1995SCMR1584 (PLP)

4. The first defendant, Muhammad Din, was proceeded ex parte. The appellants contested the suit by filing a written statement. They denied that the plot in suit was Waqf property and vested in the mosque, in any case, so they pleaded, the first defendant had sold the plot to them with the consent of the Administrative Committee of the mosque and the sale was a valid sale. '

5. On these pleadings the parties went to trial on eight issues; the crucial issues were, "whether the suit plot is owned by Jamia Masjid Mussalianwali, Pindigheb and "whether sale of the suit plot by defendant No.l in favour of defendants Nos.2 and 3 is without any authority".

6. The learned Civil Judge held, by his judgment dated 12‑1‑1986, that the mosque and the plot in suit were separated by a 15 feet wide street; that no waqf was proved and that in any case the sale by the first defendant in favour of the appellants was made with the consent of the Administrative Committee. The learned District Judge affirmed those findings and held further that merely because the sale proceeds had been used "for the betterment and improvement of the mosque" did not prove that the plot in dispute was Waqf property.

7. The learned Judge in the High Court referred to the PTD (Exh.Pl) and observed that its entries clearly proved "that the plot was purchased for the benefit of Masjid Musallianwali, hence the moment PTD was issued, a Waqf was created simultaneously in terms of paragraph 183 of Mulla's Mahmomedan Law". He held also that the sale proceeds of the plot in suit were used for the benefit of the mosque. In that connection he referred to the evidence given by the former members of the mosque committee and concluded that "the plot was not only purchased for the benefit of the mosque and hence was Waqf property but was always treated as such not only by Muhammad Din, the purchaser of plot but also by the members of the Administrative Committee of the mosque as well as the general public". The learned Judge in the High Court then referred to 'para. 207 , of Mulla's Muhammedan Law which is to the effect that "a Mutwalli has no power, without the permission of the Court, to mortgage, sell or exchange Waqf property or any part thereof, unless he is expressly empowered by the deed of Waqf to do so", and held that the Waqif Muhammad Din had "no lawful authority to sell the plot in question even if the members of the Administrative Committee of the mosque had consented to the sale thereof'.

8. Learned counsel for the appellants referred to the Mussalman Waqf Validating Act, 1913, which defines the expression `Waqf to mean "the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable'. He relied also upon the definition of the expression in by Dr. Tanzil‑ur‑Rehman and contended that here there was no evidence of the permanent dedication by Muhammad Din of the plot in suit for the purpose of the plaintiff mosque.

9. The arguments is fragile and insupportable. As has been rightly pointed out by the learned Judge in the High Court, Muhammad Din had purchased the plot in suit for the plaintiff‑mosque; he made that fact known to the Settlement Authorities at the time of the auction and the fact that the plot was purchased for the purpose of plaintiff‑mosque was expressly incorporated in the PTD Exh.Pl. In the sale‑deeds in favour of the appellants also; Muhammad Din acknowledged the fact that he had purchased the plot in suit for the mosque. The sale deeds in favour of the appellants themselves stated, and stated in clear and unmistakable terms, that in selling the plot in suit, he was not acting as its owner but on behalf of the mosque. There could not, in our judgment, be a clearer evidence of the permanent dedication of the plot for the mosque. We, therefore, hold that the learned Judge in the High Court was right in holding that the plot in dispute is Waqf property.

10. The question then is whether Muhammad Din was competent to sell the plot in dispute as he did by means of the 40 unregistered sale deeds in favour of the appellants. While it is established on record that Muhammad Din was the Waqf of the plot in suit and that the Waqf was in favour of the plaintiff‑mosque, there is nothing on the record to show that Muhammad Din had constituted himself as the Mutawalli of the Waqf property. Assuming however that Muhammad Din was the Mutawalli of the Waqf, the Islamic Law on the point as stated in para. 198 of Mohamedan Law as revised by M. Hidayatullah former Chief Justice of India is that "a Mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange Waqf property or any part Thereof, unless he is expressly empowered by the deed of Waqf to do so". Here there was no formal deed of Waqf and hence there was no express authority in the Mutawalli to alienate the plot in suit. It is also common ground between the parties that permission of the Court for the sale in question was not obtained.

11. Learned counsel for the appellants advanced the view that there is no basis in law for the proposition that there can be no valid alienation of Waqf property without the permission of the Court. He sought support for his contention from by Dr. Tamil‑ur‑Rehman, and from. It appears however that Dr. Tanzil‑ur‑Rehman's views on the subject are against the appellants' contention also, we find nothing in the latter book to support that contention. The industry of learned counsel for the respondents, Maulvi Anwarul Haq, Advocate enabled him to cite at least two cases, "Askari Hussain v. L. Chunni Lal" (AIR 1929 Allahabad 849) and "Habibur Rahman v. Saidunnessa Bibi" (124 Calcutta 473), which are directly in point. It was held in Askri Hussain case:‑‑ "It is a piece of substantive Mahomedan Law that a Mutwalli whether the Waqf be a public or a private one cannot, practically speaking, transfer (Waqf) property without the sanction of the Qazi." It was held also that:‑‑ "in the present day, the Mutwalli has to go to a Civil Court to obtain le the sanction".

