MUMTAZ AHMAD Versus CHIEF ADMIN OF AUQAF

This order will dispose of F. A. O. Nos. 85/63 and 86/63 as they pertain to the same property and common questions of law and facts are involved in them.

2. The appellants in both these appeals have assailed the order of Mr. S. M. Ishfaq Ali, District Judge, Lyallpur dated 2‑4‑63 by which it was held that Waqf Yaseeni, Jhang was mixed trust and half of it was meant for reli gious, charitable and pious purposes as recognised by Islam and the other half was meant for the maintenance of and allowances for the beneficiaries of the trust who are the heirs and the descendants of the Waqf. It was further held that Mumtaz Ahmad appellant is not entitled to the use and occupation of any portion of Yaseen Manzil situated in Maghiana in his personal capacity as individual beneficiary or to the use or occupation of any portion of house situated at Waryam Railway Station. He was, however, held entitled to the entire land situated at Chah Tibbey Wala in village Kot Lal and its income. The Chief Administrator, Auqaf was held liable to account for half of the income of the trust to the beneficiaries who are the heirs, and descendants of the Waqf.

3. The facts briefly are that by Notification No. 3 (291) Auqaf‑61, dated 9‑10‑1961 published in the extraordinary issue of (he Gazette of West Pakistan on October 12, 1961 the Chief Administrator of Auqaf, West Pakistan, in exercise of the powers conferred on him by section 6 of the West Pakistan Waqf Properties Ordinance, 1959, took over and assumed the administration, control, management and maintenance of the Waqf proper ties dedicated by Khan Sahib Haji Sheikh Ghulam Yaseen, Maghiana, District Jhang, known as Waqf Yaseeni and described as follows in the schedule :‑

(1) Half shares of the following properties :‑

A building known as "Yaseen Manzil" covering an area of about 4 kanals and 5 marlas, situated on Dhabi Road, Maghiana, District Jhang.

(2) A building known as `Raj Manzil' covering an area of about 12 marlas situated near Yaseen Manzil, Maghiana, District Jhang, and balance of unpaid claim allotted and verified in lieu of a residential house situated in Mohallah Katra Sher Singh, Amritsar (Bharat).

(3) All movable properties including stocks, cattles, implements, etc. owned by the said Waqaf lying at Yaseen Manzil, and Mauza Kot Lai (Waryam R. S.), Tehsil Shorkot, District Jhang, or at any other place.

(4) (i) Agricultural land measuring 4,424 kanals and 4 merlas, bearing khewat No. 62, and

(ii) 1/4 shares of agricultural land measuring 5 kanals and 9 marlas, bearing khewat No. 68, situated in the Revenue Estate of Kot Lai, Tebsil Shorkot, District Jhang, along with houses, shops, stores, stables gardens, tube‑wells and other buildings, etc., thereon.

(5) A house situated near Waryam Railway Station at ' Mauza Kot Lai Tebsil Shorkot, District Jhang sold by the Mutavvalli Akhtar Nasir Sheikh to the said Waqf for Rs. 3,000.

(6) Credit balances of the income of the said Waqaf lying in various account numbers of the Australasia Bank Limited, Jhang in the names of .‑---

(a) Waqf‑i‑Yaseeni Current Account ;

(b) Waqf‑i‑Yaseeni Special Account ;

(c) Madrissa Muhammadia Account ;

(d) Waqf‑i‑Yaseeni Reserve Fund Account, and

(e) Joint Account in the names of Sheikh Mumtaz Ahmad and Sheikh Muzaffar Ahmad, and cash balances lying with the Mutawalli/Mana ger of the said waqf.

(2) Kutab Khana Muhammadia (Library), located in Yaseen Manzil, Maghiana with its all books, furniture, etc.

(3) (i) Madrissa‑tul‑Banat with Kasheeda Kari Branch at Yaseen Manzil Maghiana.

(ii) Madrissa Muhammadia with associated activities at Mauza Kot Lal Tehsil Shorkot, District Jhang, and

(iii) Daras Islami at Masjid Dhajji, Maghiana,

(4) Subscriptions made to the said waqf library and Madrissas.

4. Two petitions under section 7 of the West Pakistan Waqf Properties Ordinance XXVIII of 1961 were filed ; one petition C. M. 3/2 of 1961 was filed by Akhtar Naseer appellant in F. A. O. No. 86/63 while the other bear ing C. M. No. 4/2 of 1961 was filed by Sh. Mumtaz Ahmad appellant in F. A. O. No. 85/63.

