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Petitioner: FOWZUL ALI KHAN VS Respondent: COMMISSIONER OF WAKFS, EAST PAKISTAN AND OTHERS
P L D 1964 Dacca 575
P L D 1964 Dacca 575
Before I. H. Chowdhury, C. J. and M. R. Khan, J
FOWZUL ALI KHAN‑Appellant
versus
COMMISSIONER OF WAKFS, EAST PAKISTAN AND Others‑Respondents
Appeal from Original Decree No. 133 of 1959, decided on 29th July 1963.
(a) Muhammadan Law ‑ Wakf ‑ Wakf‑alai‑aulad, private wakf, but all private wakfs are not wakf‑alai‑aulad‑Bengal Wakf Act (XIII of 1934), S. 6 (11).
(b) Muhammadan Law‑Wakf‑Public or private wakf‑Deter mination of true character‑ Main purpose and primary intention of wakif to be looked into.
Md. Fakirullah Mia v. The Commissioner of Wakf, East Bengal and others P L D 1953 Dacca 73 fol.
(c) Muhammadan Lain‑Wakf‑Dargah of saint‑Wakf created "to protect, preserve and maintain" shrine of wakif's father and to render necessary services therein‑Such wakf, held, a private wakf- Offerings voluntarily made by devotees at shrine‑Not "income" front wakf property and cannot be appropriated as such ‑Hereditary mutawallis entitled to receive and utilize such offerings for purposes of dargah and also for their private purposes‑Bengal Wakf Act (XIII of 1934), .Ss. 6 (1). 27 & 28.
Chief Administrator of Auqaf, West Pakistan v. Rashld‑ul-Daula P L D 1961 Lah. 993 distinguished.
Advocate‑General of Bombay v. Yusuf Ali Ibrahim and others A I R 1921 Bom. 338 and Sycd Hussain Ali and others v. The Dargah Committee A I It 1959 Rajasthan 177 ref.
Khawaja Whammad Hamid v. Miah Muhammad A I R 1932 PC384 fol.
Changes.
(d) Bengal Wakf Act (XIII of 1934), S. 27(2) read with S. 28‑ Wakf Commissioner framing scheme allocating wakf funds to pur poses contrary to directions of wakif ‑ Scheme being repugnant to Ss. 27 (2) & 28, held, illegal and inoperative.
(e) Bengal Wakf Act (XIII of 1934), S. 6 (10)‑Wakf‑Conditions for validity.
From the definition of `wakf' as given in section 6 (10) of the Bengal Wakf Act, 1934 it follows that in order to be valid, a wakf must satisfy at least the following conditions :‑‑
(i) There must be a declaration dedicating the property.
(ii) The declaration must be made by the owner of the property.
(iii) The declarant must be a person professing Islam.
(iv) The dedication must be permanent.
(v) The objects of the dedication must be recognised by the Islamic law as pious, religious or charitable.
(vi) The objects of the dedication must be indicated with reasonable certainty.
Hamidul Huq Chowdhury and M. A. Rouf for Appellant. Md. Israil for Respondent No. 1. Moazzem Hossain for the Deputy Registrar.
