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Petitioner: CHIEF ADMINISTRATOR OF AUQAF, WEST PAKISTAN, LAHORE VS Respondent: HAMEEDA KHAN
P L D 1969 Lahore 587
P L D 1969 Lahore 587
Before Anwarul Haq and Nasim Hasan Shah, JJ
CHIEF ADMINISTRATOR OF AUQAF, WEST PAKISTAN, LAHORE‑Appellant
Versus
HAMEEDA KHAN‑Respondent
Letters Patent Appeal No. 1006 of 1966, decided on 14th March 1969.
(a) West Pakistan Waqf Properties Ordinance (XXVIII of 1961), Ss. 6 & 2(d), Explanation 2‑P, a Muslim executing will and stipulating therein: (i) until his death he would continue to be proprietor; (ii) after his death entire property to devolve on his wife Z; and (iii) after her death Government to manage estate as a waqf--‑Z on testator's death succeeding to estate and on Parti tion migrating to Pakistan where lands allotted and confirmed in her name in lieu of lands left behind in India‑Chief Administra tor of Auqaf placing reliance on will of P taking over property under S. 6 asserting property allotted to Z to be waqf‑Held, property held by Z in India had not become waqf property at time when she obtained property in Pakistan in lieu of property left in India and, therefore, such property could not be deemed waqf property under Explanation 2 to S. 2(d).
(b) Muhammadan Law ‑ Waqf‑Testamentary waqf‑Could validly be created‑Will in favour of one to exclusion of other heirs without their consent‑Invalid‑Creation of life‑estate in usufruct of property by means of will‑Valid‑Appropriation of property to religious and charitable purposes postponed and made dependent on certain future contingencies‑Dedication for religious and charitable purposes, in circumstances, held, ineffective‑No valid waqf created.
By the law of the Shia sect of Muhammadans, as well as by that of the Sunni sect, a valid waqf could be created by will. A will under the Muhammadan Law in favour of one of the heirs to the exclusion of others without their consent is invalid. The creation of a life estate in the usufruct of the property by means of a will has been accepted as valid under the Muhammadan Law. It is, however, always a question of construction whether there is a life‑estate simpliciter or a grant and a condition. In order to create a valid waqf there must be an immediate dedica tion of the corpus of the property, not dependent upon any contingent event a g. the birth and survival or otherwise of a child although undoubtedly the benefit to charitable purposes may be postponed by interposition of the life‑estate of the waqif him self or of his heirs and descendants. While the Muslim Law, applicable to both the Shia and the Sunni sects, permits the crea tion of a waqf by means of a will, the validity of a waqf would depend upon the validity of the will; and if for any reason the will is held to be invalid under the Muhammadan Law, then it could not operate to create a valid waqf.
Agha Ali Khan and another v. Altaf Hassan Khan and another 14 All. 429; Baqar All Khan v. Anjuman Ara Begum and another 25 All. 236; Muhammad Ahsan and others v. Umar Daraz and others 28 All. 633; Allah Dia and another v. Abdul Gafur A I R 1922 All. 283 (1); Aimna Khatun v. Siddiqur Rah man Dihidar and others P L D 1960 Dacca 647; Mulla's Principles of Muhammadan Law, 16th Edn. paras. 117, 189 and 191; Daulat ram Koshalchand v. Abdul Kayum Nuruddin and others 26 Boni. 497; Naziruddin and others v. Khairat Ali A I R 1938 Oudh 51; Achir uddin Ahmed v. Sakina eewa and another A I R 1946 Cal. 288; Mst. Channo Bi and another v. Muhammad Riaz and another P L D 1956 Lah. 786; Tyabji's Muhammadan Law, para. 596, Third Edn., Wilson's Anglo Muhammadan Law, Third Edn ; Muhammad Naqi alias Naqi Muhammad Khan v. Mst. Begum Jan and others P L D 1965 Lah. 337; Mst. Ali Begum and others v. Badr‑ul‑Islam A I R 1938 P C 184; Haji Muhammad Shafi and others v. Khadim Ali A I R 1944 Oudh 291; Cassamally Jairabhaf Peerbhai v. Sir Currimbhoy Ibrahim and others I L R 36 Bom. 214 and Pathukutti v. Avathalakutti and others I L R 13 Mad. 66 ref.
Dilawar Mahmood for Appellant.
Sh. Abdur Rashid and Malik Muhammad Nadir for Respon dent.
Dates of hearing: 11th, 12th and 13th February 1969.