5. Akhtar Naseer appellant, in his petition claimed that this was not a waqf governed by the Waqf Properties Ordinance as it was a Waqf‑ul‑aulad created under the Musalman Waqf Validating Act of 1913. It is alleged that the appellant is the grandson of the late Khan Sahib Haji Ghulam Yaseen and was managing the property in his capacity as Mutwalli of Waqf‑ul‑aulad. Sh. Mumtaz Ahmad also assailed the notification on the same ground. In addition he pleaded that he is a son of late Haji Ghulam Yaseen and also Lambardar of village Kot Lai, Tehsil Shorkot, District Jhang. According to the registered deeds dated 1‑12‑1941 and 17‑10‑44 executed by late Khan Sahib Haji Sheikh Ghulam Yaseen the land measuring 214 kanals 10 marlas situated at Chah Tibbey Wala village Kot Lai including the well had been reserved for the Lambardar and the entire income was to be utilised by him. It was, therefore, pleaded that being a Lambardar and being in possession of the pro perty in that capacity Sh. Mumtaz Ahmad was entitled to utilise its income and it was not waqf property. He also claimed a right to use the house Yaseen Manzil situated at Dhabi Road, Jhang Saddar and bungalow Yaseeni at Waryam Railway Station alongwith two shops on the eastern side of the aforesaid bungalow.

6. Both these petitions were contested by the respondent. It was denied that the entire property is Waqf‑ul‑aulad. It was averred that Haji Ghulam Yaseen had created a Waqf of his entire property through a registered Waqf deed according to which half the property is meant for the maintenance of his family members and the other half was to be spent on religious and charit able purposes and the property which was taken over by the respondent was a public waqf which was covered by the definition of Waqf Property under the We3t Pakistan Waqf Properties Ordinance, 1961. In the case of Sh. Mumtaz Ahmad it was further averred that all the property claimed by him was Waqf property and that the appellant had neither any right to use Yaseen Manzil or bungalow Yaseeni nor was he entitled to utilise the income of the property which he claimed as a Lambardar.

7. The two petitions were consolidated with the consent of the parties on 21‑2‑1968. It was ordered that the evidence be recorded in the petition filed by Akhtar Nasir. The following issues were framed :‑

(1) Whether the property detailed in the petition is not waqf property ?

(2) Relief.

It was held by the learned District Judge that from the perusal of the Waqf deeds Exhs. P‑1 to P‑3, it appeared that the Waqf was not merely a Waqf as contemplated by section 3 of the Musalman Waqf Validating Act. It appeared to have two purposes in view. On the one hand it provided for maintenance, residence and allowances for the family of Sh. Ghulam Yaseen and on the other it provided for a part of the income to be spent on purposes recognised by Islam as religious, charitable and pious. He further held that half of the property was waqf and the same was rightly taken over by the Chief Administrative who was entitled to half the income to the beneficiaries of the trust. Regarding the claim of Mumtaz Ahmad it was held that under clause 10 of Martial Law Regulation No. 64 land included in the Waqf of the nature described in section 3 of the Musalman Waqf Validating Act VI of 1913 had ceased to form part of such Waqf and was liable to be distributed among the beneficiaries. Mumtaz Ahmad was therefore entitled to the land held by him as Lambardar. His claim to the residential properties i.e. Yaseen Manzil and bungalow Yaseeni was repelled as the deed of Waqf Exh. P‑3 did not mention that these properties had been set apart for the residence of Mumtaz Ahmad. There is a mention in Exh. P‑2 by the Waqf that he had given to Mumtaz Ahmad for his residence a room, a verandah, a kitchen and another room with a bath room. It was held that this recitation is merely a mention of the fact that Mumtaz Ahmad was in occupation of the said portion. However silence on the part of the Waqf in the subse quent trust deed Exh. P‑3 proved that he modified the terms of the earlier trust deeds and Exh. P‑3 being silent on this point it appeared that Mumtaz Ahmad was not entitled to the occupation and residence in the house situated at Waryam Railway Station.

8. As stated above this order is the subject‑matter of the two appeals. The Chief Administrator of Auqaf has filed cross‑objections to challenge the order of the learned District Judge about the land in Chah Tibbey Wala to which Mumtaz Ahmad had been held entitled in his capacity as Lambardar.

9. The evidence in the case consisted of copies of registered documents dated 18‑1‑1935, 1‑12‑1941 and 17‑10‑1944 Exhs. P‑1, P‑2 and P‑3 respectively, and certified copy of the order of the Deputy Land Commissioner dated 10‑6‑59 Exh. P‑4. The oral evidence consists of only the statement of Mumtaz Ahmad. He stated that the property under Waqf was called Waqf Yaseen. The original documents, copies of which are Exhs. P‑1 to P‑3 were executed by Sh. Ghulam Yaseen. This was a Waqf‑ul‑aulad and as such was private Waqf and not a public Waqf. Sh. Ghulam Yaseen died if 1946 and after his death his elder son Nasir Ahmad became Mutwalli. He died in 1951. Then Akhtar Nasir became Mutwalli. The witness is the `Mukhtar' of Akhtar Nasir vide Mukhtar Nama Exh. P‑6. He further stated that the Auqaf Department had taken over the entire property as Waqf although the notification was regarding only half of its income and since then the beneficiaries bad not obtained any benefit from it. He further stated that he was a Lambardar since 1951. A Lambardari square was given to him out of the Waqf property in Kot Lai over the well known as Chah Tibbey Wala but even that square had been taken away by the Auqaf Department. There is a bungalow in Kot Lai in which a portion is reserved for the Lambardar but even this bungalow had been taken over by the Auqaf Department and rent was demanded from him at the rate of Rs. 100 p. m. In cross‑examination he stated that his father had five sons and three daughters. Out of the sons three namely Naseer, Feroze, and Masood had died. Muzaffar was alive. He further stated that his father had divided the income of the property into two parts ; one being spent for public purposes and the other for the benefit of his descendents. He further stated that the public institutions run by the Waqf were for the benefit of the public. There was a girls' middle school with Kashida Kari provision, Dars‑e‑Qur'an, public library at Jhang Magbiana and two Dars‑e‑Qur'an at Kot Lai. The Girls' School was called Madrissa tul‑Banat. He admitted having filed declaration under Martial Law Regulation No. 56 (Exh. R‑1) and the details of the property in the document were given as private and public.

