1. The following pedigree will make clear the relationship of the parties to this appeal:
ZAHOOR ALI KHAN
| | | |
Abdul Rahman Abdul Abdullah, Abdul Shakur
Khan, Ghafoor Khan, | Khan,
| (born 1861). | (born 1870)
Abdul Latif | |
Khan, Obedullah Khan, |
(born 1871) defendant, |
(died 1909). (born 1880). |
| | | | |
Abdul Jalil Plaintiff Plaintiff plaintiff Three
Khan, No. 2. No. 3. No. 4. daughters
plaintiff No. 1. not parties.
2. The plaintiffs claim as heirs of Abdul Shakur Khan and Abdul Latif Khan certain properties parties in villages Chakathal and Khakethal.
3. The principal issue in the Court below was whether the greater portion of the properties in suit were acquired by Abdul Ghafoor Khan for and on behalf of Abdul Shakur Khan and Abdul Latif Khan and whether two persons, Mahmood Ali Khan and Serajul Haq, were benamidars for Abdul Shakoor Khan and Abdul Latif Khan and later whether Obedullah Khan, the defendant, occupied the same position by virtue of conveyances from Mahmood Ali Khan and Serajul Haq.
4. Though the defendant denied that any of the transactions were ismfarzi, he contended in the alternative that if they were, the plaintiffs were estopped from claiming any of the properties included in certain auction-sales by reason of the provisions of Section 66 of the Code of Civil Procedure, 1908.
5. In answer to this contention the plaintiffs asserted that Section 317 of the Code of Civil Procedure, 1882, was the appropriate section by which the rights of the parties were regulated and that the disability created by that section should be confined to an action brought against a certified purchaser and could not include Obedullah Khan, who was a transferee from certified purchasers.
6. The learned Subordinate Judge decreed the claim in p Article The plaintiffs appealed in respect of those heads of claim which the Judge has decided against them and the defendant filed objections in relation to certain property alleged to be wakf.
7. It is now necessary to set out as succinctly as possible the histories of the properties in suit.
8. On July 20th, 1883, one Ata Ullah Khan mortgaged to Abdul Ghafoor Khan bis rights and interests in 20 biswas of Mauza Khakethal and also a 19. biswa, 11 1/2 biswansi share in Mauza Chakathal for Rs. 55,000.
9. On July 12th, 1884, Ata Ullah Khan agreed to execute a usufructuary mortgage in favour of Abdul Ghafoor Khan, reciting an indebtedness to him of Rs. 80,000, and the share in villages Khakethal and Chakathal were amongst the properties agreed to be covered by the usufructuary mortgage. On July 21st, 1884, Ata Ullah Khan sold his share in village Khakethal and Chakathal to one Barkat Ali Khan, reciting that he left Rs. 79,000 in the hands of the vendee for payment over to Abdul Ghafoor Khan. That sum was not paid and Abdul Ghafoor Khan brought a suit for specific performance against Ata Ullah Khan based on the agreement of July 12th, 1884, and obtained a decree in his favour. On December 23rd 1885, Ata Ullah Khan was ordered to pay Rs. 64,976 within a given time or to execute a mortgage in terms of the agreement of July 12th, 1884.
10. Abdul Ghafoor Khan was not satisfied with this amount and appealed to the High Court who awarded him on May 31st, 1887, a further sum of Rs. 18,125.
11. On June 29th, 1895, Abdul Ghafoor Khan executed a deed of transfer of mortgagee rights to the extent of one-half of his then interest in the mortgage bond of July 1883 in favour of Abdul Shakur Khan. Certain payments had been made and the amount outstanding was said to be Rs. 58,000, and the reasons given for the transfer of the moiety interest were that Abdul Shakur Khan had advanced one-half of the original mortgage-money and that the Rs. 58,000 could not be recovered without a fresh suit to which he, Abdul Ghafoor Khan, did not wish to be a party. On the same date Abdul Ghafoor Khan, by deed of gift in which he stated that he was the owner of one half of the original mortgage money, made over to Abdul Latif Khan the other outstanding sum of Rs. 29,000.
12. Abdul Shakur Khan and Abdul Latif Khan brought an action against Ata Ullah Khan and Barkat Ali Khan and others and obtained on June 29th, 1896, a decree for Rs. 18,708 and an order that unless that amount were paid within 6 months, certain mortgaged properties including the 9 biswa 11 1/2 biswansi share in Chakathal should be sold.
