CHIEF ADMINISTRATOR AUQAF, LAHORE Versus HASSAN MUHAMMAD
1. SHAFIUR RAHMAN, J.‑‑ This appeal, though filed as a petition for :eave to appeal under Article 185(3) of the Constitution, has been taken by order dated 22nd of March, 1978, to be an appeal as of right under clause (2)(d) of Article 185 of the Constitution.
2. The appellant, the Chief Administrator of Auqaf, issued a notification dated 2nd of May, 1960 under section 6 of the West Pakistan Waqf Properties Ordinance, 1959 (hereinafter referred to as the Ordinance). By this notification, the Chief Administrator took over and assumed the administration, control, management and maintenance of the Waqf Properties attached to the shrine of Sain Lehri Shah of Ichhra, Lahore. In the notification were listed 19 items of property comprising agricultural land, houses, mosques, graveyards etc. ‑in Districts Lahore, Gujranwala and Sialkot. The properties 1 to 4 and No.14 are distinguishable and their description appearing in the notification is as follows:‑
3. 1) Khanqah and Takia Sain Lehri Shah, situated in Ichhra, Lahore, bearing Khasra No.9001.
(2) Income from the box placed at the shrine and offerings and subscriptions made to the shrine.
(3) Masjid adjoining the said shrine bearing Khasra No.9000.
(4) Graveyard adjoining the said shrine bearing Khasra No.8999.
(14) Land measuring 10 Kanals 12 Marlas and 197 sq. ft. situated in Mauza titian Mir, Lahore, bearing Khasra Nos. 2617 to 2619 containing the Khanqah of Sain Baga Shah Masjid and graveyard.
4. The eight sorts of Meeran Bakhsh, the widow and a daughter instituted a petition in the Court of the District Judge, under section 7 of the Ordinance claiming a declaration that the properties stated in that petition and covered by the notification of the appellant were not waqf properties. According to the claim made in the application under section 7, the heirs contended that all the properties were the self‑acquired properties of either Sain Lehri Shah or after him by Meeran Bakhsh. Under a will dated 6‑4‑1915 the properties had devolved on Meeran Bakhsh as an owner Gaddi Nashin and on the death of Sain Meeran Bakhsh it was mutated in the names of all the heirs of Meeran Bakhsh in accordance with the Shariat Law and to the extent of their respective shares and mutation was to that effect attested on 9‑6‑1957. It was stated that the property belonging to Lehri Shah had never been dedicated permanently or otherwise by Lehri Shah for any such purpose as is recognised by Islam as religious, pious or charitable. This application was contested by the appellant and the District Judge framed the following issues:‑
(1) Whether the property in dispute is not waqf property? OPP
5. ( 2) Relief .
6. Evidence of the parties was recorded and the District Judge by his judgment dated 25‑2‑1966 held that Sain Lehri Shah was the Gaddi Nashin of Shrine of Chiragh Shah and he had many Murids and had acquired most of the property out of the offerings at the shrine of Chiragh Shah which he ultimately dedicated to the mosque, graveyard shrines or Takia and accordingly the whole of it was waqf property including the one which was purchased by Meeran Bakhsh after selling some other waqf property. The compromise whereunder the other heir's of Meeran Bakhsh obtained a share in accordance with Shariat was held to be collusive and illegal as against the property which was dedicated by Sain Lehri Shah. The will of 1915 which was a registered document was interpreted as showing that Sain Lehri Shah was transferring these properties with the intention of creating a waqf in the manner that the property should be kept intact for carrying out the annual Urs etc. and for the" maintenance of mosque, shrines, Takia and graveyard, though the Gaddi Nasheen could maintain himself out of the income of this property without of course disposing it off or damaging it in any manner. The application filed by the respondents was, therefore, dismissed by the District Judge.
7. An appeal was filed by the respondents in the High Court. The entire evidence and the law applicable to muslim waqfs was reviewed. It was held not established that Sain Lehri Shah had acquired property in dispute from the offerings of the shrine or from money obtained from the Murids. The finding recorded with regard to the source of funds was as follows:‑
8. "There is no evidence that Sain Lehri Shah raised any subscription or raised it for the purpose as given in Explanation No.3. Certain offerings were made to him, according to R.W. 2, by his disciples which was a personal gift to him. But according to law such offering does not constitute Waqf."
