JUDGMENT
Jamuar, J.
1. This appeal has been brought by two plaintiffs from a judgment and decree of the Subordinate Judge of Monghyr, dated 17-5-1948, dismissing their suit.
2. The suit was framed under the provisions of Order 21, Rule 63, Civil P. C. The first plaintiff claims to be the mutwallia, and second, her son, the naib mutwalli, and they sought for a declaration that they are mutwallis of the properties in suit, and have been and are in possession of the same as proprietors, and that the defendant-first-party, who is a creditor of the defendant-second-party, the husband of plaintiff 1, may be restrained from taking any step in respect of these properties, as they are wakf properties dedicated by the defendant-second-party, by issuing an order for permanent injunction against the defendant-first-party.
3. The facts are shortly these. One Deokinandan Prasad of Madhopur, since deceased and now represented by his sons and legal representatives as the defendants-first-party, had advanced three sums of money as loan to Nawab Ali Jawad Khan (henceforth called the NawabJ the defendant-second-party, upon three handnotes on three different dates, that is, a sum of Rs. 800/- on 15-3-1935, a sum of Rs. 2,200/- on 9-8-1935, and again a sum of Rs. 2,200/- on 4-9-1935. The loan not having been paid, Deokinandan Prasad brought a suit, being Money Suit No. 26 of 1938, on 10-2-1938, for realisation of the same, and made a total claim of Rs. 6,795/-, inclusive of interest. The Nawab filed his written statement in the suit on 6-6-1938. The suit was decreed ‘ex parte’ on 17-1-1939, before the decree and within a fortnight of the written statement, the Nawab had executed a deed of wakf, alal-aulad (Ex. 4), on 19-6-1938, and had
appointed his wife, plaintiff 1, as the mutwallia and his son, plaintiff 2, as the naib mutwalli. Under this deed, the beneficiaries were members of his family, excluding himself, to the extent of 14 annas, the share allotted for charitable purposes was 1 anna, and 1 anna share was kept for the protection of the properties. The valuation of the wakf properties was Rs. 15,000/-. It appears that, after the execution of this deed, the name of the mutwallia was mutated in register D not only in respect of the properties which were the subject-matter of the wakf but in respect of all other properties belonging to the Nawab as well. Her name thus came to be recorded over all the properties owned by the Nawab.
4. On 11-2-1939, the Nawab filed an application under Order 9, Rule 13, Civil P. C., which was numbered as Miscellaneous Case No. 16 of 1939, for the setting aside of the ‘ex parte’ decree passed against him on 17-1-1939. During the pendency of this miscellaneous case, the Nawab executed a second deed of wakf on 11-5-1939, again appointing his wife as the mutwallia and his son as the naib mutwalli. Under this deed, a six-anna share in the properties was dedicated for religious purposes and a six-anna share also for the benefit of the members of his family, and the remaining four annas share for the protection of the properties. The valuation of the properties dedicated was
Rs. 10,000/-. Miscellaneous Case No. 16 of 1939 to set aside the ‘ex parte’ decree obtained against
the Nawab was dismissed on 15-7-1939.
5. On 9-1-1940, Deokinandan Prasad filed his., first petition for execution of his decree against the Nawab. In the execution, plaintiff 1, the wife of the Nawab, filed an application on 10-6-1940, under Order 21, Rule 58, Civil P. C., objecting to the execution. In the same execution the Nawab also filed a’ petition of objection on 14-8-1940, under Section 47, Civil P. C. The execution petition was disposed of on 21-9-1940, on an adjustment made between Deokinandan Prasad, the decree-holder, and Nawab, the judgment-debtor, namely, that the judgment-debtor shall pay to the decree-holder a sum of Rs. 1,000/- by 25-1-1941 and that the rest of the decretal dues will be payable in seven equal instalments, and; in default of any one of the instalments, the whole amount then outstanding will become due at once. In the circumstances, the claimant under Order 21, Rule 58, that is to say, plaintiff 1, did not wish to proceed with her case. This case was, accordingly, dismissed without adjudication.