JUDGMENT
ANWARUL HAQ, J.‑This judgment will dispose of Letters Patent Appeals Nos. 1003,1004, 1006 and i 007 of 1966 which have arisen out of four connected First Appeals bearing Nos. 125, 126, 127 and 128 of 1963, disposed of by a single order by our learned brother Muhammad Akram, J. on the 5th of May 1966. The pro perties in dispute, including agricultural lands situate in various estates and five houses situate in Kasur Town as well as a verified claim for Rs. 2,91,308 relating to urban immovable properties abandoned at Ferozepur (India), were taken over by the Chief Administrator of Auqaf, West Pakistan, by Notification No. 3 (51)‑Auqaf‑62 dated the 29th of August 1962 issued in exercise of the powers conferred on him by section 6 of the West Pakistan Waqf Properties Ordinance, 1961 (hereinafter referred to as the Ordinance) on the ground that they were properties belonging to a Waqf created by the late Pir Ahmad Ali Khan son of Pir Abbas Khan, a resident of Ferozepur City. The respondents to the present appeals presented four separate applications in the Court of the District Judge, Lahore, under section 7 of the Ordinance for obtaining a declaration to the effect that the properties were not Waqf properties. The learned District Judge granted the necessary declaration in each case, with the result that the Chief Administrator of Auqaf came up in appeal to the High Court. All the appeals have been dismissed by the learned Judge in Chambers. Hence the present appeals under Clause 10 of the Letters Patent.
2. The late Mir Ahmed Ali Khan owned considerable landed properties in the revenue estates of Ferozepur, Shah Din Wala and Bareki in Tehsil Ferozepur, and he also possessed urban properties in Ferozepur Town, besides five houses in Kasur Town. On the 30th of March 1897 he executed a will (copy at Exh. P. W. 5/8) in respect of these properties, stipulating that until his death he would continue to be the proprietor and manager of all the properties and if any male issue is born from his wife Mst. Bubu Zohra, then he shall succeed to the entire estate, but if no such male issue is born, then Mst. Bubu Zohra shall succeed to all the properties except certain specified items. She shall be the absolute proprietor of the income accruing from the entire property, but she shall have no power to mortgage or sell the property. If there is any occasion of pressing necessities such as payment of Government revenue or ordinary food expenses, she shall have the power to transfer any part of the property to the extent of the said necessity. He then went on to refer to certain other items of agricultural land and to certain allowances which he was making for his grand‑daughter from a pre‑deceased son. After mentioning several other matters, with which we are not directly concerned in the present case, he then reverted to succession by his wives, stating that his other wife Mst. Sahib Jan had been divorced by him for an immoral act and she was completely deprived of any right to inherit his property. If no issue is born to Mst. Bubu Zohra or if one does not survive, then after the death of Mst. Bubu Zohra the entire property shall be the property of the then Government, which shall manage the affairs in such a way that it shall spend its income in supplying the pilgrims with travelling expenses, and widows, orphans and famine‑stricken people with maintenance, so that this noble deed might result in the spiritual welfare of himself and his ancestors.
3. Pir Ahmad Ali Khan died on the 25th of October 1897 and the property devolved on Mst. Bubu Zohra, as no child was born during the wedlock. The other wife Mst. Sahib Jan brought a suit against Mst. Bubu Zohra for recovery of her dower amounting to Rs. 60,000. The suit was decreed by the trial Court, whereupon Mst. Bubu Zohra went up in appeal to the then Chief Court of Punjab. During the proceedings in appeal the two ladies arrived at a compromise which was registered on the 22nd of March 1906, and according to which Mst. Sahib Jan was entitled to the possession of 2/5th share in the immovable properties left by the‑late Pir Ahmad Ali Khan, and Mst. Bubu Zohra to the remaining 3/5th share thereof in absolute ownership in lieu of their dowers of Rs. 60,000 and Rs. 80,000, respectively. The compromise was accepted by the Chief Court on the 18th of October 1906 and a decree was passed in terms thereof.