12. This rule of `Islamic Law' is of great antiquity and, as we shall venture to show it stems directly from the consequences of the creation of Waqf and can be supported on first principles as also on the authority of 'the Holy Qur'an. We have used the expression "Islamic Law"; this is deliberate. The expression "Mahammedan Law" was, as has been rightly observed by M. Hidayatullah, former Chief justice of India in his preface to Mulla's "Mahomedan Law", 16th edition, coined by the English. It is an echo of the Anglo‑Saxon thinking and is misleading. It is, therefore, time that we stop using that Anglo‑Saxon expression, and adopt the expression `Islamic Law' which expression truly and accurately describes what that law is.

13. The effect of a consecration or Waqf of a property by its owner is to extinguish absolutely and for ever all his rights therein. The act of consecration, which is irrevocable in its character, transfer the property for ever into the legal ownership of the Almighty Allah for the benefit of, His creatures. On general principle, only the person in whom the ownership of the property vests can lawfully deal with it. And, as the Waqf property vests in the Almighty Allah, He alone can deal with it. It follows logically that the Mutawalli, whose status, in relation to the Waqf property is no more than that of manager or superintendent, even though he be the Waqif, cannot in any way deal with it. But the Almighty Allah may, like any other owner, deal with the Waqf property through His delegates.

14. But suppose that it becomes necessary, for the purposes of the Waqf itself, to dispose of the Waqf property. As the Mutwalli has no right in the property; obviously he cannot lawfully transfer any. How then is he to proceed in the matter?

15. This at once attracts the Islamic trust theory of sovereignty as enshrined in the Holy Qur'an, V 3:27; this theory was propounded and recognised by this Court in "Miss Asma Jilani case (PLD 1972 SC 139, 182): .......the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the 'authority exercisable by the people within the limits prescribed by Him is a sacred trust The basic concept underlying this unalterable principle of sovereignty is that the entire F body politic becomes a trustee for the discharge of sovereignty functions. Since in a complex society every citizen cannot personally participate in, the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefits "

16. What imparts significance to this trust theory, in the context of Waqf property, is the fact that as in the case of legal sovereignty, so in the case of Waqf property, the entire body politic, that is the State, becomes a trustee and it is the State, through its State functionaries, that has to discharge the functions in regard to Waqf properties on behalf of Almighty Allah. The Kazi is one of the State functionaries‑‑one of the persons in authority within the meaning of the Holy Qur'an V. 4:

60. The reason why it was the Kazi who was entrusted with the function of dealing with Waqf properties was that function is a judicial function and the Kazi. was, therefore, the most appropriate State functionary to be entrusted with its performance. Thus the Islamic Law seems to proceed on the basis that it is the Kazi as delegate of Almighty Allah who has to perform the function of carrying the Waqf into execution and to deal with the Waqf property..

17. It is well‑settled that the place of Kazi has, in the British Indian System and also in Pakistan, been taken by the Civil Court. We have already referred to Askari Hussain case. In "Mahomed Ismail Ariff v. Ahmed Moolla Dawood" (1916) 43 IA 127), that great Muslim jurist, Syed Ameer Ali, speaking for the Privy Council, held: "Generally speaking, in case of a Waqf or trust created for specific individuals or a determinate body of individuals, the Kazi, whose place in the British Indian system is taken by the Civil Court, has in carrying the trust into execution to give effect so far as possible to the expressed wishes of the founder. With respect however, to public religious or charitable trusts, of which a public mosque is a common and well known example, the Kazi's discretion is very wide. He may not 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."

18. There are at least three statutory enactments in which the District Judge has been recognised as the State functionary entrused with the functions which the Kazi used formerly to perform; they are (1) The Charitable and Religious Trusts Act, 1920, (2)'The Mussalman Waqf Validating Act, 1913 and (3) section 92 of the C.P.C.

19. The Charitable and Religious Trusts Act, 1920 by its section 3, provides that any person having an interest in any express or constructive trust created or existing for a public purpose of a charitable or religious nature may apply by petition to the District Judge for obtaining one or more of the directions mentioned therein; the Mussalman Waqf Validating Act, 1913, by its section 3, required every Mutawalli to furnish to the District Court a statement containing the particulars therein prescribed in relation to Waqf properties and section 92 of the subsection (1), C.P.C. enacts:‑‑ "In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate‑General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate‑General, may institute a suit, whether‑‑ (a) removing any trustee;. (b) appointing a new trustee; (c) vesting any property in a trustee; (d) directing accounts and inquiries; (e) declaring what proportion of the trust‑property or of the interest therein shall be allocated to any particular object of the trust; (f) authorising the whole or any part of the trust‑property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief the nature of the case may require.. This section appears to proceed on the underlying assumption that it is necessary for the doing of the acts mentioned therein, including the act of letting; selling, mortgaging or exchanging trust property to seek the permission of the principal Civil Court of original jurisdiction. These statutory provisions support the view that in the present system of administration of justice, the District Court has taken the place of Kazi. It is significant to notice that in Mahomed Ismail Ariff case, the suit was brought under section 539 of the Code of Civil Procedure (XIV of 1882), which was the predecessor section of section 92 of the C.P.C., 1908. That case is, therefore, also an authority for the view that for the doing of the acts mentioned in section 92 of the C.P.C., including the act of alienating the Waqf property, the proper remedy is a suit under that section. 19-A. For these reasons, we dismiss the appeal with costs. M.B.A./Z‑197/S Appeal dismissed.