10. The main evidence consists of the documents Exhs. P‑1 to P‑3. It is clear from Exh. P‑1 that the Waqf was created under Act VI of 1913. It was pointed that the property cannot be treated as personal property. Only its rent and profits would be liable to be spent for the purposes of the Waqf. The beneficiaries would be entitled to the rights of residents. In para. 4 it is laid down that after paying the taxes and expenses of repair of the property and staff, 10 %) would be set apart for extension and improvement of the Waqf property every year. During the lifetime of the Waqif one of the two portions of the net income of the property would be liable to be spent by the Waqif on his own requirements and on the maintenance of the members of his family while the other portion would be spent on charitable purposes for example the school, mosque, library, Madrassa‑tul‑banat and Dares‑e Qur'an etc. After the death of the Waqif the same had to continue under the supervision of the Mutawalli.

11. Exhibit P‑2 dated 1‑12‑1941 is a document by which the other property in village Kot Lai, Tehsil Shorkot, Maghiana and Amritsar was included in Waqf. Again it was stated that the Waqf was being created under Act VI of 1913. This Waqf was also created under the same terms and conditions. In para. 8 of this document a provision was made for the setting apart of some land in village Kot Lai for compensating the Lambardar. This land is situ ated at Chah Tibbey Wala and bears an area of 214 kanals 10 marlas. It is further provided that this land will be for the purpose of maintaining Lambardar only if they are appointed from among the beneficiaries. If any stranger is appointed, the income of this property will also be included in the waqf and ultimately will be spent on the advancement of Islamic Education. In para. 14 provision is made regarding bungalow at Waryam Railway Station and it is stated that a portion of it will be used for the residence of the Waqif's wife Mst. Ghulam Fatima during her life time and the other portion has been given to Mumtaz Ahmad for residence. The third portion was being utilised by a Madrassa.

12. Exhibit P‑3 was executed on the 17th October 1944 by the Waqif by which he took over the management of the Waqf from a body which he had created earlier for this purpose. Provisions are also made for the future appointment of a Mutawalli. It was reiterated that half of the income would be spent for the maintenance of the family and the other half for charitable purposes. It was repeated that the Lambardac if appointed from the family of the Waqif would maintain himself from the income of 214 kanals 10 marlas of land in village Chah Tibbey Wala.

13. The learned counsel for the appellants contended that all these three documents have been misread by the learned District Judge in so far as it is clear from them that the Waqf was created under the Act VI of 1913. "It was argued that under section 2(d) of the West Pakistan Waqf Properties Ordinance, 1961 property which was Waqf under the Act VI of 1913 was excluded from the definition of Waqf property. He also argued that even if it is held that this Waqf was a mixed Waqf, even then it is outside the scope of the definition of Waqf property. In this connection he referred to the definition itself in order to show that only public Waqf is covered by the definition of `Waqf property' in the Ordinance.

14. The learned counsel for‑the respondent on the other hand argued that the substance of these documents is to be seen for determining whether half of the property in dispute which was set apart for charitable purposes was for charitable purposes or not. He urged that merely because the Waqif has made a reference to the Waqf Validating Act of 1913 in the documents Exhs. P‑1 and P‑2, would not be sufficient for concluding that this is a Waqf covered by that provision. While arguing this cross‑objection in the appeal filed by Mumtaz Ahmad he urged that document Exhs. P‑2 and P‑3 did not invest the Lambardar with any right to property. He was entitled only to enjoy the income of this property during the tenure of his Lambardari. It was, however, clarified in these two documents that in case the Lambardar was not appointed from among the beneficiaries of the Waqif, this income also would be used for other purposes of the Waqf.

15. For the purpose of deciding these appeals a distinction will have to be made between land and property of residential or commercial character. Even if it is assumed that half of the property which is the subject‑matter of the Waqf was covered by the Waqf Validating Act, 1913 that property ceased to form part of such Waqf under para. 10 of the West Pakistan Land Reforms Regulation known as Martial Law Regulation No. 64 which was enforced on the 3rd March 1959. This para. is reproduced below ; ---

"10. Wakfs.‑(1) Land included in any Wakf of the nature described in section 3 of the Musalman 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 of the Wakf, the land shall revert to him.

