ANJUMAN HIMAYAT-E-ISLAM, LAHORE Versus Dr. SYED FAROOQ HASSAN

ORDER

TASSADUQ HUSSAIN JILLANI, J--- This judgment shall dispose of Civil Petition No.1229-L of 2005 filed by Anjuman Himayat?e-Islam and Civil Petition No.1017-L of 2005 filed by Dr. Farooq Hassan, as they are directed against the judgment dated 27-4-2005, passed by a learned Single Judge of the Lahore High Court, Lahore vide which while granting the declaration that petitioner Anjuman-Himayat-e-Islam was "Mutwali" of the suit property, dismissed petitioner's Civil Revision No.686 of 2000 (filed by petitioner in C.P. No.1229-L of 2005) on the ground that suit was not maintainable. Thus the concurrent judgments and decrees dismissing petitioner's civil suit were affirmed.

2. Facts briefly stated are that late Rehmat Ali Khan was owner of the property subject matter of this petition who created a Wakf-ul-Aulad in respect of the said property through a deed (bearing No.4066 executed on 29-7-1931 and registered on 31-7-1931, entered in Behi No.1 Volume No.1573 on 2-8-1931 in the office of the Sub Registrar, Lahore). In terms of the said Wakf deed it was stipulated that the executant Rehmat Ali Khan would be the fist Mutwali, upon his death his wife Mst. Taj Begum would be the second Mutwali, upon the demise of said Taj Begum, Qamar Sultan & Daisy Dilara would be the joint Mutwalis (grandchildren of Wakf Rehmat Ali Khan) being the children of his pre-deceased daughter namely Rehmat Jehan. At the time of the execution of the Wakf Qamar Sultan and Diasy Dilara were minors and it was further stipulated that upon their demise petitioner i.e. Anjuman-Himayat-e-Islam registered would be Mutwali of the property. Respondent-defendant Dr. Farooq Hassan (petitioner in C.P.No.1017-L of 2005) is son of the last Mutwali Diasy Dilara who passed away in 1992 whereas it is admitted that Qamar Sultan had died earlier to that. After the death of Daisy Dilara, petitioner-plaintiff/Anjuman-Himayat-e-Islam filed suit for permanent injunction on 30-12-1992 and prayed that the respondent-defendant be restrained from interfering in the management of property or to demand rent from its tenants. In the written statement filed by Dr. Farooq Hassan the plea taken was that in terms of the Wakf deed after the demise of Daisy Dilara respondent-defendant Dr. Farooq Hassan (petitioner in CP No.10l7-L 2005) would be the Mutwali and the management of the property would only vest with the petitioner upon the extinction of the line of descendents of the original Wakf namely Rehmat Ali Khan. Preliminary objection with regard to the maintainability of the suit was also raised to the effect that the suit was not properly framed as relief of possession was not prayed; that the suit did not bear the requisite court-fee and that it had not been filed through the duly authorized representative of the Anjuman. The trial Court vide its order dated 21-2-1994 rejected the plaint which order was challenged in appeal. The learned Appellate Court on 18-5-1994 remanded the case with a direction to frame the issues and decide afresh. Pursuant to the remand, the trial Court framed issues and on 15-11-1994 the suit was dismissed which judgment and decree was challenged in appeal and vide the judgment dated 22-4-1997, it met the same fate. However, the learned Lahore High Court while allowing the Civil Revision reversed the afore-referred concurrent judgments and decrees and remanded the case for afresh trial. Pursuant to the remand, the learned trial Court framed 8 issues, parties were allowed to adduce evidence and vide the judgment and decree dated 8-10-1999, it dismissed the suit on the ground that the suit was not maintainable in its present form as relief of possession has not been sought and further that the plaint had not been filed by a duly authorized representative. On merits it was held that petitioner-Anjuman-Himayat-e-Islam was not the Mutwali of the property. This judgment was challenged in appeal which was dismissed on 7-3-2000 and petitioner's civil revision was also dismissed on 26-10-2000. The afore-referred judgment and decree was challenged before this Court in Civil Appeal No.343 of 2001 which was allowed on 8-9-2004 with a direction to the learned Lahore High Court to decide the matter afresh on merit. The learned High Court decided the question of nature of Wakf in favour of the petitioner/Anjuman-Himayat-e-Islam after considering the entire recital of the Wakf deed. The Court held that after the demise of the last Mutwali Daisy Dilara, the management was to vest in petitioner/Anjuman-Himayat-e-Islam. It was further observed that the transaction in question is a Wakf whose validity had been sanctified and upheld in Mubarak Jan's case (AIR 1938 Lahore 452) and even by this Court in its remand order dated 8-9-2004.