4. On the 9th of January 1907 Pir Rehmat Ali Khan, a first cousin of Pir Ahmad Ali Khan, instituted a suit in the civil Court for a declaration that the alienation of property by Mst. Bubu Zohra under the compromise deed dated the 22nd of March 1906 was void and inoperative on his reversionary rights after the death of Mst. Bubu Zohra. This suit was dismissed by the trial Court on the 18th of May 1908, but Pir Rehmat Ali Khan's appeal was accepted by the Chief Court on the 22nd of May 1911. The judgment of the Court is reported as (1912) 13 P L R 489 (copy at Exh. P. W. 5/5). The Chief Court held that the razinama virtually amounted to a sale of the estate by Mst. Bubu Zohra, and as it was not effected with the previous permission of the District Judge, the transfer was voidable at the instance of the plaintiff under section 90 of the Probate Act, 1881. The Chief Court further held that there was no proof that in the matter of wills the Pathans of Ferozepur were governed by agricultural custom, and accordingly the will by Pir Ahmad Ali Khan in favour, of one of the heirs to the complete exclusion of the other heirs was invalid except with the consent of the heirs under Muhammadan Law. As a result the Chief Court granted the necessary declaration to Pir Rehmat Ali Khan. However, the two ladies continued to hold the estate until the time of their migration to Pakistan on account of Partition disturbances of 1947.
5. In Pakistan agricultural lands were allotted and confirmed in the names of Mst. Bubu Zohra and Mst. Sahib Jan in lieu of the lands held by them in India. Mst. Bubu Zohra died on the 19th of October 1959 and Mst. Sahib Jan about a month later in November 1959. The respondents to these appeals are reversioners of Pir Ahmad Ali Khan and others, and claim to have inherited the properties left behind by the two ladies.
6. Before the learned District Judge Petition No. 19 of 1962 was moved by Badar‑ud‑Din Khan, Qutab Din Khan, and Daulat Khan, sons, and Kist. Bubu Sahiban, daughter, of Pir Rehmat Ali Khan who had obtained a declaratory decree from the Chief Court. These persons claimed that as the will made by Pir Ahmad Ali Khan was wholly void and ineffective and did not create a Waqf, they were entitled under the law to inherit 3/4th share in the entire estate left by Pir Ahmad Ali Khan, and likewise in the properties allotted in lieu thereof in Pakistan. They further alleged that the Auqaf Department had no right to take over agricultural land measuring 324 kanals and 6 marlas situate in the estate of Chak No. 43/38, Tehsil Okara in the Sahiwal District, as it had been allotted to them in lieu of the private property inherited by them in India from their father Pir Rehmat Ali Khan, and it had nothing to do with the property left by Pir Ahmad Ali Khan.
7. Petition No. 23 of 1962 was moved in the District Court by Khan Muhammad Sher Nawaz Khan, a brother of Mst. Sahib Jan, the lady described as the divorced wife in the will of Pir Ahmad Ali Khan. He relied on the compromise decree passed by the Chief Court of Punjab on the 18th of October 1906 under which Mst. Sahib Jan was found to be entitled to 2/5th share in the estate of Pir Ahmad Ali Khan, and further alleged that on the 28th of January 1907 Mst. Sahib Jan had sold to him and his brother Khan Muhammad Nawaz Khan a portion of the land held by her under the compromise. He asserted that besides the land obtained by him in lieu of the property purchased by him from his sister Mst. Sahib Jan, he had obtained land under Khatoni No. 22 in the estate of Bela Hithar in his own right and it could not have been acquired by the Auqaf Department. Finally, he claimed to be the heir of Mst. Sahib Jan with regard to her remaining properties.
8. The third Petition bearing No. 21 of 1962 was moved by Abdul Aziz Khan and Ahmad Nawaz Khan, sons of Muhammad Nawaz Khan, the other brother of Mst. Sahib Jan. They based their claim on the sale effected in favour of their father by Mst. Sahib Jan.
9. The fourth Petition bearing No. 25 of 1962 was moved by Hamiday Khan, son of Sadiq Muhammad Khan deceased, the only brother of Mst. Bubu Zohra. He claimed that he was entitled to the entire estate as the sole heir of Mst. Bubu Zohra, the other wife Mst. Sahib Jan having been divorced by Pir Ahmad Ali Khan during his lifetime.
10. All the petitions were resisted by the Chief Administrator of Auqaf, West Pakistan, by placing reliance on the will of the late Pir Ahmad Ali Khan in support of the dedication, and by asserting that the compromise decree passed in the suit brought by Mst. Sahib Jan had been set aside and was altogether ineffective, and finally that Mst. Bubu Zohra bad merely a limited life interest in the estate left by the deceased and accordingly she was not competent to dispose of the property which came into her hands on the death of her husband.
11. The learned District Judge held that as the will executed by the late Pir Ahmad Ali Khan on the 30th of March 1897 had be‑.n held to be invalid by the Chief Court of Punjab in the suit brought by Pir Rehmat Ali Khan on the ground that it had been made in favour of one of the heirs without the consent of the other heirs under the Muhammadan Law, it had become inoperative as a whole and could not, therefore, legally create a Waqf in respect of the properties after the death of Mst. Bubu Zohra. He also held that land measuring 324 kanals, 2 marlas and 197 Sq. Ft. situate in the revenue estate of Chak No. 43/3‑R, Tehsil Okara, obtained by Badar‑ud‑Din and others, was not in lieu of the property of Pir Ahmad Ali Khan and could not, therefore, be taken over by the Chief Administrator of Auqaf. On these findings all the properties in dispute were declared to be non‑Waqf properties.
