P L D 1968 Lahore 457 (PLP)

WAHIDUDDIN AHMED, C. J.‑

This is a Regular Second Appeal from the Judgment of the learned District Judge, Jhelum, in Civil Appeal No. 79 of 1958, dated the 22nd of July 1958. 8y this judgment the learned Court dismissed the appeal filed by the appellants.

2. In this second appeal the dispute between the parties relates to a shrine known as Khanqah of Shah Arif, situate at Village Deewal. This shrine has 15 Kanals and 17 Marlas of land dedicated by the ancestors of Appellants Nos. 1 to 3, within the area of Village Moghla, the land revenue of which has been remitted by the Government. The last Mutawalli Fateh Shah died on the 6th of August 1947, earlier Nazir Hussain respondent was appointed by him as the Mutawalli, under, a will Exh. P. 4 dated 4‑6‑1967. After the death of the last Mutawalli the respondent took over the management of the shrine and continued to act as its Mutawalli.

3. The appellants, after having obtained the necessary permission of the Advocate‑General un‑Jer section 92 of the Civil Procedure Code, brought Suits Nos. 313 of 1952, 4/332 of 1956, against Nazir Hussain respondent, alleging that he is not a validly appointed Mutawalli of the above shrine and praying‑- (1) that Nazeer Hussain respondent should be removed from the office of Mutawalliship, (2) that Rang Ali Shah be appointed as a Mutawalli, and (3) that a Scheme should be settled for the management of the waqf property. It was alleged by the plaintiff‑appellants that respondent Nazeer Hussain was not lawfully appointed a Mutawalli of the shrine but had usurped the office and was a man of undesirable character who had rendered himself unfit to remain in the office by misappropriating the income of the shrine since 1947 and spending it for his own personal use. It was also averred that the defendant‑respondent had claimed the land attached to the shrine as his own personal property by denying its waqf character and had also cut about 150 trees of different kinds from that land and had converted them to his own use. Appellant Rang All Shah, in his own right, asserted that he had been looking after the shrine for a long time and had been raking arrangements for the annual Urs and it constructed a mausoleum at the was a man of piety, good character, religious bent of mind and a person belonging to a respectable family. On these grounds, it is alleged, he deserved in every respect to be the Mutawalli of the shrine.

4. The suit was resisted by the respondent. He contended that the suit could not proceed without the sanction of the Advocate‑General, as provided for in section 92 of the Code of Civil Procedure, that the sanction accorded was not valid, that the plaintiffs-appellants having no interest in the dedicated property or the shrine were not competent to sue and that the suit was not cognizable by a civil Court on account of the exclusive jurisdiction of the Auqaf Board and should thus be stayed. He further asserted that he was the Sajjada Nashin as well as Mutawalli of the shrine and as the income of the dedicated property was very little, it was not a fit case in which any scheme should be settled for the management of the waqf property. He did not dispute that the property in suit was a waqf property, but maintained that as a Mutawalli he was entitled to appropriate to his own use the income derived from the waqf property for the services to the shrine which principle, according to him, was recognized from the very beginning. He further contended that he was appointed as a Mutawalli by the last Mutawalli on his death‑bed and, therefore, he was entitled to continue as a Mutawalli. He disputed the right of Rang Alt Shah to the appointment of Mutawalliship and asserted that the last Mutawalli had cancelled the will made in his favour, repudiating at the same time the allegation of the appellants that he had opened a gambling den at the shrine.

5. On the pleadings of the parties, mentioned above, four preliminary issues were framed which were decided by the trial Court on the 21st of February, 1957, in favour of the appellants, Thereafter, eight issues were framed on merits. The learned trial Judge held that the respondent was a validly appointed Mutawalli under a will, copy of which is on record as Exh. D.

4. He further held that it ‑was not necessary to nominate a successor on death‑bed and that it was proved that Fateh Shah was suffering from mortal illness when he nominated the respondent as his successor by means of a will. The allegations of misappropria?tion of the Waqf property were negatived. He further held that the respondent was a pious person and was entitled to continue as a Mutawalli of the Waqf property. On these grounds, therefore, he dismissed the suit by judgment dated the 28th of February, 1958.

