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ZahinuddIn HusaIn Vs. Chokhey Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Case NumberExecution First Appeal No. 196 of 1946
Judge
Reported inAIR1952All662
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60(1); Transfer of Property Act, 1882 - Sections 6
AppellantZahinuddIn Husain
RespondentChokhey Lal and ors.
Appellant AdvocateMustaq Ahmad, ;Ishaq Ahmad, ;W.A. Khan and ;M.A. Beg, Advs.
Respondent AdvocateJagdish Sarup, Adv.
DispositionAppeal allowed
Excerpt:
.....from judicial decisions on the scope of a very similar expression used in section 6(dd), t. it relates to the corpus as well as the rents and profits of wakf property......biswas share in the village wa3 not liable to sale in execution of the decree inasmuch as it was wakf property. this suit was decreed on 29-4-1944 on the basis of a compromise, the terms of which were incorporated in the decree. the declaration as prayed for in relief (a) of the plaint was granted, bat it was provided that the rights and interest of the judgment-debtors of the decree in suit no. 10 of 1933, which they possessed in the property in dispute then i.e. the wakf property, would be liable to sale in execution of that decree. thereafter the representatives of lala talewar sought the execution of their decree in suit no. 10 of 1933 by sale of the beneficiary's rights of the heirs of aminuddin husain in the wakf property. zahinuddin husain alone filed his objections on 9-10-1945.....
Judgment:

Walli Ullah, J.

1. This is an appeal by a, judgment-debtor against the order passed by the Court below dismissing his objections with costs.

2. The facts necessary for appreciating the objections filed by the appellant are not in controversy and are briefly these.

3. One Alimuddin Husain owned 20 biswas of village Nagla Khyali. On 7-4-1916 he executed a deed of mortgage in favour of one Lala Talewar in respect of five biswas out of the 20 biswas owned by him in this village. Alimuddin Husain died in 1921 leaving his son named Aminuddin Husain and two daughters, named Amir Jan and Wazir Jan. In the result, therefore, the equity in the half of the five biswas mortgaged to Lala Talewar devolved upon the son Aminuddin Husain. On 2-1-1925 Aminuddin Husain made a wakf-alla-aulad of the entire 10 biswas share in village Nagla Khyali which he had inherited from his father Alimuddin Husain. He died in 1927 leaving two sons, viz. Hasinuddin and Zibinuddin, minors, and throe daughters, viz. Zahina Khatoon, Amina Khatoon and Hasina Ehatoon, and two widows, viz. Mahmud Eatima and Irshad Fatima. On 10-4-1933, Suit No. 10 of 1933 was instituted for sale on the basis of the mortgage of 1916 by Lala Talewar. It may be noted that the wakf was not impleaded as a party in the suit, nor were the two daughters of the mortgagor. Further half of the property mortgaged, i.e., two and a half biswas, was released from the encumbrance on the allegation that it had been redeem, ed by the two daughters of the mortgagor. This suit was decreed on 11-12-1935. The Court held that out of five biswas share mortgaged to the plaintiff, two and a half biswas had gone to the mortgagor's daughters and as the daughter's were not parties to the suit, no decree for sale of their property could be given to the plaintiff. Thus a decree for sale of only two and a half biswas share was passed against the heirs of Aminuddin Husain.

4. On 28-10-1937 the decree-holder put in an application for execution of the decree. Objections were filed on behalf of the judgment-debtors but before they were decided by the execution Court, a--Suit No. 1 of 1942--was filed on behalf of the wakf by Zahinuddin for a declaration that the property sought to be sold, viz., two and a half biswas share in the village wa3 not liable to sale in execution of the decree inasmuch as it was wakf property. This suit was decreed on 29-4-1944 on the basis of a compromise, the terms of which were incorporated in the decree. The declaration as prayed for in relief (a) of the plaint was granted, bat it was provided that the rights and interest of the judgment-debtors of the decree in suit No. 10 of 1933, which they possessed in the property in dispute then i.e. the wakf property, would be liable to sale in execution of that decree. Thereafter the representatives of Lala Talewar sought the execution of their decree in Suit No. 10 of 1933 by sale of the beneficiary's rights of the heirs of Aminuddin Husain in the wakf property. Zahinuddin Husain alone filed his objections on 9-10-1945 in the Court below. His contention was that the beneficiary's rights of the heirs of Aminuddin Husain in the wakf property were not sale-able. It was contended in the first instance by the decree-holders that the decision in Suit No. 1 of 1942 operated as res judicata and it was not open to Zahinuddin Husain to put forward the objections raised by him. The learned Judge of the Court below overruled this objection as he held that Zahinuddin Husain figured in Suit No. 1 of 1942 as a Mutwalli and not in his personal capacity. The learned Judge then proceeded to consider the objections on their merits. It was held that inasmuch as the wakf was not impleaded in Suit No. 10 of 1933, the wakf property itself could not be sold in execution of the decree of that suit. It was further held that Zahinuddin Husain's rights in the wakf property were not exempt from sale and so the objections filed by him were rejected. Against that order he has now come up in appeal to this Court.