JUDGMENT
CHOWDHURY, C. J.‑‑I had the occasion to go through the judgment proposed to be delivered by my learned brother in this appeal. My learned brother dealt with the case with minute details of facts and circumstances and the wakfnama in this appeal. I need not repeat them. I agree with my learned brother that the wakf is a genuine wakf and the plaintiff and the proforma defendants Nos. 15 to 17 are the defendants of the saint Shah Sufi Amanat and they are the hereditary mutwallis under the wakfnama and that the wakf is not a wakf‑alai‑aulad, but that does not necessarily follow that it is a public wakf as the learned Subordinate Judge, the defence lawyers and the Wakf Commissioner seem to think which has since been rightly appreciated by Mr. Israil the learned Advocate on behalf of the Wakf Commissioner, who advanced an argument that it is a wakf other than wakf‑alai‑aulad. Wakf‑alai‑aulad is no doubt a private wakf, but all private wakfs are not wakf‑alai‑aulad and it is correctly held by my learned, brother that it is a private wakf created for the benefit of the grave of wakif's ancestor late Shah Sufi Amanat which, in course of time, matured into a shrine. I am also in full agreement with my learned brother that the offerings In the grave of the saint or in the Dargah are not wakf properties. They are neither income from the wakf properties or of the shine nor dedicated by any body for any specific purposes, and the heirs of the wakif, who are also mutwallis of the wakf created for the benefit of the grave of the saint, are entitled to collect the same and use it for the purpose of the Dargah as well as for their private needs, and needs of the descendants of the saint and the Wakf Commissioner has get no right to make it a subject‑matter of the scheme framed by him about wakf property is contrary to the provision of the wakf nama and is, therefore, illegal and void. There is no defect in the frame of the suit in tile facts and circumstances of the case. The money on account of offerings that are lying in deposits in the bank and kept in deposit in pursuance of the order, of the Court are payable to the hereditary mutwallis.
2. In these circumstances, I agree with my learned brother that this appeal should be allowed with costs throughout in terms of the order proposed by him.
M. R. KHAN, J.‑This appeal by the sole plaintiff is from the judgment and decree in other Suit No. 25 of 1953/21 of 1955 of the Second Subordinate Judge's Court, Chittagong filed against the Commissioner of Wakfs, East Bengal (defendant No. 1) and the defendants 2 to 14 who were the members of a committee of management appointed by the Commissioner of Wakfs. The plaintiff's three brothers were also impleaded in the suit as pro forma‑defendants 15, 16 and 17. Various reliefs were sought for in the suit by the plaintiff, but the suit was mainly for a declaration that the properties described in Schedules A and B of the plaint constitute a wakf‑alai‑aulad or a private wakf, that the plaintiff and the proforma‑defendants 15 to 17 are the hereditary mutwallis of that wakf and that the order of the Wakf Commissioner, dated 1 1‑12‑52 by which he declared the wakf to be a public wakf and appointed a committee consisting of the defendants 2 to 14 for its management and further framed a scheme allocating the income of the wakf properties to different objects is illegal, void, inoperative and without jurisdiction. A prayer was also made in the suit for recovery of the amount of the offerings in cash collected by the committee of management. As an alternative to all these reliefs, the plaintiff prayed that in the event of the wakf being found to be a public wakf, the plaintiff and the proforma defendants 15 to 17 be declared to be hereditary mutawallis thereof, with right to administer the wakf, and the scheme framed by the Wakf Commissioner be declared to be illegal and without jurisdiction.
4. The suit has been decreed in the plaintiff's favour in respect of the alternative relief, but the scheme framed by the Wakf Commissioner has not been declared illegal as prayed for.
5. In order to appreciate the controversy, the issues involved and the grievance, of the plaintiff‑appellant against the decree passed in his favour, it is necessary to state the material facts of the case at some length.
