P L D 1964 Supreme Court 229 (PLP)

B. Z. KAIKAUS, J.‑This is an appeal by special leave against the order of the Custodian of Evacuee Property dismissing an application under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, by which Ahmad Ali appellant sought a declaration that the property attached to Gaddi Koh Kirana was not evacuee property and that he was the gaddi‑nashin of Koh Kirana and manager of the property. Gaddi Koh Kirana is admittedly a religious institution situated at Koh Kirana in the Shahpur District. A large area of agricultural land in Shahpur, Jhang, Gujrat, Gujranwala, Lahore, Sheikhupura and Mianwali Districts is attached to this gaddi. According to the allegations in the application out of which this appeal arises this gaddi was founded by Sultan Habib Nangiana who was the ancestor of the appellant. (The appellant it may be explained here belongs to village Dhareema which is inhabited by the descendants of Sultan Habib Nangiana as the pedigree‑table of the village shows). The first deputy of Sultan Habib Nangiana was Faqir Ibrahim. Faqir Ibrahim had great affection for a Hindu Jogi Beragi Faqir who became his successor with the approval of the descendants of Sultan Habib Nangiana. After that successors to the gaddi continued to be appointed by the descendants of Sultan Habib Nangiana. The last gaddi‑nashin Pir Prem Das migrated to India in 1947 and became an evacuee, but before he did so he appointed the appellant his successor with the approval of the descendants of Sultan Habib Nangiana in the presence of his own disciples and respectable. Since that time the appellant had been managing the land and had been dis charging the functions of gaddi‑nashin. The Rehabilitation Department bad served a notice of ejectment from the land of gaddi Koh Kirana upon Ata Muhammad who was one of the descendants of Sultan Habib Nangiana and that is why a need arose for filing the application for a declaration. To substantiate his case the appellant produced oral as well as documentary evidence. A document purporting to have been signed by a gaddi‑nashin of Koh Kirana and some disciples was produced wherein there was a statement as to the appointment of Ibrahim and subsequently of Hindu Faqirs by the descendants of Sultan Habib Nangiana. But this document bore no date and was not proved by any evidence and was, therefore, excluded from evidence. Another document produced was a statement made by Jalal Lambardar of village Dhareema in proceedings relating to some muafi land of gaddi Koh Kirana in the year 1853 before a Tehsildar. Jalal Lambardar stated that the makan Koh Kirana belonged to his ancestor a Nangiana. Makan means a building or house, but here this word refers not only to the building but also to the institution for the records show that muafi was for makan Koh Kirana. Jalal Lambardar went on to state that the various gaddi nashins had been installed by the descendants of his ancestor who owned the institution. He referred to the various gaddi nashins and gave the names of the leading members of the Nangiana tribe who had installed the various gaddi‑nashins. With respect to the muafi land attached to this institution Jalal Lambardar said that it was all dharam arth which had been acquired during the time of Pir Sokal. The income of this land eras being spent on some festivals and on the dera which meant for feeding those who came to the dera. A number of witnesses were produced to prove that the founder of this institution was Sultan Habib Nangiana and subsequently the gaddi‑nashins were appointed by the Nangiana of Dhareema that is the descendants of Sultan Habib Nangiana. Considering that according to the evidence Sultan Habib Nangiana died during the time of Emperor Aurangzeb it cannot be said that there was any relevant oral evidence as to who founded this gaddi. The witnesses also deposed to the fact that when the last gaddi‑nashin that is Prem Das left for India he appointed the appellant as a successor with the approval of the members of the Nangiana tribe. The Deputy Custodian did not accept the oral evidence produced by the appellant. He was of the opinion that this was an institution of Hindu Faqirs and the appellant was putting up a false claim. The statement of Jalal Lambardar as to the appointment of gaddi‑nashins with the approval of the Nangianas he rejected as a mere claim. On appeal the Additional Custodian relying upon the statement of Jalal Lambardar and the oral evidence held that the appellant had properly been appointed gaddi‑nashin and accepting the appeal he granted the appellant the declaration sought. The Rehabilitation Depart ment filed a revision petition before the Custodian of Evacuee Property. The Custodian accepted the revision petition on the sole ground that the particulars of the property with respect to which the declaration was sought had not been given in the application. The Custodian did not go into the merits of the dispute at all. That the order of the Custodian was based on a miscon ception is clear on a reference to the record. In the amended application full details of the whole of the property in respect of which the declaration was claimed had been stated though they were stated in the heading and not in the body of the application. It could hardly make any difference that they were stated in the heading. We are at the same time of the opinion that this was not a case where the declaration could have been refused on the ground that