6. The Nawab paid the sum of Rs. 1,000/-according to the above agreement but failed to pay the instalments. Then Deokinandan Prasad filed his second petition for execution; but, due to some procedural defect, this petition was dismissed on 12-1-1943.
7. The third petition for execution was filed by Deokinandan Prasad on 27-9-1943, and in this petition he prayed that a warrant of arrest may issue against the Nawab and the decretal amount may be caused to be realised from him. Now, before this third petition for execution was filed, the Nawab had taken another step, and it was this. On 10-8-1942, he had filed a petition in the Land Registration Department alleging that it was due to a mistake of the Land Registration Office that the name of the mutwallia was recorded in register D not only in respect of the properties which were the subject-matter of the deed of wakf, dated 19-6-1938, but also in respect of other properties with the result that his (the Nawab’s) name had been totally removed from that register. It, appears that in tauzi No. 9593, mahal Amarthu, the Nawab had twelve villages, and the wakf was in respect of only six of them but the name of the mutwallia was recorded in respect of all the twelve villages. The Nawab, accordingly, by his petition prayed that his name be restored in respect of those six villages which were not the subject-matter of the wakf. Then on 4-9-1943, the Nawab sold those six villages, which were not the subject-matter of the first wakf, by a sale deed of that date to Jamuna Prasad Mahto and others for a sum of Rs. 1,06,000/-. It is admitted that no part of the decree obtained by Deokinandan Prasad was satisfied out of the sale proceeds. It was after this sale that Deokinandan Prasad had filed his third petition for execution, to which reference has just been made, on 27-9-1943, praying for the issue of a warrant of arrest against the Nawab. To this petition, the Nawab had filed a petition objecting to the issue of a warrant of arrest against him, and, in support of his case, one Shibnandan Prasad was examined on 10-6-1944, and his deposition has been marked as Ex. I. It will be necessary to revert to this
deposition at a later stage; but it will suffice to say here that the witness had then stated that he was the mukhtar-am of the Nawab, and that the Nawab was suffering from epilepsy, and was getting epileptic fits off and on, so that he was unable either to come to Court or to move about. He also said that the Nawab had got some property of his own, and, in answer to a question from the Court, he said that, out of the sale proceeds referred to above, he had kept four to five thousand rupees for paying off some dues of his petty creditors and he had satisfied some other dues of his creditors, but there is no evidence to support these payments.
8. In the year 1946, Deokinandan Prasad had to file his fourth petition for execution, which was Money Execution Case No. 21 of 1946, and obtained an order for attachment of certain villages belonging to the Nawab. Plaintiff 1 again filed a claim case under Order 21, Rule 58, Civil P. C. This was numbered as Miscellaneous Case No. 44 of 1946; but it was dismissed for default on 29-6-1946. She, accordingly, filed another petition under Order 21, Rule 58, Civil P. C., and this was numbered as Miscellaneous Case No. 45 of 1946. By an order, Ex. G(3), dated 10-3-1947, this petition was also dismissed.
9. Hence, the present suit was instituted on 22-3-1947, for the reliefs already stated, against Deokinandan Prasad as the defendant-first-party (and he, having since died, is now represented by his legal heirs and representatives) and the Nawab as the defendant-Second-party.
10. The defendant-first-party contested the suit, and contended that both the wakfs were collusive and colourable transactions, and were executed by the Nawab merely td defraud his creditors and that, in fact, the Nawab himself was in possession of those properties so that the properties against which execution was levied and which were ordered to be attached could not be released from attachment.
11. The main issue in the case is whether the two deeds of wakf dated 19-6-1938, and 11-5-1939, upon which the plaintiffs* suit is based, are fraudulent and farzi transactions as having been created in fraud of creditors.
