P L D 1962 (W (PLP)

SAJJAD AHMAD, J.

This is a Letters Patent Appeal against the order of a learned Single Judge of this Court, affirming the decision of Mr. Misbah-ud-Din Khan, dated the 4th of July 1955, passed in his capacity as a Special Officer appointed under the (now repealed) North-West Frontier Province Charitable Institutions Act, 1949 (hereinafter referred to as the Act) whereby the property in dispute, consisting of 1221 kanals and 5 marlas of land situated in village Mahal Shah Dhand, Tehsil Charsadda, was declared as private wakf not falling within the ambit of the Act. By Notification No. 1028-29/C. I., dated the 28th of November 1949, the Governor of the then North West Frontier Province in exercise of the powers conferred on him by section 3 of the Act assumed the administration, control, management and maintenance of a mosque and hujra and of the land in dispute treating it as a Charitable Institution and wakf property within the meaning of subsections (c) and (d) of section 2 of the Act, leading to a petition by the respondent Ghulam Sarwar under section 5 of the Act, resulting in the decision in his favour by Mr. Misbah-ud-Din, as already mentioned.

2. The property in question belonged to one Ata Muhammad Khan, who, on the 5th of February 1909, executed a will (Exh. P. 1) dividing his extensive property amongst his five sons, including Abdul Akbar Khan, the father of the respondent, who later succeeded him as the Lambardar. The property in dispute i.e., 300 jaribs was declared by him as a waqf for the purpose of the upkeep of the hujra with a further direction that whatever was left out of the income was to be spent on the repairs of the hujra and the mosque. The point whether Ata Muhammad Khan by this will had created a charitable institution bearing the incidents of a public waqf attracting the provisions of the Act depends on the correct interpretation of the will (Exh. P. 1) made by him to ascertain his true intention and the relevant clauses of the will, will, therefore, call for a careful examination. But, before doing so, it is necessary to dispose of two preliminary objections which have been urged by the learned counsel for the respondent against the competency of the present appeal. The first is that the Act provided only one appeal against the decision of the administrator or the Special Officer to the Judicial Commissioner's Court, now succeeded by the West Pakistan High Court, which has already been availed of, ending in the decision of the learned Single Judge in Chambers which is final and cannot be subjected to another appeal. The argument proceeds on subsection (iv) of section 5 which runs as follows :- "An appeal shall lie from the final order made under sub section (iii) within 15 days of such order to the Court of the Judicial Commissioner, North-West Frontier Province, whose decision shall be final."

3. The action of the Provincial Government in the present case was first challenged by the respondent in a petition before Mr. Pir Muhammad Khan, the then Administrator of the Waqfs, which was dismissed by him. The respondent lodged an appeal to the Judicial Commissioner's Court which by its decision, dated the 21st of July 1952, quashed the proceedings, holding that Mr. Pir Muhammad Khan had by his conduct disqualified himself to act as a Judge in that case. The case was remanded for a de novo trial by some other officer to be appointed by the Government under section 5 of the Act. Mr. Misbah-ud-Din was then appointed, whose decision in favour of the respondent was challenged by the Provincial Government by an appeal filed to the Judicial Commissioner's Court on the 12th of September 1955. The North-West Frontier Province was incorporated into the Provinces of West Pakistan on the 14th of October 1955, under section 2 of the Establishment of West Pakistan Act, 1955 and under section 7 of the same Act the Governor General promulgated the High Court of West Pakistan (Establishment) Order, 1955 also to take effect from the same date, viz., the 14th of October 1955, whereby all the Courts functioning as High Courts in relation to the territories or areas included in the Province of West Pakistan were merged Into a single High Court of Judicature for the Province of West Pakistan to be called the High Court of West Pakistan. These Courts included the North-West Frontier Province Judicial Commissioner's Court which ceased to exist as such from the appointed date (14th October 1955). Under section 4 of this Order the Chief Justice of the newly-created High Court was given powers to transfer the proceedings pending immediately before the commencement of the Order in various Courts of the level of High Courts in different territories of the Province to the newly-created High Court or to the various Benches or Circuits of the High Court corresponding to the territories which they were supposed to serve. It is not disputed that the appeal lodged by the Provincial Government in this case to the Judicial Commissioner's Court on the 12th of September 1955 stood transferred to the Peshawar Bench of the High Court of West Pakistan, and has been disposed of by a Single Judge of that Court in his capacity as such. A decision by a Judge in second appeals while sitting alone gives rise to a Letters Patent Appeal to be heard by Bench of two Judges or more under clause 10 of the Letters Patent, if the learned Judge deciding the case certifies it to be a fit case for Letters Patent Appeal, and in other cases where such an appeal is competent and a Letters Patent Bench itself admits it for hearing. The present Letters Patent Appeal was admitted to a full hearing by our brothers Abdul Hamid and Bashir Ahmad, JJ., on the 31st of March 1960. There was no provision for a Letters Patent Appeal against the judgment of a Judge of the Judicial Commissioner's Court as that Court was not covered by a Letters Patent. The point which arises for decision is whether the appeal against the order of the Special Officer which was initially Instituted in the Judicial Commissioner's Court and has been disposed of not by the Judicial Commissioner's Court but by the order of a Judge of the West Pakistan High Court can be subjected to a further appeal because of the fact that under sub section (iv) of section 5 of the Act (North-West Frontier Province Charitable Institutions Act, 1949) the Letters Patent Appeal would not have been competent 1f the Judicial Commissioner's Court were functioning. It seems plain to me that while the right of an appeal of a litigant is a substantive right, the forum of its disposal is a matter of procedure and a litigant cannot, as a matter of right, claim that a change in Legislation, involving a change in the forum of the appeal, cannot have retrospective action. In the present case the Judicial Commissioner's Court came to an end before the appeal was disposed of and it would be impractical to insist on the revival of that Court for the disposal of the appeal. The appeal was transferred to a com petent forum by a valid Legislation which thus became subject to all the incidents created by the change of the forum. In my view, therefore,, the decision of the appeal by the learned Single Judge gave rise to the incidents of a Letters Patent Appeal, if otherwise it is found competent.