particulars of property were not stated. The real question was whether the property which was attached to gaddi Koh Kirana was evacuee property to any extent or not. What property was in fact attached to gaddi Koh Kirana could have been determined subsequently and in fact this could easily be determined by a reference to the revenue records. It would have made no difference to the evidence produced as to whether the particulars of the property were stated in the application or not. What was to be determined was the interest which a gaddi‑nashin of this institution would have, whether his interest would terminate by becoming evacuee and whether the appellant was the present gaddi‑nashin. If the appellant succeeded in proving that he was the gaddi‑nashin of Koh Kirana he could have been granted a declaration that the property attached to gaddi Koh Kirana was not evacuee property and that the appellant had the rights of gaddi‑nashin in it. As the Custodian had accepted the revision petition on a preliminary ground this case could have been remanded to him for a decision on the merits, but the nature of the main question that falls for decision is such that we think we should determine it ourselves. In accordance with section 5 of the Punjab Laws Act, 1872 "religious institutions" are governed by custom. We are dealing here with a case which occurred before the coming into force of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), because according to the appellant he was installed as a gaddi‑nashin in 1947. As will appear from the introduction to Chapter VI of Rattigan's Customary Law there is no general law applicable to religious institutions in the Punjab and each institution is regulated by its own customs though there are certain broad propositions which have received recognition in judicial decisions. According to para. 84 "the members of such institutions are governed exclusively by the customs and usages of the particular institution to which they belong". According to para. 85 the office of mahant is usually elective. It may be explained here that although the word mahant is used in this paragraph, in Chapter VI religious institutions, wakf properties, khankah, mahant, gaddi‑nashin and mutwalli are all mixed up and the fact that the word mahant is used does not mean that the reference is not also to gaddi‑nashin. This mixing up reed not cause any surprise for the Judicial Committee of the Privy Council as will appear from Vidva Varuthi Thirtha v. Balusami , Ayyar and others (48 I A 302) to which there is a reference later in this judgment, as well as the High Court of pre‑partition India and commentaries on Hindu and Muhammadan Laws had been freely relying, while dealing with religious institutions, on cases decided under the other system and in the above‑mentioned cast the Privy Council gave a decision as to a Hindu institution on the basis of conceptions derived from Hindu and Muslim Laws after observing that "the law as to these institutions was to be found in customs and practice". As appears from the evidence the usage of this institution is that the gaddi‑nashin is appointed by the members of the Nangiana tribe belonging to village Dhareema. No alternative mode of appointment has been put forward at all on behalf of the respondent and there is no reason for rejecting this evidence which had been accepted by the Additional Custodian. We see also no reason to differ from the Additional Custodian in his reliance upon the evidence produced by the appellant as to his appointment as a gaddi‑nashin by the departing gaddi‑nashin with the approval of the Nangiana of Dhareema who are the descen dants of Sultan Habib Nangiana. There are two questions which are to be considered the first, being whether the property attached to gaddi Koh Kirana is evacuee property to any extent and the second whether the appellant has in this property the interest that he claims. In order that this property may be evacuee to any extent the matter for consideration would be the interest which Prem Das had in this property and the effect of his migrating from the country and becoming an evacuee. The rights of a mahant as stated in para. 93 of Rattigan's Customary Law are that "so long as he' retains office he is presumed to have the sole management of the endowment or institution over which he presides". This paragraph states the whole interest that the gaddi‑nashin or mahant has in the property attached to a religious institution. He is in no sense the owner of the property. The property belongs to the institution of which he is the gaddi‑nashin. His position is that of a mutwalli under Muslim Law or a shebait under Hindu Law. A mutwalli as observed by the Privy Council in 48 I A 302 is "merely a manager". With respect to the bead of a Hindi, institution it was observed in the same case "called by whatever name he is only the manager or custodian of the idol or the institution". The right which he has is derived from his appoint ment to an office. That office carries with it the right of management and in accordance with the custom of a particular institution he may sometimes have a right of alienation of property, but he has no interest in the property and he can alienate the property not because of any interest which he has in the property, but because of a power which he has as manager o the. institution. There is another method of explaining his right and that is by a consideration of the nature and incidents