12. On a consideration of the oral and the documentary evidence in the case, the learned Subordinate Judge, came to the conclusion that the Nawab had created the wakfs to defraud his creditors, and held that the deeds of wakf were not real but, in fact, fraudulent and farzi transactions. He, accordingly, dismissed the suit.
13. The first argument advanced on behalf of the appellants in this Court was that the Nawab was selvent enough to pay his debts at the time that the deeds of wakf were executed so that he could have had no intention to defraud his credi-‘ tors by the execution of those deeds. It was contended that these deeds of wakf were genuine and valid. In support of this argument, Mr. Qadri, appearing for the appellants, referred to the application (Ex. ’12) for execution of the decree filed by Deokinandan Prasad on 27-9-1943. In this application, there appears a sentence:
"'Now it has further been learnt that 'he (the Nawab) has sold some of his properties and he has got Rs. 26,000 ready with him. But, in spite of the fact that he has got sufficient money with him, he has not paid the decretal money to the petitioner."
And then a prayer was made for the issue of a warrant of arrest against the Nawab. It was argued that, by these statements, Deokinandan Prasad admitted that the Nawab had sold only some of his properties, implying thereby that he had other properties as well. Hence, it was contended that the Nawah, admittedly, possessed some other property with which he could satisfy the debt. Reference was also made to an affidavit (Ex. 13) filed by one Misri Lal in the same execution in which it was stated that the judgment-debtor, “in spite of having considerable property, means and wealth to the knowledge of the decree-holder, has not intentionally paid the decretal amount.” This man was examined as defendants’ witness No. 1, and, in his cross-examination, he said that he had learnt that some properties were still left with the Nawab, and then he stated: “but I do not remember from whom I learnt like that.” The argument, accordingly, was that here again there is. an admission by the decree-holder that the Nawab had sufficient means to pay his debts. But the fact remains that he had only twelve villages, as will appear from the entries (Ex. J) made in register D, six of which were the subject-matter of the wakf ,and the remaining six were sold by him on 4-9-1943, for Rs. 1,06,000/-, so that, in fact, the Nawab was left with no property, and, the appellants failed in the trial Court to show that the Nawab had any other property left with him.
Mr. Qadri also referred to the oral evidence of Hadi Hasan (P. W. 7), plaintiff 2, wherein he stated that his father, the Nawab, had other properties left to him after he had executed the wakfnamas, and that the Nawab had properties in the district of Patna as well after the execution of the wakfs. In my opinion, no conclusion can be drawn from these stray statements that the Nawab had, in fact, properties left with him with which to pay the debts. I have already stated that, out of the twelve villages named in the entries (Ex. J) in register D, although only six were the subject-matter of the wakf, yet the name of the mutwallia was recorded in respect of those six as also in respect of the other six villages so that, apparently, the Nawab showed himself to be possessed of no property with which to pay his debts, and later on, after applying for the correction of these entries by an application (Ex. A), he sold, in September 1943, the other six villages which were not the subject-matter of the wakf for Rs. 1,06,000/-. This is not the conduct of a man who had intentions to pay his debts. Indeed, the learned Subordinate Judge has made this observation in his judgment:
“The learned pleader for the plaintiffs examined P. W. 7 to say that over and above these wakf properties the Nawab has properties in the district of Patna and also in this district. In my opinion, oral evidence can be of no use for such a matter. The moment he could satisfy me that the Nawab has still properties in the district of Patna, I should have been the last person to say that the Nawab has defrauded. I have thus been drawn to the conclusion that the Nawab has defrauded. When if has been proved before me that the Nawab has no property in his name
anywhere, and when he has no property anywhere in his name, though his creditors’ dues are outstanding, the inference is clear and irresistible that he has had the intention to defraud.”
