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Petitioner: COMMISSIONER OF WAKFS, EAST PAKISTAN VS Respondent: A. B. M. SHAYSTA KHAN AND OTHERS
P L D 1963 Dacca 795
P L D 1963 Dacca 795
Before Hassan and Siddiky, JJ
COMMISSIONER OF WAKFS, EAST PAKISTAN‑ --Appellant
versus
A. B. M. SHAYSTA KHAN AND OTHERS‑---Respondents
Appeal from Appellate Decree No. 44 of 1958, decided on 9th January 1962.
Bengal Wakf Act (XIII of 1934), Ss. 46 & 46‑A‑Nature of wakf may change by passage of time, necessitating reclassi fication‑Order re: classification passed under S. 46, of execution character.
Syed A. B. Mahmud Hussain for Appellant.
S. A. Maquith Chow,dhury and M. A. Rouf for Respondents.
JUDGMENT
HASSAN, J.‑In 1854 a wakf was created by the late Khan Bahadur Hamidullah Khan. Subsequently in 1855 he executed Tuwaliatnama in respect of the said wakf properties and ultimately on 20th February 1857, he executed a wakfnama bearing stamps and the same was registered. Bengal Wakf Act came into force on the 19th July 1934, and thereafter the Mutwalli filed an application for enrolment of the wakf estate and the then Wakf Commissioner enrolled the wakf estate and classified the wakf as a public wakf on the basis of the document executed by Khan Bahadur Hamidullah Khan on the 20th February 1857, and Tuwaliatnama executed by his nephew Shaikh Abdullah Khan in 1889 but it appears from the records that at the instance of the then Mutwalli, the Assistant Commissioner of Wakfs classified the wakf in question as wakf‑alal‑aulad on the 24th May 1938. This order of the then Assistant Commissioner came under consideration before the then Wakf Commissioner on the 29th July 1946. The parties were represented by lawyers. After hearing the parties the Wakf Commissioner held that the order passed by the Assistant Commissioner on the 24th May, was without jurisdiction as he had no authority to sit in judgment over the order p9ssed by the Wakf Commissioner in 1935. It was held on the 29th July 1946, by the Wakf Commissioner that the wakf in question was not an wakf‑al‑al‑aulad but it was a public wakf. As against the aforesaid order of the Wakf Com missioner dated the 29th July 1946, the respondent instituted a suit on the 18th August 1948, which was beyond 2 years for a declaration that the order passed by the Wakf Commissioner on the 29th July 1946, regarding the wakf estate of the Khan Bahadur Hamidullah Khan classifying the wakf to be public or Fi‑sabi‑lillah is void and inoperative. Only two prayers were made; the first one as stated above and the second one for the costs of the suit and no further prayers were made.
2. The suit was contested by the Commissioner of Wakfs, Fast Bengal, alleging, inter alia, that the Assistant Commissioner had no jurisdiction to classify the wakf as Wakf‑alal‑aulad on the 24th May 1938, and that the order passed by the Wakf Commissioner on the 29th July 1946, was valid and within jurisdiction.
3. The suit was at first dismissed by the trial Court but on appeal by the plaintiff, the appeal was allowed and the case was sent back on remand to the Trial Court. On receipt of the records by the Trial Court after remand, the suit was decreed against which the Commissioner of Wakfs preferred an appeal which was also dismissed. Hence this appeal.
4. The learned Government Pleader appearing for the Commissioner of Wakfs has placed the following grounds
(1) That the lower appellate Court erred in holding that though the order of the WakJ Commissioner of the 29th July 1946 was within jurisdiction, the wakf was wakf‑alai‑aulad.
(2) That without a prayer for declaration that the wakf in question is wakf‑alal‑aulad, the plaintiff is not entitled to get such a relief.
(3) That the suit is barred by limitation inasmuch as the suit had been instituted beyond 2 years from the date of the order of the Commissioner of Wakf on the 29th July 1946.