(b) If the donor is alive and is not the sole beneficiary and there are other 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 bene fit 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 benefi ciaries, 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.

(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 utilise the land or a portion thereof, as the case may be, in accordance with the provisions of this Regulation.

(3) Where under any such Wakf 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 a charitable institution for the purposes of paragraph 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 exemption under clauses (e) 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."

Sub‑para. (1) provides that land included in any Wakf of the nature described in section 3 of the Musalman Waqf Validating Act shall on the commencement of this Regulation cease to form part of such Waqf. Sub para. (3) further provides that where under such Waqf any specified land has been dedicated for religious, pious or charitable purposes such land may continue to be utilised for that purpose and shall be deemed to be owned or possessed by, religious or charitable institutions for the purposes of Paragraph 9 (c) under sub‑para. (2) all the other land shall be appro priated in the manner provided by its clauses (a) to (d). Clause (c) to sub‑para. (2) is relevant to the present facts and provides that if the donor is dead the land. shall be divided among the beneficiaries. The income of half of the land which forms the subject‑matter of the Waqf was specified as having been set apart for being spent on religious, pious charitable purposes. Under sub‑para. 3 of para. 10, therefore, half of the land shall be deemed to be owned or possessed by the religious or charitable institutions and not by the appellants or any other beneficiary.

16. The property which was set apart for maintenance of Lambardar was not a property dedicated for religious, pious or charitable purposes. That portion of the land was to remain with the beneficiary Lambardar. It is only when a stranger Lambardar is appointed that half of the income of the property would be admissible for being spent on charitable and pious purposes. This land, therefore, cannot be deemed to be specifically dedicated for reli gious, pious or charitable purposes and will have to be disbursed in accord ance with sub‑para. (2). It cannot, therefore, remain as Waqf property under para. 10 of Martial Law Regulation No, 64.

17. Martial Law Regulation No. 64 defines `Land' as follows in its para. 2(5) : ‑---

"2(5) "land" means land, including evacuee land, which is not occupied as the site of a town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes or for purposes allied or subservient to agriculture, such as forests or pastures or livestock or poultry farms, and includes also the sites of buildings and other structures on such land."

The land other than the area of Chah Tibbey Wala amounting to 214 kanals 10 marlas cannot be declared as non‑Waqf property. This area is described in item 4 of the Schedule to the notification of taking over issued by the Chief Administrator of Auqaf under section 6 of the Ordinance which has already been reproduced above.

18. Next comes the question of other properties which includes the buildings. Some portions of these buildings are being used for Kutab Khana Muhammadia, Madrassa‑tul‑Banal with Kashida Kari branch, Madrassa Muhammadia and Daras‑e‑Islami. The decision about these properties was on the determination of the nature of the Waqf. If it is a Waqf created under Musalman Waqf Validating Act of 1913, these buildings will not be deemed to be Waqf properties. If on the other hand it is held that in regard to half of the property Waqf of charitable, pious and religious nature has been created it would be within the ambit of definition of Waqf property, and can not be declared as non‑Waqf property. For arriving at a conclusion it is not necessary to look to any other evidence except the substance of Exhs. P‑1 and P‑2. These documents show that a Waqf under the Musalman Waqf Validat ing Act of 1913 was created by the waqif, although the set apart a substantial income of the property for being used on certain specified religious, charitable and pious purposes particularly on these institutions named in the Waqf‑deed of 1935.

But in order to determine whether the Waqf was governed by the above Act the substance of these documents should be seen and not this declaration by the Waqif. It is necessary to find out whether on proper interpretation of the Act the entire property was covered by it or the income which was set apart specifically for religious or charitable purposes was not within its purview.

According to law as declared by Superior Courts before the enforcement of the Act of 1913 a Waqf was considered valid only if its effect was to give the property in substance to charitable purposes. It was not valid if the effect was to give the property in substance to the Waqif's family. In Abdul Fata Muhammad v. Razamaya (ILR22Cal.619=221A 76), the Judicial Committee held that in case the income of the Waqf property was to be applied in the first instance for the benefit of the settlor's descendants from generation to generation and the trust in favour of charity was to come into operation after the extinction of the whole line of the settlor's descendents, the gift to charity was illusory and that the provision for the settler's family was invalid.

