Mitha v Taufic (C.A. No. 37 of 1934.) [1934] EACA 7 (1 January 1934)

## APPELLATE CIVIL.

## Before HORNE, J.

JAMAL SUNDERJI MITIJA, Appellant (Original Defendant)

## HALIMA BINTI TAUFIC as the Trustee of the Wakf

affecting House No. 7502.

Respondent (Original Plaintiff).

## C. A. No. 37 of 1934.

- Execution-Objection proceedings-Decision appealable without leave—Civil Procedure Rules, O. 19 rs. 55-60—Wakf—Life interest reserved to Wakif-Validity-Conveyance to defraud creditors—Chattel property—Registration—Chattels Transfer Ord. 1930—Registration of Documents Ord. (Cap. 144). - $Held$ (15-3-35).—That an order in objection proceedings under Order 19 r. 55-60 (as amended in 1933) amounts an adjudication falling within the definition of "decree" in section 2 $(4)$ of the Civil Procedure Ordinance, 1924, and was therefore appealable as of right: Ratanbai Miyaji v. Essufali Gulamhusein (12 K. L. R.20) distinguished. - Held Further. That a wakf appointing the donor trustee and reserving to the donor a life interest and being a wakf of the whole of the donor's assets was void under Mohammedan Law and the property being a chattel the instrument creating the wakf was also void for want of registration under the Chattels Transfer Ordinance. Seif bin Abdulla v. Administrator $General$ (6 E. A. L. R.74) and Mwijaka v. Exors of Siwa Haji (2 E. A. L. R.33) followed.

The appellant obtained judgment against the respondent in the Resident Magistrate's Court at Mombasa and proceeded to execute his decree by attachment of the respondent's house her only property, which was on land not her property. The respondent gave notice of objection to the attachment under Order 19 r. 55, and was directed to take proceedings under r. 58. In these proceedings she was successful and the appellant brought an appeal. The respondent took the preliminary objection that the appeal could not be heard as no application for leave to appeal had been obtained.

Inamdar for Appellant.

Ross for Respondent.

JUDGMENT. This is an appeal from a decree or order of the Acting Resident Magistrate, Mombasa, dated 23rd October, 1934.

The respondent raises the preliminary objection that the judgment appealed from is not a decree, that it is not an order falling within Order 40 r. 1 (1), and that consequently the judgment or order of the magistrate is not appealable here without leave. No leave to appeal has been applied for.

The appellant on the other hand contends that the order is a decree in a suit, alternatively that it is an order made upon the hearing of an Originating Summons under Order 34.

In order to support the appellant's alternative contention I would have to hold that because r. 60 (of the amended rules 55 to 60 both inclusive of Order 19) lays down that proceedings. by way of objection to attachment are to be commenced by Originating Summons the order made upon the hearing becomes an appealable order under Order 40 r. 1 $(1)$ (o).

Now a right of appeal is always the creation of specific enactment and I do not think such a right should necessarily be established by implication or inference. The wording of Order 40 r. 1 (1) (o) is plain. The expression therein: "An order" made upon the hearing of an originating summons under Order 34" means on an originating summons taken out by persons referred to in that Order and in respect of the matters therein. mentioned. That Order was duly enacted in 1927. The amended rules 55-60 of Order 19 were made in 1933. The matter there in question is still referred to in rule 55 as "objection to attachment". If the objection is opposed, i.e. if the attaching creditor will not withdraw then the objector has to file proceedings by originating summons. It is also to be noted that rule 55 commences "any person claiming to be entitled, etc.". The expression "any person" is very wide, and there are other rather wide expressions in these new rules, e.g. "pending the final decision of the Court in such proceedings" in rule 59 (b). Nevertheless the objection proceedings are still objection procedings though now the issues are tried out after an originating summons has been taken out. But surely this is an originating summons. under Order 19 r. 58 and not an originating summons under ${\rm Order}$ $34.$ An inter-pleader suit under Order 31 also' commences by originating summons and an appeal from an order thereunder is specially provided for in Order 40 rule 1 (1) $(n)$ .