4. The other argument that under subsection (iv) of section 5 of the Act the judgment of the learned Judge in Chambers should be treated as a final judgment of the High Court as a successor of the Judicial Commissioner's Court ignores the nature and character of a Letters Patent Appeal. In its essence a Letters Patent Appeal is neither a second appeal nor a further appeal but is known what is commonly called an "inter-Court appeal". It is not an appeal in the sense of a superior Court sitting on judgment over the decision of an inferior Court as signified by the ordinary connotation of the word "appeal". All Judges of the High Court are equal in status and jurisdiction and two of them sitting together do not form a higher forum of jurisdiction or status against the one sitting alone, over whose judgment they may be sitting in a Letters Patent Appeal. On that score a judgment by a Letters Patent Bench is as much a judgment of the High Court as of the single Judge. This view has been affirmed repeatedly by this High Court. In a D. B. judgment in case Sh. Mahboob Alam v. Sh. Mumtaz Ahmad (P L D 1960 Lah. 601), Kaikaus, J. as a Judge of this Court went to the extent of holding that till the Letters Patent Bench gives its decision it may be said that the matter has not as yet been finally adjudicated by the High Court and there is a full and final decision by the High Court only after a Letters Patent Appeal has been heard and decided by the Letters Patent Bench. With all respect, I concur with the spirit of this dictum and may restate it by saying that the judgment of one Judge of the High Court has a finality attached to it subject of course to the relevant law, but where a Letters Patent Appeal has been admitted against it, the finality is then transferred to the decision of the Letters Patent Bench. The opinion of his Lordship Kaikaus, J., in that case was delivered on the interpretation o: section 39 (2) of the Arbitration Act, in its bearing on the right of a Letters Patent-Appeal. That subsection is as follows :- "No second appeal shall lie from an order passed in appeal under this section but nothing in this section shall affect o take away any right to appeal to His Majesty-in-Council." Following Sheikh Muzafar Din v. Mst. Allah Vasai and other, (P L D 1953 Lah. 284), his Lordship held :- "It could not be the intention of section 39 (2), Arbitration Act to include an appeal under the Letters Patent Act while referring to second appeals from orders passed in appeal."

5. The learned counsel for the respondent has cited a case from the High Court of Andhra Pradesh reported as Rayalaseema Bank Ltd. v. Tharigopala Pedda Narayanappa and another (A I R 1961 And. Pra. 483) where dissenting from A I R 1948 L ah. 64 and A 1 R 1949 E P (sic), it was held as follows: "An appeal from a single Judge to a Bench of two Judges of the High Court under the appropriate clauses of the Letters Patent is not excluded from the scope of the interdict with respect to second appeal enacted in section 39 (2). The word "Second" in its normal significance means "next after the first". So understood a second appeal means a further appeal, that is, an appeal from the order passed in appeal. It is that category of appeals that is in express terms interdicted under section 39 (2). Hence an appeal filed under cl. 15 of the Letters Patent against the order of a Single Judge passed in appeal under section 39 (1) is not maintainable." With all respect, it is difficult to agree with this view because, as already explained above, a Letters Patent Appeal can not be considered to be a second appeal, in the sense in which that term is normally understood. Again, this view ignores the fact that under section 111 of the Civil Procedure Code no appeal against an order of a Single Judge was competent to His Majesty-in-Council and where subsection (2) of section 39 protected an appeal to His Majesty-in-Council it obviously stipulated a judgment of the High Court to its final shape not given by a Single Judge, but by a Bench of two or more Judges forming the Letters Patent Bench. In view of this, I have no hesitation in rejecting the preliminary objection raised for the respondent and hold that subsection (iv) of section 5 of the Act does not constitute a bar to the Letters Patent Appeal.