19. In order to find out the true scope of the Waqf Validating Act off 1913 it is necessary to make a reference to the view taken by the Judicial Committee of the Privy Council or the High Courts in India about the vali dity of a Waqf. There was no dispute about the legality of a Waqf which was created entirely for public purposes i. e. for purposes which are pious, charitable or religious according to the Muslim Law. In case of a dedication of property permanently for any or several of all the above purposes the Waqf was considered to be unassailable. A waqf in which a substantial portion was; set apart for charitable purposes even before the Act, 1913 was considered to be valid Waqf. In Mutu Ramanandan v. Vavva Levvai Marakayar (2), property E worth Rs. 20,000 was given in trust. Out of the income of this property 6 % per annum was estimated to be expenses for the Fateha of the ancestors and alms giving and the rest of the income which was estimated at Rs. 90 was for the benefit of the settlor's descendants. It was held by their Lordships of the Privy Council that though 2/5th of the income was to be devoted to the charity and the 3/5th was to go to the family, the effect of the deed was to give the property in substance for charitable reasons and that the deed was, therefore, valid. It was only in case of Waqfs where the properties were not substantially dedicated to charity and provision was made for the maintenance of the Waqf or his members of the family also that the Privy Council took the view in several cases that if the dedication was not substantially to charity but it was merely a cloak for getting the property tied up for the benefit of the members of the family of the Waqif that it was held that the dedication was illusory and as such void. This was held in Muhammad Ahsanullah v. Amarchand Kundu ((1889) 17 Cal. 498 = 17 I A 28), in the case of Abdul Fata Muhammad Ishaq the entire property was to remain in possession of the waqf and his heirs from generation to generation who had a right to appropriate its entire income. Only the ultimate benefit after the extinction of the family was given to charities, the Waqf was adjudicated upon as void and illusory. These authorities created some unrest among the Muslims of India. Ulti mately the Mussalman Waqf Validating Act, 1913 was passed with the follow ing object as given in the statement of objects and reasons :‑---

"Whereas doubts have arisen regarding the validity of Waqfs created by persons professing the Mussalman faith in favour of themselves, their families, children and descendants and ultimately for the benefit of the poor or for other religious, piou9, charitable purposes : and whereas it is expedient to remove such doubts : it is hereby enacted as follows."

Section 4 of the Act expressly stated that "No such Waqf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the Waqf."

Section 3 declared :‑--

"It shall be lawful for any person professing the Musalman faith to create a Wakf which in all other respects is in accordance with the provisions of Musalman Law, for the following among other purposes :‑

(a) for the maintenance and support wholly or partially of his family, children or descendants, and

(b) where the person creating Waqf is Hanafi Mussalman, also for his own maintenance and support during his life‑time or for the payment of his debts out of the rents and profits of the property dedicated

Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Musalman Law as a religious, pious or charitable purpose of a perma nent character."

20. It is apparent from sections 3 and 4 that as held in Haji Qadir Murtaza Hussain Sahib v. Muhammad Murtaza Hussain Sahib (A I R 1943 Mad. 234), that under these sections only private Waqfs had been declared to be valid. It was observ ed in that case that "Under section 3 of Act VI of 1913 certain Waqfs are valid. The first of these is a Waqf for the maintenance and support wholly or partly of his family, children or descendants by a person professing Mussalman faith. It is evidently under this subsection that the learned District Judge thought that the present Waqf came. It seems to me that this view is mistaken. . That section 3(a) of Act VI of 1913 cannot apply to Waqfs which sub‑serve partly charitable and partly private, but must apply to Waqfs originally designed to serve one purpose only and that is private. `For the maintenance support wholly or partly of his family children or descendants' describes two possible sources of Waqf, the first one being sufficiently large to maintain family completely and the second one being insufficiently large for this purpose. That this must be the meaning of the verse seems to be clear from the use of the words 'ultimate' in this proviso :‑‑--

"Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purposes recognised by the Mussalman Law as religious, pious or charitable purpose of a perma nent character."

The existence of this proviso in the section shows, l: think beyond all possi bility of dispute, that the waqf which the section validates are those which are primarily and wholly for the purpose of supporting and maintaining the family, children or descendants of the creator of the Waqf.

This view also appears to have be‑on taken by the High Court of West Pakistan in Chief Administrator of Auqaf West Pakistan, Lahore v. Pir Rashid ud‑Daula and others (P L D 1961 Lab. 993), as is apparent from the following quotation :‑

"The learned trial Judge has held that as the objects of the Waqf under consideration were at least partly private, namely the enjoyment of a part of the income by the descendants of the dedicator, section 3 of the Mussalman Waqf Validating Act, 1913 applied to it. I am clear in my ‑mind that the interpretation which the learned trial Judge has placed on section 3 of the Mussalman Waqf Validating Act, 1913, is not correct. It should be remembered that mixed Waqfs, of the kind of which, according to the learned trial Judge, the Waqf under consi deration was one, were always recognised as valid by the Courts in British India and it was' out of the private Waqf created under the Muslim Law and the Courts in British India had declined to recognise and that it was to get recognition for that kind of Waqfs that the Mussalman Waqf Validating Act was passed. The Statement of Objects and Reasons which has been reproduced in the last paragraph leaves not the slightest reason for the view that Waqfs which are not purely private fall under the section. The correct position that emerges is that while the Mussalman Waqf Validating Act (VI of 1913) governs private Waqf or Waqf‑al‑aulad as they are called, the ordinary Muslim Law governs the public and mixed Waqfs. It follows, there fore, that even if the respondents had succeeded in proving that they were entitled to a part of the income from the shrine, which in my view they have not, the provisions of section 2(d) of the West Pakistan Waqf Properties Ordinance XXI of 1959 would not be inapplicable to the case."

