Mt. Bibi Alimunnissa vs Shaikh Abdul Aziz and Others

Dhavle, J.—This appeal arises out of a suit for arrears of annuity. In 1905 Shaikh Imdad Ali, maternal grandfather of the appellant, executed a wakf of his property for the perpetuation, repairs and administration, etc., of a mosque and a madrasa built by him, and for "the maintenance and provision of his rightful relations." An allowance was fixed for the services of the mutawalli and for the expenses of the two institutions, and in para. 5 the deed of wakf provided that Rs. 800 will be given as stipend to the persons named below and after them to their descendants (aulad) according to the shares fixed by the Mahometan Law, and in case of absence of descendants (aulad) it will be included in the charities and furtherance of the object of the wakf.

The sum of Rs. 800 was initially payable as an annual "stipend" (wazifa) in the following manner: Rs. 200 to the wakif''s wife, Mt. Bibi Hafiza, and Rs. 150 each to four daughters, Khairan, Idan, Khuban, defendant 3, and Kulsum. The appellant is daughter of Mt. Kulsum who died in 1912, leaving as her heirs the appellant, the parents Imdad and Hafiza, defendant 4, and the husband Hakim, defendant 2. The appellant''s case was that all the other heirs of her mother made her a verbal gift of their shares in the annuity payable to Kulsum and that she thus became entitled to Kulsum''s entire Rs. 150 a year. Imdad died in 1914, and in 1925 Hafiza, grandmother of the appellant, executed a hiba-bil-ewaz in favour of the appellant in respect of her annuity of Rs. 200. It was thus that the appellant sued for the recovery of Rs. 350 (besides interest) as her annuity for the year 1337 Fasli. The suit was resisted by the present mutwalli, defendant 1, who admitted the plaintiff''s right to receive Rs. 75 only out of her mother''s annuity but denied the oral hiba alleged by the plaintiff in respect of the shares of the other heirs of Mt. Kulsum and also denied the power of any annuity-holder to transfer his or her annuity. The trial Court found against the defendant on both points and decreed the suit. The lower appellate Court agreed with the trial Court as regards the factum of the oral hiba, but upheld the contention of the defendant mutwalli that Hafiza, in respect of her annuity of Rs. 200, and the heirs of Kulsum other than the appellant herself, in respect of their shares of the annuity that used to be paid to Kulsum, had no right to gift their annuities away. The Subordinate Judge accordingly allowed the appeal and reduced the decree in favour of the plaintiff to Rs. 75 only besides interest, it being common ground that this was the share in the annuity of Kulsum to which the appellant was entitled under the wakfnama.

It has been contended by Mr. Khurshaid Husnain who appears for the plaintiff, appellant that annuities are transferable under the general law, and that the wakfnama contemplates transfers within the circle of the wakif''s dependents (or relations, as the word mutalliqin has been rendered) and does not in any way restrict the interest of the annuity-holders except that their shares are to go as an accretion to the charities (the mosque and the madrasa) on failure of aulad. Mr. Hasan Jan, who appears for the other side, has on the other hand argued that what we are dealing with here is maintenance grants--grants for "parwarish o nafqa," as the recitals in the wakfnama put it--and that they essentially import rights to be personally enjoyed and not to be transferred by those on whom they are conferred. He points out that transfers even within the family circle might bring in unintended remote heirs and thus defeat the provisions in the wakfnama making the allowances descendible to the aulad according to the shares fixed by the Mahomedan law and revertible to the charities on failure of such aulad. The difference between an annuity and a maintenance allowance is not a matter of dispute before me; it is agreed that the latter is referable to a duty to maintain, with a corresponding right to be maintained, while the former is not. The wakif was under no obligation to maintain his widow Bibi Hafiza or his daughters who, I am informed, had all been given away in marriage.

That being so, it seems to follow that what the wakif provided for his wife and daughters was more in the nature of annuity allowances than of maintenance; he died about nine years after the creation of the wakf, and from that time onwards even Hafiza ceased to have any right to maintenance. From this point of view the fact that the recitals in the wakfnama speak of the "parwarish o nafqa" of the wakif''s rightful relations is immaterial. Let me however assume for a moment that even after the death of the wakif the provision operates as maintenance grants for the relatives, and consider whether these grants can be transferred, as this question has been elaborately discussed before me. Mr. Hasan Jan has relied on Clauses (d) and (e), Section 6, T.P. Act, in support of his contention that the allowances are not transferable. But as regards the latter clause, a right of maintenance in a definite sum of money cannot be regarded as a mere right to sue. It is true that it may not be attachable in advance under proviso (n), Section 60, Civil P.C. but that is not sufficient to bring it within Clause (e), Section 6, T.P. Act, for it will in case of a breach support a suit for a debt and not for damages.

