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Petitioner: MIRZA AKBAR ALI VS Respondent: MIRZA IFTIKHAR ALI
P
P. L. D. 1951 Lahore 368
Before S. A. Rahman and M. R. Kayani, JJ.
Mirza AKBAR ALI‑Plaintiff‑Appellant
versus
Mirza IFTIKHAR ALI and others‑Defendants‑Respondents
First Appeal No. 26 of 1,949, decided on 2nd May 1951, from the decree of Subordinate Judge, 1st Class, Lahore, dated 29th ` November 1948, dismissing the plaintiff's suit with costs.
(a) Muhammadan Law‑Wakf‑Mutawalli‑Has no power to appoint a successor except on death‑bed‑‑Appointment to last till one is made by Proper authority.
A mutawz'lli has no power to make an appointment, except on death‑bed, and that, even when such an appointment is made, it does not affect the power of the proper authorities, whether‑ they are the Court or members of the family, to substitute it by a proper appointment. Such appointment is merely the last service that the dying mutawalli can perform towards the wakf and takes effect only if no proper appointment is made.
(b) Muhammadan Law‑Wakf‑Mutawalli's own appointment being in the nature of a 'general trust'‑Appointment of successor by, in lifetime and in good health‑ Validity‑Power to spend income of wakf property at own discretion, held, not Power in the nature of a 'general trust'.
'If the wakif or Kazi were to make a condition at the time of appointing the mutawalli that he should have the power of transferring the trust to another and substituting that other in his own place by a sanad‑i‑wakf or wasiat, should necessity arise for it, such a condition would carry with it the power, on the part of the mutawalli, to appoint another mutawalli during his lifetime or in death‑illness'.‑Radd‑ul‑Mukhtar.
Where a mutawalli is empowered to spend the income of the waqf property at his own discretion, it cannot be said that his powers were "general".
A. I. R. 1946 Lah. 200, dissent from. Shuja‑ud‑Din, Akbar Ali and Kanwar Saadat Ullah, for Appellant. Kh. Feroze‑ud‑Din, for Respondent No. 1. Iftikhar Ali and B. Z. Kaikaus, for Respondents No. 2 and 3.
JUDGMENT
M. R. KAYANI, J.‑This is a first appeal from a decision of Mt. Muhammad Salim, Sub judge of the first c?^3s at Lahore, by which he dismissed the suit of Mirza Akbar Ali for a declaration that as a lawfully appointed mutawalli of the wakf relating to the Wazir Khan Mosque in Lahore he was entitled to manage its properties, and for certain consequential reliefs.
The wakf in question was admittedly created by Hakam Alam‑ud‑Din, better known as Nawab Wazir Khan, in 1641. The wakf deed is in Persian and has been copied out from the original by the author of the book, ".Lahore, its History, Architectural Ren2Lin; and Antiquities", The last mutawalli of the wakf was Mirza Sir Zafar Ali, formerly a judge of the Lahore High Court, who died on the 20th September 1942. In 1935, while creating a wakf alal aulad of his own property, he incidentally nominated his eldest son Mirza Iftikhar Ali defendant ' No. 1, as mutamalli of the present wakf, and Mirza Iftikhar Ali has continued to be mutawalli since his death. Sir Zafar Ali had two other sons Mirza Israr‑ul‑Qadir and Mirza Anwar‑ul‑Qadir, both of whom have been impleaded as defendants.
The plaintiff stated in his plaint that, immediately upon the death of Sir Zafar Ali, the members of his family had assembled and, in pursuance of the provisions of the wakf deed and the usage observed b5 the family, had elected the plaintiff as mutawalli, that defendant No. 1, on acquiring knowledge of this election, had taken with him his four brothers‑in‑law, namely, the sons of his uncle Hussain Ali, and proclaimed himself mutawalli in the Wazir Khan Mosque by going through some form of dastarbandi alleging that his father had appointed him mutawalli in .his lifetime. The plaintiff maintained that, in view of the fact that Sir Zafar Ali had for a long time suffered from paralysis and possessed no conscious mind, he was not capable of appointing a successor and could not have made such appointment contrary to ' the ‑wakf mama and established practice. The plaintiff, therefore, asked for a decree, declaring that he bad been a properly appointed mutawalli and requiring the defendants to render account of the wakf properties. A list of these properties was, attached to the plaint.