6. Aggrieved by the decision of the learned Civil Judge, the plaintiff‑appellants took the matter in appeal before the learned District Judge, Jhelum, who, as already stated, dismissed the appeal. The learned District Judge, however, came to the conclusion that the respondent was not a validly appointed Mutawalli, although he conceded that the respondent was appointed a Mutawalli undo. the will Exh. D. 4 by Fateh Shah, the last Mutawalli. He was of the view that as the respondent was not appointed on death‑bed, hi appointment was not valid in law. Following the view expressed in Mirza Akbar Ali v. Mirza Iftikhar Ali and others (P L D 1951 Lah. 368) as endorsed by Akram, J. of the Federal Court when the matter was taken in appeal, that a Mutawalli could not appoint a successor while he was in health, the learned District Judge observed as under:-- "In presence of this clear and authoritative pronouncement on the point. it cannot be argued, and the learned trial Judge was not justified in holding, that a Mutawalli could appoint his successor even in health." He further observed as follows:

"In the light of these authorities, it is hardly possible to agree with the learned trial Judge that the will was executed by Fateh Shah deceased on his death‑bed. It was the duty of the defendant‑respondent to bring a definite evidence on the record to prove this fact. The remarks in the death entry that Fateh Shah died of phthisis and had been ill for two months, could have no evidentiary value and similarly the words used by the testator in the will are not sufficient to prove that he was suffering from mortal illness at that time. It was further pointed out by the learned counsel for the appellant that there was nothing in the will made by Fateh Shah deceased about the appointment of the defendant‑respondent as Mutawalli of the shrine. The property attached with the shrine was only bequeathed in his favour. It was added that since Fateh Shah claimed the property attached with the shrine to be his own, he had forfeited his right to nominate his successor. These two contentions are, however, devoid of force. Although it is not expressly given in the will that the defendant‑respondent was appointed as Mutawalli of the shrine, it can be safely inferred from the document as a whole that he actually intended to appoint him as such. This intention in further indicated from the revocation of the previous will to favour of Rang Ali Shah, one of the plaintiffs, and this position was virtually conceded by Rang Ali Shah, in his statement before issues, where he deposed that Fateh Shah had made a will in favour of the defendant‑respondent. By this, he presumably means that the will was about the appointment of the Mutawalli. Otherwise, he would have definitely alleged that the will was not about this appointment." The learned District Judge observed that although the appointment of the respondent was not valid, there was no doubt that Fateh Shah, the last Mutawalli, wanted to appoint him as his successor and in pursuance of that the respondent had been acting as Mutawalli since the death of Fateh Shah without interruption and treated the respondent as a de facto Mutawalli. On these premises he considered the question whether it would be desirable to remove the respondent from the office of Mutawalli?ship and to appoint Rang Ali Shah, one of the appellants, in his place. After considering the evidence adducted by the parties, he came to the conclusion that the respondent was not liable to be removed from the office of Mutawalliship and that Rang Ali Shah, plaintiff‑appellant, was not entitled to replace him. In this connection, he observed as under:‑ "After giving anxious consideration to these points, my answer in respect of both is in the negative. The defendant‑respondent was the disciple of Fateh Shah, as is evident from his will and was competent to be appointed as the successor. He had been acting as such for a long time and had been supported in his claim by a number of witnesses from the locality and those who hold the shrine in veneration. The last Mutawalli also wanted him to be his successor. There can be no objection to his continuing to hold the office particularly when there is no other rival candidate except Rang Ali Shah, whose nomination as a successor after having been once made was cancelled by the last Mutawalli. There is no force in the argument of the learned counsel for the appellant that once the appointment of the defendant‑respondent is held invalid, the will in favour of the appellant would become operative and hold good and he should be considered as the Mutawalli. He probably overlooked the fact that if the will in favour of the defendant‑respondent is inoperative for the simple reason that it was not made on the death‑bed by the last Mutawalli, this principle, would apply with equal force to the will in favour of Rang Ali Shah. The cancellation of the will in his favour is, however, indicative of the fact that the last Mutawalli did not want him to succeed to him, against whose wishes he cannot be appointed as such".

7. As regards the appropriation of the usufruct of the waqf property by the respondent, the learned District Judge upheld the finding of the learned trial Court that the respondent was not entitled to spend more than one‑tenth of the income in view of the services rendered by him to the shrine. He further upheld the finding of the trial Court that the, respondent had not been guilty of any misappropriation and came to the conclusion that he was a fit person to continue as a Mutawalli of the shrine. This judgment of the learned District Judge, Jhelum, is challenged by the appellants in the second appeal before us.

8. In support of the appeal, Mr. Khalil‑ur‑Rehman, learned counsel for the appellants has contended:‑- (1) that after the learned District Judge came to the conclusion that the appointment of the respondent was not valid, the office of Mutawalliship automatically became vacant and there should have been a fresh appointment, (2) that the respondent was not a fit person to continue as a Mutawalli, and (3) that a scheme should have been framed for the manage?ment of the trust property. In reply, Sheikh Muhammad Shafi, learned counsel for the respondent, has contended that, besides other reasons, the appeal should be dismissed because in the present case there is sufficient evidence on the record to establish that the respondent was appointed as a Mutawalli by the last Mutawalli in marazul maut. In any case, the learned counsel contended that even in health the last Mutawalli is competent to nominate his successor.