3. Notwithstanding the afore-referred findings rendered by the learned High Court in favour of the Anjuman Himayat-e-Islam, it dismissed petitioner's civil revision holding that the suit was not maintainable as, "the suit had been filed through Asmat Ullah Arshad the Estate Officer of the petitioner. No authority in favour of Asmat Ullah Arshad has been produced in evidence???.In addition thereto, the form of the suit is also dubious. In the facts and circumstances, the suit for injunction simpliciter is not maintainable. Relief of declaration and/or possession must necessarily should have been made".

4. Mr. Shahid Hamid, Advocate Supreme Court, learned counsel for the petitioner submitted that having decided the matter on merit in favour of the petitioner it was not open for the learned High Court to dismiss petitioner's civil revision on a technical ground i.e. the suit had not been filed by a properly authorized person; that the onus to prove the issue with regard to the maintainability of the suit (i.e. Issue No. IV) was on the defendant who miserably failed to discharge the onus; that in absence of any evidence to prove the said issue petitioner-plaintiff was under no obligation to lead any evidence qua the same; that if the learned High Court was of the view that the prayer for possession in the plaint was imperative, the Court could itself allow the plaintiff to amend the Plaint as with regard to the bone fides of petitioner- Anjuman-Himayat-e-Islam, the defendant had not raised any objection whatsoever in the Written statement; that admittedly the Anjuman-Himayat-e-Islam had filed the suit through its Estate Officer Asmat Ullah; that no evidence Was led to show that the said Asmat Ullah Arshad was not an authorized officer; that it was not even asserted as an allegation by any witness Produced by the defendant; that the Courts below in dismissing the suit have not only gone against the latter and intent of the Wakf deed but have also impeded the working of a charitable organization. In support of the submissions made, learned counsel relied on Keramat Ali v. Muhammad Yunus Haji (PLD 1963 SC 191), Mst. Ghulam Bibi v. Sarsa Khan (PLD 1985 SC 345), Mst. Zudeda Begum v. Wali Muhammad Khan (1974 SCMR 181), Syed Ali Asghar v. Creators (Builders) 2001 SCMR 279) and Ghulam Nabi v. Sardar Nazir Ahmad (1985 SCMR 824).

5. Learned counsel for the respondent in Civil Petition No.1229-L of 2005 who is counsel for the petitioner in Civil Petition No.1017-L of 2005, defended the impugned judgment in so far as it dismissed petitioner's civil suit holding it to be not maintainable. He submitted that the learned High Court rightly dismissed the suit upholding the objection of the defendant to the effect that the suit had been filed by an unauthorized person and that the suit was improperly framed. He contended that having dismissed the suit the learned Courts could not have granted declaration in favour of the petitioner-plaintiff qua the nature of the Wakf which declaration even otherwise was against the spirit of the Wakf deed. According to him, a bare reading of the title of the deed i.e. Wakf-ul-Aulad would indicate that it was not confined to the immediate descendents of the Wakaf/executant but included the descendents howsoever-low and any other interpretation, he maintained, would defeat the very purpose of the instrument. It was further contended that in giving the declaration qua the nature of Wakf the learned High Court has reversed the concurrent judgments and decrees of the Courts below which was not tenable and reflects misreading and non-reading of the essential element of the Wakf instrument. Learned counsel added that a close reading of the title and recital would show that the deed was in the nature of an "umra gift" in which the property in question was dedicated to his descendents and any condition in the recital which was violative of main intent of the deed needed to be read down and held to be of no legal effect. Having declared that it was Wakf-ul-Aulad i.e. for the executant's offspring and their decendents it would not be terminated on the death of the grandchildren of i.e. mother of Dr. Farooq Hassan namely Daisy Dilara. Any such condition according to him was invalid and cannot be given effect to. In support of the submissions made, learned counsel relied on Abdul Hameed v. Muhammad Mohiyddin Siddique Raja (PLD 1997 SC 730).

6. We have heard the learned counsel for both the parties and have gone through the impugned judgment as also the evidence on record.

7. The concept of Wakf-ul-Aulad is well recognized in Muslim Law. Section 3 of the Mussalman Waqf Validating Act, 1913 provides a follows:-

"3. Power of Mussalmans to create certain Waqfs. ---It shall be lawful for any person professing the Mussalman faith to create a waqf which in all other respects is in accordance with the provisions of, Mussalman Law', for the following among other purposes.:--

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

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

Provided that ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character."