5. The dispute in this case centres round a pure question of law, viz. whether beneficiary's rights, or interest, in a wakf property, can be sold in execution of a decree. Mr. Ishaq Ahmad, the learned advocate for the appellant, has contended, in the first place, that a beneficiary's right to receive a periodical payment out of rents and profits of the wagf property cannot be attached or sold, as it is not 'property' within the meaning of that word as understood either in the Transfer of Property Act or in the Code of Civil Procedure. Next it has been contended that even if it be held to be an 'interest in property,' it is an interest which is restricted in its enjoyment to the owner personally and it is not transferable by reason of Section 6(d), T.P. Act.

6. Next the learned counsel has contended that a beneficiary's right merely amounts to a 'right to future maintenance' and, as such, it is not transferable under Section 6(dd), T. P. Act. In this connection reference has also been made to Section 60(1)(n), Civil P. C. which declares that a 'right to future maintenance' is not liable to attachment or sale in execution of a decree. In effect the argument of the learned counsel is that the interest of a beneficary in a wakf, whatever it may be, is not a saleable property within the meaning of the provisions of Section 60(1), Civil P. C. It may be noted at once that the provisions contained in 6 (d), as well as in 6 (dd), T.P. Act, relate to transfers inter vivos by act of parties. The prohibition contained therein can, therefore, apply only to voluntary transfers and not to transfers by operation of law, i.e. by sale in execution of a decree. Strictly speaking, therefore, what is declared to be non-transferable in Section 6, T. P. Act, may or may not be attachable or/and saleable under the provisions of the Civil P. C. The crucial question, therefore, is whether a beneficiary's right to receive certain payments periodically out of the income of the wakf property isor is not a right to future maintenance within the meaning of Section 60(1)(n), Civil P. C. In considering the import of the expression 'a right to future maintenance' as used here, however a good deal of assistance may be derived from judicial decisions on the scope of a very similar expression used in Section 6(dd), T. P. Act. In this connection a large number of judicial decisions have been brought to our notice by the learned counsel for the parties. The more important of them will be noticed in the course of this judgment. No decision specifically dealing with the question which we have to decide in this case has been cited before us.

7. In support of this contention learned counsel for the appellant has relied on Mulla's Muhammadan Law, para. 157 at p. 167, which reads:

'Wakf property is not liable to attachment and sale in execution of a personal decree against the Mutwalli, nor can the rents and profits thereof be seised in execution,'

8. This, however, has nothing to do with the question which has to be decided in this case. It relates to the corpus as well as the rents and profits of wakf property. No wakf property of any sort or kind is sought to be sold in execution of the decree in this case. Zahinuddin Husain is one of the judgment-debtors against whom the decree is sought to be executed. It is being executed against him in his personal capacity. All that we are concerned with here is the right of Zahinuddin Husain as a beneficiary to receive certain payments periodically. The question is whether Zahinuddin Husain's right to receive such payments is or is not attachable and saleable in execution of a decree. The rents and profits derived from the corpus of the waqf property as such are very different from the personal right of Zahinuddin Husain to receive a portion of them.

9. Here reference may be made to the case of Bibi Haliman v. Bibi Ummatunnissa A. I. R. (26) 1939 Pat. 506. In this case, a Muhammadan transferred the whole of his property to his daughter for a certain sum of money. The daughter entered into an agreement undertaking to pay a certain Sum annually to her father as long as he lived. It was held by Wort J. that the right of the father to receive the specified sum annually, though made a charge on immoveable property as long as he lived, was not assignable under Section 6(dd), T. P. Act.

10. Next reference may be made to the case of Aniruddha v. Official Receiver : AIR1942Cal241 , decided by a Bench of two learned Judges of that Court. It was held that

'There is a distinction between a 'maintenance allowance' and an annuity, and whether an allowance is the one or the other may depend upon the facts of each case.'

11. In that case a testator who had vast properties practically disinherited his son, but provided in the will that a sum of Rs. 700 per month was to be given to him out of the income of the estate. On an interpretation of the will it was held that the provision was by way of a maintenance grant and, as such, it could not be assigned in view of the provisions of Section 6(dd), T. P. Act. A contention was raised in that case that there could be no right to maintenance unless the provision made was on account of an antecedent obligation on the part of the grantor to maintain the grantee under the personal law of the parties. In view however of the expression 'in whatsoever manner arising' used in Section 6(dd), the learned Judges repelled this contention.

12. Next reference may be made to the case of Ashfaq Mohammad v. Musammat Nazir Banu A. I. R. 1942 Oudh 410. This is a Bench decision of the Oudh Chief Court. It was held that a right to future maintenance in order to be non-attachable under Section 60(1)(n), Civil P. C. and non-transferable under Section 6(dd), T P. Act should be personal as distinguished from being heritable. It was further held that in view of the provisions of Section 6(dd), T. P. Act, a right to future maintenance in whatsoever manner arising, secured or deter, mined, could not be transferred; it was therefore immaterial for purposes of Section 6(dd) whether the right was acquired under a deed for the first time or not. The decision in the case of Shivaji Govinda Rao v. N. N. C. T. V. Firm A. I. R. 1935 Mad. 815, to the effect that Section 60(1)(n), Civil P. C. applied only to cases where a right to maintenance is based on the personal law or personal relationship of the parties, and not to cases where such a right is purely the result of a contractual arrangement between the parties, was dissented from.

