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Petitioner: Mst. AHMADI BEGUM VS Respondent: MUHAMMAD MUSHTAQ ALI KHAN AND 2 Other
Court Name: Lahore High Court Judge(s): Sardar Muhammad Iqbal, Karam Elahi Chauhan Title: Mst. AHMADI BEGUM vs MUHAMMAD MUSHTAQ ALI KHAN AND 2 Other Case No.: Writ Petition No. 980 o f 1968, Date of Judgment:1969-07-22 Reported As: PLD 1970 Lahore 341 Result: Case remanded
JUDGMENT
JUDGMENT K. E. CHAUHAN, J.----The dispute in this case is about some agricultural land which is situated in various villages of Jhelum District, the exact details and area whereof is not apparent on the present record but which it is a common ground between the parties, constituted a wakf-alal- aulad and was subject to the incidents of and was to be regulated by a deed of wakf, dated the 21th of September 1925, which one Dr. Muhammad Khurshid A.I Khan had executed with regard to some properties in India in lieu whereof the land in dispute had been obtained by respondent No. 1 (Muhammad Mushtaq A.I Khan), on the basis of a claim form filed by him in his capacity as a mutawalli of the said wakf. After the promulgation of Martial Law Regulation law. 64, commonly known as the Land Reforms Regulation, in 1959 (hereinafter called the Regulation), all such wakfs of agricultural lands were abolished and it was directed that the same should be distributed amongst its beneficiaries according to the principles laid down in section 10 of the said 1egulation. Mst. Ahmadi Begum (petitioner) filed on the date or dates not disclosed, an application or applications before the Deputy Land Commissioner, Jhelum (wrongly described in the writ petition as Deputy settlement Commissioner) submitting that she being the sole beneficiary under the Wakf, the wakf land should be exclusively given to her or that her, share should be substantially increased. While this matter was still pending before the Deputy Land Commissioner, Jhelum, a writ petition was filed being W. P. No. 927/R-63, by Muhammad Mushtaq A.I Khan (respondent) in this Court= from certain order or orders which had been passed adversely to him by the Claim, Settlement or Rehabilitation Authorities before whom litigation between the parties was also going on with regard to issuance of entitlement certificates. The writ petition was decided by a Division Bench of this Court consisting of our learned brothers Mushtaq Hussain and Muhammad Akram, JJ. On the
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9th of April 1965, where, inter alia, declaration with regard to the extent of the rights of the parties in the land in dispute was given and it was held that respondent No. 1 was eligible to get 2/3rd share in the land, The decision of this Court was challenged by Mst. Ahmadi Begum in the Supreme Court by means of Civil Appeal No. 80 of 1966 decided on the 7th of February 1967. The Supreme---Court partly accepted the appeal and holding that since the case with regard to the deermination of the shares of the parties was pending before the Deputy Land Commissioner, Jhelum, the judgment of this Court deciding that very matter at that stage was without jurisdiction. After so holding, the Supreme---Court observed that, "it will now be for the Deputy Land Commissioner, Jhelum to dispose of the matter in the exercise-- of his jurisdiction". The actual relevant passage in the judgment of the Supreme` Court reads as follows " . . . . This matter Was pending adjudication before --the Deputy Land Commissioner, Jhelum, and it was for him to determine as to the extent to which under the Regulation, either Ahmadi Begum or her son the respondent Mushtaq It A.I Khan would be entitled to share in these wakf properties upon the wakf being treated as having abolished under the Regulation. This was not a function which the High Court could have usurped. The appeal is, therefore, allowed in part and the order of the high Court is vacated to that extent. It will now be for the Deputy Land Commissioner, Jhelum, to dispose of the matter i=t the exercise of his jurisdiction under the Regulation. Since success in this case is divided there will be no order as, to costs." 2. After the judgment of the Supreme Court, the matter was taken up by Mr. S. M. Usman, Deputy Land Commissioner, Jhelum, who by means of his order, dated the 12th of June 1967 (Copy Annex. "A"), held that Mst. Ahmadi Begum being.. The sole beneficiary under the wakf deed, within the meaning of section 10 (21(c) of the Martial Law Regulation, was alone, entitled to get the whole of the land. Respondent No. 1 filed any appeal which was accepted by Mr. M. H. Shah, Land Commis-- sioner, by means of his order, dated the 15th of August 1967,. (Copy Annex. "B") whereby he held that respondent No. 1 had beneficial interest to the extent of 2/3rd share in the wakf properties and, therefore, the land in dispute to that extent belonged to him and the remaining one-third to the petitioner. The petitioner filed a revision before the learned Chief Land Commissioner (Mr. Abu Nasar), but without any success, as the same was rejected by him on 11-6-1968 (Copy Annex. "C"). The petitioner has, in these circumstances, come to this Court in the second round of litigation as hereinbefore explained. 