6. The second objection raised for the respondent may now be considered. It was pointed out that the appeal was filed by the Provincial Government which under section 3 of the Act bad assumed control and management of the property in dispute as a charitable institution. The North-West Frontier Province Charitable Institutions Act was repealed by the West Pakistan Orainance XXI of 1959 which came into force on the 17th of April 1959, under which the Provincial Government was supplinted by an Administrator who was put In charge of the administration of the waqf properties and who under sub section (3) of section 3 of the Ordinance was made a corporation also with perpetual succession and an official seal and who was to sue and be sued in his corporate name. The argument Is that the Provincial Government then ceased to be a legal entity for purposes of this case and should have been substituted by the Administrator of Waqfs, West Pakistan, as the appellant in this appeal. It will be seen that this Ordinance did not by itself repeal the North-West Frontier Province Charitable Institutions Act of 1949 but by section 20 it provided that Government may, by Notification, repeal all or any of the following enactments enunciated therein with effect from such date or dates as may be specified in that behalf, and the enactments enumerated included the North-West Frontier Province Charitable Institutions Act. It appears that the notification was issued on the 30th of April 1960, repealing the aforesaid Act. Subsection (2) of section 20 of the Act provided "that notwithstanding the repeal of the enactments everything done, action taken, or proceedings commenced . . . . . shall, if not inconsistent with the provisions of this Ordinance be continued and shall be deemed to have been respectively done, taken or commenced under this Ordin ance."

7. Another Ordinance XXVIII of 1961, West Pakistan Waqf Properties Ordinance, was gazetted on 23rd of October 1961, which was made operative in the areas, including the North-West Frontier Province from the 7th of April 1959. Under this Ordinance the Chief Administrator of Auqaf, West Pakistan, was made a corporation sole for purposes of the Auqaf Property to sue and be sued in his corporate name, and it specifically repealed the North-West Frontier Province Charitable Institutions Act of 1949, as well as Ordinance XXI of 1959, however, saving all actions and proceedings taken under the repealed Acts, Ordinances, as if they were taken or issued under the Ordinance. I consider that even If the Administrator or the Chief Adminis trator who became vested with the control of the property under the relevant Ordinances were not made the appellant Instead of the Provincial Government, it is only a defect of a technical nature not affecting the character of the appeal and at the worst only amounting to a misdescription which can be rectified under Order I, rule 10 of the Civil Procedure Code. The appeal should be considered as having been regularly instituted by the Chief Administrator of Auqaf, West Pakistan, In succession to the Administrator of Auqaf or the Provincial Government of the former North-West Frontier Province against whom the appeal was originally Instituted.