14. It is true that a number of documents have been filed, .such as jama kharach accounts, chaukidari receipts, wasil baki accounts, lagits, etc., to show that the deeds of wakl are not fraudulent or collusive but that they had become effective, and that the mutwallis, and not the Nawab, were in possession ol the properties, .subject-matter of the wakfs. The Subordinate Judge has referred to these documents, and has said in his judgment. “Apparently, none can find fault with these documents which do, as a matter of fact, stand in the name of the mutwalli.” And he went on to say that, in spite of those documents, the real question was whether the mutwallis are really in possession as such or whether the “Nawab was in possession and whether the Nawab was only putting up a show through these so-called mutwallis. The plaintiffs also examined witnesses to support their case that the mutwallis were in possession of the properties, and not the Nawab. There can be no doubt that, when a person intends to bring into existence a collusive or a farzi document, he would keep his papers in such a manner as to show that the document was a genuine one and would also call witnesses in support of the genuineness of such a document. Other circumstances, therefore, must be looked for in order to find out whether, in fact, the transaction is a genuine one.
15. The first witness for the plaintiffs is a tenant, and he deposed that he was paying rent to the mutwallia and not to the Nawab. But he stated in his cross-examination that he had no personal knowledge as to whom were the realisations of rent from them handed over by the tahsildar and patwari who realised the rent. The. second witness is also a tenant, and he deposed that the mutwallia had become the malik. The fourth witness is another tenant who said that he paid rent to the mutwallia. The fifth witness is. a patwari of one Bibi Umatuzohra and Amena Begum who had taken some property in thika from the mutwallia. In his cross-examination, he made the admission that Amena Begum belonged to the family of the Nawab. The contention on behalf of the contesting respondents was that the thika was collusive, and that the Nawab himself was in possession. The sixth witness is a servant of the mutwallia, and he deposed that he used to recite the Koran and hold majlis in accordance with directions given in the deeds of wakf. The seventh witness is plaintiff 2.
16. The eighth witness requires a more careful consideration. His name as recorded in the deposition is Shamnandan Prasad, son of Mitterjit Lall. He deposed that he was an employee of the mutwallia but that previously he was an employee of the Nawab, and further said that the mutwallis are in possession of the wakf properties, and that it was false to say that the wakfnamas were fraudulent and collusive. It was this witness who exhibited most of the documents on behalf of the plaintiffs, such as rent receipts, chaukidari receipts, counterfoil receipt books, wasil baki papers, adhkatis, kabuliyats, etc. He gave his evidence on. 14-5-1948, and posed to have been in the service of the mut-
wallia since 1938. It was argued on behalf of the contesting respondents that from the very conduct of this witness it will be apparent that the deeds ol wakf were not genuine and never intended to be given effect to. From the evidence of this witness, it would transpire that since the time of the creation of the wakfs he entered in the service of the mutwallis, and had. nothing to do thereafter with the Nawab so that be was looking after the wakf properties on behalf of the mutwallia.
Now, in the money suit filed by Deokinandan Prasad against the Navvab for the realisation of his debt, the Navvab filed his written statement (Ex. C) on 6-6-1938, through this very witness who was then his mukhtar-am. This position is admitted. This witness was also the scribe of the first deed of wakf, (Ex. 4(a)). When, after the ‘ex parte’ decree obtained against the Nawab, a petition (Ex. D) under Order 9, Rule 13, Civil P. C., was filed by the Nawab on 11-2-1939, it was stated in that petition, as one of the. grounds that Sheopandan Prasad, who was an employee and karparclaz of the applicant (the Nawab), was in charge of the suit on his behalf, and that the pairvi and all steps to be taken in connection with the suit had been entrusted to him, but Sheonandan Prasad fell ill and his condition became precarious on which account no pairvi was made in the suit, and the ‘ex parte’ decree was passed for want of pairvi. The ‘ex parte’ decree was passed on 17-1-1939. Clearly, therefore, Sheonandan Prasad was acting for the Nawab even after the year 1938.