Clause (a) of section 3 above quoted, makes it permissible for any person w create a Waqf `wholly' or `partially of his family or descendents'. It also carries a proviso to the effect that the ultimate benefit in such cases may be reserved "for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character". The nature and vires of the Wakf-ul-Aulad executed by late Rehmat Ali Khan i.e. whether the executant could create a Wakf for the maintenance and support wholly or partially of his family, whether it could be created in favour of some of heirs to the exclusion of others and whether after the death of his grandchildren namely Qamar Sultan & Daisy Dilara petitioner-Anjuman-Himayat-e-Islam could become its exclusive Mutwali, have already been adjudicated upon by a learned Division Bench of the Lahore High Court in Mst. Mubarak Jan v. Taj Begum's case (AIR 1938 Lahore 452). The said case pertained to the very Wakf which is subject matter of this petition, it arose out of a civil suit filed by Mst. Mubarak Jan, the second daughter of the executant namely late Rehmat Ali Khan whose precise plea in impugning the Wakf was that she was entitled as an heir to 7/8th of the house. The suit was dismissed. In dismissing the appeal the learned High Court came to the conclusion that after the death of the heirs mentioned in the Wakf deed the property would go completely to Anjuman-Himayat-e-Islam. Commenting on the import of a Muslim Waqf with reference to section 3 of the Mussalman Waqf Validating Act, 1913, it held as follows:--

"It is clear however, that the words `which in all other respects in accordance with the provisions of Mussalman law' do not refer to the law of inheritance but the law of wakfs as governed by Mussalman law. Further, sub-clause (a) allows a wakf for the maintenance and support wholly or partially of his family, children or descendants, and it has been held by a Division Bench of the Sindh Judicial Commissioners Court in 125 IC 33 that the expression `family children and descendants' in Cl. (a), S.3, Mussalman Wakf Validating Act, do not mean the family or children or descendants as a class but may mean only some persons of a particular class and that under the Mahomedan law a valid wakf can be created in favour only of some members of the family or some of the children or descendants, whether males or females, and to the exclusion of others. This authority is on all fours with the present case while it may further be pointed out that in a Division Bench case, AIR 1928 All 516, two widows received most inadequate benefits while both daughters were entirely neglected except that one daughter was to receive for her life, after her mother's death, the scanty allowance payable to her mother in the first instance. That therefore is another instance of exclusion of some of the descendants. There is no question that the wakf is valid: in fact in the present case it goes completely to the Anjuman Hamayat Islam after the death of the two grand children."

8. Admittedly, the afore-referred Division Beneb's judgment of the Lahore High Court attained finality and it has not been interfered with. The afore-referred view has been reiterated in the impugned judgment in terms as follows:--

"There can be no cavil with the argument that Aulad in its meaning and import is not limited to the immediate offspring i.e., the children but can with reference to its context extend to descendants. However, the provision of the 'Musslman Wakf Validation Act 1913, more particularly sections 2, 3 and 4 thereof are permissive in nature and permit a Muslim to create a Wakf wherein the benefit and management of the property vests in the family/children and descendants of the Wakf till the extinction of the line of descendant, whereafter, the property may be used for charitable purposes. This is clear and obvious from the tenor of section 4 of Musslman Wakf Validation Act, 1913 which is reproduced as hereunder:

No such wakf 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 wakf."

While interpreting the deed, the Court candidly held petitioner-Anjuman-Himayat-e-Islam to be the Mutwali after the death of Daisy Dilara. It further observed as under:--

"It may be noted that Wakf in clear and unambiguous terms states that upon the demise of the Daisy Dilara and Qamar Sultan, the management and related benefits of the property would vest in Anjuman Himayet-e-Islam. Furthermore, any terms or words to the effect that the benefit or the management of the property would vest in the descendants of Qamar Sultan and Daisy Dilara are conspicuous by their absence.

The clear wording of the Wakf deed leads to an irresistible conclusion that upon the demise of the last Mutwali Mst. Daisy Dilara, the management of the property would vest in Anjuman Himayet-e-Islam, and the benefits therefrom are to be used for the up keep of Muslim orphans."

The findings reproduced above are neither against the evidence on record nor the law applicable.

9. Coming to the question of maintainability of the suit on the ground that it was filed by an unauthorized person or that its format in not adding a prayer for possession was defective, we may observe with respect that certain important elements of the case and the law declared escaped the notice of the learned High Court. The objection with regard to the maintainability of the suit was taken as preliminary objection No.2 by the defendant in the manlier as under:

"No.2. Thai the plaintiff has not instituted the suit with proper legal authorization and hence plaint is liable to be dismissed".

10. The learned trial Court framed 8 issues and the precise issue relatable to the afore-referred preliminary objection was No.IV which reads as under:--

Whether the suit is liable to be dismissed in view of preliminary objections Nos. 1 and 2? OPD.