9. The Will Exh.P.7 which was admitted by the parties was interpreted in the manner indicated hereunder: ‑
10. "Exh. P.7, as a will, is, therefore, of a dual character. On the one hand it makes arrangement for succession to the a office of the Gaddi Nashin and on the other to the ownership of the property. Prliran Bakhsh and after him Hassan Muhammad have been made Gaddi Nashin but the entitlement to the ownership of the property has been provided in favour of Miran Bakhsh only."
11. As regards the constraints on alienations, the learned Judge held as follows: ‑
12. "Miran Bakhsh was as such the owner of property as Sain Lehri Shah himself was but the ownership was subject to restraint on his power to alienate or damage the property. Lo inference of any permanent dedication can be drawn from this condition. It is possible to argue that this condition which is repugnant to section 10 of the Transfer of Property Act as well as the Shariat can be declared void with the result that Miran Bakhsh would have been entitled to claim a alienate the property. Paragraph No.164 of the 'Principles of Mohomendan Law' by D.F. Mulla (Sixteenth Edition) deals with invalidity of the condition which derogates from the completeness of the granj amongst Sunnies. "
13. As regards the duties of performing Urs and Mela at the Shrine, the learned Judge held as under:‑
14. "Learned counsel for the respondent laid emphasis on the other condition directing %ran Bakhsh to perform annual Urs, etc. From this he gathered that the maintenance of the mosque, Khanqah and Takia was also included. I neither agree with the proposition that these matters are included there nor agree with the argument that if a duty is levied upon Miran Bakhsh to perform annual Urs from the income of the property it will render the property as Waqf_ It
15. The absence of relationship between Sain Lehri Shah and Miran Bakhsh was explained by the learned Judge as hereunder: ‑
16. "The learned District Judge has laid much emphasis on the factual position that there was no relationship between Sain Lehri Shah and Miran Bakhsh. But this by itself cannot prove any dedication of the property to purposes recognised by Islam as religious, pious or charitable. It cannot be presumed from the devolution of the property from Guru to Chela that it is a dedicated property. 11
17. Certain subsequent events were also taken note of in the judgment and these were dealt with as follows:‑
18. "Reliance was placed by the learned counsel for the respondent on the will Ex.D.3 executed by Miran Bakhsh and a statement made by Hassan Muhammad in which he admitted the nature of the property as Waqf before the Auqaf Department. The will Ex. D.3 was executed by Miran Bakhsh on the 26th of April, 1945. It is clear from this will that some of the area obtained by Miran Bakhsh from Sain Lehri Shah under the will of 1915 had been alienated by him. He had thereafter purchased some other area described in the will. He, therefore, declared that he would manage this property during his life time but after his death it would be managed by Hassan Muhammad his son and Chela of Sain Lehri Shah who will be the Gaddi Nashin. It is further recorded therein that the property will be mutated in his name after his death. But it is not the case of the respondent that this document created the Waqf. Even this document does not prove the nature of the property as Waqf.