In Miscellaneous Case No. 10 of 1940 filed by the Nawab in September 1940, it was agaip this witness Sheonandan Prasad who was doing pairvi for the Nawab, as will appear from the hajri (Ex. F) on which there is the signature of Sheonandan Prasad. In a chaukidari receipt^ Ex. 7(b) of the year 1939, there appears the name of Sheonandan Prasad and the argument on behalf of the plaintiffs was that this would show that, after the deeds of wakf, Sheonandan Prasad was acting not for the Nawab but for the mutwallis. In Miscellaneous Case No. 10 of 1939 filed by the Nawab under Order 9, Rule 13, Civil P. C. to set aside the ‘ex parte’ decree obtained against him, Sheonandan Prasad was examined as a witness for the Nawab on 15-7-1939. Clearly, Sheonandan Prasad had not cut off connections with the Nawab after 1938 as he purported to say in his evidence.
Sheonandan Prasad was also examined in Miscellaneous Case No. 26 of 1944 on behalf of the Nawab. This case was filed by the Nawab objecting to the petition for execution filed by Deoki-nandan Prasad for his arrest. Sheonandan Prasad deposed in this case on 10-6-1944, and said that he was mukhtar-am of the Nawab. Sheonandan Prasad was, therefore, still the mukhtar-am of the Nawab in 1944. In this deposition, the name has been written as Shibnandan Prasad son of Inderjit Lal. There can be no doubt, however, that this is the same man who was examined at the trial of the suit in the Court below and whose name then was recorded as Shamnandan Prasad son of Miterjit Lall, for the reason that this witness was cross-examined on the line that he had deposed for the Nawab in Miscellaneous Case No. 26 of 1944 on 10-6-1944. In his cross-examination, the witness
said that he had entered the service of the mut-wallia in Ashin 1938, and, when he was questioned regarding his still being the mukhtar-am of the Nawab, he said; “I cannot say it the general power of attorney given to me by defendant 2 (the Nawab) has boon cancelled yet or not”; then again: “I do not remember if 1 deposed in Misc. Case No. 26 of 1944 in the Court ot Sub-Judge 1 that I was till then continuing as mukhtar-am of defendant 2”, and then again: “i do not remember if 1 deposed in the said miscellaneous case that defendant 2 was living then in his house at Hussainabad.” The witness further said that he was in charge of the pairvi of the case on behalf of the mutwallia.
17. The argument from all these circumstances raised on behalf of the Contesting respondents was that, in fact, after the execution of the deeds of wakf, there had taken place no change either in the administration of the properties of the Nawab or in anything else. Indeed, witness 1 examined for the plaintiffs in the Court below said regarding Mathura Lal, the patwari, and Sheonandah Prasad, the tahsildar: “This patwari and this tahsildar were the employees of this estate in the time of Moulvi Jawad (the Nawab) and are also employees in the time of Bibi Kubra (the mutwallia)” and witness 4 for the plaintiffs said: “Bibi Kubra’s employees were the same as were in the time of defendant 2.” It would appear, therefore that there has taken place no change in the administration of the estate, even after the execution of the deeds of wakf. This is certainly a circumstance in support of the case that the deeds of wakf were . nut intended to be effective.
18. The learned Subordinate Judge in the Court below held that Section 53, T. P. Act, 1882, as amended in 1929, now empowered creditors to avoid such transfers and as such the contesting defendants could proceed against the properties in suit, the transfer being voidabfe at their instance. Obviously, reference was being made to paragraph 1 of Section 53, T. P. Act, which is in the following terms:
“Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.”