3. Before proceeding further, it is necessary to refer to section IO of the Martial Law Regulation. This section is reproduced below for facility of reference :- "10. Wakfs.-(1) Land included in any wakf of the nature described in section 3 of the Mussalman Wakf Validating Act, 1913 (VI of 1913) shall, on the commencement of this Regulation, cease to form part of such wakf. (2) Such land, except the portion, if any, already specifically dedicated for a religious, pious or charitable purpose, shall be appropriated as follows :- (a) If the donor is alive and is the sole beneficiary, the land shall revert to him. (b) If the donor is alive and is not the sole beneficiary and there are ether beneficiaries besides him then such portion of the land as is reserved under the wakf for the benefit of the donor shall revert to him, and the remaining portion of the land shall be divided among the other beneficiaries, non- heirs receiving share in proportion to the benefit reserved for them under the wakf, and heirs according to the law of inheritance, as if succession had opened on the commencement of this Regulation. (c) If the donor is dead, the land shall be divided among the beneficiaries, non-heirs receiving share in proportion to the benefit reserved for them under the wakf, and heirs according to the law of inheritance, as if succession had opened on the day the donor died.
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(d) If a benefit derivable from such land, not being a dedication of a specified land, is reserved under the wakf for a religious, pious or charitable purpose, the Commission may, in lieu of the benefit, allow for such purpose such portion of the land to be retained or such compensation to be paid, as it thinks fit, and utilize the land or a portion thereof, as the case may be, in accordance with the provisions of this Regulation. (3) Where under any such ivakf as aforesaid, any specified land has been dedicated for a religious, pious or charitable purpose, such land may continue to be utilized for that purpose, and shall be deemed to be owned or possessed by a religious or charitable institution for the purpose of para-- graph 9 (c). (4) No land shall, on and after the commencement of this Regulation, be included in or subjected to any wakf of the nature as is referred to in sub-paragraph (1). (5) A person who comes into ownership -or possession of land by virtue of this paragraph shall be subject to the provisions of this Regulation as an existing owner, except that he shall not be entitled to claim the benefit of exemptions under clauses (2) and (f ) of paragraph 9 if, but for his becoming an owner of land under this paragraph, he would not have been entitled or could not have claimed the benefit of such exemptions. Explanation.-A `beneficiary' in this paragraph does not include a future beneficiary to whom no present advantage accrues under the wakf." 4. In the instant case, we are concerned with clause (c) of subsection (2) of section 10 of the Regulation reproduced above. Because it is a common-ground between the parties that according to the wakf deed, the donor died. In India in 1926 and that he was not the sole beneficiary under the wakf. Clause (c) of subsection (2) of section 10 according to ir& simple paraphrase means that :- (i) the land is to be divided among the beneficiaries, (ii) from among the beneficiaries, the "Non-heir-bene--ficiaries" are to get share in proportion to the benefit reserved for them under the wakf ; (iii) while the "heir-beneficiaries", will receive share according to the law of inheritance, as if succession had, opened on the day the donor died, and (iv) the word "beneficiary", according, to the explanation reproduced above, does not include a future beneficiary to whom no present advantage accrues under the wakf. 5. Learned counsel for the petitioner laid emphasis on the "Explanation" attached to section 10 of the Regulation and submitted that when it says that, "a beneficiary does not include whom the benefit a future beneficiary to whom no present advantage accrues under the wakf , it means that only such persons to accrued immediately at the creation of the wakf are to be considered as beneficiaries and no person who may have become beneficiary thereafter is to be included in the concept of this tern. According to him the words "present advantage accrues under the wakf, mean advantage which should have accrued to a beneficiary in presentie at the time of the creation of the wakf or the execution of the wakf Deed and not persons who may have started receiving benefit subsequently. This argument was advancc1 for the purpose of submitting that Muhammad Mushaq A.I Khan not being a person, to whom any benefit or proportionate advantages accrued in presentie at the time of the execution of wakf Deed, he could not be given ashare in the land proportionate to the benefit which he was getting when he became a mutawalli after the death of the wakf. Whether Muhammad Mushtaq A.I Khan is eligible to get a definite share in the land in dispute is a subject to which we will advert later but we must say that we cannot accept the interpretation which is being put a by the learned counsel for the petitioner on the "Explanation" under discussion Martial Law Regulation was promulgated on 9-2-1959. The "Explanation", to put in other words, means; that for the purpose of section 10 beneficiaries will be those who; are receiving benefit at present i.e. On 9-2-1959 and that it will be those persons who