The plaintiff, it might be explained here, alleged himself to be the son of Mirza Safdar Ali, an elder brother of Sir Zafar Ali. The defendants denied that he was a son of Mirza Safdar Ali. They also denied that he had been appointed mutawalli by the family or that the family had any such power of appointment. Their main case was that, according to the terms of the wakf deed, the Mst. mutawalli had the power of appointing the successor and since Sir Zafar Ali had made such appointment, first in writing in 1936 and again verbally about twenty days before his death,, the question of any appointment by the family did not arise.
The following issues were framed :‑---
(1) Is the plaintiff a legitimate son of Mirza Safdar Ali, and therefore, a descendant of the founder of the wakf?
(2) Was the plaintiff appointed as mutawalli by the members of the family of the creator of the wakf according to the directions and term s of the wakf name or in accordance with th practice obtaining in the family, as alleged in the plaint?
(3) Did Mirza Sir Zafar Ali, the last. mutawalli, appoint defendant No. 1 as his successor and was this appointment according to the direction's and terms of the wakfnama or Muhammadan Law?
(4) If issue No. 2 be found for, the plaintiff, is not defendant No. 1 an accounting party?
The findings of the trial Court were as follows :‑---
(1) The plaintiff was a legitimate son of Mizra Safdar Ali.
(2), (a) The mutawalli, after Nawab Wazir Khan himself was to be his son Muhammad Saeed Khan, after him Nawab Wazir Khan's second son Mirza Muhammad Anwar , and after Mirza Muhammad Anwar the most upright or the most righteous of the male descendants of Mirza Muhammad Anwar.
(2) (b) There was no usage in the family by which election to the office of mutawalli was made by the members thereof.
(2) (c) There was no announcement after the death of Sir Zafar Ali, as alleged by the plaintiff in his evidence, that a meet?ing would be held for the election of a mutawalli and no actual meeting took place. It was true, however, that the majority of the adult male members of the family had subscribed to a docu?ment which purported to be the evidence of the plaintiff's selec?tion as mutawalli. This, however, was not enough, since the plaintiff had not necessarily been selected as the arshad‑i‑zukur (the most upright of the male descendants).
(3) Mirza Iftikhar Ali, defendant No. 1, had been validly nominated by the last mutawalli, Sir Zafar Ali.
(4) Even if the plaintiff succeeded, he could not call upon defendant No. 1 to render an account of the wakf property.
The finding on the fourth issue has not been seriously contested by the plaintiff and the finding on the first issue was accepted by Kh. Feroze‑ud‑Din, learned counsel for the defendants, after some evidence of an undeniable character had been examined. There is in fact such overwhelming evidence in favour of the plaintiff's paternity that it is impossible to regard the defendant's attitude in this behalf as anything but dishonest. ????
The wakf deed provides that the superintendence of the mosque and the attached properties shall vest in the founder during, his lifetime, "wa bad azoo badast‑i‑walad‑i‑ sulbi Muhammad Saed Khan, ba'd‑i‑oo ba Mirza Muhammad Anwar, wa ba'd‑i‑oo ba arshad‑i‑zukur‑aulad‑i‑oo wa aulad‑i‑aulad‑i‑oo batnan ba'd‑a‑batnin wanaslan ba'd‑a‑ naslin" that is to say, " and after the
founder, in the son of his loins Muhammad Saeed Khan, after him in Mirza Muhammad Anwar, and after him in the most upright of his (Muhammad Anwar's) male children and the children of his children, generation after generation and progeny after progeny."
The learned counsel for the defendants tried to aruge that, as the word "aulad" was sometime used in singular also, the intention was that after Muhammad Anwar's children the wakf vested not in his children's children but in the children of the last mutawalli. The short answer to this contention is that in Persian the word "aulad" is never used in singular and no scholar of Persian can correctly translate it in this context to mean that selec?tion is to be confined to the children of the last mutawalli. We have, therefore, no hesitation in agreeing with the learned Sub Judge that any person from the family of Mirza Muhammad Anwar can be appointed as mutawalli.
But the wakf dead says nothing as to the manner in which a successor is to be chosen and for this purpose reliance is placed by the plaintiff on family usage which, according to him, is indicated in the following cases.