19. Now, the transfers contemplated by the section are transfers apparently well made and binding upon the parties but voidable at the option of a creditor if the transfer was made with the intention specified in the section, that is to say, where there has taken place a transfer which is ‘prima facie’ valid until set aside. Such transfers must not be confused with transfers which, are benami or colourable and which are, in fact, no transfers, the transactions being merely sham and never intended to be operative. In the latter class of transactions, there being no transfer the property, subject-matter of the transfer, remains in possession of the transferor as before but placed in the benami name of another, generally to defraud creditors. The Subordinate Judge in the Court below has held that the deeds of wakf are “not real and are fraudulent and farzi transactions.” Having regard to the events which have taken ‘ place and which have been already stated in chronological order, I entertain no doubt that the finding is correct.
20. Mr. Qadri argued that the conduct of the Nawab has been all through ‘bona fide’, and referred to the tacts that in his written statement filed in the money suit brought against the Nawab for the realisation of the dues, the Nawab did not take the defence that the plaintiffs’ case was entirely false, and further that after the ‘ex parte’ decree obtained against him the Nawab, in fact filed an application under Order 9, Rule 13, Civil P. C., to set aside the ‘ex parte’ decree. As against this conduct of the Nawab, there remains the circumstance that, alter the first wakf, the name ot the mutwailia had been recorded in register D in respect ot all the properties possessed by the Nawab, which, ordinarily, ought not to have happened, and, when the Nawab wanted to sell the properties which were not the subject-matter of the vvakts, he had to apply for the correction of the entries in register D in respect of the properties which were not the subject-matter of the wakts, and, having got the correction made, he .sold those properties for Us. 1,06,000/-, and made no arrangement for the payment of his debts, In my opinion, the surrounding circumstances are entirely in favour of the conclusion that the deeds of wakf had been brought into existence by the Nawab purely with the intention to defeat the claim of his creditors.
21. And even such a transaction which was called “hollow” in the’ case of — ‘Velchand Sawaji v. Sitaram Tukaram’, AIR 1925 Bom 287 (A) may be declared void under the provisions of Section 53, T. P. Act, against the creditors by the transferor, In that case, in a suit brought by the creditors for a declaration that a sale deed executed by defendant 1 in favour of defendant 2 was “hollow” and executed with the intention to defraud the plaintiffs and that, therefore, it was null and void, it was iound that the transfer was effected without consideration. But the trial Judge was of the opinion that as the suit was under Section 53, T. P. Act that finding would not avail the plaintiffs in the suit, and dismissed the suit.
22. On appeal to the High Court, their Lordships upheld the finding that the transfer in question was without consideration, and then they said:
“The mere fact that the plaintiffs succeeded in showing that it was really a hollow transaction does not prevent the Court from considering whether the conditions of Section 53 are satisfied. It is clear that the plaintiffs are the creditors of defendant 1 and the effect of this transfer is to prevent the property from being reached by creditors. If this document stands, the property would not be available to the creditors of defendant 1 and the effect of the transfer would be to defeat or delay the creditors of defendant 1,”
And the document was declared to be void as against the plaintiffs. 23. In the present case, the transactions evidenced by the deeds of wakf executed by the Nawab are clearly for the purpose, of defeating or delaying his creditors, and these deeds, on such a finding, are liable to be declared as being void as against his creditors. 24. Even if Mr. Qadri's contention that the wakfs were, in fact, created and transfer of the properties subject-matter of the wakfs had taken place in favour of the mutwallis be correct, even then the transfer can still be avoided at the option of the creditor as provided by para. 1 of Section 53, T. P.
