WAQF MUHAMMAD MEHER ELAHI Versus
ORDER
1. SYED HASAN AZHAR RIZVI, J. ---Present petition is filed for permission for sale of Waqf Property bearing Survey No.85, situated at Garden East, Karachi by the Mutawalli of the Waqf Muhammad Mehar Ellahi.
2. Brief facts as stated in the memo of Petition are that one Mr. Muhammad Mehar Ellahi son of Sheikh Fazal Elahi had acquired a property situated on Survey No.85, situated at Garden East, Karachi vide Conveyance Deed dated 19-1-1948 Registered No.848 at pages 101 to 108 in Volume No.812 of Book No.1-Addl, dated 19-1-1948 admeasuring 1700 square yards. Said Muhammad Mehar Ellahi owned another property situated on Plot No.RY-1, Railway Quarters, Talpur Road, Karachi admeasuring 12,418 square yards. Mehar Ellahi created Waqf-ul-allal-aulad under the name and style of Waqf Muhammad Mehar Ellahi vide registered Deed of Waqf dated 3-6-1957, registered under No.1932, at pages 24 to 28, in Volume No.974 of Book No.1, Addl. Dated 22-6-1957 executed before the Sub-Registrar, Karachi upon said property and the property bearing Plot No.RY-1, Railway Quarters, Talpur Road, Karachi referred to above. The beneficiaries of the aforesaid Waqf-ul-allal-aulad are heirs and descendants of Mr. Mehar Ellahi. According to the terms of the Waqf Deed all the income of the Waqf is to be distributed among the beneficiaries and some parts of its income is utilized as charity. Beneficiaries of the said Waqf are also trustees of that Waqf. According to the terms of Waqf Deed all the trustees have to elect a mutawali, who would be responsible to look after the affairs of the said Waqf and run the Waqf with consultation of the other trustees. On 1-11-1983, the Trustees elected Mr. Muhammad Siddiq Mehar Ellahi as the Mutawalli, who has filed present petition. Since 1-11-1983 the aforesaid Mutawalli is running the Waqf and looking after its affairs. Photocopies of the Conveyance Deed, registered Deed of Waqf-ul-allal-aulad along with computer typed copy, copy of Resolution are enclosed along with the memo of Petition as Annexures "A, B, C and D" respectively.
3. Learned counsel for the petitioner contended that another property of the Waqf bearing Plot No.RY-1, Railway Quarters, Talpur Road, Karachi, which is situated near Karachi Port and adjacent to I.I. Chundrigar Road, Karachi, which is hub of business in Karachi and the said property has been generating a handsome amount of income. Due to its location the aforesaid property is more valuable for getting income from rent. Learned counsel for the petitioner further submitted that owing to the chances of increase in rental incomes and the sheer size of property, a huge amount is currently required for its repairs and modification.
4. Learned counsel for the petitioner urged that in 2012 the trustees of the Waqf Muhammad Mehar Ellahi who had acquired another property situated on Plot No.RY-2; Railway Quarters, Talpur Road, Karachi adjoining to the one of Waqf property bearing Plot No.RY-1, Railway Quarters, Talpur Road, Karachi, admeasuring 6028.87 square yards, gave the said property in favour of Waqf Muhammad Mehar Ellahi through a registered Deed of declaration of Waqf of immovable property bearing Registration No.759, executed before the Sub-Registrar Office-II, Saddar Town, Karachi on 2-3-2012 through the present Mutawalli of the Waqf Muhammad Mehar Ellahi, who is also legally constituted attorney of the legal heirs/successors of the said property. Photocopy of aforesaid deed of declaration of Waqf is enclosed as Annexure "E" along with memo of Petition. Learned counsel for the petitioner argued that both the properties bearing Plot No.RY-1 and RY-2, Railway Quarters, Talpur Road, Karachi are the commercial properties having huge earning potential through rent but the maintenance of both the properties is very expensive. Learned counsel for the petitioner urged that Waqf Properties bearing Survey No.85, situated at Garden East, Karachi is residential bungalow and since creation of Waqf in 1957 never earned any amount from the Waqf as the same was never let out on rent. According to learned counsel aforesaid property is in very depilated and dangerous condition and there would be serious threat to any one acquiring the property for residence. Learned counsel for the petitioner has drawn attention of this Court towards several photographs enclosed with the memo of petition as Annexures "F/1 to F/11 and on perusal of the same it appears that plaster of the roofs/ceiling, walls has fallen at several places and the iron rods (Sarya) of the structure of the roofs/ceiling and the debris are visible and also lying on the ground in the said photographs, referred to above.