6. The properties described in Schedule A of the plaint which are within the Chittagong town, belonged to a great Muslim Saint named Hazrat Sufi Amanat Khan. He died long ago and was buried within those properties. After his death, his grave attracted visitor‑both Muslims and Hindus from near and distant places. In course of time, the saint's grave attained celebrity and importance, came to be venerated by a considerable body of the public and attained its full stature as a shrine or Dargah. The plaintiff and his brothers (proforma defendants 15 to 17) claimed to be direct lineal descendants of the saint and are now in the seventh generation after him. The saint left this world leaving behind his son Anwar Khan. Alef Khan, the only son of Anwar Khan died during his father's life time, leaving behind two sons Aliar Khan and Amanat Khan. For the proper maintenance of the Dargah of Hazrat Shah Sufi Amanat Khan and for rendering services therein and also with a view to provide for the mainte nance of his descendants who were to render such services, Anwar Khan made wakf of the properties described in Schedule A of the plaint by executing a deed of wakf (Exh. 3) on the 11th Baisakh, 1202 M. E. (Maghi Era) corresponding to the 22nd April, 1840 A. D. By the same deed of wakf, Anwar Khan appointed his grandsons Aliar khan azid Amanat Khian as mutawallis of the wakf and made provision therein to the effect that the descendants of the said two mutwallis in the male line were to be successive mutwallis, from generation to generation. Of the two mutwallis appointed by the deed of wakf, Amanat Khan died childless, and Aliar Khan died leaving his only son Fazar Ali Khan who, after his father's death, became the next mutwalli. After the death of Fazar Ali Khan, his only son Sher Ali Khan became the next mutwalli, but he was under the guardianship of his mother Badi. unessa on account of his the then minority. After having acted as mutwalli for a long time, Sher Ali Khan died on the 21st January 1942, leaving four sons who are the plaintiff and the proforma defendants 15 to 17, his widow Feroza Khatun and several daughters. Thus the plaintiff and the proforma‑defendants 15 to 17, became the mutwallis of the wakf created by Anwar Khan.
7. The wakf properties, described in Schedule A and the saint's tomb lying within those properties have undergone subs tantial changes on account of additions, alterations and improve ments made, from time to time, by successive mutwallis. The pro perties described in Schedule B of the plaint were subsequently acquired and added to the wakf created by Anwar Khan. Besides the saint's tomb, the homestead and the tank of the wakif, a graveyard, a mosque, a water reservoir and a rest house for visitors to the Dargah have been in existence on the wakf lands.
8. The plaintiff and the proforma‑defendants 15 to 17 as hereditary mutwallis were managing the wakf properties and appro priating their income to the objects of the wakf in accordance with the terms of the wakf deed. Besides, they were collecting offerings in cash and kind made at the Dargah by visitors and, like all predecessors mutwallis, were appropriating such offerings to the service of the Dargah and to their own needs and those of their family members. In this state of things, a group of persons including one Serajuddin Ahmed (defendant No. 2) made an appli cation to the Commissioner of Wakfs on the 3rd September 1943, for enrolment of the wakf properties as a public wakf. By his order, dated 21‑3‑1949 the Wakf Commissioner declared that the lands described in the Schedules A and B of the plaint and the Dargah standing thereon, including the mosque, graveyard, tank and Musafirkhana constituted a public wakf, enrolled it as such, constituted a committee of management and appointed Fowzul Kabir Khan (proforma‑ defendant No. 15) as mutwalli. The proforma defendant No. 15 having objection against the order declaring the wakf to be a public wakf refused to act as mutwalli. On the contrary, the plaintiff and the proforma‑defendants 15 to 17 made an application to the Wakf Commissioner on 8‑9‑1952 Exh. 2 (7) for enrolment of the wakf as a wakf‑alai‑aulad. After re‑examining the matter and taking the wakf deed into consideration, the Commissioner of Wakfs by his order, dated 11‑12‑1952 Exh. 7 (a), held the plaintiff and the proforma‑defendants 15 to 17 to be hereditary mutwallis of the wakf, but maintained his earlier order, dated 21‑3‑1949 by which he declared the wakf to be a public wakf and appointed a committee of management. By the same order, the Wakf Commissioner framed a scheme for appropriation of the income of the properties, the details of which will be discussed later. Being aggrieved by the said order, the plaintiff instituted other Suit No. 25 of 1953 in the Court of the First Subordinate Judge, Chittagong, which, on transfer to the Court of the Second Subordinate Judge, Chittagong was numbered as other Suit No. 21 of 1955. The suit was instituted on 30‑11‑1953 claiming the following reliefs :‑----
(a) For a declaration that the order, dated 11‑12‑1952 passed by the Commissioner of Wakfs on the enrolment petition of the proforma defendants. declaring the properties described in the Schedules below to be a public wakf and the directions for the continuance of the committee constituted by his order dated 21‑3‑49 and the allocation of the different proportions of the income of the said wakf property to different objects set out therein as illegal, void, inoperative and without jurisdiction and for revocation of the same.