11. Admittedly Anjuman-Himayat-e-Islam is a registered society and the title of the suit indicated that the suit was filed by Anjuman Himayat?e-Islam registered through Asmat Ullah Arshad, Estate Officer/General Attorney. The petitioner-Anjuman Himayat-e-Islam being a registered society could file a suit and be sued in its own name. Once a society is registered it enjoys the status of legal entity apart from its members constituting the same and is capable of suing or being sued. It was never pleaded in the written statement that the petitioner-society was not a registered society and the only objection raised was that the person who had filed the suit lacked proper legal authorization. The onus of proving issue No.IV framed regarding this preliminary objection was on defendant Dr. Farooq Hassan (petitioner in C.P. No. 1017-L of 2005). He never objected either to the format of the issue framed or the placement of burden of proof. Admittedly, no evidence was led to show that Asmat Ullah Arshad did not have any authorization from the society i.e. Anjuman Himayat-e-Islam. The defendant produced three witnesses i.e. Muhammad Imtiaz Butt (D.W.1), Kalai Khan (D.W.2) and Dr. Farooq Hassan (D.W.3) himself. None of these witnesses levelled even asserted before the Court that Asmat Ullah Arshad did not have proper authorization. There is force in the submissions of Mr. Shahid Hamid, Advocate Supreme Court that since defendant on whom was laid the burden of issue No.IV did not lead any evidence whatsoever to discharge the onus, there was no occasion for the petitioner-plaintiff to lead any evidence in rebuttal on that issue. Moreover, we have gone through a copy of the registered power of attorney executed by Anjuman Himayat?-e-Islam in favour of Asmat Ullah Arshad who filed the instant suit. It is not denied that this document was filed along with the suit. It is not denied that this document was filed along with the suit. It clearly stipulates that the said attorney had all the powers to file and defend the suits on behalf of the Anjuman and take all the measures necessary thereto. The preliminary objection therefore was not tenable in the afore-referred facts and the courts below in rendering the adverse finding have overlooked this important document. The objection with regard to the form of the suit i.e. the contention that the suit for permanent injunction in absence of prayer for possession was not maintainable, we find that the learned Courts below have failed to appreciate that the suit property was under tenancy and it was specifically averred so in para. 7 of the plaint which reads as under:-

12. In the afore-referred circumstances, suit for possession qua a building under tenancy need not 'have been filed. We are fortified. in our view by a judgment in the case Gian Chand v. Bhagwan Singh AIR 1932 Lahore 97, wherein the Court was called upon to decide a similar question and it held as under:--

"The plaintiff sued for a declaration of ownership of a certain house occupied by a tenant on the basis of a will of deceased owner. The defendant was not in possession of the house but was obstructing the plaintiff from realizing the rent from the tenant. The trial Court held that the suit should have been brought for possession and that ad valorem court-fee should have been paid and on failure of paying it the plaint was rejected.

Held: that the suit as filed was a proper one. That under the said circumstances a suit for possession was not necessary nor would it have lessened litigation and that the order rejecting the plaint was consequently wrong."

Again in Mt. Khurshed Jahan Begum v. Qamqam Ali (AIR (34) 1947 Oudh 17, the court held as follows:--

"Specific Relief Act (1877), S.42---Suit for declaration that property in suit is wakf without relief for possession is not barred under S.42.

A suit to obtain a declaration that the plaintiff was the sole Mutwalli without suing for possession over the wakf property is not barred under the provisions of S.42: (33) 20 AIR 1933 Oudh 517. ???????

When it is held against the defendant that the property in suit is wakf, the person entitled to act as a Mutwalli can obtain possession from the defendant and in case of any obstruction he can institute a suit for possession."

13. In view of the above, the learned High Court misdirected itself in holding that "in the facts and circumstances, the suit for injunction simpliciter is not maintainable Relief of declaration and/or possession must necessarily should have been made." The findings on Issue No.IV are not only against the weight of evidence on record, but also not in accord with the law declared.

14. For what has been discussed above, Civil Petition No.1229-L of 2005, filed by Anjuman Himayat-e-Islam is converted into appeal and allowed, the impugned judgment dated 27-4-2005, passed by a learned Single Judge of the Lahore High Court in so far it dismissed the suit (as not maintainable) is reversed and the petitioner's suit for permanent injunction is decreed with no order as to costs. Consequently, Civil Petition No.1017-L of 2005, filed by Dr. Farooq Hassan is dismissed.

M.B.A./A-7/S ????????????????????????????????????????????????????????????????????????????????????? Order accordingly.