21. It may be stated at this stage that the learned counsel for the appellants had relied upon an observation of their Lordships of the Supreme Court in Rashid‑ud‑Daula v. Chief Administrator, Auqaf (P L D 1971 S C 401 ). The Supreme Court's decision is in the appeal filed against the judgment of the High Court of West Pakistan reported in P L D 1961. Lab. 993, while dealing with the same question their Lordships came to the conclusion that the income of the shrine was Waqf within the meaning of the West Pakistan Waqf Properties Ordinance, 1959. "In this view of the matter", it was held that "no question also arises of these being private or mixed Waqfs within the meaning of section 3 of the Mussalmans Waqf Validating Act, 1913, which have been excluded from the definition of a Waqf under the impugned Ordinance. If it is a Waqf then it is Waqf created by operation of law which is not excluded from the mischief of the Ordinance.

22. On the basis of this observation it was argued by the learned counsel for the appellants that in the view of their Lordships of the Supreme Court both private or mixed Waqfs were within the meaning of section 3 of the Act, 1913. This particular sentence cannot, however, be given this wide interpretation. The High Court's clear view, reproduced above, was not over‑ruled. Their Lordships merely stated that this question whether private or mixed Waqf was covered by section 3 of the Act, 1913 did not arise.

23. The interpretation of the High Court of West Pakistan is justifiable as stated above, from the history of the legislation, its objects and reasons and its section.

24. The Judicial Committee of the Privy Council as well as the Indian High Courts had always taken the view that where the gift to charity is substantial, the Waqf is valid, even though some income of the property might be set apart for the maintenance of the Waqif or the members of his family or the future generations. In Riba Jan v. Kalb Hussain (I L R 31 All. 136), out of the entire income Rs. 1000 was reserved for charitable purposes. It was held that this was substantial dedication to charitable purposes and the Waqf was valid. In Massirat Hassain v. Hossain Ahmad (A I R 1938 Cal. 278 ), cases have been collected in which the Waqf has been held to be public or a private trust on the proportion of income set apart for charitable or secular purposes. It was held to be a private trust in Satheppayyar v. Pariassami (I L R 14 Mad. 1), Abdul l‑lassan v. Aziz Ahmad (25 I C 661 ), Gopal Lai Seth v. Porna Chandra Baset (AIR 1922 P C 253), Parad Dos Pal v. Jagan Nath Pal (A I R 1933 Cal. 519 ), Ali Bakhtar v. Haji and Khundkar Altaf Hussain (A I R 1933 Cal 581), Din Shaw Manrhjee Petit v. Jamsetji Jijibhai (A I R 33 Bom. 509 ) and Syed Shabbir Hussain v. Ashiq Hussain (A I R 1929 Oudh 225). The cases where it has been held to be a public trust referred to in this authority are Jugal Kishore v. Lakshmandas Raghonathdas (I L R 23 Bom. 659 ), Puran Atal v. Darsandas (I L R 34 All. 468), Jadab Jha v. Satdeo Jha (A I R 1929 Pat. 723 ), Ramanaahan Chettiar v. Vavva Levval Markayar (A I If 1916 P C 86), Valdya Nath Ayyar v. Swaminatha Ayyar (A I R 1924 P C 221 ) and Sakhumal Manumal v. Uttam Chand (A I R 1937 Sind 230 ). In Ramanandan Chettiar v. Vavva Levvai Marakayar and others it was provided in the Waqf deed that out of the 2/3rd income Rs. 10 will be paid as salary to the trustee, some provision was made for specific customary charities to be performed and the surplus was to be divided every year among the heirs. Regarding the 1/3rd it was provided that it shall be utilised in purchasing properties to be added to the charity properties to be dealt with similarly. It was held that the dedication to charity was not illusory but was substantial. The following test was also laid down for determining whether the provision for charity is illusory or substantial :‑

"To determine whether any particular case answers the test, all the circumstances existing at the date of the deed must be taken into consideration, such as the financial position of the grantor, the amount of the property, the nature and the needs of the charity, their probable or possible expansion, the priority of their claim upon the settled fund and such like."

24. In Vaidynatha Ayyar and another v. Swaminatha Ayyar and another the terms of the Waqf recited that 2/3rd income will be given to the wife for her life time. Out of the 1/3rd certain debts would be discharged and the balance would be expended on establishing ann dhanam for the pur poses of feeding the poor. After the death of the wife the 2/3rd property will also be used for charitable purposes. It was held that it was a public trust. In Tafazzal Beg v. Majidullah (A I R 1924 Lab. 432), Rs. 2 out of Rs. 22/4 p. m. were given to the relations and balance was to go to charity. It was held that this was not illusory provision. In Nawaz Syed M. Hashim All Khan v. Iffat Ara Hamidi Begum (A I R 1942 Cal. 180 ), 5/10th of the income was to go to Mutawalli, 2/10th to descendants, 2/10th for mosque and an Imambara and 1/10th for extension and improvement. It was held that the Waqf would be valid even without invoking the provisions of Act of 1913.

