W. Comer Petheram, C.J.
1. This is a rule which has been obtained for the purpose of setting aside an order dismissing a claim to a certain property attached in execution of decree, and the rule has been obtained under Section 622 of the Code of Civil Procedure, on the ground that in his proceedings in this matter the Judge has acted illegally in the exercise of his jurisdiction.
2. The facts of the case are, that the judgment-debtor in this case and the claimant are brothers, and that the property in question was the property of their father who, something like 20 years ago, executed a document by which he devoted his estate to certain charitable and other purposes, and made his eldest son, the claimant in this suit, the mutwali of this endowment, and laid down certain rules.
3. The judgment-creditor has, in these proceedings, attached the share of his debtor, which would have accrued to him, upon the death of his father, if this dead had not been executed and if the property had devolved from father to son, according to the ordinary course of succession under the Mahomedan law.
4. The Judge in his judgment in this case finds, as a matter of fact, that the claimant did take possession of the property at the time the deed was executed, and that he has been in possession of it ever since, administering it according to the terms of that deed. He then proceeds to discuss the question whether the deed itself is a valid or invalid document under the Mahomedan law ; and he finds that the deed, in his opinion, is an invalid document. He says, at the end of his judgment: 'I hold, therefore, that the wakfnama of the 25th Chaitra 1275 B.S. is invalid, and that the inherited share of the judgment-debtor in the property dealt with by that document is liable to sale in execution of the decree.'
5. As I understand that, what the Judge means to say is, that the trans action of the 25th Chaitra 1275, which is the transaction which I have referred to before, was altogether inoperative; that it created no interest in the persons who professed to take under it, and that the share of the deceased person devolved according to the devolution prescribed by Mahomedan law; and therefore he holds that the possession of the claimant is not a possession under that deed at all; but he does find in an earlier part of his judgment that this claimant is in possession of the entire property, and that the judgment debtor is not; so that, for the purposes of Section 280 of the Code of Civil Procedure, he finds the first fact, which is necessary to let in the claimant in a case of this kind, namely, that the property is in possession of the claimant, and not in that of the judgment debtor.
6. Having found so much the question then arises, whether he had jurisdiction to go further and ascertain whether the document of the 25th Chaitra 1275 was an invalid document, with a view to determine whether the possession of the claimant was that of a trustee for the judgment-debtor within the meaning of Section 280.
7. It seems to me that in doing that he has exceeded his jurisdiction, because what he had to do was to find, first of all whether the claimant was in possession, and, if he was, whether it was his own possession or that of the judgment-debtor. The Judge has assumed that, in every case in which he finis a claimant in possession, he has jurisdiction to go on further, and enquire into the nature of his title and the title of the judgment-debtor. I do not think he had jurisdiction to do that. It seems to me that the meaning of Section 280 was, that the question which was to be determined was to be a question of possession, and where the Legislature uses the words, 'the possession of a trustee for the judgment-debtor,' they mean cases in which the possession of a claimant as a trustee is of such a character as to be really the possession of the debtor, and not cases in which very intricate questions of law may arise as to whether valid trusts may result in particular instances.
8. For these reasons, I am of opinion that the Judge had no jurisdiction in this case to go on, after he had disposed of the question of possession, and deal with the question of title, and therefore, I think this rule must be made absolute.
9. There is only one thing I would wish to add, and that is, that upon the judgment of the Judge himself he nowhere finds distinctly that the claimant here is a trustee for the judgment-debtor; he merely finds a state of facts from which we are asked to infer that he intended so to find. I do not think that we ought to draw that inference from those facts, and, therefore, we think that he was wrong in the conclusion to which he came, and that this rule must be made absolute with costs.