(b) For a declaration that the above wakf comprising the pro perties described in Schedules `A' and `B' is a wakf‑alal‑aulad or a private wakf as is otherwise commonly known and that the classification of the same to the contrary as made by the Commissioner of Wakfs, East Bengal, defendant No. 1 is wrong and not binding on the plaintiff or on the estate and that the constitution of the Committee or the framing of a scheme on the footing of a public wakf is illegal and ultra vires and not warranted or justifiable in the circumstances of the case.
(c) For a permanent injunction restraining the members of the committee viz., defendant Nos. 2‑14 from interfering with the management of the wakf properties by the present mutwallis and restraining defendant No. 1 from realising the contribution payable under section 59 of the Bengal Wakf Act, 1934 from the plaintiff or from defendants Nos. 15‑17 until proper and lawful assessment is made in accordance with the terms of the said deed of wakf.
(d) For temporary injunction in the above terms till the dis posal of the suit.
(e) For cost of the suit.
(f ) For any other relief or reliefs which may be deemed fit in the facts and circumstances of the case.
9. Meanwhile the members of the committee were making collections of offerings made at the Dargah by the visiting public which, according to the plaintiff, was unauthorised. Apprehend ing that such unauthorised collections of offerings might be construed as the plaintiff's constructive dispossession, the plaintiff made a petition on 5‑9‑1955 for amendment of the plaint, seeking additional reliefs, which was allowed by the trial Court's order, dated 6‑9‑55. The additional reliefs sought for were as follows:‑---
(g) That in case the acts of collection of the offerings and any other act relating to the affair of the Dargab, mosque and Hajrat Shah Sufi Amanat Manjir now named as Musafirkhana by defendants Nos. 2 to 14 be construed as an act of any dispos session, a decree for possession be passed accordingly in favour of the plaintiff and/or the plaintiff and proforma‑defendants Nos. 15 to 17.
(h) That on taking proper court‑fees from the plaintiff a decree be passed in favour of the plaintiff and/or the plaintiff and proforma‑defendants for the recovery of the amount out of the collections that might have been found to have been made by the committee upto the date of the suit.
(i) That the plaintiff may be permitted to sue defendants Nos. 2 to 14 hereafter for the recovery of the amount of their collections during the pendency of the suit.
(j) That the plaintiff alternatively prays that in the event of this wakf being found to be a public wakf, the plaintiff and the proforma‑defendants Nos. 15 to 17 be declared to be the mutwallis thereof in hereditary right and they be declared to be entitled to the administration of the Wakf Estate in accordance with the terms of the wakfnama, dated the 11th Baisakh, 1202 M. F. and the scheme framed by defendant No. 1 be declared illegal, unauthorised, without jurisdiction being in con travention of the terms of the aforesaid wakfnama and the com mittee of management illegally appointed by defendant No. 1 be restrained permanently from interfering with the manage ment of the Estate by the present mutwallis and the male descendants of the wakf."
10. The Wakf Commissioner (defendant No. 1) was duly summoned and a copy of the petition amending the plaint was also served on him, but he did not appear and contest the suit.