Act, provided the transfer was made with intent to deleat or delay the creditors. It is true that this is not a suit by a creditor to avoid the transfer; but a creditor may manifest his intention to avoid the transaction otherwise than by tiling a suit, as, for example, by attaching the property transferred; such an action had been taken by the defendant-first-party, the creditor. It was so held that in the Full Bench case of the Madras High Court reported as — ‘Ramaswami Chettiar v. Mallappa Reddiar’, AIR 1920 Mad 748 (B), where a decision of the Calcutta High Court in — ‘Abdul Kadir v. Ali Meah’, 15 Cal LJ 649 (C) was followed. In the Madras case, it was observed that there is nodiing to prevent a creditor who has been defrauded, defeated or delayed from exercising the option given him by Section 53, T. P. Act of avoiding the conveyance otherwise than by the institution of a suit for that purpose; and reliance was also placed upon the case of — ‘Oakes v. Turquand and Harding’, (1867) 2 HL 325 (D), where the House of Lords laid down that voidable transactions may be avoided by any open or unequivocal declaration of an intention to avoid them. It was finally held that it was open to an attaching decree-holder to plead in defence to a suit by the alienee whose claim has been rejected that the transfer to him was fraudulent under Section 53, T. P. Act. I would, accordingly, overrule the contention raised on behalf of the appellants that the only way to avoid the conveyance was by suit,
25. The relevant period of time when to judge the intention of the transferor is the date of the transfer. The Court must consider whether the transferor had the intention to defeat or delay the creditors on that date and not whether the creditors have been defeated since. Each case must be decided on its own facts. The question whether a transfer was made withintent to defeat or delay creditors is a mixed question of law and fact, and the decision must depend upon a consideration of. the entire circumstances surrounding the execution of the deeds of transfer.
26. Great stress was laid by the contesting respondents that the Nawab, when executing the deeds of wakf, had made no provision for the payment of his debts. The reply given on behalf of. the appellants was that the Nawab is governed by the law governing the Shia community, and a Shia need not make any provision for the payment of his debts when creating a wakf while a Sunni is bound to do so, and reference was made to the Mussalman Wakf Validating Act (Act 6 of 1913).
27. A wakf-alal-aulad, that is, a wakf for the benefit of the wakifs family and his descendants, if created exclusively for their benefit, is invalid; but, if created for the benefit of the wakifs family, children and descendants as also for charity — the position before and after the Wakf Act of 1913 is different. Before the Wakf Act, such a wakf was valid if there was “a substantial dedication of the property to charitable uses at some period of time or other” (see — ‘Mahomed Ashanulla v. Amar-chand Kundu’, 17 Ind App 28 (E)). But, if the primary object of the wakf was “for the aggrandisement” of the family and the gift to charity was illusory, the entire wakf was invalid” (see — ‘Abdul Fata Mahomed v. Rasamaya Dhur’, 22 Ind App
76 ‘(F)). It was as a result of this view of the Muhammadan Law taken by the then highest judicial authority that the Wakf Act of 1913 was enacted to remove the disability created by that decision. Now, under the Wakf Act, a wakf ior the benefit of the ianiily is valid, even if the gift to charity is illusory, but it is necessary under the Act that there should be an ultimate giit to charity.
28. The law was and is the same for both the sects of Shia and Sunni with certain marked differences; under the Hanafi law, a wakif may reserve the usufruct ol the endowed property ior himself for his life, whereas, under -the Shia law, a wakf is not valid unless the wakif divests himself of the, ownership of the property as also of its usufruct or, as their Lordships of the Judicial Committee said in the ease of — ‘Abadi Begum v. Kaniz Zainab’, UR 1927 PC 2 (G), “the wakif must not ‘eat’ out of the wakf”; then, under the Shia law, a wakif cannot provide for the payment of . his personal debts and, if he does so, the wakf would be invalid, though a provision for the payment of debts charged on the estate is valid, as, for example where the property is subject to a mortgage; indeed, a provision that a Hanafi Muhammadan may lawfully create a wakf for his own benefit or with a provision for the payment of his debts is recognised in Section 3(b) of the Wakf Act of 1913 itself, for, it provides that a Hanafi Mussalman may create a wakf
also for his own maintenance and support during his lifetime or for the payment of his debts put of the rents and profits of the property dedicated.”
29. Such being the legal position, Mr. Qadri argued that the wakif in the present case, being governed by the Shia law, could not have made any provision for the payment of his debts when creating the wakfs and, therefore, no inference adverse to him can be drawn- from his omission so to do, and, had he done otherwise, the wakfs would not have been valid.