of the property which is dedicated to a gaddi. When a Muslim dedicates property to a particular gaddi (and does not transfer it to a trustee for a public purpose) there being a dedication for religious or charitable purpose the property becomes waqf in accordance with the definition of waqf in the Mnssalman Waqf Validating Act, the West Pakistan Waqf Properties Ordinance, 1961, and in fact in accordance with the definition of waqf in commentaries on Muslim law. The property, therefore, becomes wakf and the gaddi‑nashin is only the mutwalli of it. When a person grants property to a particular religious o charitable institution his intention is that the gaddi‑nashin for the time being of that institution should be the mutwalli and therefore the gaddi‑nashin becomes the mutwalli. Similar consideration will apply to a case where a Hindu dedicates property to an institution. At the same time as it was only by virtue of his office that the gaddi‑nashin had rights in relation to the property attached to the institution, it is clear that the moment he renounces his office he ceases to have those rights. Even in para. 93 of Rattigan's Customary Law which has been quoted above the words used are a "so long as he retains his office he is entitled to the management of the property. attached to the institution". Whatever rights or power Prem Das may have had in relation to this property when he became an evacuee he evidently renounced his office and thereby all his rights and powers terminated. Evacuee property according to its definition means property in which an evacuee has an interest. A gaddi‑nashin has in fact, no interest in the property, but assuming that rights of management can become evacuee property even those rights have disappeared and it cannot be said that the property is evacuee to, arty extent. That the appellant is entitled to the management of this property is sufficiently proved because according to the usage of this institution it is the Nangianas who had to appoint the gaddi‑nashins and he has been appointed by the Nangianas. The Deputy Custodian had held that this institution was of Hindu Faqirs and it was not possible that a Muslim should be appointed as tire gaddi‑nashin of such an institution. He had not accepted the statement of Jalal Lambardar that Nangianas had been appointing the gaddi‑nashins. Although an institution in which both Hindus and Muslims can be gaddi‑nashins may be rare it is surely not an impossible concept. We are not inclined to reject F the statement of Jalal Lambardar grade in 1853 before any controversy as to this matter arose, and it may be stated that his statement as to the founding of Koh Kirana by his ancestors receives support from the footnote of the pedigree‑table of village Dhareema. It is stated in the footnote that Dhareema had been founded by Sultan Habib Nangiana who had come from Koh Kirana. This supports the plea drat Koh Kirana belonged to Sultan Habib Nangiana, the ancestor of the Nangianas. We would, therefore, hold that the appellant has been properly appointed as gaddi‑nashin. However, it should be pointed out that the question of the validity of the appointment of the appellant is not of great importance in this case. A de facto mutawalli or de facto gaddi‑nashin is like a trustee de son tort who has the liabilities of a trustee though not all his rights. Till a mutawalli or gaddi‑nashin is appointed in accordance with law a de facto mutawalli can carry on the functions of a mutawalli and has the same kind of rights for protection of the waqf property as a validly appointed mutawalli has. The main object of the application out of which this appeal arises was to prevent the property from passing into the hands of the Custodian and the Rehabilitation Department. The appellant is only a manager off the institution. As to the nature of the property which is attached to this institution it may be stated that according to the application of the appellant as well as according to the evidence which he led the property which is attached to this institution "has been dedicated generally by Muslims". As has already been stated in accordance with the definition of waqf all property permanently dedicated by a Muslim to such an institution becomes waqf for the dedication is for a religious or charitable purpose. There was some argument at the bar as to whether the property of this institution was being used for any religious or charitable purpose. It should be explained that the very establish ment or continuance of a religious institution in which a spiritual heritage passes from generation to generation is a religious purpose. Also a place associated with saintly persons becomes a place of pilgrimage and being the source of spiritual satisfaction and inspiration for those who have faith in the saintly persons serves a religious purpose. In this case there was even evidence that part of the income of the institution was spent on public festivals and on feeding the needy. The position of the appellant with respect to the waqf property is that of a mutawalli, whatever other rights in relation to the institution he may have in his capacity as gaddi‑nashin. This appeal is allowed, the order of the Custodian is set aside and the appellant is granted a declaration that the property of gaddi Koh Kirana is not evacuee property and that the appellant is entitled to its management as gaddi nashin or mutawalli. There is no order as to costs. A. H. Appeal allowed.