11. Before the date fixed for filing written statements, defend ant No. 2, one of the members of the committee died. So, defend ants 3 to 14, the remaining members of the committee filed a joint written statement. After the amendment of the plaint seeking additional reliefs, the defendants 3 to 14 jointly filed an additional written statement. Their defence, in substance, was that the deed of wakf executed by Anwar Khan is not a genuine and valid document and was not acted upon; that the plaintiff and the proforma‑defendants 15 to 17 are not the descendants of Hazrat Shah Sufi Amanat Khan and are not, therefore, hereditary mutwal lis under the said wakf deed, that the wakf in question is a public wakf and not a wakf‑alai‑aulad, that the order of the Wakf Commissioner, declaring the wakf to be a public wakf and the scheme framed by him are valid and binding on the plaintiff and the proforma‑defendants 15 to 17, that the plaintiff's claim to the collections of offerings made at the Dargah is not tenable and that the plaintiff is not entitled to any relief. Besides, they pleaded non‑maintainability of the suit, defect, of parties and multifa riousness. The suit was also alleged to be under‑valued and the plaint insufficiently stamped.
12. The proforma‑defendants 15 to 17 also appeared in the suit and filed a joint written statement, but this substantially supported the plaintiff's case.
13. On the pleadings, as many as 17 issues were framed by the trial Court, and these were as follows:---
(1) Is the alleged wakf deed by Anwar Khan, a genuine and valid document? Was it ever acted upon?
(2) Is the suit bad for defect of parties ?
(3) Is the plaintiff a descendant of Hazrat Shah Sufi Amanat Khan as alleged ?
(4) Is the suit maintainable ?
(5) Has the suit been properly valued and proper court‑fees paid ?
(6) Is the plaintiff entitled to claim the property as a private wakf in the face of the declaration of the same as public wakf by the Wakf Commissioner?
(7) What relief, if any, is the plaintiff entitled to ?
(8) Is the wakf in question, namely, wakf of Anwar Khan, dated 11th Baisakh, 1202 M. E. a wakf‑alal‑aulad or a public wakf?
(9) Is the order of the Wakf Commissioner, dated 11‑12‑1952 declaring the said wakf to be a public wakf liable to be revoked as illegal, void, inoperative and without jurisdiction ?
(10) Is the scheme framed by the Wakf Commissioner legal and valid and binding upon the plaintiff and proforma defendants ?
(11) Is the plaintiff's claim for money as made in prayers (h) to (i) of the plaint tenable ?
(12) Is the plaintiff entitled to a declaration prayed for in prayer (j) of the plaint?
(13) Is the suit bad for multifariousness ?
(14) Is the suit barred by limitation?
(15) Is the description of the property vague and indefinite? Can the plaintiff get any relief in respect of the properties so described ?
(16) Can the plaintiff get possession as claimed in prayer (g) of the plaint?
(17) Is the suit barred under section 92 of the C. P. C. and section 18 of the Religious Endowments Act ?
14. The learned Subordinate Judge who tried the suit has answered all the issues in favour of the plaintiff except the issues 8, 9, 10 and 11. He rejected all the technical objections raised by the defendants 3 to 14, enhanced the valuation of the suit, realized proper court‑fees on such valuation and found that the wakf deed executed by Anwar Khan relates to the Dargah of the saint Hazrat Shah Sufi Amanat Khan and is a genuine and valid docu ment and was acted upon and that the plaintiff, though a descen dant of the said saint and a hereditary mutwalli along with the proforma‑defendants 15 to 17, is not entitled to get possession and management of the Dargah and the wakf properties unless the wakf created by Anwar Khan is found to be a wakf‑alal‑aulad. With regard to the character of the wakf and its scheme of management, he has held that the wakf in question is a public wakf and not a wakf‑alai‑aulad, that the Wakf Commissioner's order, dated 11‑12‑52 by which he declared the wakf to be a public wakf, appointed a committee of management and framed a scheme is valid and operative. As regards offerings, his finding is that offerings made at the Dargah are consecrated to God or entrusted with a trust and are to be used for religious or pious purposes and, as such, the plaintiff is not entitled to lay any claim on such offerings. On these findings the learned Subordinate Judge has rejected all the reliefs claimed in the suit, except the first part of the alternative relief in prayer (J) of the plaint and passed a decree in the plaintiff's favour in the following terms:
"That the suit be decreed in respect of the alternative prayer with costs on contest against the defendants 3 to 14 and ex parte against the rest. All other prayers are rejected. The plaintiff's hereditary right to the Mutwalliship of the wakf estate under dispute is hereby declared. The line of Mutwalliship will be confined to the lineal male descendants of the wakif Anwar Khan and accordingly the plaintiff who has attained majority along with the proforma‑defendants 15 to 17 will act as joint mutwallis of the wakf estate. If, however, any of them or all of them become irreligious and in the case of extinction of the male descendants of the wakif the indication regarding the appointment of successive mutwallis given in the wakfnama shall be followed."