I do not think therefore that a right of appeal can be inferred. or implied upon the wording of clause (o). $\cdot$

An objector is however in a different position to what he was under the old rules. Under them the order was conclusive subject to the right to bring a suit. It would now appear that if the attaching creditor will not withdraw the objector must file proceedings to establish his claim or if he fails to do so his objection shall be deemed to be waived (r. 59), and there is now no saving of any right to bring a suit if dissatisfied with the order in the objection proceedings. The consequence appears to me to be that he is compelled to have his claim adjudicated upon in the Court of the lowest grade competent to try the issue (proviso r. 58) and the attachment is stayed pending the "final" decision" of the Court in such proceedings (r. 59 (b).). This is an entirely different method to the summary method, with

saving of right of suit, provided under the old rules. Whatever the decision was under those rules either party, creditor or objector, could still bring a suit, and quite logically the order was not appealable. The present method involves, by a final decision or a finding, an adjudication, which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to the matter in controversy, and this decision or finding therefore falls within the definition of "decree" given in section 2 (4) of Civil Procedure Ordinance, 1924. There are in these proceedings now the subject of this appeal a judgment, then an order drawn up which presumably was considered ineffective and before appeal a decree was drawn up to express the judgment. I think therefore the appellant is wrong in saying this is an appealable order but he is right in saying that there is an adjudication amounting to a decree. The new rules are superficially at least in conflict with section 34 of the Civil Procedure Ordinance. The repealed rules were intended for claims and objections made by persons other than parties to the suit in which the decree was passed. The present rules in using the expression "any person" seem to include the judgment-debtor, but power to make rules is limited by section 83 (1) of Civil Procedure Ordinance to making rules not inconsistent with the Ordinance and subject thereto; accordingly "any person" must be construed as any person other than a party to the suit in which the decree was passed.

As however these proceedings have been taken in the Court passing the decree I should be prepared if necessary, in order to avoid circuity of proceedings and further delay and expense, to treat them as having been brought under section 34. $On$ that ground there would also be a right of appeal because by section 2 $(4)$ the determination of a question within section 34 is included in the definition of decree.

Under the present rules 55-60 the reasoning of the judgment of BARTH, C. J. in Ratanbai Miyaji v. Essufali Gulamhusein, $(12 \text{ E. A. L. R. } 20)$ does not appear to be applicable. It is clear that objection proceedings under Order 19 as then framed did not constitute a suit and an order made in such proceedings did not deprive the claimant of his remedy by suit. At present the rules do deprive the claimant of all other remedy. Either he must proceed by Originating Summons or his objection is deemed to be waived. So whether these proceedings should have been had under Order 19 r. 55-60 or under section 34 the question in issue is subject to an adjudication amounting to a decree and appeal is therefore of right without leave under section 65.

The facts in the proceedings in objection are as follows:-The appellant (defendant to the Originating Summons) was plaintiff in an action and obtained a judgment in his favour against the respondent the judgment debtor (plaintiff to the Originating Summons). On proceeding to execute his decree by attachment of a house said to be the property of the respondent, he is met with the objection that it is not the property of the respondent and that she is merely Mutassil or trustee of a wakf. It appears that she wakfed the house by an instrument made on the 8th January, 1935, five days after service of the summons in the suit and before an appearance was entered on her behalf. $\quad\text{The}\quad$ respondent is an illiterate Swahili. She makes the deed, which is evidently drawn by an experienced draughtsman in English language, by her thumb mark. She has no other property. She was clearly indebted to the appellant at and before the time the suit was instituted and at the time the wakfnama was made. The house is valued at Sh. 200 according to appellant's evidence in the proceedings or Originating Summons and is on land which is not her property and which is already the subject of another By the deed or document purporting to found or create wakf. this wakf she describes herself and is therefore estopped from denying that she is a Mohamedan professing the Shafei doctrine. The Acting Resident Magistrate held that this wakf was a valid wakf and that the property therein comprised could not be attached in execution and he accordingly set aside the attachment and ordered the appellant to pay the costs of the Originating Summons and hearing thereunder. It is to be noted that the respondent gave no evidence.

