1981 PLP 753 (SCMR)

(ii) Adna Malkiyat of 314 shares in agricultural land measuring 24 kanals bearing Khatuni No. 31 Square No. 221 min, vide mutation No. 262. (iii) Adna Malkiyat of 3/4 shares in agricultural land measuring 252 kanals and 8 marlas bearing Khatuni No. 32, Square Nos. 221 min and 222 min, mutation No. 262 situated in the Revenue Estate of Alipur, Tehsil Shujabad, District Multan. In due course the petitioner, Dewan Syed Ghulam Abbas alias Dewan Muhammad Sultan Ahmad, filed a petition before the District Judge Multan under section 7 of the West Pakistan Waqf Properties Ordinance, 1961, seeking a declaration that :-- (1) The property known as Dera Phatak.wala (item No. 3 above) was the private property of the petitioner and not Waqf property. (2) The properties (mentioned at item 4 above) were exempt from the operation of the Ordinance being Waqf under section 3 of the Muslim Waqf Validating Act, 1913. Similarly, the shrine etc. and income from the cash box (mentioned at items 1 and 2 above) were not Waqf properties to which the provisions of the Ordinance were applicable, and finally that he was entitled to recover Rs. 19,707.50 on account of improvements made to him to the Waqf property from his own pocket. The application was resisted on behalf of the respondent [who denied these allegations. in these circumstances, the learned District Judge, Multan framed the following issues arising out of the pleadings of the parties in the case :-- (i) Is the property in suit not Waqf ? (ii) Has the petitioner spent Rs. 19,767.50 from his own pocket on improvement of the property and with what effect ? (iii) Relief. The parties went to evidence on these issues. After recording the evidence the learned District Judge partly accepted the petition before him. He was satisfied from the evidence that Dera Phatakwala (item No. 3 mentioned above) was not Waqf property and was the private property of the petitioner belonging to him. In respect of the properties mentioned at items Nos. 1 and 2 above, the petitioner conceded that these were waqf properties hit by the Ordinance. The Court also treated all the landed properties (mentioned at item No. 4 above) as Waqf properties hit by the provisions of the Ordinance. Under issue-No. 2 the Court was of the opinion that the question as to whether the petitioner had any charge on the Waqf properties to the extent of the amount allegedly spent by him from his pocket, was not relevant to the enquiry held by him under section 7 of the Ordinance and the petitioner was therefore, directed to seek his remedy elsewhere, if so advised. The petitioner then went up in appeal against the order. In appeal Wore the High Court the sole question raised on behalf of the petitioner was as to whether the agricuitural land measuring 3,715 kanals (fully described at item (4) (i) above) was Waqf property or not. ')tee learned Judge of the High Court agreed with the trial Court in holding that it was Waqf property bit by the Ordinance and not a private Waqf property covered by the provisions contained in section 3 of the Mussalman Waqf Validating Act, 1913 and dismissed the appeal of the petitioner on 15th January 1975 We have heard the learned counsel for the petitioner. The only question raised before us is as to the nature of the Waqf in question concerning the agricultural land measuring 371 kanals in dispute (described at item (4) (i) above). This property at one time belonged to the petitioner as his private property and he dedicated it as a Waqf property by a registered deed executed on the 22nd of Apri11950(Exh. P. 1). In the two Courts below it was contended on behalf of the petitioner that thereby he had created a private Waqf under the Mussalman Waqf Validating Act, 191.3 and that consequently the provisions of Ordinance were not applicable to it and therefore, the respondent had no lawful authority and jurisdiction to assume the management and control over this property. This document (Exh. P. 1.) is described as a Waqf deed and thereby the petitionet expressed unequivocal intention and desire to dedicate the agricultural land owned by him in the name of Darbar Hazrat Pir Sultan Ahmad Qattal Sahib for religious purposes and welfare of the community. The dedication thus made was absolute and irrevocable and thereby he completely divested himself of the land and any interest therein in favour of the Waqif and assumed its management and control merely as its first Mutwalli for life and not a its absolute owner free from any restrictions. He even did not retain o reserve for himself, personally or as a Mutwalli as such,. any appreciable income of the property which had to be spent for the religious and charitable purposes in accordance with directions laid down in the deed of Waqf. After his death his eldest son shall succeed as the next Mutwalli and the management devolve on his successors Mutwalli in accordance with the rule of primogeniture. In case of the extinction of his male line of descent, his nearest heir shall be appointed as the Mutwalli. It is significant to mention here that in this deed of Waqf no par of the income of the Waqf property was reserved by the donor for the maintenance and support wholly or partially for his family, children or descendants, or for his own maintenance as such. Consequently section 3 of the Mussalman Waqf Validating Act, 1913 is not applicable to this Waqf in question. The two Courts below were justified in repelling this contention advanced before him. It is expressly laid down in the deed of Waqf under consideration that the Mutwalli shall be bound to maintain an account of the income and expenditure of the Waqf properties separately from those privately owned by him and shall discharge the duties faithfully and honestly. Before us the learned counsel for the petitioner strongly relied on clause (6) of the document. This lays down that the Mutwalli/ Sajadanashin shall apply 1/2 of the net income of the property for Maintaining the traditions and honour of their family in his discretion and he shall not be liable to render any account of the same to the community. According to clause (6) of the deed the Mutwalli/Sajadanashin is bound to apply the remain ing 1/2 net share of the income for religious and charitable purposes mentioned therein for which he was liable to maintain regular accounts separately from his privately, owned properties. It is however, evident from clause (6) of the deed of Waqf reproduced above that no part of the 1/2 share of the net income from the Waqf property was thereby reserved by the Waqif for the maintenance and support wholly or partially for his family, children or descendants or for himself. It had to be applied in the name of Darbar Hazrat Pir Sultan Ahmad Qattal Sahib for the purpose of upholding the family tradition and honour of the Mutwalli/Sajadanashin of the Khanqah as such and for C maintaining the Deradari Langar by distributing the food to the poor etc. thereby the Mutwalli was not entitled to appropriate any portion o this income for his private purpose. In this centention before us the learned counsel for the petitioner relied in vain on the pronouncement of their Lordships of the Privy Council in Mst. Abadi Begum and others v. Mst. Bibi Kaniz Zainab and others (A I R 1427 P C 2) to the effect that in the case of Waqfs or gifts for charitable purposes, the Shia Law imposes a further restriction that the Wakif or settlor shall not retain for himself any interest in the subject of the gift. But this authority is hardly attracted to the facts and circumstances of this case. As already stated above, under this deed of Waqf the Mutwalli is not entitled to appropriate any portion of this income for his private purposes. Moreover, the petitioner did not at all plead that the Waqf in question was a Shia Waqf. Indeed, in this connection it appears that in the course of the proceedings before the District Judge the petitioner had for the first time moved an application under rule 17 of Order VI of the Code of Civil Procedure for permission to amend the main petition to enable him to raise an altogether new and inconsistent plea to the effect that the. Waqf of the land thus created were ab initio void according to the Shia law. The application for the amendment was made belatedly after E more than two years of the notification in question and the plea raised was inconsistent to his own allegations in the main petition filed in the trial Court under section 7 of the Ordinance in which it was admitted that the property in question was Waqf property. He was therefore not allowed the permission to set up an inconsistent case by this amendment. His application was accordingly dismissed by the learned District Judge and the order was upheld by the High Court in the impugned judgment. We therefore, see no reason to interfere with the discretion lawfully exercised by the two Courts. For the foregoing reasons this petition has no force and is rejected. Petition dismissed.