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are to be taken note of and not (if we can use this word in the context)-any past beneficiaries or future beneficiaries as reckoned from this date. Our reasons for so holding are manifold : (i) Firstly, the "Explanation' attached to section 10 of the Regulation is of a restrictive kind which is aimed at narrowing down the range of beneficiaries` and not to enlarge it. It is clear from the phraseology used, which says, that the term "beneficiary does not include", such and such person. The object (if we may say so) of such an "excluding clause", is obvious, and that is, that though all those persons, who may have been beneficiaries from the beginning to the end of the wakf are beneficiaries of the wakf in a general sense, but for the purpose of the law in hand, it is intended to make only those who are receiving a present advantage at the time when the Regulation has come into force. (ii) Secondly, the language used is "to whom no present advantage accrues", under the wakf and not "accrued". What we mean is that the word "accrues" is used in present tense and not in past tense, with the result that only those persons, advantage to whom at present is accruing, are to be considered as beneficiaries and no others. (iii) Thirdly, the words "future" and "present" are used with reference to the date of the promulgation of the Martial Law Regulation i.e., 9-2-1959, whereafter and from which date all private wakfs of land are to stand abolished and the lane included in those wakfs is to be appropriated in the manner laid down in the said Regulation. Appropriation is to be made for presently-advantage-receiving-beneficiaries and not for any past beneficiaries or any future beneficiaries. (iv) Fourthly, in clauses (c) and (d) of subsection (2) of section 10 or the Regulation, succession is to open out from the dates mentioned therein and the land is to be distributed among the beneficiaries in existence at the time of the commencement of the: Regulation. If the intention had been to accommodate any other set of beneficiaries (e.g., past beneficiaries) then the Regulation would have, also prescribed as to how the succession of any past beneficiary was further to be regulated. Absence of a provision in this respect shoves that it is only the set of the beneficiaries for the time being, who are to get the land. The test to see whether a person was a beneficiary or not was to see whether the advantage he was receiving was being given to him under the wakf or not. The advantage under the wok may have accrued to a person right from the start of the wakf or it may have begun afterwards and as such the time of the start of that advantage is not relevant and all that is relevant is that the advantage should be one which was in operation at the time when the Regulation commenced. The phrase "benefit reserved under the wakf", in clauses (c) and (d) ibid and the phrase "present advantage accrues under the wakf", quite fit in with this interpretation and any other interpretation would make them unworkable and confusing a situation which cannot be adopted. 6. This is one aspect of section 10 of the Regulation. As would have been clear by now from a study of the said section it consists of two states. One stage is to determine who are the beneficiaries at the time when the Regulation commenced i.e., 9-2-1959-an aspect in support of which we have said enough. The other stage is, that the said beneficiaries are then to be divided into two classes, namely, (i) heirs and (ii) non-heirs. The heirship and non-heirship is to be traced from the wakif (donor) and the date of succession in clause (c) of subsection (2) of section 10 of the Regulation is the date o the death of the donor. If a person is a present beneficiary but was not in existence when the wakif (donor) died, he will not be his heir at that time though he will remain beneficiary no doubt and will have to be considered a non-heir-beneficiary. Conversely, if there was an heir who was in existence at the time when the donor (wakif) died but who himself dies sub--sequently and is not in the land of living on 9-2-1959, then he is not to be included in the panel of beneficiaries. In other words when the donor died, it is to be seen as to who among the present beneficiaries could constitute or constituted as an heirs or non-heir of the wakif (donor). The non-heirs will receive land in proportion to the benefit reserved for them, and heir inter se according to the law of succession. This may be illustrated by an example. Suppose on the date of the commencement of the Regulation there are sixteen beneficiaries out of whom eight are non-heirs and eight are heirs.