(1) Firstly, there is a farman of Ahmad Shah Durrani in the year 1769. A copy from the original in Persian is at p. 21 of the Urdu paper book and an English translation thereof is on p. 219 of the file. This farman states that, since Mirza Muhammad Fazil, a grandson of Nawab Wazir Khan, had represented to him that the appointment and dismissal of the servants of the mosque, such as mutawalli, the mudarris etc., had been in the hands of the descendants of the founder, a farman might be issued restraining others from interfering with these services. A farman was conse?quently issued, confirming the claims of the descendants of Nawab Wazir Khan. It was argued that the submission of Mirza Muhammad Fazil, as reproduced in this farman, clearly shows that the appointment of the mutawalli was in the hands of the founder's descendants. We do not think this result necessarily fellows from the farman, for it not only refers to the appointment of the muta?walli but also to his dismissal, and not to the mutawalli alone but also to other servitors of the mosque, and it is clear that once a mutawalli has been appointed, whether by the family or otherwise, he cannot be dismissed except by the Court, and that, so far as other servitors of the mosque go, they must be appointed or dismiss?ed by the mutawalli, if at all his management is intended to be effective. What the submission apparently intended to convey was that the management of the wakf had vested in the descendants of the founder and that the practice should be confirmed by a Royal Charter.
(2) Next; there are documents relating to the appointment of Mirza Anwar Ali, father of Sir Zafar Ali, and it was argued that this appointment took place with the approval of the entire family. Page 105 of the English record reproduces Exh. P. 19 which is copy of a plaint in a suit brought by Mirza Anwar Ali against almost the entire adult male members of his family for a declara?tion that he was mutawalli of the mosque. The plaint said that, according to the terms of the wakf deed, the person to be appointed mutawalli was to be "the most worthy of his lineal heirs male" and the plaintiff stated that he was already holding possession since his father's death. The pedigree‑table at p. 106 of the English record would show that, with the exception of Wali Ullah,' all the living members of the family were impleaded as defendants. The suit was instituted in 1874 and Wali Ullah had died in 1853. He had admittedly sons living who have not been shown in this pedigree‑table. It is possible that there existed some good reason for not impleading Wali Ullah's sons as defendants. But, even if the exclusion had been deliberate, it will not alter the fact that an overwhelming majority of the members of the family were represented. These members submitted a written statement which is at p. 22 of the Urdu record and which is in substance to the following effect:---
The plaintiff's father was a mutawalli before him and, after his death, the plaintiff has succeeded and has managed the wakf. Now, in the present family, he is the best, the most learned and the ablest and we all accept his mutawalli‑ship."
In the judgment that was given in the plaintiff's favour and which is on p. 106 of the English record, there occurs‑ the following sentence:‑--
"I pointed out to the plaintiff's pleader the futility of his getting a decree in this form; but he presses for it and may have it for what it is worth, Of course, it effects nobody who is not a party to the suit.?
The defendant's answer to this appointment is that, in the first place, Mirza Anwar Ali had been carrying on the duties of muta?walli for two years' after his father's death and he merely asked the Court to confirm him as mutawalli and that, in the second place, as admitted by Mirza Sadiq Ali (P. W. 11), (Mirza Sadiq Ali's father Najib Ali was a defendant in that case, the suit was brought because tenants of the wakf property did not recognise Mirza Anwar Ali and refused to pay rent to him. Mirza Sadiq Ali further stated that it had been instituted with an understanding that his brothers would elect him in Court and, in view of the fact that the written statement pleaded judgment in favour of the plaintiff, some such understanding must have existed. But, while it is true that Mirza Anwar Ali asked the Court to appoint him as mutawalli, the fact that he impleaded almost the entire family as defendants and that in their written statement the defendants accepted him as mutawalli, because he was the best of them all, is an unmistakable recognition of the right of the family to accept the appointment.
(3) The appointment of Sir Zafar Ali as mutawalli in 1911 was also formal. See Exh. P. 3 on pp. 25 and 26 of the Urdu paper book. This in substance is to the following effect:‑
"We the members of the family of Nawab Wazir Khan have great pleasure in recording that Mirza Zafar Ali is the Arshad-uz‑zukur i. e., the best and the ablest of the entire family, and, since it was the will (wasiyat) of his father Mirza Anwar Ali that Sir Zafar Ali should succeed him, now, therefore, Mirza Zafar Ali has at the request of the entire family accepted the post of mutawalli."