13. On April 2nd, 1900, that decree was affirmed by the High Court.
14. It is now necessary to refer to other trans-notions relating to other portions of villages Khakethal and Chakathal.
15. On August 20th, 1885, a share of 14 biswas odd in village Khakethal belonging to Ata Ullah Khan was sold by auction to Mahmood Ali Khan for Rs. 5,750, and this sale was confirmed on March 2nd, 1886.
16. On September 15th, 1898, Abdul Ghafoor Khan after reciting his ownership of a moiety of a 17 biswansi and 10 kachwansi share in village Khakethal made a gift of his 8-biswansi, 15 kachwansi share to Obedullah Khan, the defendant.
17. This was said to have been done with the object of making Obedullah Khan a co-sharer in the village, it being intended to put him in as benamidar of the property in Khakethal, then recorded in the name of Mahmood Ali Khan.
18. The transactions as regards village Chakathal were as follows:fs
19. On March 21st, 1892, Serajul Haq our chased at an auction-sale a 9 biswa, 2 1/2 biswansi share of Ata Ullah Khan and others in village Chakathal, being 34 sihams out of 74 sihams, for Rs. 7,000.
20. In 1894 Serajul Haq as a co-sharer in village Chakathal brought a suit for pre-emption and obtained a decree putting him in possession of Mahal Panjum on payment of Rs. 8,000. This amount was duly paid in November 1894.
21. On July 7th, 1900, Serajul Haq sold or purported to sell to Obedullah Khan, the defendant, the properties in Mauza Chakathal acquired by him in March 1892 and November 1894 for the sum of Rs. 40,000.
22. On July 8th, 1900, Mahmood Ali Khan, reciting himself to be owner by virtue of the purchase made at auction of 34 sihams out of 51 sihams in a 13 biswa, 10 biswansi, 15 kachwansi share in Mahal Kunwar Abdul Shakur Khan in Mauza Chakethal, sold or purported to sell the same to Obedullah Khan, the defendant, for Rs. 38,000.
23. The plaintiffs contend that the Rs. 55,000 paid in 1883 to Ata Ullah Khan in fact belonged to Abdul Shakur Khan and Abdul Latif Khan and that Abdul Ghafoor Khan had no beneficial interest in the mortgage but was merely acting on their behalf.
24. They also say that the Rs. 5,750 paid by Mahmood Ali Khan in 1885 was similarly provided out of their money as also the Rs. 7,000 and Rs. 8,000 paid by Serajul Huq in 1892 and 1894.
25. They point out that in 1898, Mahmood Ali Khan and Serajul Haq were both elderly men and, therefore, it was considered desirable that they should cease to act as benamidars and that Obedullah Khan was chosen to become benamidar in place of both of them, and it was under those circumstances that he was given in September 1898 the small share in village Khakethal and the properties subsequently transferred to him on July 7th, 1900, and July 8th, 1900, by Serajul Haq and Mahmood Ali Khan respectively.
26. We think that all these contentions are correct.
27. We have examined the accounts produced by the plaintiffs and we have studied the evidence, especially that of the defendant. We are quite unable to accept his testimony. He produced no accounts, saying that his 'chitthas' which were more than three years old were destroyed. He admitted that there had been no alteration in the management of the properties after his purchase, but asserted that he received profits from Abdul Ghafoor Khan and Abdul Shakur Khan. Chitthas bearing his admitted signatures (see Record A, A124, A138--143) show payments of Government revenue, irrigation dues, and various cash transactions in respect of villages Khakethal and Chakathal. These entirely negative the suggestion that Obedullah Khan had any beneficial interest in the properties which were conveyed to him by Serajul Haq and Mahmood Ali Khan. There are also entries under the admitted signatures of Abdul Shakut Khan to the like effect, whilst at pages A158 and A159 there are chittha entries over the alleged signatures of Abdul Ghafoor Khan, which apportion the Rs 55,000 advanced to Ata Ullah Khan in 1883 between Abdul Shakur Khan and Abdul Latif Khan and in like manner the Rs. 5,750 (referred to in the account as Rs. 5,752) is apportioned between Abdul Shakur Khan and Abdul Latif Khan. A sum of Rs. 4,000 also appears in the accounts of Abdul Shakur Khan on the 20th November 1884 as money provided for the share in village Chakathal purchased by Mahmood Ali Khan by right of pre emption. It is, of course, the plaintiffs' case that Abdul Latif Khan provided the other Rs. 4,000, On September 1st, 1885, there is an entry debiting Serajul Haq with Rs. 1,555 8 0, 'the amount having been given to him for depositing in Court in connection with the auction-sale of Mauza Khakethal.'