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Further suppose that the shares of non-heirs collectively come to twelve annas while the quota available for heir-beneficiaries comes to four annas. The non-heirs-beneficiaries will further sub- divide the quota of twelve annas inter se in accordance with their individual share and the heir- beneficiaries will similarly further re-distribute the quota of four annas among themselves according to their individual share of inheritance. In other words, the estate available for re- distribution among them will be a four-anna share while for non-heirs it will be twelve-anna share. The process can be explained by the following table :- Wakif (Donor) Beneficiaries Quota of non-heir-Quota of heir-- beneficiaries beneficiaries Distribute it among them Distribute it among individually in proportion the heirs individually to the benefit reserved for according to the law each of them under of inheritance. the wakf. The above table will show that the starting point for distribution of the land is to pool the beneficiaries and out of that pool, create two sub-pools . . One consisting of the land equivalent to the collective share of the non-heir-beneficiaries and the other consisting of the collective share of heir-beneficia--ries. Further split up of each of these sub-pools is to be according to the share .Of the individual beneficiary (in case of non-heir-beneficiaries), and according to the law of inheritance in case of heir-beneficiaries respectively. The law of succession is to be the law prevalent at the date of the death of the wakif (donor). At this stage it will be beneficial to reproduce the wakf Deed ire extenso so that we may feel facility while making reference to its very incidents and aspects in the later parts of ,our judgment. The wakf Deed reads as follows :- 7. It is not our intention to make any exhaustive survey of the law on the subject of private wakf (commonly known as wakf alai-aulad) under the Muhammadan Law, and it will suffice for our purpose to state that such wakfs may have different peculiarities according to the nature and number of the beneficiaries and the manner of sharing of the profits inter se in each case. One kind of wakf is that in which the wakif is the sole beneficiary during his lifetime. See Muhammaa Shabir A.I v. Tahir A.I and others (A I R1957 All. 94) and Faqir Muhammad v. Mst. Abda Khatun and others (AIR 1952 All. 127). In such a wakf, the income is appropriated by the wakif himself and no other person has any share in it. Another kind is that in which wakif alongwith his descendants may be the beneficiary. A third kind may be, in which the descendants are the beneficiaries but with this condition that the first generation has preference over the second and no person from the second generation is eligible to share the benefit unless all persons from the first generation are exhausted. Still a fourth kind may be in which the distribution is per stripes and not per capita, with the result that the share of each stripe becomes heritable in that line. These varieties are discussed in detail in Amir A.I's Mohammadan Law, Fourth Edn., (Vol. I), Chapter XI, headed "The Objects of a Wakf (continued) section 1, dealing with the wakf in favour of one's Children and Descendants . . . . . . Principles of construction." Following passages which occur at the pages shown against; each of them are instructive for the subject in hand :- (1) Page 353.-And if a man should say `this is a wakf for (original, upon) my child and for the child of my child and for the child of the child of my child, mentioning three generations, the income is to be expended upon his Mail (children) for ever, so long as there are any descendants and is not to be applied to the poor; while one remains, the wakf is to them, and the lowest among them, the nearer and more remote being alike, unless the wakif say in making the wakf, 'the nearer is nearer',
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or say, 'on my child, then on the child of my child', or say, `generation after generation' (batnan- b'and---batn), when a beginning must be made with them with whom the wakif has begun. (2) Page 359.