25. There are at least two cases in which the income was divided equally between charity and the family as in the present case. One is Narain Dass v. Abdul Rehman (A I R 1920 Cal. 379), where it was held that this was substantial gift to charity. Another is Tyebhai Essafali Thingna v. Collector of Ahmad abad (A I R 1944 Bom. 94 ) where half the income which was set apart for charitable purposes was held not to be governed by section 3 of the Act of 1913. This later authority will be considered later in another context also.

26. Even after the Act of 1913 this question of the dedication to the charity being illusory or substantial was considered in so many cases for the reason that before the Waqf Validating Act of 1930 which declared that the Act of 1913 was retrospective in character, it was held by the Privy Council as well as the High Courts in India that the Act was only prospective and could not govern Waqf deeds which had been executed before the enforcement of the Act. In some cases, however, this question was raised and decided as and alternative to the plea of applicability of the Act of 1913. Thus in Balla Mal and others v. Alta Ullah Khan and others (AIR 1927 P C 191) the question of substantiality of dedication or otherwise was decided in view of the finding of their Lordships of the Judicial Committees that the Act of 1913 was not retrospective. In that case only a sum of Rs. 146 out of an income of Rs. 1,558 was reserved for charity. According to the view of their Lordships even this could have been substantial but for a condition of the deed. It was observed "If the Rs. 146 devoted to charity were necessarily to be increased as the life annuities fell in, there could in their Lordships' opinion, be no question as to the validity of the Waqf. Unfortunately, this is not the scheme of the deed." In Beli Ram & Brothers and others v. Chaudri Muhammad Afzal and others (P L D 1949 P C 8 ), this question was considered as an alter native as will be clear from this observation :‑

"Their Lordships think that in the present Waqfnama the gift in charity of three shares out of 15 is not a substantial part of property as would have rendered the deed valid before the passing of the Act, and that deed, if it is to be upheld, must come within the terms of the Act (of 1913)."

Similar case is Muhammad Azam Khan v. Hamid Shah and another (A I R 1947 All. 137), where the Waqf was held valid apart from the provisions of the Act of 1913 on the ground that substantial sum was earmarked for charitable purposes.

27. There is yet another category of case‑law which is relevant for resolving the question in hand. In Mst. Ali Eagum and others v. Badar‑ul- Islam Ali Khan (AIR 1938 P C 184 ), the Privy Council held a waqf to be valid without invok ing in aid the provisions of the Act of 1913 and it was observed that in the circumstances of the case it was not necessary to "pray in aid the provisions of the Mussalman Waqf Validating Act, 1913". At page 87 of the report it was observed "but in their Lordships' view this provision does not show that the testator does not intend to make a Waqf of the properties nor does it render the dedication illusory or make it invalid either on the ground that the property was not substantially dedicated to charity or on the ground that the Waqf had retained a benefit for himself. It is not necessary to pray in aid the provisions of Mussalman Waqf Validating Act, 1913."

28. The Waqf Ordinances of 1959 and 1960 are not the only legislations in which the Waqf falling within the ambit of section 3 of the Act of 1913 has been excluded. A similar provision was there in the Waqf Act XLII of 1923. In section 92 of the C. P. C. it is provided that., it applies to public trusts. Similarly the Charitable and Religious Trusts Act 14 of 1920 w as also made applicable to public trusts. The question whether a Waqf in which the dedi cation is partly to charity and partly to family has arisen in a number of cases arising out of this enactment. I first take up those cases in which the provisions of Act XLII of 1923 specifically exclude the Waqf covered by the Act of 1913 have been interpreted.

This question first came up for consideration in the case of Shabbir Hussain v. Ashiq Hussain, before a Full Bench of the Allahabad High Court. In that case the applicant Syed Shabbir Hussain purporting to act under the Mussalman Waqf Validating Act 1923 furnished particulars required by section 3 of the Act to the Court of the District Judge in respect of certain immovable properties which he held in the character of Mutawalli. Thereafter Sh. Ashiq Hussain made an application purporting to fall within the provision of section 3 of the Charitable and Religious Trusts Act 1920 to obtain an order embodying certain directions to be issued to Syed Shabbir Hussain. The following two objections inter alia were raised;-----

(1) The Act of 1920 did not apply to this trust : and

(2) Sh. Ashiq Hussain was not a person having an interest in the said trust.