28. The purchase, as Mr. O'Conor pointed out, was in fact made by Mahmood Ali Khan, and he has cited this and another account, to be found at A169, as special instances pointing to the accounts being fabricated and has also urged general grounds which should lead us to that conclusion. The fact that the entry of September 1st, 1885, describes Serajul Haq as the man to whom the money was handed over, does not seem to us to be a circumstance which oasts substantial doubt on the entry. Serajul Haq was a servant of Abdul Ghafoor Khan and entrusted by him with matters of business, and it may very well have been that he did receive the money and either handed it over to Mahmood Ali Khan or himself paid it into the hands of the proper officer.
29. The entry at A169 speaks of 'expenses incurred in the preemption case relating to Mauza Chakathal through Hakim Saheb as per slip No. 2 out of Rs. 49 13.... Rs. 24 8 9.'
30. There is no doubt that this entry appears amongst those appertaining to July 1885. The only pre eruption matter with which this appeal is concerned took place in 1894. There is, however, to be found over the admitted signature of Abdul Shakur Khan an entry of August 10th, 1894, of expenses Rs. 23-15-9 'in the pre-emption case relating to Chakathal.' The claims in this suit do not profess to cover each and every transaction which the family had with Mauzas Khakethal and Chakathal, and it appears to us not unlikely that the entry at A169 was put in the record by mistake. Extracts from the chitthas were being made for the purposes of the action from 1884 on wards, and the 1885 pre-emption entry may quite easily have been put amongst the documents by some one who knew that a claim was being made in respect of a pre-empted share in village Chakathal and who overlooked the fact of the date. There is, however, as has been said, an entry relating to the pre-emption suit under the proper date of August 1894.
31. Mr. O'Conor pressed us on broader grounds and challenged all the accounts purporting to bear the signatures of Abdul Ghafoor Khan as fictitious and he argued that the admissions of Mr. Quadri, the Count el for the plaintiffs, were carefully limited to the mere admission that the signatures of Abdul Shakur Khan, Abdul Latif Khan and Obedullah Khan were their signatures and did not extend to an admission that the accounts which appeared on the same page were genuine accounts. In form Mr. Quadri's statements may bear that construction, but the evidence of Obedullah Khan, the defendant, makes it difficult to insist on that limitation.
32. The defendants Abdul Shakur Khan and Abdul Latif Khan admittedly signed certain pieces of paper. It is not alleged that they were blank at the time. To day they are shown to be accounts apparently of the date they bear, and they give details of items of expenditure and receipt in respect of the villages Khakethal and Chakathal. Prom a perusal of the evidence in the lower Court it does not appear that any serious attack was made as to the genuineness of the chitthas which bore the signatures of Abdul Shakur Khan, Abdul Latif Khan and Obedullah Khan. Obedullah Khan says it is the custom of the Dharampur estate to keep daily chitthas and the signature of the auditor is affixed to them.
33. There is no doubt that the accounts which purported to bear the signatures of Abdul Ghafoor Khan were challenged in the lower Court and there is ground for doubting their genuineness. This doubt does not arise from anything on the face of the accounts, but from the fact that on previous occasions false evidence has been given by the plaintiffs and Abdul Shakur Khan. That is false evidence if the present case is a true one.
34. On August 22nd, 1894, Abdul Shakur Khan, in an action brought by serajul Haq against Gul Muhammad Khan and others, swore definitely that he was not the owner of the i share known as that of Kunwar Ata Ullah in village Chakathal, but that Serajul Haq was the owner. He thought that his brother Abdul Ghafoor Khan had no share in it. The profits from the property were not received by him, nor did any tenants ever pay him arrears of rent. He stated Serajul Haq to be a man of sufficient means to have bought the property.
35. From the judgment, dated 28th September 1894, it appears that in addition to this evidence Abdul Shakur Khan produced his books and proved that there were no entries in them relating to this property.
36. The question was again raised in 1896, when Abdul Shakur Khan and Abdul Latif Khan sued Ata Ullah Khan and others. The latter set up that Abdul Ghafoor Khan had purchased Chakhatal through his servant Serajul Haq and the plaintiffs had, therefore, no right left to sue for the mortgage money. That issue was fought out--the plaintiffs con-tended that Serajul Haq and not Abdul Ghafoor Khan was the real purchaser and they succeeded in satisfying the Court as to this.
37. Both Mr. O'Conor and Dr. Sulaiman have frankly agreed that the present case must be decided on the basis that either party will tell any falsehood at any time which will serve the immediate purpose. The question, therefore, is, whether on the issue as to who was the real purchaser, it does not happen that in the present sane it suits the plaintiffs to tell the truth. We think that this is so. We agree with the learned Subordinate Judge in his findings of fact and we approve of his reasons, and we hold that the real purchasers throughout all these transactions were Abdul Shakur Khan and Abdul Latif Khan and that Mahmood Ali Khan, Serajul Haq and subsequently Obedullah Khan were benamidars for them.