19. The appeal was conditionally allowed. The operative part of the judgment of the High Court being as hereunder:‑
20. "Despite this discussion it cannot be doubted that the first four items of property and the Khanqah of Sain Bhagey Shah alongwith Masjid and graveyard at serial No.14 of the property described in paragraph 3 are from their very nature waqf properties under the definition of lwaqf property'. The appeal of the appellants can succeed only in regard to items at serial Nos.5, 6, 7 , 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19 and that portion of the property described at serial No.14 which may be separate from and not included actually in Khanqah of Bhagey Shah or Masjid or graveyard." Mr. Zakiud Din Pal, Advocate, the learned counsel for the appellant has taken us through the history of the case in order to point out that the devolution of secular property cannot take place from Guru to Chela and as in this case the property had devolved under the Will of Lehri Shah to the two Chelas in succession it was clear that the property had come to acquire a religious character. Additionally it is contended that the property was tied to the Takia because no power of alienation was conferred or recognized by Lehri Shah while the property was in the hands of the succeeding Gaddi Nashin. The learned counsel has taken us to the Will in order to demonstrate that there was permanent dedication of the property and near the Statutory definition of Waqf Property it could be taken to be such. Finally, the learned counsel for the appellant has drawn our attention to the conduct of both the succeeding Gaddi Nashins namely, Miran Bakhsh and Hassan Muhammad and there are admissions with regard to the property and their dealing with it which bear out the fact that not only the property in their hands was Waqf, but also that they treated it to be so
21. Mr. Shehzad Jehangir, Advocate, the learned counsel for the respondents has on the other hand contended that the Will itself shows that Lehri Shah treated himself to be the owner of all the property which is now said to attached to the shrine. He remained so, as long as he lived. He being a bachelor, made out a Will in favour of Miran Bakhsh nominating him as succeeding Gaddi Nashin of the shrine but at the same time making him the owner of the entire property imposing on him a condition that the property in his hand will remain inalienable and that he could enjoy all its usufructs. The maintenance and upkeep of the shrine was not expressly mentioned in the Will and the only duties that were required to be performed were of Urs and Mela. According to the learned counsel, Mela has a secular aspect and the Tahqiqat‑e‑Chishtia bears out that it had no religious aspect. The performance of Urs did not lend to the property or its income a religious character which could have the effect of making it a Waqf property. According to the learned counsel the judgment of the Nigh Court proceeds on correct principles and has ample support in case‑law.
22. In the trial that took place in the Court of District Judge, ten witnesses were produced by the respondents in support of their claim. Two of them namely, Siraj Din P. W.3 aged 90 or 95 years and Rahim Bakhsh P.W,4 aged 80 years, stated that Lehri Shah was a reputed Hakim and that he had acquired the property other than ill those exempted in the judgment of the High Court from his own earnings. Two officials of the Excise and Taxation Department were examined, Abdul Ghafoor P. W.1 and Muhammad Afza1 P.W.8, to state about the recorded ownership of the Houses. Muhammad Akbar P.W.2 a clerk of the Municipal Corporation was examined to prove that Muhammad Shafi respondent had ' got the site plan approved for construction of house. So did Qamaruzzaman, Record Keeper P.W.5. Hassan Muhammad and Muhammad Shafi appeared as their own witnesses. In rebuttal Sain Siraj Din and Fazal Din were produced to state about Lehri Shah having created a Waqf of the entire property.
23. As the power exercised by the appellant was under a statute, it is primarily the statutory definition which controls it. The definition of Waqf Property, given in section 2(d) of the Ordinance was substituted retrospectively from the date the Ordinance was enforced, by Ordinance NO.XXVIII of 1961. It is, therefore, the substituted definition which will govern the case Waqf Property has been defined as hereunder:‑
24. "(d) 'waqf property' means property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, ,pious or charitable, but does not include property of any waqf such as is described in section 3 of the Mussalman Wakf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the waqf was created or by any member of his family or descendants.
25. Explanation 1.‑‑If a property has been used from time immemorial or any purpose recognized by Islam as religious, pious or charitable, then in spite of there being no evidence of express dedication, such property shall be deemed to be waqf property.
26. Explanation 2.‑‑Property allotted in lieu or in exchange of waq property left in India shall be deemed to be waqf property.
27. Explanation 3.‑‑Property of any kind acquired with the sale proceeds in exchange of or from the income arising out of waqf property or from subscriptions raised for any purpose recognized by Islam as religious, pious or charitable shall be deemed to be waqf property.
28. Explanation 4.‑‑The income from boxes placed at a shrine and offering subscriptions for charitable purposes shall be deemed to be waqf property.
29. Explanation 5.‑‑Relief of the poor, education, worship medical relief maintenance of shrines or the advancement of any other object of charitable, religious or pious nature or of general public utility shall be deemed to be charitable purposes.
30. Explanation 6.‑‑Property permanently dedicated for the purpose mosque, Takia, Khankah, Durgah, or other shrine shall be deemed to be waqf property."