This is signed by nine members of the family, and learned counsel for the defendants did not question its authenticity. He only argued that it was not an appointment but a form of adulation by which the family wished to propitiate an important member. The objec?tions of the learned Sub‑Judge are based on other grounds. Firstly, there was not the slightest mention of any usage of the family and, secondly, Sir Zafar Ali was chosen because he was the arshad‑uz-zukur according to the wakf deed and because it was the will of the last mutawalli. Neither these objections nor those of the learned counsel appeal to us. The wakf deed said that the most upright of the descendants of Mirza Muhammad Anwar was to be, mutawalli and the members of Sir Zafar Ali's family said that, since Sir Zafar Ali was the most upright of them, they had great pleasure in accepting him as mutawalli. This was a clear recogni?tion of their right to accept or not to accept. If they accepted him in a flattering mood, it only means that he was by far the best of them, and there is in that case all the more reason why the right of the family to elect or appoint a mutawalli should not be recog?nised, since, even in a case where the appointment was a foregone conclusion, the family exercised their right. The learned Sub‑Judge has criticised the explanation of some of the plaintiff's witnesses that the word "wasiyat" used in this document had been objected to by some of the signatories but that the scribe had explained that it merely stood for "opinion". To some extent the criticism is not unjustified, because, strictly speaking, "wasiyat" does not mean "opinion" but means either a will or a wish and, in this context; it can mean either. The evidence of Mirza bilshad Ali, (D. W. 9) that Sir Zafar Ali became mutawalli under will of his father is clearly indefensible because, if such a will had existed, it would undoubtedly have been produced, and it is admitted that nobody has seen any written will by Sir Zafar Ali's father. But, even if a will had existed, it would not have made any difference to the fact that the family were exercising their right and if in the exercise of that right they took into consideration the wishes or will of Mirza Anwar Ali also, they were merely making a gesture of good will. ??????
(4) On p. 97 of the English paper book is copy of a judgment in a suit filed by the Muslim Anjuman against Mirza Izzat Bakhsh, grandfather of Sir Zafar Ali, who was a mutawalli in 1866, the date of the judgment. This was a suit for the ejectment of Mirza Izzat Bakhsh from the mosque, and the judgment recognises the principle that the mutawalli‑shit was to descend after Muhammad Anwar "to the most worthy of his lineal heirs male."
(5) At p. 107 of the English paper book is a judgment of the High Court delivered in 1906 in a suit brought by Mirza Anwar Ali against Mirza Sadiq Ali (P. W. 11) for the possession of certain property belonging to the wakf. It was observed in that judgment that by the terms of the wakf nama such person was to be chosen who was the fittest of the descendants and it was the descendants who were to choose him: The descendants thus occupied a position of trust with reference to the wakf property; they claimed at various times and had conceded to them the right of appointing and dismissing the mutawalli. This rendered the mutawalli to some extent dependent on them."
These judgments have some value inasmuch as they show that even in 1866 and 1906, they recognised that the right of appointing the mutawalli vested in the family. We have no doubt that the appointment of Sir Zafar Ali and of his father Mirza Anwar Ali establishes some sort ' of a usage' that, the appointment was to be made with the approval of the family.
It was, however, contended for the defendants that the question of usage does not arise? because a mutawalli has a right to appoint his successor and such an appointment has been made in this case. It can 'hardly, be a matter for doubt that Sir Zafar Ali, when creating a wakf of his own property, stated incidentally that his son Mirza Iftikhar Ali defendant No. 1 would succeed him as mutawalli of the mosque. See Exh. 1)..4 on pp. 45 and 46 of the Urdu paper book. It is also claimed that Sir Zafar Ali again ap?pointed defendant No. 1 or confirmed his appointment about twenty days before his death. Evidence to‑this effect is given by Ghulam Dastgir (D. W. 2), nephew of Sir Zafar Ali,‑Zafar Ullah (D. W. 19), a brother of Ghulam Dastgir, and Hamid .Ali (D. W. 22). The evidence of Ghulam Dastgir is to the effect that in the first week of September 1942 he came to Lahore from Hoshiarpur where he was an Assistant Sub‑Inspector and went to see his uncle Sir Zafar Ali in the company of his brother. Zafar Ullah. Sir Zafar Ali told them that, since defendant No. 1 was arshad, he was appoint?ing him as mutawalli. Sir Zafar Ali then dictated a letter to his steno‑typist Hamid Ali (D. W. 22) and addressed it to the Imperial Bank, directing the Bank to transfer the accounts of the wakf tit the name of defendant No. 1. Zafar Ullah (D. W. 19) stated that twenty days before his death Sir Zafar Ali said that he had already appointed defendant No. 1 by a wakf deed and was now making over the accounts to him. Zafar Ullah is rent collector of the wakf properties and states that thereafter he started crediting the wakf balances to the account of defendant No. 1. These two witnesses, it should be made clear, are interested in the defendant, being his brothers‑in‑law. Further, Zafar Ullah, being a rent collector under the mutawalli, must be dependent on him, and two of the brothers of these witnesses and also their mother receive stipends from the wakf.