-If a person were to make a wakf in favour of his children, and make no provisions declaring that upon the death of any one of them his or her share should go to his or her children, such share or interest will merge in the general pool and will be divided among the beneficiaries for the time being. (3) Pages 362-63 -If a man were to make a wakf for hits or anybody else's descendants, without mentioning the order in which they should enjoy the income of the wakf, the near and the remote will take equally, in other words, the division will be per capita. For example if a man were to say, I matte this wakf in favour of Zaid's descendants in perpetuity as long as his line lasts, Zaid's children and grand-children will be entitled to share equaly, and there will be no difference between son's children and daughter's children; they will take equally. This principle applies where no order of succession is indicated by We specification of the line or generation (batn). Where the order of the line is not given, by mentioning `generation after generation' (batnan-b'and-batn), the rents and profits will be divided equally among all the descendants, male as well as female, living at the time of the distribution, the one lower in degree getting the same share as the one nearest. And as each person among them dies his share merges in the wakf estate, and "the entire usufruct is divided among the beneficiaries living at the time of the division. If the succession of lines is given, that is, the wakf is in favour of the descendants, 'generation after generation' (batnan---b'and-batn), in that case it would imply that the nearer line or class takes first and after them the `line' next after'. " The above passages are sufficient for our purpose and if we examine the wakf in hand, in the light of the above principles, we note that here the wakf was for the progeny of the wakif (donor) and the intention was to include among the panel of beneficiaries the descendants of the wakif how- low-so ever, namely, those living at the date of the wakf and also those who may be born subsequently, and there was no intention of the kind that the second generation was to come into picture, after the exhaustion of the first generation. As a matter of fact, when he made the wakf he had only one daughter Mst. Ahmadi Begum in the first generation, yet in her presence: the son of that daughter, namely, Mushtaq A.I Khan was also inclm'ed among the beneficiaries, which shows that this wakf was not to work on the basis of line after line, but simultaneously in favour of all the descendants how-low-soever. Another thing to be taken note of is that the share of each beneficiary was not expressly specified with the result that on the principles tabulated above, the share of each descendant-beneficiary was to remain equal. This equality is traceable even during the lifetime of the wakif (donor), though so far as he himslef was concerned, he reserved a power to vary the manner of distribution, which is an independent concept by itself. After his death, the same equality of share was to be maintained but for the mutawalli (from his progeny) he authorised him to take a double share. The doubling of the share was for or on account of the services which the mutawalli was to perform. This is evident from the following. Sentence in Para. "6-;11" of the wakf Deed. The word dochand according to Feroze-ul-Lughat Urdu Jamep. 590, New Edition by Alhaj Maulvi Feroze-ud-Din, means `doona', 'dugna' and 'dohra' and according to Urdu- English Dictionary by Ferozsons Ltd. (page 365), this word means, "two-fold, double". The word "dochand" does not mean two-third equivalent of which in Urdu is "dotlhai". The learned Land Commissioner and the learned Chief Land Commissioner misread the document when they assumed the word "dochand" so as to wear: "dotihai" or two-third. It appears that since in the earlier: W. P. No. 927/R-63, this Court on the basis of a translation of the above word "dochad" as two-third had held that mutawalli was eligible to get a two-third share, the authorities of the Land Commission adopted the same view and thus were influenced by the same though in their orders they do not expressly say so. Another reason to hold that the mutawalli was not eligible to get 2/3rd
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share is that that would have exhausted the bulk of the income of the wakf property leaving very little for the other beneficiaries. The total value of the property in the wakf Deed was shown as Rs. 20,000.00 (Rupees twenty thousand only) and it cannot be assumed that the wakif who was trying to achieve the benefaction of God Almighty by benefit--ing his descendants would have been unfair to them in the manner of reducing their share to almost negligible portion and at the same time favouring only one of them at an exorbitant rate. Still another thing to be noticed is that the increase in the share of mutawalli, it is clearly mentioned in the above sentence, was to be for services to be rendered by him. The sentence can not be omitted from consideration and the learned Chief Land Commissioner had acted without lawful authority in doing so or in giving a different colour to the status or to the share of the mutawalli in spite of the above sentence dominantly appearing in the deed. 8. When confronted with this situation, learned counsel for the respondent argued that in wakf- alai-awlad, the property vests in the beneficiaries and also in the mutawalli who to all intents and purposes is the owner of the property. 1n this…
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