We are not concerned in this case with Clause (dd) which was added to the section in 1929 and which provides that a right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred for the provision is not retrospective, and the law as previously understood by the Courts was far from uniform. As regards Clause (d) on which Mr. Hasan Jan has laid great stress, the difficulty lies in establishing that the right to maintenance--I am at present dealing with the matter on the footing that it is a right to maintenance amounts in the words of the clause to "an interest in property restricted in its enjoyment to the owner personally." In the dedicated property of course no human being has any interest. Mr. Hasan Jan has argued that the grantees may be said to have an interest in the income from the dedicated property in the hands of the mutwalli, but such income could not be said to be existing property, which alone is contemplated in Section 5, T.P. Act: see Rajah Sahib perhlad Sein v. Baboo Budhoo Singh (1867) 12 MIA 275. It has been held in some cases that a right to future maintenance is not property at all; but as will be Seen presently, what we have to deal with here is an actionable claim within the definition in Section 3 of the Act. Reference has been made to such cases as Asad Ali Mollah v. Haidar Ali (1911) 38 Cal 13, Tara Sundari Debi v. Saroda Charan Banerjee (1910) 7 IC 80 and Subraya Sampigethaya v. Krishna Baipadithaya 1924 Mad 22, and it has been contended that the transferability or otherwise of the maintenance grants should be determined by the intention of the grantor.

It is, however, not pretended that there is anything in the wakinama throwing any light on the question of the intention as regards transferability except that in the recitals it speaks of the parwarish o nafqa of the mutalliqin mustahaqin, and in para. 5 makes the ''stipends'' descendible to the aulad according to the shares fixed by the Mahomedan law, with a reverter to the wakif on the failure of aulad. The recital does not import absolute inalienability, for an annual payment could (to give one example) be commuted into a capital sum producing the same return and thus maintain the person in question. Mr. Hasan Jan has argued that if the holder of an allowance for the time being were to have power to transfer his allowance, his aulad might starve and might also on his death get nothing. But as I read the document, it contains no provision for the aulad during the lifetime of the holder, and the transfer of his allowance by a holder need not clash with the right of his aulad to take the allowance after him, since his right to the allowance being limited to his lifetime, the transfer would be similarly limited. Mr. Khurshaid Husnain has argued that the recital regarding the parwarsih o nafqa of the mutalliqin mustahaqin points to an intention to allow transfers within the family circle. But a transfer need not always be voluntary, and we cannot read the document as providing for voluntary transfers only, while an involuntary transfer may be obtained just as well by a relative as by a stranger.

The trial Court found that there Was no intention to prohibit gifts to relations because the language of the wakfnama does not express or imply it, and because Imdad Ali himself had the whole annuity of Kulsum after her death paid to the appellant down to his own death, whilst the defendant mutwalli had attested the hiba-bil-ewaz and had paid the plaintiff in full for several years. I am not, however, sure that this is a case where we can take the action of the wakif from the death of Kulsum to his own death as an indication of what was really intended by the wakfnama. As to the defendant mutwalli, there is clearly no estoppel against him at all. The learned Subordinate Judge apparently began by holding that "the right to the annuities by way of maintenance" was a personal right, and that Hafiza''s hiba-bil-ewaz would pass the annuity on the plaintiff''s death to her "heirs and legal representatives,"

to the deprivation of other heirs of these grantees who were to enjoy these annuities according to their legal shares under the terms of the wakfnama.

So far as there is any reasoning to be gathered from his judgment, he seems to have fallen into several errors. He has taken no notice of the reasoning of the trial Court. He has not noticed that the wakfnama speaks of aulad and not of heirs. And he does not ask himself what there is in the wakfnama to suggest that the allowances, though they are to descend to the aulad, could not be transferred for the lifetime of each rightful holder. I am unable to see sufficient reason for holding that they were intended "to be enjoyed by the beneficiaries themselves and nobody else." It seems to me that they are annuities coming within the definition of an actionable claim in Section 3, T.P. Act, a definition which applies to unsecured debts whether "existent, accruing, conditional or contingent." They are, in my opinion, property, but not "property restricted in its enjoyment to the owner personally," even though the interest of each holder is limited to his lifetime and does not descend to his heirs.

The plaintiff sued on the footing that these allowances were "annuity grants;" and annuities as distinguished from maintenance grants have been even held to be attachable u/s 60, Civil P.C. see Gopal Lal Seal v. Marsden 10 CWN 1102. u/s 130, T.P. Act, actionable claims can be transferred only by the execution of an instrument in writing signed by the transferor, and Mr. Khurshaid Husnain has not been able seriously to argue that the section does not apply to Mahomedans or that the alleged oral hiba by Kulsum''s heirs, other than the appellant, to the appellant, can have any operation notwithstanding the section in question. The lower Courts were both of them in error in taking it that para. 5 of the wakfnama made the stipends descendible to heirs. The word used is ''aulad,'' which includes both sons and daughters and all descendants in the male but not in the female line. It also plainly excludes such heirs as the parents and the husband.