9. On the view that we propose to take of the matter, it is unnecessary for us to discuss the question whether the respondent was appointed by the last Mutawalli in marazul maut or whether the last Mutawalli was entitled to nominate his successor even in health. The contention of Mr. Khalil‑ur‑Rehman that on the view that the District Judge had taken of the matter a vacancy in the office of Mutawalliship had occurred and, therefore, a fresh appointment should have been made, has not impressed us. The learned counsel strenuously argued that the appellants being the male descendants of the founder of the Waqf should have been given preference while making appointment of Mutawalliship of the above shrine and that in not doing so the learned District Judge has fallen into an error. In our opinion, none of these contentions has any force. Admittedly, the Waqf in dispute is a public waqf. The consideration in such cases is quite different e inasmuch as the primary duty of the Qazi is to consider the interests of the general body of the public for whose benefit the trust is created. In this connection the Privy Council in Muhammad Ismail v. Ahmed Moola (43 I A 127) observed as under :‑‑-- "With respect to public, religious or charitable trusts the Qazi's discretion is very wide. It is not open to him to depart from the intentions of the founder or from any rule fixed by him as to the objects of the benefaction but as regards management, which must be governed by circumstances, he has complete discretion. He may defer to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but his primary duty is to consider the interests of the general body of the public for whose benefit the trust is created. He may in his judicial discretion vary any rule of management which must be governed by circumstances, he has complete discretion. He may defer to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but his primary duty is to consider the interests of the general body of the public for whose benefit the trust is created. He may in his judicial discretion vary any rule of management which he may find either not practicable or not in the best interests of the institution."

10. Mr. Khalil‑ur‑Rehman's contention that the office of Mutawalliship has fallen vacant because the learned District Judge had found that the respondent was not validly appointed Mutawalli, has also received our anxious consideration. It cannot, however, be overlooked that the respondent is a de facto Mutawalli. In summary proceedings, the District Court has no power to remove a de facto Mutawalli or to appoint a receiver for the management of Waqf property. This can be done only in a suit instituted under section 92 of the Civil Procedure Code. This view was expressed in Saliluddin Ahmed v. Mohiuddin Ahmed (I L R 26 Pat. 531). Even in regular suits a de facto Mutawalli is liable to be removed only when he is found unfit. Mr. Khalil‑ur‑Rehman was fair enough to invite our attention to a decision of the Allahabad High Court, reported as Muizuddin v. Muhammad Ikhlaq and another (A I R 1924 All. 59) in which a de facto Mutawalli was allowed to function till such time as a proper Mutawalli was appointed. In Niamat Ali v. Ali Baza and others (I L R 37 All. 86) Karamat Ali, who was found to be a de facto Mutawalli, was allowed to continue as Mutawalli because the trust property was being properly managed. In this state of the law, it cannot be held that the learned District Judge approached the question before him on erroneous considerations. He was perfectly justified is first considering whether it was desirable to remove the respondent from the office of Mutawalliship simply on the ground that his appointment was not valid and to appoint Rang Ali Shah, one of the appellants, in his place. It seems to us that the waqf being a public trust, the learned District Judge very rightly considered the question before him from the point of view whether it was in the interest of the trust to allow the respondent to continue as Mutawalli of the shrine. We are satisfied that this approach is n accordance with law and no exception can be taken to it. Mr. Khalil‑ur‑Rehman, learned counsel for the appellants, was unable to show us that the finding of the learned District Judge about the suitability of the respondent to act as a Mutawalli is erroneous or not based on proper appreciation of the facts. The circumstance that the respondent was a disciple of Fateh Shah and was preferred by him under the will against the appellants, together with the evidence of the people of the locality that he was a fit person, are cogent grounds to allow him to continue to hold the office of Mutawalliship. We would, therefore, uphold the finding of the lower appellate Court in this behalf.

11. The next contention of the learned counsel for the appellants that the respondent has misappropriated the trust property and was an unfit person to continue as the Mutawalli of the above trust property is also without force. In the first place, there is a concurrent finding of fact in favour of the respondent on this point and this being a second appeal there should be very strong legal grounds to reopen it. Secondly, this plea for the first time was raised in the pleadings. No report was ever made to the police or other authorities that the respondent had misappropriated the trust, property. In fact, the income of the trust is too small to substantiate any such allegation. In these circumstances, the learned District Judge was fully justified in not relying on oral evidence against the character of the respondent. We would, therefore, repel this contention.

12. It was urged that at least the learned Courts below should have settled a scheme for the future management of the trust. Admittedly, the income of the shrine is too little and in such circumstances it was quite sufficient to direct the respondent to maintain regular accounts in future and not to spend more than one‑tenth of the income on his person in lieu of the services rendered by him. We are satisfied that this is not one of those cases in which an elaborate scheme should have been settled.

13. In the result, for the foregoing reasons, we find no force in this appeal which is hereby dismissed, with no order as to costs. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.