38. That being so, the next question that arises is whether there is any statutory bar which prevents the plaintiffs from succeeding as regards those portions of villages Khakethal and Chakathal which were purchased at auction.
39. As it has been suggested that Section 66 of the Code of Civil Procedure of 1908 imposes a wider disability on the plaintiffs than Section 317 of the earlier Code, we must first of all decide by which section the rights of the plaintiffs must be determined.
40. The transfers to Obedullah Khan were made in 1900. The action was commenced in 1916.
41. Dr. Sulaiman contends that the plaintiffs' rights must be judged, not by Section 66, but by Section 317 and that on the proper construction of that latter section, whilst Abdul Shakur Khan and Abdul Latif Khan would have been unable to maintain an action against Mahmood Ali Khan and Serajul Haq, they are nevertheless entitled to bring one against Obedullah Khan, the transferee from Mahmood Ali Khan and Serajul Haq.
42. He contends that retrospective effect must not be given to the opening words of Section 66; that the section relates to procedure and was not intended to cut down already vested rights of a plaintiff.
43. With this view we do not agree. We are of opinion that the essential difference in the drafting of Section 66 shows that the Legislature did not approve of the narrow construction of Section 317 given to it by decisions of which Sibta Kunwar v. Bhagoli 21 A. 196 : A.W.N. (1899) 30 : 9 Ind. Dec. (N.S.) 834 is an example.
44. We think that the section intended to make it clear that the Legislature, disapproving of benami transactions, meant to prevent actions against certified purchasers and their transferees. To that extent, the Legislature did by Section 66 deprive a plaintiff of a right which possibly was not previously negatived.
45. The plaintiffs' rights mast in our view be judged by Section 66 Moon v. Durden (1848) 2 Ex. 22 : 12 Jur. 138 : 76 R.R. 479 : 154 E.R. 389.
46. Dr. Sulaiman concedes that if this be so, he cannot maintain the suit against Obedullah Khan on the ground that the purchases made by Mahmood Ali Khan and Serajul Haq were for the plaintiffs' benefit and he agrees that Obedullah Khan must be regarded as a 'person claiming title under a purchase certified by the Court.'
47. The learned Subordinate Judge came to the conclusion that the suit was barred, as far as the properties purchased at auction were concerned, and we agree with him.
48. There remains for decision the question whether the document purporting to be a wakf executed by Abdul Latif Khan is in fast a wakf which is binding on the property to-day.
49. The parties to this litigation are Sunnis and their rights are regulated by the Hanafi Law.
50. Imam Abu Hanifa and his two disciples Abu Yusuf and Muhammad have each dealt with the circumstances under which a wakf is complete. According to Abu Hanifa, it becomes complete when a Kazi has passed a decree necessary for extinguishing the wakif's power to resile from the wakf. Abu Yusuf, however, is of opinion that a mere declaration of wakf operates as a transfer of the property from the wakif to the implied ownership of God. Muhammad lays it down that a valid wakf requires :
(I) Declaration of the wakf.
(II) Appointment of a mutwalli.
(Ill) Transfer of possession to the mutwalli.
51. See generally Wilson's Digest of Anglo-Muhammadan Law, 3rd Edition, page 343.
52. In the present case we must follow the opinions of Abu Yusuf and Muhammad.
53. The facts as found by the learned Subordinate Judge are that Abdul Latif Khan did intend to create a valid wakf--did intend to make a genuine dedication. He declared the property to be wakf, he appointed a mutwalli (i.e., himself) and as he himself was the mutwalli, there was no need of formal transfer of possession. After the death of Abdul Latif Khan, Abdul Ghafoor Khan, in pursuance of the terms of the deed of wakf, appointed Obedullah Khan as mutwalli and the latter accepted the appointment and took possession. His subsequent conduct would not in our opinion invalidate the wakf.
54. In these circumstances, we think that the learned Subordinate Judge was wrong in restoring the plaintiffs to possession of so much of the property as was covered by the wakf and his decision on this point must be set aside.
55. The result, therefore, is that we dismiss the plaintiffs' appeal and allow the cross objections of the defendant and declare that the plaintiffs are not entitled to possession of that part of the property covered by the deed of wakf. The appeal is dismissed with costs and fees on the higher scale and the cross-objections allowed with costs and fees on the higher scale.