Hamid Ali (D. W. 22), who claims to have been Sir Zafar Ali's steno‑typist, deposed to having sent a letter to the Imperial Bank on behalf of Sir Zafar Ali, requiring the bank to transfer the wakf accounts to defendant No. 1. Sir Zafar Ali had two accounts in the bank, known as account `A' and account 'B', the former relating to the wakf, the latter personal. The original letter to the bank is not traceable in its records. See the statement of Ghulam Rasu1, Head Clerk, Imperial Bank (D. W. 21). A memorandum, however, addressed by the bank to defendant No. 1 in relation to this letter appears on p. 121 of the English palter book and is to the following effect :‑
"With reference to your letter dated 27th June 1948, we have to advise that a sum of Rs. 9, 995‑4.6 was transferred to the credit of your current account on 1st September 1942 by trans?ferring the amount from Sir Zafar Ali's account."
This does not necessarily show that the transfer was from account 'A' which related to the wakf. It might well have been a transfer from the personal account of Sir Zafar Ali. We would not, there?fore, be prepared to hold on, this evidence that any appointment, which, considering its proximity to the death of Sir Zafar Ali, might be treated as a deathbed appointment, was made by Sit Zafar Ali on or about the 1st of September 1942.
Here, we might pause to consider the provisions of Muhammadan Law in respect of the appointment of a mutawalli. In section 491 (2) of Tyabji's Muhammadan Law, it, is stated:
"The provisions for the appointment of a successor to the mutawalli may be in writing or oral or may be inferred from the prevailing usage.
Among the rulings, to which reference has been made by the Commentator in this connection, there occurs Sayad Abdul Edrus v. Sayed Zaire Sayed Hasan Edrus. (I. L. R. 13 Bona. 555) where it was recognised that a custom might be proved by which the eldest son of the last mutawalli succeeded to the wakf, though in that case the plaintiff did not succeed in establishing such custom.
In section 492, it is stated that in the absence of any express or implied provision in the dedication for the appointment of successive mutawallis,-‑
(1) the wakif is entitled to make the appointment;
(2) after the death of the wakif the executor of the wakif or the survivor of several executors, is so entitled;???????????
(3) or, the death of the said executor or surviving executor, the Court may appoint the mutawalli.
In section 492‑A, the Commentator says that the authorities make no mention of the last mutawalli making a successor to himself, though they also state (a) that a superintendent may at death commit his office to another in the same way as an executor may commit his to another and (b) that a superintendent, while alive and in good health, cannot lawfully appoint another to act for him, unless the appointment of himself were in the nature of a general trust. It is further observed that this death‑bed act cannot; of course, affect the power of the proper authorities to appoint his successor, whether such proper authority is the wakif himself, or his executor, or the Court. But in the absence of the proper authority taking any step to appoint, the death‑bed appointment by the last mutawalli must take effect, the snore so as such an appoint?ment was the last service that the dying mutawalli could perform, towards the wakf, and was necessary in order that wakf property may not, pending an appointment by the proper authorities, remain entirely unattended to.
It is not denied that, with one exception, judicial authority hay consistently adhered to the view that a mutawalli can appoint hip successor only on death‑bed and not while he is in good health, The exception is Haji Abdul Razak v. S. Ali Bakhsh A. I. R. 1946 Lah. 200 where Din Muhammad, J. with whom Harries, Chief justice agreed, held that in a case where a mutawalli is empowered to spend the income of the wakf property at his own dircretion, it can safely be concluded that his powers were general in the sense in which this term is used in Muhammadan Law and that a muta?walli so appointed is empowered to nominate his successors at ant time he likes. With great respect, we do not think that in such a case, i.e., where a mutawalli is empowered to spend the income of the wakf property at his own discretion, it can be said that his powers were "general". This is a technical expression in Muhammadan Law and has been thus explained in Ameer Ali's Muhammadan Law, Vol. I, at p. 455:
"As regards the meaning of the expression `in a general manner' the author of the Radd‑ul‑Mukhtar explains it as follows ;‑
It means that if the wakif or Kazi were to make a condition at the tine of appointing the mutawalli that he should have the ?power of transferring the trust to another and substituting that other in his own place by a sauad‑i‑wakf or wasiat, should necessity arise for it, such a condition would carry with it the power, on the part of the mutawalli, to appoint another mutawalli during his lifetime or in death illness".
It will further be noticed that while interpreting the opinions of the authorities on Muslim law, the learned judges have drawn a distinction between…
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