I will not deal at any length with the Acting Resident Magistrate's judgment, he is a layman, beyond saying that it goes to show how dangerous it is to place a layman in the position of having to decide such a matter.

After reciting that the founder is the owner of a dwelling house situated on land now vested in the Wakf Commissioners, the operative words of the wakf are:-

"I do hereby declare that I have absolutely and irrevocably and for all time made Wakf of the said house and furniture, etc., for the benefit of myself during my remaining lifetime and thereafter for the benefit of the Mosque of Abdulla bin Salim Khonzi... I appoint myself Mutwali or Trustee until my death and I appoint the Wakf Commissioners after me."

These words are not identical with those used in a wakf under consideration of the Court in Seif bin Abdulla v. Administrator General (6 E. A. L. R. 74), but effect of them is the same. It was there held that according to Shafei authorities a conditional wakf by which the usufruct of the property wakfed is reserved for the benefit of the wakif is bad.

On like ground I hold that this wakf is bad according to Mohammedan Law and declare it void.

With regard to it being void as a conveyance intended to defeat creditors. It has already been held in Talibu bin Mwijaka v. Executors of Siwa Haji (2 E. A. L. R. 35), that a wakf (even though otherwise valid in Mohammedan Law) if made to defeat creditors is invalid against creditors if there are no other assets. To my mind no other inference can be drawn from the facts than that the founder's object was neither religious nor charitable but merely aimed at reserving to herself for life the house and keeping her creditor from obtaining it by legal process which to her knowledge had been instituted at the time she purported to found this wakf.

It has been submitted that in deciding whether a conveyance is fraudulent regard should only be paid to the statute law of the Colony and that the doctrines of the common law and equityshould not be looked to. I am unable to follow this argument. It does appear to me that if it is within the capacity of the respondent to make a voluntary conveyance of this character dealing with property and the local statute law, applied Acts. or Ordinances fail to provide a person aggrieved by it any remedy --- then the Order in Council means that the rules of common law and equity shall be applied. The fact of the matter is that this Colony commences with the law of England as described in the Order in Council as it was in 1897 subject to such modifications as have or may be made by other legislation. If it were necessary to set this transfer aside upon grounds of English law I should not hesitate to do so.

With regard to the point about registration—Registration evidencing a transaction will not make a void or fraudulent transaction a bona fide one. But on the assumption that this wakf is valid, then it appears from the document itself that the owner of the house has some sort of occupation right, probably terminable at the will of the free-holder; perhaps it may more properly be described as a licence to occupy at will personal to the occupier and not transferable. In my opinion such a licence does not amount to "land" as defined in section 2 of \*Cap. 142. The house itself if it has become attached or embedded gives rise to different consideration. But if it were so attached in this case there would be no need for the woman to wakf it. It would have passed to the owner of the land. I think, however, in the absence of direct evidence other than the value of Sh. 200 the fact of the woman attempting to dispose of it shows she regarded it as a chattel, as movable property. So far therefore as the facts are ascertained there is nothing in this transfer to require registration under Cap. 143.

Ordinarily it is difficult to regard a house as a chattel but a building worth only Sh. 200, like temporary buildings or wood and iron buildings bolted down to concrete blocks or resting on them, may quite easily be transferable completely by delivery and thus fall within the definition of "chattel" in the Chattels Transfer Ordinance. Further a reference to that Ordinance shows that the expression "instrument" is given a very wide meaning. The document in question here recites that the wakif wishes to provide for the settlement of her estate. A wakf is clearly the equivalent of a gift. And on the assumption that this house is a chattel it would appear that the instrument should be registered under the Chattels Transfer Ordinance, otherwise by section 13 it will be deemed fraudulent and void against a person seizing the chattel in execution. All that can be said about registration under Cap. 144 is that this document is not one that is required to be registered compulsorily under that Ordinance.

The appeal is therefore allowed with costs here and in the Resident Magistrate's Court. The decision of the Acting Resident-Magistrate is set aside and the objector having failed to establish her claim the execution against the house must proceed.