The present appeal by the plaintiff is from that decree. In this appeal, the plaintiff‑appellant has reiterated his contentions that the wakf in question is a wakf‑alal‑aulad or a private wakf and not a public wakf as held by the Wakf Commissioner and the trial Court that the Wakf Commissioner's order appointing a committee of management and framing a scheme for appropriation of the income of wakf properties is illegal, inoperative and not binding on the hereditary murwallis. As regards offerings made at the Dargah, his contention is that these are not wakf at all, but are the private property of the descendants of the saint, including the hereditary mutwallis.
15. All the defendants in the suit were impleaded in this appeal as respondents. Of them, the respondents 2, 3, 4, 7, 8, 10, 12 and 13 appeared and filed a cross‑objection. But on the happen ing of the following events, the Wakf Commissioner, respondent No. 1 alone remained in the field to contest this appeal. The Wakf Commissioner, by his order, dated 22‑5‑1961, dissolved the com mittee and appointed a new committee consisting of 12 persons. Accordingly, the names of the members of the old committee who were respondents 2 to 13 were struck off and, in their place the members of the new committee were substituted in the appeal as respondents 2 to 13 under the order of this Court. As the members of the new committee could not take over the management of the Wakf Commissioner, by his further order dated 21‑9‑1961, directed the appellant and his three brothers, I.e., the hereditary mutwallis to assume charge of the wakf properties. But, by yet another order, dated 2‑4‑1962, the Wakf Commissioner dissolved the new committee as well. In these circumstances, the Wakf Commissioner alone contested the appeal, although he did not contest the suit. He, however, did not file any cross‑objection. It may be mentioned that Wakf Commissioner has been designated in the appeal as Administrator of Wakfs on account of a change in the designation by the East Pakistan Wakfs Ordinance, 1962. The proforma‑defendants 15, 16 and 17 were also impleaded in this appeal as respondents 14, 15 and 16 respectively, but they did not appear to resist the appeal.
16. Mr. M. Israil, the learned Advocate for the Wakf Com missioner has pressed mainly four points in this appeal. His first contention is that the wakf created by Anwar Khan which is in dispute here is a wakf other than a wakf‑alal‑aulad. He next contends that the scheme for appropriation of the income of the wakf framed by the Wakf Commissioner by his order dated 11‑12‑1952 is valid, operative and binding on the Mutwallis. His third contention is that the offerings made at the Dargah are wakf or they are, at any rate, income of the Dargah. He lastly contends that, in the present form of the suit, the appellant is not entitled to any relief in respect of the offerings made at the Dargah even if these are held to be neither wakf nor income of the Dargah.
17. The following points, therefore, arise for determination in this appeal :‑----
(1) Is the wakf created by Anwar Khan by the deed of wakf, dated the 11th Baisakh, 1202 M. E. (Exh. 3) a wakf‑alai‑aulad ? If not, what is the real character of that wakf ?
(2) Is the scheme for appropriation of the income of the wakf framed by the Wakf Commissioner by his order, dated the 11th December 1952, valid, operative and binding on the Mutwallis including the appellant ?
(3) Are the offerings made at the Dargah of Hazrat Shah Sufi Amanat Khan wakf ? If not, are such offerings income of…
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