31. There is no evidence on the record as to when were the properties other than those treated as waqf properties by the High Court, acquired in point of time. There is nothing to show that these were in existence as attached to the shrine before Lehri Shah took over as Gaddi Nashin. In the trial Court and the High Court, the case proceeded on the ground that it was acquired property of Lehri Shah, the dispute being whether he had acquired it from the offerings received as Gaddi Nashin of the shrine or from his personal income. In the Will Exh.P.7 which is the subject‑matter of interpretation and is crucial to the case, the property has been declared by Lehri Shah to be his self‑acquired property, he being the owner of it during his lifetime. There is no evidence on the record that the offerings of the shrine were utilized for acquiring properties or that subscription was raised for acquiring these properties. Explanation No.3, the concluding part cannot be availed of without such a connecting evidence. These properties cannot be taken to be a part of the waqf property on the strength of source of funds for their acquisition. It is primarily the Will which has to be interpreted.
32. It must be noted that Lehri Shah had died a bachelor. After describing the properties in the Will, Lehri Shah recites as follows:‑
33. The key words it this deed are which have been interpreted by the High Court as not only to be succeeding to the Gaddi but also to ownership. The other indicator in the Will is the duties imposed on the Gaddi Nashin. It is of holding Mela and Urs etc. and the duties relatable to the shrine, its upkeep, maintenance and improvements, have nowhere been mentioned. Mela in the context' of what has been happening would make it out to be not a religious ritual at all. Tahqiqat‑e‑Chishtia mentions about this Mela in the following words:
34. The words "malik" and "malkiyat" were considered it great depth in Sasiman Chowdhurain and others v. Shib Narain Chowdhury and others A I R 1922 P C 63 and all the case‑law on the subject till then available was extensively examined and the conclusion drawn was the following:‑
35. "It appears from some of the decisions to which their Lordships C have referred and from the judgment of the Board in Bhaidas Shivdas v. Bai Gulab that the term 'malik', when used in a Will or other document as descriptive of position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full proprietary rights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred, but the meaning of every word in an Indian will must always depend upon the setting in which it is placed, the subject to which it is related, and the locality of the testator from which it may receive its true shade of meaning, and their Lordships can find nothing in the quoted decision contrary to this view."
36. In the case before us the only detracting feature from ownership is that the power of alienation of the property while in the hands of Miran Bakhsh has not been recognized. But then, another feature of the Will is that no duties towards the shrine or Takia have been D prescribed at all, so as to establish a nexus, an attachment, a servient purpose of the property. Section 480‑A (Page 586) Tyab Muhammadan Law, 3rd Edition does not recognize Urs as a valid object of wakf. Mela could also not be a valid object of the waqf. Hence the Will does not satisfy the requirement of law in the matter of showing permanent dedication for ,purposes described in Explanations 5 and 6 of the definition of wakf property. The statutory definition remaining unsatisfied the acceptance of the appeal by the High Court was abundantly justified. There is no merit in this appeal which is hereby dismissed with costs.
37. There are two applications on the record whose consideration was postponed to the hearing in the main appeal. The first one is by the successors‑in‑interest of one Allah Din who claimed to be a co‑owner of property described in the notification by the appellant at Sr.Nos.14, 15 and 16. They want to be impleaded as respondents in these proceedings not having earlier participated in the proceedings resulting in this appeal. It appears that they have also filed an application under section 7 of the Ordinance before the District Judge and the same is pending decision there. They have also filed a Civil Suit challenging the same notification which is also pending.
38. There is another application by the successors‑in‑interest of one Qadir Bakhsh. They claim an interest in the property appearing at Sr.No.14 in the notification. They have also, it appears, instituted a Civil Suit which is said to be pending.
39. As the control and management of these properties has been taken over under the Ordinance and the specific relief provided against such a notification is by a Petition to the District Court against the notification under section 7 of the Ordinance, these petitioners cannot claim relief on the ground of being impleaded in the proceedings initiated under section 7 by someone else. Their proper remedy is to pursue the statutory relief available to them under the law and it shall be without prejudice to the decision of this Court or in these proceedings so far as the claim of the respondents is concerned. These petitions are with these observations rejected.
40. M.Y.H./C‑22/S Appeal dismissed.