The provision that the aulad are to take according to the shares fixed by the Mahomedan law has given rise to some dispute before me. Mr. Khurshaid Husnain has argued that the addition "according to the shares fixed by Mahomedan law" could only be intended to determine the proportions between children of opposite sexes; and in support of this contention he has pointed out that if for instance the plaintiff Aliman as sole member of the aulad group surviving Kulsum were to be confined to her share of a half as an heir under the Hanafi law, the remaining half could not go to the charities as it could not be said that it was a case of failure of aulad. The appellant, however, came into Court on another footing altogether, viz. that out of the heirs left by her mother she inherited a half, and the others the remaining half of which they made an oral hiba in her favour. It is curious that though in the lower Courts the wakfnama seems to have been taken to speak hot of aulad but of heirs, it was common ground that the plaintiff''s share was 8 annas; for if she was to be treated as an heir along with the other heirs, viz. the parents and the husband, she could only take 6/13 instead of a half. Mr. Khurshaid Husnain has argued that aspect of the matter cannot be further looked into because, though the lower Court has allowed a half, the mutwalli has not appealed.

The mutwalli has not in fact contested the plaintiff''s right to a half of he mother''s annuity either in the lower Courts (see para. 3 of his written statement) or before me. But Mr. Husan Jan has urged that para. 5 of the wakfnama only entitles the plaintiff to the daughter''s share of one-half and excludes the application of the doctrine of the "return." If Mr. Khurshaid Husnain''s contention is to be accepted, the provision giving the aulad "the shares fixed by the Mahomedan law" will operate to bring in the ordinary rule of the double share to the male which does not apply to such settlements unless it be otherwise provided in the wakfnama. But if the aulad are to take the shares (saham) fixed by the Mahomedan law and in the absence of aulad the stipend is to revert to the charities, the case where such shares do not exhaust the stipend is left unprovided for. In order, then, to give effect to the intention of the wakif consistently as far as possible with the language used by him we should be face to face with a choice between a group of aulad whose shares do not exhaust the whole and the public charities and it seems to me that in choosing between the two, we must incline to the latter. It is, however, unnecessary to make any definite pronouncement about this in view of the facts that the plaintiff came to Court with a claim to a half as her mother''s daughter and that this claim was admitted by the mutwalli. Mr. Khurshaid Husnain has indeed laid stress on the claim made in para. 3 of the plaint "as heir (and) daughter" to the entire annuity of Rs. 150 but this must be read with para. 4 which explains that claim as resting in part on the verbal gift made to the plaintiff by the other heirs of Mt. Kulsum.

We cannot therefore hold on the pleadings that what the appellant took under the wakfnama upon her mother''s death was more than a half of the Rs. 150. As to the other half, the oral hiba by the other heirs of Mt. Kulsum can have no effect because not being among Mt. Kulsum''s aulad, they themselves were entitled to nothing out of the stipend that used to be paid to her in her lifetime, and this, quite apart from another reason I have already given, viz. that the annuity is an actionable claim and cannot be orally transferred. The order of the lower appellate Court in this respect must, therefore, be upheld upon these grounds, and not on the ground that the stipend was restricted in its enjoyment to the owners personally. As regards Hafiza''s stipend, the fact that it is limited to her lifetime does not, in my opinion, in default of any definite indication that these stipends were intended to be inalienable, disentitle the holder to transfer it for her lifetime and no longer. The hiba-bil-ewaz actually makes a gift to the appellant naslan bad nasl, but while on the one hand it is impossible for it to operate after the donor''s lifetime, there is on the other no reason why it should not operate during that period. In respect of this annuity, therefore, I must in the result differ from the lower appellate Court and hold that the appellant is entitled to Hafiza''s stipend during Hafiza''s lifetime only. The appeal will, therefore, be allowed, and the decree of the lower appellate Court modified by allowing to the appellant not the Rs. 75 only that she took as coming within the description of Kulsum''s aulad but also the Rs. 200 transferred to her by Hafiza. The appellant will be entitled to proportionate costs in all the Courts; but in view of the fact that the rights of the parties were by no means easy to determine, and that the mutwalli defendant does not seem to have done anything to warrant an order requiring him to pay the costs personally, he will be at liberty to pay them out of the wakf funds in his hands. He will also note that the appellant will have a right to Hafiza''s Rs. 200 only as long as the latter lives.