As to the first point, we find that the plaintiff has come before the Court only for a declaration that the order passed by the Commissioner of Wakfs dated the 29th July 1946, regarding the wakf estate of Khan Bahadur Hamidullah Khan classifying the wakf as public or fi‑sabi‑lillah be declared null and void and inoperative and this prayer for declaration by the plaintiff has been rejected by the trial Court. The plaintiff has accepted that order by not preferring an appeal or cross‑objection. Hence the main prayer stands rejected. Furthermore, from the records we are satisfied that the Commissioner of Wakfs had jurisdic tion to pass the order dated the 29th July 1946, as he has been empowered by the provisions of the Wakf Act. It is further seen that the order passed by the Assistant Commissioner on 24th May 1.938, is without jurisdiction. The Commissioner by his order dated 29th July 1946, held that the Assistant Com missioner had no jurisdiction to revise the order passed by the Commissioner in 1935. Nothing has been shown to us by the lawyer of the plaintiff here to show, that the observation made by the learned Commissioner on the 29th July 1946, in respect of the power of the Assistant Commissioner is wrong. We asked the parties to adduce any documentary evidence to show whether the Assistant Commissioner had jurisdiction to revise the order of the Commissioner passed in 1935. The learned Government Pleader submits that this order was passed in 1938, in Calcutta and they have not the necessary papers at present with them. The learned Advocate appearing for the plaintiff has not submitted anything nor has he said that they have got any papers to show that the Assistant Commissioner had jurisdiction to function as a Commissioner. Furthermore, the order of the Commissioner Gated 29th July 1946, in effect restored the order passed by the Commissioner in 1935. This is not a new order. Approach ing this order dated 29th July 1946, from any angle of vision, it cannot be said that this order was without jurisdiction. Hence we find that the order that was passed by the Commissioner of Wakfs on the 29th July 1946, was with jurisdiction and the plaintiff's prayer for a declaration that the said order is null and void is not tenable and that has been rightly rejected by the lower appellate Court.
5. Mr. M. A. Rouf, the learned Advocate appearing for the plaintiff, contends that in view of the provisions of section 46, the Assistant Commissioner had authority to reclassify the wakfs and once it was done by the Assistant Commissioner, it became final under section 46‑A of the Bengal Wakf Act. We do not find any substance in this contention. The provision of section 46 of the Act is intended for classifying the wakf for administra tive purpose. At certain stage a wakf might be a wakf‑alai‑aulad or a public wakf but in course of time due to some events, the apportionment of usufructs to the beneficiary may change which may necessitate reclassification of the wakfs and as such the order passed under section 46 is not judicial but an executive order for the purpose of administration. The aforesaid view of ours is further strengthened by the provisions of subsection (11) of section 6 which defines wakf‑alal‑aulad. "Wakf‑alai‑aulad means a wakf under which not less than seventy five percent of the net available income is for the time being payable to the wakif for himself or any member of his family or descendants". The phrase "for the time being" is sufficient to indicate that the classification of the wakf as alai‑aulad will depend on the relevant time. As for example, a wakf was taken into considera tion by the Commissioner of Wakfs in 1946 and it was found after going through the provisions that at least more than 75 percent of the net income was allotted to the beneficiaries. In that case in view of the above definition the wakf would be classified as wakf‑alai‑aulad. Sometime after it may so happen that some of the beneficiaries may die and in view of the provisions in the wakfnama, the allowance that was given to the beneficiaries might be allotted to charities and in that case the allowance given to the children or descendants may be less than 75 percent. and in this view of the provisions in subsection (11) of section 6, the Commissioner is authorised to reclassify the wakf as a public ivakf. So the provision that has been made in section 46 is nothing but for an executive order for the purpose of administration and any order passed under this section cannot come under the purview of section 46‑A.
6. Section 46‑A provides that when a question arises whether a wakf is wakf‑alai‑aulad or not shall be decided by the Commis sioner after hearing the parties and that decision would be final until set aside by a competent Court. It can be further pointed out that the Assistant Commissioner while changing the character of the wakf in 1938 did not really make any reference to the wakfnama created by Khan Bahadur Hamidullah Khan but re ferred to Tuwaliatnama executed by Abdullah Khan in Ih39 which has nothing to do in determining the character of the wak) created by Khan Bahadur Hamidullah K, fan. Considering all these aspects we hold that the order passed by the Assistant Commissioner on the 24th May 1938, was without jurisdiction and that the order that was passed by the learned Commissioner on the 29th July 1946, was with jurisdiction.
7. Being faced with the circumstances Mr. Rouf has filed an application for leave to amend the prayer portion of the plaint. The relevant paragraph in the petition for amendment is para graph 7 and is as follows :‑
"But unfortunately there was a drafting omission in the prayer portion of the plaint and no prayer for a declaration that the wakf of Khan Bahadur Hamidullah Khan is a private wakf being a wakf‑alai‑aulad was inserted in the plaint."
We do not find any justification to allow this amendment of the prayer portion of the plaint at this stage. Furthermore we are satisfied by going through the document executed by Khan Bahadur Hamidullah Khan creating wakf in respect of the property in suit that he created not a wakf‑alai‑aulad but a wakfs Fi‑sabi‑lillah. The Towalfatnama of Abdullah Khan created in 1889 cannot and could not change the character of the wakf created by the late Khan Bahadur Hamidullah Khan so far back as in 1854 to 1857.
8. In view of our observation as above, we do not express our view on the question of limitation raised by the learned Advocate for the appellant at this stage.
9. The appeal is accordingly allowed with costs, the judgment and decree of the Courts below are set aside and the suit is dis missed with costs.
SIDDIKY, J.-----‑I agree.
S. B./A. H.
Appeal allowed.