by learned counsel for the appellants tha&.in order to get a receiver, the 'plaintiff .must not only show a prima facie title in himself, but also that the defendants in possession have no prima facie title. It is true that the right of the plaintiff to be regarded . as Mutwalli of the properties is not entirely clear, but there is a . prima facie ground for thinking that he is the righful Mutwalli, and more over, cases are not wanting in .which Courts have appointed receiver in pending litigation where there was no administrator or representative of the estate to which the suit related. Thus, in Steer v. Steer 13 W R 225 which was a case relating to an intestate property, and a suit had been brought by infant children to restrain interference, the Court held that it had jurisdiction to appoint a receiver and did appoint a receiver notwithstanding that no adminis trator or representative of the intestate property had been appointed. Similarly, in Blackett v. Blackett 19 W R 559 a manager and receiver of intestate property was appointed before the grant of letter of administra tion had been obtained, and in the case In re Parker ; Cash v. Parker ; 1879 12 Ch. D 293 during the pendency of a creditor's action, against the estate of a deceased person, the executrix died and a receiver was appointed upon the plaintiff undertaking to use all possible speed in procuring the appointment of the administrator of the estate. In the present case, there is little hope of any such obligation being successfully placed upon the alienees whose interest lies, so long as they are left ill possession, in prolonging the litigation. While on this topic I might refer also to the case Owen v. Haman 94 R R 515 from which an extract has been reproduced earlier in this judgment, in which extract I have underlined a passage to the effect that the appointment of receiver in advance of the grant of probate or letters of administration in respect of an estate where contention is to be feared, is a proper exercise of the Court's discretionary jurisdiction in the matter. The principle of these authorities may, -in my opinion, be appropriately invoked in the present case. Here also, there is contention as to the person who is the rightful Mutwalli, of the Waqf, and in that capacity entitled to possess and administer the suit property, but that circumstance alone is no bar to the appointment by the Court, which is seized of the litigation relating to the appointment of Mutwalli, of a receiver of the properties, pending its decision in the suit, and where the persons in possession are clearly wrongful possessors, the Court would incline strongly in favour of depriving them of their possession and placing the estate in the hands of a receiver, for its better preservation. Such an action need not necessarily operate to the prejudice of the persons ousted assuming that they are entitled to satisfaction of rightful claims duly vesting in themselves, from persons having a beneficial interest in the properties. It is well settled that a judgment-creditor may obtain the benefit of the appointment of a receiver ; Kewney v. Attral 34 Ch. D 345, Hope v. Croydon Tramways 34 Ch. D

730. And from another point of view the replacement of one who is a trespasser or at best a tentant at sufferance by a duly authorised receiver, in relation to valuable properties which require care and skill in their administration, is distinctly advantageous to all concerned, for it is well known that neither a trespasser nor a tenant at sufferance can create a lawful demise in the property occupied by him, and moreover, the status of persons who have been let in as tenants by a person, following upon a judicial declaration that the latter in a mere trespasser or a tenant at sufferance is, to say the least, questionable. On the other hand, there can be no doubt as to the validity of demises granted or continued by receivers. From the point of view of waste and damage also, it is evidently of advantage to the estate, and would consequently weigh with the Court in considering whether or not to appoint a receiver when the person in possession has a legal title, which it is in his interests to preserve, and is not a trespasser or tenant at sufferance who would, in view of the insecurity of his tenure, be inclined to neglect the property or use it in such manner as would bring him the maximum immediate profit irrespective of injury to the property. Regarding the matter from the several points of view discussed above, I am clearly of the opinion that the appointment of a receiver by the Court below is justified on the grounds of justice and conveni ence, as required by the statute. Nothing was said before me as to the propriety of the choice of receiver made by the Court below or as regards the directions given to him and the other terms of his appoint ment. I dismiss this appeal with costs. A. H. Appeal dismissed