8. It remains now to consider the matter on merits. To ascertain the nature of the waqf in dispute, the Special Officer very carefully considered the verbal evidence led by the parties as well as the contents of the will (Exh. P. 1) Itself, and also referred to the essential characteristics of the institution of "hujra" in a Pathan family of the former North-West Frontier Province, which are quite well recognised. He came to the conclusion that "the founder of the waqf in dispute had his own way of approach to this problem, by assigning it the name of waqf to make it inalienable and impartible by his descendants and to confine It to the exclusive use of the family hujra while in all other respects it is a mashrana property and is a private trust. The fears of Atta Muhammad Khan, lest his sons dispose of the property in question, were borne out by subsequent events, that the huge property which they had inherited from their father was soon squandered away, and then some of them set their tenth on the waqf property. Thus, the property in dispute is not a charitable institution, but is a property assigned for the upkeep of the family hurja and the position of the Lambardar of the family, and is his absence of the leading member of the family of waqif to make him Independent of the support of the residents of the village in the matter of entertainment of guests, visitors and officials who visit the hujra." In regard to the general nature of the hujra institution in Pathan families, the views of the Judicial Commissioner's Court in 116 J R Vol. I were cited where it was held that:-- "The upkeep of a hujra may to a certain extent benefit the public but it is obvious straining of the language to call a hujra an institution which advances religion, commerce, health, safety or is otherwise beneficial to mankind. A hujra is a private guest house in which a leading man entertains his guests. The extent to which he throws it open to all and sundury, depends entirely on his personal idiosyncracies. It is not a public institution in any sense of the words." While customary considerations may be quite relevant in deciding the true character of the waqf in dispute, the real test is the intention of the waqif himself as deducible from the language employed by him in the instrument (will Exh. P. 1) by which he made the settlement of the property. Reading the contents of the will (Exh. P. 1) we find ourselves in full agreement with the Special Officer and the learned Single Judge in Chambers that in setting up this private waqf the intention of the legator was none other than to make a permanent provision for the upkeep and maintenance of the family hujra with no desire to impart to it the character of a public waqf or a public charitable institution. It was made clear by him that the property although decided to the hujra, was to remain In the possession of one of who may be the Lambardar for the time being and if by any chance the Lambardari went out of the family, the outsider appointed as a Lambardar will have no connection with the property which will continue to remain with the ex-family lambardar despite the termination of his Lambardari. The property was saved from partition amongst the heirs, and its Income was to be spent on the lodging, boarding and the transport of the visitors or the guests of the hujra and the mosque, the balance, if any, to be spent on the repairs of the mosque and the hujra. A "private waqf" is defined in section 2 (a) of the Act as a Muslim Wakf created wholly for the maintenance and support of the waqif, his parents and grandparents, his descendants, husband or wife as the case may be, and persons who reside with or are maintained by him whether related to him or not. "Charitable purpose", "charitable Insttitution" and "property" of which the Provincial Government could assume control under section 3 of the Act, are defined, respectively, in clauses (b), (c) and (d) of the same section. It Is stated in the explanation annexed to this section that "a charitable institution or property which In its Inception may be a private wakf shall be deemed to be a charitable Institution or become "property" within the meaning of subsections (c) and (d) ibid if the ultimate benefit of it has become available for the poor in general or for any religious, pious, charitable, educational purposes or for the advancement of any other object of general public utility by reason of the death of the waqif or the extinction of the line of his family or descendants or otherwise". It is clear from this that the Legislature drew a distinction between "private waqf" and "charitable institution" or "property" which may be described as public waqfs. A private waqf created for the maintenance and dependence of the waqif's family could assume the character of a charitable institution for the purpose of its dispensation under the Act only if the ultimate benefit of It has become available for the poor in general or for any other purpose enumerated in the explanation. In this context it is quite plain that a private waqf created purely for the benefit of the family without any ulimate benefit accruing to a charitable cause cannot be considered a waqf at all and it would be misnomer to call it so according to the concept of a Muslim waqf.

9. The learned Judge in Chambers had referred to the difference in the definition of the "private waqf" as contained in subsection (a) of section 2 of the Act and the one contained in section 3 of the Mussalman Wakf Validating Act (VI of 1913), holding that the former provision is void being repugnant to the latter which is a central legislation In the same field of concurrent legislative authority. Section 3 of the Mussalman Wakf Validating Act (VI of 1913) does not define a "private waqf" as such, but recognises the validity of a waqf for the purpose of the maintenance and support wholly or partially, of the family, children or descendants of a waqif If it is otherwise in accordance with the provisions of Muslim Law, provided that the ultimate benefit in such a case is expressly or Impliedly reserved for the poor or for any other purpose recognised by the Muslim Law as a religious, pious or charitable purpose of a permanent character. As a "private waqf" defined in the Act does not assume any practical importance and Is not to receive dispensation under the Act until it becomes a charitable property or waqf property as stated in Explanation 3 of the Act cited above, in my view no question of any inconsistency and for that matter of any repugnancy arises on that point between the Act and the Mussalman Wakf Validating Act (VI of 1913). In any case this matter is not germans to the case in hand as here there is no reservation of ultimate benefit of the waqf for any of the religious or charitable purposes and as rightly remarked by the learned Judge in Chambers the provision regarding the cost of the c repairs of the mosque to be met from the balance of the income of the property, if left out after the expenses on the upkeep of the hujra, is entirely illusory, depending solely on the chance that the entire income, in the first place, is not exhausted on the upkeep R of a private hujra depending in turn on the sweet will of the person who is managing the property for the time being.

10. In view of what has been stated above, it is a misnomer to call the private settlement envisaged by Ata Muhammad In the will ( Exh. P. 1) as a waqf, as known or recognised by the Muslim Law or as contemplated by the Act and the Notification of the assumption of the property in dispute by the Provincial Government under section 3 of the Act, is misconceived. I see no substance in this appeal which is dismissed with costs. SHAKIRULLAH JAN, J.

I agree. A. H Appeal dismissed.