5. Learned counsel for the petitioner further submitted that the said property is situated near Katchiabadi at Patel Para and the qabza mafia/ land grabbers in that area are very active and if property is left vacant further, there is likelihood that the said property would be illegally encroached upon. Learned counsel for the petitioner further contended that for renovation of the structure and other parts of the aforementioned property a huge amount is required which will probably surpass the actual price of the said property. He further contended that the utilization of the plot by demolishing the said structure and rebuilding will not be fruitful as heavy amount is to be spend on the renovation/construction of the building on the subject plot and it would take a long time to realize the expenditure and start earning and if the said property be let out on rent after renovation. Learned counsel for the petitioner further submitted that keeping in view the condition of the said property, danger attached to it and the expenses which are required to bring said property in suitable condition. The trustees have collectively decided to sell the said property at market price and to use the proceeds thereof in betterment of the remaining properties of the Waqf and for that the present petition has been filed after obtaining permission of filing the same from the Advocate General Sindh vide letter dated 1-10-2012 bearing No.AG-2593 of 2012, said letter is enclosed at page 203 with the memo of Petition. Learned Counsel has referred to Clause-14 of the Waqf Deed enclosed as Annexure "B" according to which the property can be sold after obtaining permission from the Court and from the sale proceeds received, any other profitable properly be purchased. Tatama Waqf Deed executed on 5-5-1975 is enclosed with the memo of Petition and according to clauses-1 and 3 thereof 15% amount received after sale of said property be kept as safe-deposit, which may be used for expansion and renovation of the Waqf property and the balance amount be distributed in accordance with clause No.6 of the main Waqf Deed.
6. After filing of the present petition publication was made in daily "Jang" dated 27-10-2012 and daily "Nation" dated 26-10-2012 and public at large was called upon that any person claiming to have any interest in the subject property of Waqf Muhammad Mehar Ellahi and are desirous of supporting or opposing granting permission of sale of the property may appear himself or by an advocate on 27-11-2012 at 9:00 a.m. before the Court but none had appeared and no objection had been received till 27-11-2012 when the matter was fixed before the learned Additional Registrar of this Court. Thereafter matter was fixed before this Court on 11-4-2013 and 30-4-2013 and notices were ordered to be issued to the Advocate General Sindh. On 9-5-2013 when the matter was fixed Mr. Qazi Majid Ali learned AAG appeared and submitted that power to sell the property has already been given in Clause-14 of the Waqf-ul-allal-aulad therefore, if the Court may deem it fit, permission can be granted as none has come forward to raise any objection despite publication in two leading newspapers.
7. I have heard Mr. Moiz Ahmed learned counsel for the petitioner, Mr. Qazi Majid Ali learned A.A.-G. and perused the material available on record with their assistance.
8. In the case of Hussain A. Haroon and others v. Mrs. Laila Sarfraz and others reported in 2003 CLC 771, it has been held by this Court that:-
9. "27. Muslim Wakf owes its origin to a rule laid down by the Prophet Muhammad (p.b.u.h); and means, "the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings". When once it is declared that a particular property is Wakf or any such expression is used as implies Wakf, or the tenor of the document shows that a dedication to pious or charitable purpose is meant, the right of the Wakf is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit. The Manager of the Wakf is the Mutawalli the governor, superintendent, or curator. The Judicial Committee calls him "procurator" Jiya Varuthi Thirtha Swamigal v Baluswami Ayyar and others AIR 1922 PC 123.