30. That is true. But no law of any civilised community or country can permit transactions to be made for avoiding payment of one’s debts, and where a transaction has been so made with that purpose in view, it ought not to be upheld. Not only in Muhammadan law but in laws of all civilised communities it is cardinal principle that it is one’s first duty to arrange for the payment of one’s debts before gifts are made or wakfs are created. In my opinion, the provisions of Section 53, T. P. Act are general in terms and govern all communities; a Shia Muhammadan cannot be excluded from being governed by those provisions, and here it has to be seen if a case has been made out for avoiding the transactions created by the deeds of wakf within the meaning of Section 53, T. P. Act.
31. Furthermore, Sulaiman and Sen JJ. in the case of — ‘Bismillali Begum v. Tahsin Ali Khan’, AIR 1930 All 462 (H) said as follows:
“It has been contended on behalf of the plaintiff that Section 53, T. P. Act, which is in Chap. 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”, Vol. I, p. 207 (Edn. 4) is cited in order to show that according
to the Fatawai Kazi Khan and some other autho-
rities the creditors cannot ask the waqf made by
it debtor to be cancelled, because they have no claim on the property of the debtor whilst in health. But Mr. Ameer Ali himself on p. 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-Mukhtar, 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 p. 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 p. 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’, AIR 1929 All 277 (II). With that view we fully agree.”
32. In another case of the Allahabad High Court, it was pointed out that it is open to the creditors to rely on Section 53, T. P. Act, to show that the wakf was executed by the wakif with the intent to defeat and delay creditors as there is nothing in the Act which can be interpreted as excluding wakfs from the provisions of Section 53, T. P. Act, and where it was so found, the transfer came within the mischief of Section 53 (‘Har Prasad v. Mohammad Usman Husain’, AIR 1943 All 2 (J)). And in the same case it was further observed:
“Learned counsel for the respondent has argued that, mutation having been effected in aceordanee with the deed of wakf, it should be held that the deed was not executed with the intention of defeating or delaying the creditors. We see no force in this argument. A person who
executes a fraudulent deed always takes steps to make it appear that it was not fraudulent.”
Those observations are apt on the facts of the present case before us as well. 33. In a Lahore case also -- 'Hanuman Prasad v. Mohammad Ismail Mohammad', AIR 1936 Lah 72 (K) a deed of wakf, having been found to have been executed not 'bona fide' but to defraud the wakif's creditor, was declared to be invalid and was set aside. 34. Accordingly, there is no force in Mr. Qadri's contention that the wakif in the present case --being a Shia -- was not bound to make any provision for the'payment of his debts or that the deeds of wakf of the present suit can be excluded from the operation of the provisions of Section 53, T. P. Act.
35. The present is a case where the Nawab, at the time of the execution of the deeds of wakf, was indebted, he created two wakfs, made no provision for the payment of his debts, the name of the mutwallia (his wife) was recorded in register D in respect of not only the wakf properties but in respect of all -the other properties belonging to the Nawab, later the Nawab applied for the correction of the. entry in register D, he sold his other properties for Rs. 1,06,000/-, and even then paid no part of his debts. And the time the Nawab chose for creating his wakfs was after his creditor, defendant-first-party had brought his suit against him for the realisation of his debt; the first wakf was created after the Nawab had filed his written statement in the suit and the second after a decree had been passed in the suit against him. By his acts, the Nawab had placed his assets beyond the reach of his creditor. Thus I am led to one and one conclusion only, namely, that the execution of the deeds of wakf by the Nawab was with the intent to defeat and delay his creditors, and the transfer is voidable at the option of the creditors.
36. For the reasons given above, my opinion is that the suit was rightly dismissed. I would, accordingly, . dismiss this appeal with costs.
Sinha, J.
37. I entirely agree and have nothing useful to add.