1. This is a first appeal from an order of the Civil Judge of Saharanpur. The facts that have given rise to this appeal may be stated briefly: Khan Bahadur Naim Khan made a waqf 'alal aulad' of certain properties. Before the dedication of the property the founder had mortgaged it to the opposite party. A decree on foot of the mortgage was obtained by the creditor and execution proceedings with respect to the mortgage decree were started in the Court below. Khan Bahadur Naim Khan is dead. His son Khan Bahadur Maqsud Ali Khan the appellant is the present mutawalli of the endowed property and in the execution proceedings Maqsud Ali Khan represented the waqf estate as mutawalli. It appears that Khan Bahadur Maqsud Ali Khan owns some property in his personal capacity. He is also in debt. An application under Section 4, U.P. Encumbered Estates Act, was made by Maqsud Ali Khan to the Collector and the application was forwarded by the Collector to the Special Judge in pursuance of Section 6 of the Act. The appellant made an application in the Court below purporting to be under Section 7 of the Act praying for the stay of the execution proceedings with respect to the waqf estate. The learned Civil Judge rejected the application and the applicant has preferred an appeal from that order.
2. A preliminary objection has been raised by learned Counsel for the respondent that the order of the Court below is not an appealable order. In our opinion the preliminary objection is well founded and therefore must prevail. We however think that we should treat the appeal as a revision as in our opinion the dismissal of the application under Section 7, U.P. Encumbered Estates Act, is the termination of a proceeding, and comes within the purview of the words 'case decided' within the meaning of Section 115, Civil P.C. A revision from an order dismissing an application under Section 7 was entertained by this Court in several cases: see Jwala Prasad v. Har Prasad : AIR1937All658 and Babu Ram v. Manohar Lal : AIR1938All6 . We now proceed to consider the case on merits. Learned counsel for the applicant contends that the applicant as mutawalli is for all intents and purposes the proprietor of the waqf property and as such comes within the definition of the expression 'landlord.' 'Landlord' is defined in Section 2(g) of the Act. The definition runs thus:
Landlord means a proprietor of a mahal or of a share of or interest in a mahal and includes a ubaridar and under-proprietor, a sub-proprietor and a proprietor of specific plots, but does not Include a mortgagee or thekadar.
3. It is contended that under the terms of the waqf the mutawalli is the sole beneficiary and has full control over the proceeds of the waqf estate. That being so, it is urged, the appellant has got interest in the waqf property and is the proprietor of the endowed estate. In our opinion this contention is untenable. 'Interest in a mahal' means proprietary interest. Any other kind of interest enjoyed by a person will not constitute him landlord of the property, within the meaning of the definition. There may be numerous beneficiaries of a waqf estate. The founder may nominate besides his heirs his servants and dependents as beneficiaries. It is conceded that such beneficiaries would not have any proprietary interest in the waqf property. It is however argued that the applicant being the mutawalli as well as beneficiary is in a stronger position and he is entitled to claim at least quasi proprietary interest in the waqf property. It is a well established proposition of Mahomedan law that the endowed property vests in God the Almighty and the founder after the execution of the waqf ceases to have any proprietary interest in the waqf estate. In Yidya Varuthi Thirtha Swamigal v. Baluswami Ayyar (1922) 9 AIR PC 123 their Lordships of the Judicial Committee have observed:
But the Mahomedan law relating to trusts differs fundamentally from the English law. It owes its origin to a rule laid down by the Prophet of Islam; and means the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. When once it is declared that a particular property is waqf, or any such expression is used as implies waqf, or the tenor of the document shows, as in Jewan Doss Sahoo v. Shah Kuberooddeen (1837.41) 2 MIA 390, that a dedication to pious or charitable purposes is meant, the right of the waqif is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit. The manager of the waqf is the mutawalli, the Governor, the Superintendent or curator. In Jewan Doss Sahoo v. Shah Kuberooddeen (1837.41) 2 MIA 390, the Judicial Committee called him 'procurator.' It related to a Khankha, a Mahomedan institution analogous in many respects to a Mutt where Hindu religious instruction is dispensed. The head of these Khankhas, which exist in large numbers in India, is called a Sajjadanashin. He is the teacher of religious doctrines and rules of life and the manager of the institution and the administrator of its charities, and has in most cases a larger interest in the usufruct than an ordinary mutawalli. But neither the Sajjadanashin nor the mutawalli has any right in the property belonging to the waqf; the property is not vested in him and he is not a 'trustee' in the technical sense.
4. In Mohammad Rustam Ali Khan v. Mushtaq Husain (1921) 8 AIR PC 105, their Lordships remarked:
A receiver or manager by virtue of his appointment has no interest in the property he is called upon to control; he possesses power over it but not an interest in it.
5. It is not necessary to cite other authorities to substantiate this proposition. Learned counsel for the applicant has referred to Mohammad Qamar Shah v. Mohammad Salamat Ali Khan : AIR1933All407 , which was decided by a Bench of this Court of which one of us was a member. The following passage was relied upon:
If a person is liable for the payment of the land revenue along with other cosharers in the village then he must be deemed to be a cosharer in spite of the fact that the estate in the share may not vest in him.
6. In that case a suit was brought by a mutawalli for profits under Section 226 of Act 3 of 1926. It was held that for purposes of suits for profits managers of endowed property should be regarded as proprietors. That ruling in no way supports the contention of learned Counsel. Reference was also made to two cases decided by the Board of Revenue reported in Kailash Behari Lal v. Mobtida Khan (1938) 1938 RD 196. and Shivacharan Jaitly v. Mohamad Raza Khan (1938) 1938 RD 201. In those cases it was held that a mutawalli was entitled to make an application under Section 4, Encumbered Estates Act, representing the endowed estate. In the present case however the application under Section 4 admittedly has been made by the applicant in his personal capacity and not qua mutavalli.
7. An examination of the provisions of the Act clearly demonstrates the weakness of the argument advanced by learned Counsel for the applicant. The scheme of the Act is that the estate of the landlord is placed at the disposal of the Collector for the liquidation of the debts due from him. It is manifest that the waqf estate will not be available to creditors for the satisfaction of the debts due from the applicant. His personal property alone can be disposed of to meet the claims of the creditors. Similarly the waqf estate will be liable for the payment of the debts with which the waqf estate is burdened. A combination of the two properties in possession of the applicant in different capacities cannot be permitted. The waqf estate should be regarded as an entirely separate estate although it is for the time being under the control and management of the applicant. It is strenuously argued that the debt was incurred before the dedication of the property as waqf. That may be so, but the applicant is not personally liable for the discharge of those debts. The applicant in his written statement did not mention the debts due from the waqf estate nor did he include the waqf properties in the list of properties supplied by him. It was at a subsequent stage that the applicant endeavoured to obtain a stay of the execution proceedings pending in respect to the waqf estate. Apparently he was encouraged to do so because the respondent presented a written statement in which he mentioned the decree passed in his favour against the waqf estate. He however made it clear that he was doing so by way of precaution. The creditor's written statement will not alter the position. In our opinion the application under Section 7 was misconceived and was rightly rejected. The appeal fails and is dismissed with costs.