12. Before the learned Judge in Chambers it was contended that the learned District Judge had misinterpreted the judgment of the Chief Court, Exh. P. W. 5/5, and had erroenously held that the will stood invalidated even in respect of the dedication of the properties to charitable purposes. The learned Judge has, however, repelled this contention, and has expressed the view that on the failure of the bequest to the testator's wife for want of the assent of his other heirs the bequest to charity also failed altogether. He has further held that the will in question was also ineffective as regards the creation of the Waqf for the reason that it not only postponed the appropriation of the properties to religious and charitable purposes until the termination of the life estate of Mst. Bubu Zohra, but it made it dependent on future contingencies, a course of action not permitted by Muhammadan Law. Finally, the learned Judge has referred to Explanation 2 to the definition of Waqf property as contained in clause (d) of section 2 of the Ordinance, and has observed that before this provision can be invoked it must be established that the property left behind in India was Waqf property, and, that the allotment of the property in Pakistan was made in lieu of the Waqf property abandoned in India. He has stated that as the appropriation to Waqf was to take place after Mst. Bubu Zohra's death, it is clear that the properties continued to be secular properties in her hands until her migration to Pakistan, with the result that the properties allotted in lieu of these properties abandoned in India could not be deemed to be Waqf properties in accordance with the relevant definition clause. On these findings the learned Single Judge has upheld the declaration granted to the respondents in each case by the learned District Judge of Lahore. He has also upheld the finding of the District Judge with regard to the non‑Waqf nature of 324 kanals 16 marlas of land claimed by the respondents Badar‑ud‑Din etc., in their own right.
13. It will be seen that the properties in dispute can be classified into the following categories :‑
(1) Agricultural lands claimed by the respondents to have been obtained by them in Pakistan in lieu of their own properties abandoned in India, unconnected with the inheritance of the late Pir Ahmad Ali Khan,
(2) agricultural lands and the verified claim obtained by the respondents in Pakistan in lieu of the properties of the late Pir Ahmad Ali Khan abandoned in India, and
(3) five houses situate in Kasur Town, now in the possession of Badar‑ud‑Din, respondent No. 1 in LPA 1003 of 1966, which admittedly belonged to Pir Ahmad Ali Khan, and are mentioned in his will.
14. In the first category of properties are included 324 Kanals 16 Marlas of agricultural land situate in the estate of Chak No. 43/3‑R, Tehsil Okara, allotted to Badar‑ud‑Din etc., in respect of which a finding has been recorded by the learned District Judge that this land was obtained by the respondents in lieu of the lands inherited by them from their own father Pir Rehmat Ali Khan, unconnected with the estate of the late testator Pir Ahmad Ali Khan. This finding was not challenged before the learned Judge in Chambers, and nothing has been said before us either by Mr. Dilawer Mahmood appearing for the Chief Administrator of Auqaf. This land must, therefore, be clearly excluded from the notification issued by the Auqaf Department.
15. We find that there was an assertion by the respondent Khan Muhammad Sher Nawaz Khan, a brother of Mst. Sahib Jan, in Petition No. 23 of 1962 before the learned District Judge, Lahore, that the property obtained by him under Khatoni No. 22 in the estate of Bela Hithar had been obtained in his own right and had nothing to do with any property abandoned in India by Mst. Sahib Jan, but there does not appear to be any specific finding by the learned District Judge in this behalf, nor does the point appear to have been agitated before the learned Single Judge. As there is no material before us with regard to the true nature of this property, we shall deal with it on the assumption that it stands included in the second category, namely, that it was also obtained in lieu of properties of Pir Ahmad Ali Khan abandoned in India.
16. As regards the second category mentioned above, namely, the verified claim and the agricultural lands obtained by the respondents in Pakistan under the Rehabilitation Settlement Scheme or other provisions of the Settlement Laws in lieu of the estate of the late Pir Ahmad Ali Khan abandoned in India, it is to be observed that these properties, by themselves, are not Waqf properties and they are sought to be treated as such only in view of the deeming clause contained in Explanation 2 to clause (d) of section 2 of the Ordinance. The clause in question defines the term "Waqf property" as meaning "property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Mussalman Waqf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants". Explanation 2 to this definition lays down that "property allotted in lieu or in exchange of Waqf property left in India shall be deemed to be Waqf property". The question, therefore, arises whether the property of the late Pir Ahmad Ali Khan could be said to have become Waqf property by 1947 when Mst. Bubu Zohra and Mst. Sahib Jan,, who were holding the properties; were forced to migrate to Pakistan.