10. Such Wakf got statutory recognizance in 1913 through Mussalman Wakf Validating Act, 1913.
11. The instant case pertains to Wakful-aulad, which is based on the principle arising from the concept that supporting oneself and one's kith and kin, who may be needy, is also a noble and charitable act, because the Holy Prophet (peace be upon him) has said -'where a Muslim bestows on his family and kindred hoping for reward in the next world, it becomes alms; although he has not given to the poor, but to his family and children". From principle, Waqf-ul-aulad has developed as a means of dedicating property in favour of oneself and one's lineal descendants, as a pious act and sometimes with it directing a major or minor portion of the usufruct towards other religious or charitable objects, in the name of Allah. This Extension of the institution of Waqf-ul-aulad, having nothing to serve for public charity, till the whole line of the Waqf and his children and their descendants stands extinguished, or having little to serve for public charity, but the bulk of the usufruct being directed for being confined to the Waqf and/or his legal descendants alone. Whether there is Waqf for a purely religious, pious or charitable object, or one for the support of a Waqf and his kith and kin, with some religious, pious or charitable objects added to it the corpus of the Waqf cannot be allowed to be usurped or eroded, but the usufruct can be used or applied to the objects of the Waqf. Khalid Javed and others v. Qazi Masood-ur-Rehman, Additional District and Sessions Judge, Sialkot and 2 others PLD 1988 Lah. 541.
12. Perpetuity is the essential trial of a Wakf. If from change of circumstances and lapse of time or for some other proper reason, it has become impossible to apply the property in the manner directed by Waqif the Court may apply it for similar purpose by different means as near as possible to the original intention of the grantor by varying the scheme by applying "Cypres doctrine" which has received judicial recognization in Salibai v. Bai Safiabeen ILR Vol. 36 Bom. 111.
28. In Halsbury's Laws of India. (Butterworth, New Delhi), the "Doctrine of Cypres" has been explained as follow:--
13. Cypres means following as nearly as possible the intention of donor.---When a particular mode of charity indicated by donor is not capable of being carried into effect but the donor has expressed a general intention of charity, the Court does not allow the trust to fail but execute it 'Cypres' that is in some way as nearly as possible to that which the testator specified.
14. Failure of object given by the testator essential.---For the application of Cypres, the failure of the particular object specified by the testator is an 'essential pre-condition. Alternatively this doctrine can be applied when surplus is left after satisfying the purpose specified by donor.
15. The prime rule to be observed in the application of the Cypres doctrine is that donor intention must be observed as far as possible".
16. On perusal of record photographs of the subject property it transpires that the property is totally unoccupied and is in very dilapidated condition. Clause-14 of the Waqf-ul-allal-aulad of Waqf Muhammad Mehar Ellahi provides that the property can be sold by the Mutawalli of the Trust after obtaining permission from the Court in case the property of the trust has become dilapidated and there is likelihood of decrease of market value of the Waqf property and from the sale proceeds received, any other profitable property can be purchased and keep and maintain the account of sale and purchase of the property. The learned AAG in view of the clause 14 of the Waqf Deed has no objection, if the subject property be sold under supervision of the Nazir of this Court.
17. After filing of the present petition notices have already been published in daily "Jang" dated 27-10-2012 and daily "Nation" dated 26-10-2012 whereby the public at large were called through public notice to file objection as of supporting or opposing the grant of permission of sale of property bearing Survey No.85, situated at Garden East, Karachi to appear before the concerned officer of this Court on 27-11-2012. After publication of the notices as stated above, neither any objection has been received nor anyone has appeared except the counsel for the petitioner. Learned counsel for the petitioner has shown apprehension and concern of the petitioner that if the subject property may not be sold, Qabza Mafia and Land Grabbers would encroach upon the subject property, which is lying vacant for the last decades and the Waqf would be dispossessed. Learned counsel for the petitioner submitted that Mutawalli, who has filed the present petition, is also attorney of the other trustees and the legal heirs of the trustees fully competent to file the present petition and he has been authorized by the trustees to file present petition and to obtain permission from this Court to sell the subject property. Learned counsel for the petitioner further submitted that the petitioner has already arranged prospective buyer to purchase the subject property of the Waqf. Let Nazir of this Court at the first instance is directed to inspect the property and assess the current market value of the subject property through renown evaluators/estate agents. Petitioner thus would bear the expenditure, if any, occurred, to be paid to the Nazir of this Court. Petitioner is also directed to produce prospective buyers, who are interested to purchase the subject property with their respective offers before the Nazir of this Court immediately. Nazir is directed to submit a comprehensive report before this Court in the first week after summer vacations.
18. SAK/W-6/Sindh Order accordingly.