It transpired that the trust was a mixed Waqf. In spite of this the District Judge rejected the objections and issued certain directions. The following two questions were referred to the Full Bench by a Division Bench of the Court

(1) Whether the Charitable and Religious Trusts Act XIV of 1920 applies to the case of mixed Waqfs or trusts where a portion of the benefit is allotted for private purposes and a portion for public purposes, so far as the later portion is concerned or whether it applies only to those cases where entire benefit in the Waqf or trust is allotted for public purposes;

(2) Where a person interested in a public, religious or charitable Waqf is entitled to make an application under section 3 Charitable and Religious Trusts Act XIV of 1920 to the trustee or the said Waqf as already furnished to the Court and the particulars and accounts relat ing to the Waqf under sections 3 and 5 Mussalman Waqf Act (XLII of 1923).

The Full Bench answered the questions thus :‑--

(i) That Act of 1920 applies only to those cases where the entire benefit under the Waqf or trust is allotted for public purposes;

(ii) Where a trust is of a public nature any person having an interest in the said trust is entitled to make the application contemplated by section 3 of the Act of 1920, but that he is not so entitled if the pur pose of the trust is partly public and partly private. In the later case his remedy lies to make an application under section 4 of the Act of 1923."

This authority was relied upon !n Tyebhoy Essofalli Thingna v. Collector of Ahmadabad, which has already been referred to. In that case it was held that section 3 of Act of 1913 applies to Waqfs which are in the nature of family settlements pure and simple, where the ultimate benefit is expressly or impliedly reserved fur the poor or for any other purpose recognised by Mussalman Law as the religious, pious or charitable purpose of a permanent character. The provisions of Mussalman Waqf Act, 1923 are applicable to a mixed waqf i.e. one that is partly a public Waqf, that is devo ted entirely to religious purposes and partly a private Waqf. That part of the Waqf which does not fall under section 3 Mussalman Waqf Validating Act 1913 is governed by Mussalman Waqf Act of 1923. This authority (1929 Oudh 225) however, was not relied upon in Mehboob Band! v. Mehboob Hussain Khan (A I R 1937 Oudh 454), on the ground that the observation about the applicability of Act XLII of 1823 was obiter dictum. This, however, does not appear to be correct for the reason that in that case Syed Shabbir Hussain bad himself made an application under the provisions of Act, 1923. Another application under the Act of 1920 was made by Ashiq Hussain. The question, therefore, whether the case was covered by Act of 1920 or Act of 1923 was very much relevant. One other case may be noticed in this connection i.e. Muhammad Abid etc. v. Jafar Hussain (A I R 1930 All. 53(2) ), where it was held that where a substantial portion of the profits of endowed property is earmarked for the support and maintenance of certain specified individuals who are relatives of the Waqf and the remaining portion for the betterment of Shia Community, the Act is not wholly for public purposes and the Act XIV of 1920 and XLII of 1923 are not applicable to it. This case is also distinguishable as in the present case the portion given to charity is not only substantial but is easily divisible. In Al! Bakhtear and others v. Khandkar Altaf Hussain and others, in case of a mixed Waqf where 1/3rd of the income went to the trustee and the rest to charity, it was held that it was governed by the Act of 1923.

29. Now coming to the case under the Act of 1920, in Vishram Manji v. Gangeram Ladha and others (A I R 1939 Sind 13 ), in a suit under section 92, C. P. C. the trial Court divided the trust into two portions : one relating to charitable purposes and the other relating to the trust for benefit of the members of the family. The second trust was held to be void as it was against the rule relating to perpetuity. The decree was, however, passed regarding the portion relating to charitable purposes and trustees were appointed. Appeal against this order was dismissed by the Sind Chief Court by observing that the counsel confessed his inability to dispute the finding. Similar division was effected in Abdul Rajak v. Bai Jimbabai ((1912) 14 Cal. 988). In that case between 1/6th and 1/8th of the income of the settled properties was devoted to immediate charitable trusts, while the rest of the income was substantially settled for the support of the descendants of the settlors in perpetuity. It was held that the trust for charitable purposes were valid, but the trust in favour of the settlor's descen dants is void as it cannot be supported as part of a valid Waqf.

30. In Nanhoobeg v. Ghulam Hussain and others (A I R 1951 Nag, 394), it was held that if a substantial part of the trust is for public purposes and the matter is otherwise covered by section 92 then a scheme can be framed. The Sind case of Vishram Manji v. Gangaram Ladha and others was followed.

31. The preponderance of the opinion is, therefore, in favour of dividing a mixed Waqf into the private trust portion and the public trust portion and to apply the law applicable to public trust or mixed trust at least to portion which is in the nature of a public trust. It appears, however, that there is one condition attached to it that the substantial portion of the dedication should be to public purpose. In the present case the two portions are easily divisible and the portion of dedication to charity is substantial.

32. The Waqf otherwise also will be valid even if no reference is made to the Act of 1913. This is an additional reason for holding that it was not in fact within the ambit of that Act and at least the portion given to charity can be treated as public Waqf by itself.

For all these reasons I am of the view that the order of the learned District Judge was unexceptionable. I do not find any merit in either the appeal or the cross‑objections and dismiss all of them.

As an important law point about the applicability of the Act of 1913 is involved in this case, there will be no order as to costs.

S. A. H. Appeal and cross‑objections dismissed.