13. Next, reference may be made to the case of Nageshwar Prasad v. Chotey Lal, 1944 ALL. L. J. 74 and to the case of Mahbub Ali v. Syed Mohammad, 1944 ALL. L. J. 381, both decided by the same Bench of two learned Judges of this Court, Allsop and Hamilton J J. Both these eases are distinguishable from the present case on facts. In these cases the meaning of the word 'maintenance' in the expression 'a right to future maintenance' as provided in Section 6(dd), T. P. Act, and Section 60(1)(n), Civil P. C., has been explained. The distinction between a mere annuity, i.e., an annual allowance, and an allowance by way of maintenance, or in lieu of maintenance, has been pointed out. It was observed :

'Maintenance--means the provision of reasonable food, clothing and shelter. A right to receive an allowance is not strictly speaking a right to maintenance, although an allowance may be paid in lieu of a right of maintenance......If any person has a right of maintenance......Hemay accept an allowance in lieu of this right so as to provide himself with these necessities.'

14. Then the learned Judges proceeded to consider the terms of the document in that case, i.e., a will under which the allowance was fixed. In none of these cases wag there any question about the nature of the right of a beneficiary to receive a periodical payment under a wakf. On an interpretation of the terms of the will, it was held that the allowance was not an 'allowance for maintenance.

15. In the case of Rajendra Narain Singh v. Mt. Sundar Bibi , where certain villages had been allotted to a person, under a compromise, for his maintenance and without power of transfer during his brother's life time, the Privy Council held that an interest of such person merely amounted to a right of future maintenance and could not be attached or sold under Section 60(1)(n), Civil P. C.

16. In Ram Prasad Singh v. Moti Bam A. I. R. (34) 1947 Pat. 404, a Bench of the Patna High Court had occasion to consider the scope of Section 6(dd); T. P. Act, and Section 60(1)(n), Civil P. C. It was held that in deciding whether either of these two sections afforded any protection to the judgment-debtor.

'The crucial question is, is the judgment-debtor the holder of a bare incorporeal and personal right of future maintenance, or, is he the holder of an estate in property in lieu of maintenance? If the former, then manifestly the interest in question is protected from sale by the statutory provisions just referred to. If the latter then equally manifestly those provisions have no application.'

17. In Lachhmeswar Sahai v. Mt. Moti Bant Kunwar , the facts were that a partition deed was executed by a Hindu governed by Mitakehara law, his wife and his three sons. The father and each of the sons obtained a four anna share. They covenanted that after the death of the father his four anna share should remain in possession and occupation of his wife up to her lifetime with life interest, that for her lifetime she would have a right to appropriate the profits there from without a power of making a mortgage or other transfer. It was held by the Privy Council that the deed could not be construed as conferring in the first place a life-interest upon the wife and then coupling this with a repugnant condition which prohibited alienation absolutely. The intention of the deed was to give her for her maintenance a personal right to appropriate the net profits of her husband's share after his death. Her interest under the deed was, therefore, an interest in property restricted in its enjoyment to the owner personally within the meaning of Clause (d) of Section 6 and was, therefore, not transferable.

18. The principles deducible from the authorities briefly noticed above would appear to be these. There is a general principle of law that only present rights can be dealt with as property and not inchoate future rights which have not yet accrued, such as spes succesionis, a right to future rent or a future right to maintenance. Such rights may or may not be actually realised in the future. Again, there are rights e.g., interests in property which may be restricted in their enjoyment to the holders thereof personally. It is in accordance with public policy that such rights which are generally created for the maintenance or personal enjoyment of the grantee ought to be inalienable. Obviously such rights are not attachable or saleable under Section 60(1)(n), Civil P. C.

19. In the present case, the wakf deed under which the beneficiaries have a right to get their allowance, specifically speaks of 'Karch parwarisk' and ''parwarish.' It also uses the word 'guzara ke waste' which literally would mean 'for purposes of maintenance.' The nature of the allowance granted to the beneficiaries appears to be that of mere maintenance. Further there is a provision that after the death of a beneficiary the allowance available to him would go to some other persons specified in the deed. It seems to me, therefore, that the right given to the several beneficiaries in this deed is merely a right to receive a certain amount of money periodically during their lifetime for purposes of maintenance. Such a right is, in my judgment, merely 'a right to future maintenance' within the meaning of Section 6(dd), T. P. Act, as also within the meaning of Section 60(1)(n), Civil P. C. It follows that it is neither attachable nor saleable in execution of a decree.

20. In the result, therefore, I would allow the appeal with costs throughout with the result that the objections are allowed and the order of the Count below is set aside.

Sankar Saran, J.

21. I agree.

22. By the Court.--The appeal is allowed with costs throughout with the result that the objections filed by the appellants are allowed and the order of the Court below is set aside.


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