17. We have already reproduced the relevant provisions of the will made by Pir Ahmad Ali Khan on the 30th of March 1897, from which it is clear that on the testator's death the property was to devolve on Mst. Bubu Zohra as a life estate, with the result that irrespective of any question of the validity of the will, the dedication was to become operative on the death of Mst. Babu Zohra. Even otherwise the definition of the term "Waqf property" as given in clause (d) of section 2 of the Ordinance excludes property of any Wakf under which any benefit is for the time being claimable for himself by the person by whom the Wakf was created or by any member of his family or descendants. According to this definition, therefore, the property could not be regarded as Wakf property as long as it was held by Mst. Babu Zohra under the terms of the will, and it would become Wakf property only after her death. It follows, therefore, that by the time Mst. Babu Zohra migrated to Pakistan in 1947, the property held by her in India had not become Waqf property and, therefore, any property obtained by her, or any of the respondents claiming under her, in lieu or in exchange of the pro perties left in India could not be deemed to be Waqf property under Explanation 2 referred to above. This finding is sufficient to dislodge the claim of the Chief Administrator of Auqaf with regard to the properties said to have been obtained by the respon dents in lieu of the estate of the late Pir Ahmad Ali Khan abandoned in India.
18. It was contended by Mr. Dilawar Mahmood, the learned Assistant Advocate‑General, that as under the terms of the will the properties in India were to become Waqf properties on the death of Mst. Bubu Zohra the same would be the case with regard to the properties obtained in lieu thereof in Pakistan, and accordingly we should hold that from 1959 onwards the properties in dispute had become Waqf properties. The argument is certainly ingenious, but devoid of merit. Pir Ahmad Ali Khan had purported to create a Waqf with regard to his own properties situate in India, and the dedication could not extend to other properties over which he had no control, except by virtue of the Explanation to which we have already referred. The operation of this Explanation has obviously to be restricted to the properties described therein, and cannot be extended by the Courts on any extraneous considerations of a charitable or religious nature. The properties obtained by the respondents in Pakistan not being covered by the definition of the term "Waqf property", read in the light of the relevant Explanation, cannot be converted into Waqf properties by stretching the definition for the benefit of the Auqaf Department.
19. As regards the five houses situate in Kasur Town and specifically included in the will of the late Pir Ahmad Ali Khan, the following questions appear to arise for determination:‑
(a) Whether a Waqf could be validly created by means of a will,
(b) whether the will was invalid on account of the fact that it was in favour of one of the heirs without the consent of the other heirs, and that it created only a life interest in favour of Mst. Bubu Zohra,
(c) if the will was invalid for the reasons just mentioned, could it still operate to create the Waqf after the termination of the life estate of Mst. Bubu Zohra, and
(d) assuming that the will was valid, did it operate to create the Waqf in spite of the fact that the dedication was postponed owing to the intervention of the life estate of Mst. Bubu Zohra and it was made dependent on a future contingency, namely, the absence of a male issue.
20. On the question of the creation of a testamentary Waqf the learned counsel for the parties have been good enough to refer to several authoritative decisions which may be usefully mentioned here. In Agha Ali Khan and another v. Altaf Hassan Khan and another (14 All. 429) a Full Bench came to the conclusion that according to the law applicable to the Shia sect of Muhammadans a Waqf bil‑wasiyat or a testamentary waqf was not valid unless actual delivery of possession of the appropriated property was made by the Waqf himself to the Mutwali, and in the event of the Waqif's death before actual delivery of possession of the appropriated property by him to the Mutwali or the beneficiaries of the trust, the heirs of the waqif could not validate the Waqf by consenting to the disposition. As a result, it was held that under Shia law a Waqf cannot be created by will, though the result can be secured indirectly by making a gift of the property with a direction to the donee to create the Waqf desired. This decision of the Full Bench was, however, dissented from by their Lordships of the Judicial Committee in Baqar Ali Khan v. Anjuman Ara Begum and another (25 All. 236), and it was laid down that by the law of the Shia sect of Muhammadans, as well as by that of the Sunni sect, a valid Waqf could be created by will. Again, in Muhammadi Ahsan and others v. Umar Daraz and…
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