P L D 1967 Dacca 1 (PLP)

MURSHED, C. J.‑This application relates to a historical wakf founded by Haji Mohammad Mohsin, a great man in the annals of this sub‑continent. The application,‑ which sets out the genesis of the wakf and its historical growth, has assumed a voluminous proportion and the affidavit‑in‑reply is also sub stantial. ‑The petitioner is a Secretary of the Mutwalli Committee appointed by the Administrator of Wakfs, East Pakistan (who has been impleaded as respondent No. 3 in this application). He has asked for various directions with regard to wakf properties appertaining to the said wakf within the Province of East Pakistan. It is unnecessary for us to go into the details of numerous controversies, which have been raised in the petition and in the affidavits filed before us in view of the limited nature of the Rule Nisi obtained by the petitioner. We may, incidentally, observe 'that the original petitioner Al‑Haj Agha Gholam Hosain Sherazee unfortunately died before the conclusion of the hearing of the application. We have already allowed a prayer made for substitution of one Azim Rahim in place of the deceased petitioner. We have been informed that the said Azim Rahim who has been hitherto only a member of the said Mutawalli Committee, has been appointed as Secretary of the Mutawalli Committee. Even a mere member of the said Committee is entitled to represent the original petitioner, and we have, therefore, already allowed the application for substitution which was made earlier this morning. Upon hearing learned Advocate for the petitioner this Court issued the following Rule Nisi: "Let a Rule Nisi issue calling upon the Respondents Nos. 1 and 2 to show cause why they should not be directed to pay the respondent No. 3 under section 58 (4) of the East-Bengal State Acquisition and Tenancy Act, 1950. (E. B. Act XXVIII of 1951), the entire annuity money of the wakf Estate of Haji Mohammad Mohsin, as declared by the Settlement officer, Khulna‑Jessore, by his order dated 28‑5‑63 passed in the same in accordance with law, or such other or further order or orders passed as to this Court may seem fit and proper." We may add that on the petition filed in this Court, the Rule Nisi quoted above puts in issue the only relief which the petitioner can claim on the present petition. The Rule Nisi is directed towards the destination of the fund into which the aforesaid wakf property in East Pakistan has been converted consequent upon its acquisition by the Province of East Pakistan under the provisions of the East Bengal State Acquisition and Tenancy Act, 1950. The Rule is, therefore, limited, if we may add, very rightly, to the aforesaid question only. The original wakf was founded by Haji Mohammad Mohsin in the year 1806 A. D. It was a wakf and it can hardly be contested that it is so, with regard to which the wakf (Haji Mohammad Mohsin) divided the entire property into nine shares. He directed that three shares thereof be spent exclusively towards religious rites, which are usually considered to be followed by those who profess the Shia faith. Two shares thereof were directed to be given to the Mutawallis (two in number), as nominated by the wakif himself. The four remaining shares were directed to be paid towards the expenses of establishments, most of which were, and still are, in Calcutta, and to persons named in a separate list appended to the wakf deed under the signature of the wakif (clarum et venerabile nomen). It would be noticed that in the original Wakfnama there has been no specific direction for establishing a Mohsin Endowment for the benefit of Muslim students and for educational institutions appertaining to the Muslim community. The famous Mohsin Endowment is a later process of historical growth, unlike popular belief in its co‑existence with the birth of the wakf itself. The wakf itself has had a chequered, romantic and some what cavalier career. The original Mutawallis, during their life time, appointed their sons in their places. Thereafter, there were allegations of mismanagement leading to the appointment of another person as Mutawalli by Revenue Authorities. Sub sequently different sets of persons became Mutawallis. In course of time the four shares that were directed to be paid in the manner as stated by the wakif became practically unworkable in its entirety because most of the beneficiaries named by the wakif died in course of time. So far as the remuneration of the Mutawallis was concerned, a certain amount of remuneration has, all along the line, been given to the Mutawalli directly concerned in administering the Hooghly Imambara which has always been the main institution established under the auspices of the wakf. In 1835 the Governor‑General‑in‑Council claimed to have succeeded to the full authority and power of the wakif, Haji Mohammad Mohsin, and re‑apportioned the shares. This has been described by the petitioner as illegal usurpation of power, we are not directly concerned with this debatable proposition at the present moment. From the papers which have been submitted to us, it is clear that the Governor‑General‑in‑Council, and the succeeding authorities in what was then known as British India, had tried their best to sail as close as possible to the original intention of the wakif. They took steps to found a new Endowment (as referred to above) out of the surplus funds in their hands. We may recall, in this context, that certain sums of money which were directed to be given to some persons specifically named by the wakif had become unworkable. The religious institutions and devotional ceremonies, which grew out of the wakf fund were faithfully maintained. The Shia rites and acts of piety were also kept alive in their observance. In consequence of the action taken by the Governor -General‑in‑Council in 1835 a corpus of a substantial surplus of fund accrued to the wakf. This fund was converted into an Endowment known as, Mohsin Endowment, which was exclusively directed towards advancement of Muslim education in Bengal. Historically speaking, the Mohsin Endowment is a creation of the British, arising out of action taken by the Governor‑General‑in‑Council. But, the Mohsin Endowment is a bye‑product of the wakf itself and is, in law and, in fact, a vital part of the wakf, notwithstanding various other kinds of legal phraseology which has been used in this respect. Mr. Syed Amjad Hossain has contended, on behalf of the petitioner, that a wakf cannot change its character as a wakf merely because it has sometimes been described by another name. This contention must be accepted. It is well‑settled that under Muslim Law the incontrovertible principle is: Once a wakf always a wakf, if the wakf properties can be traced and identified. We think it is too late in the day to found an argument to the contrary. Learned Advocate‑General has contended that the aforesaid wakf had undergone a sea‑change by virtue of the action taken by the Governor‑General‑in‑Council in 1835. He has submitted that the original wakf had ceased to exist and that it has become a "trust" thereafter. A similar kind of argument has also been advanced by Mr. M. H. Khondkar who has appeared as, amicus curiae, on his own request. We may note, in this connection, that the wakf had been, in course of about a century, afflicted with several litigations and proceedings in some of which it has been described as a "trust". We may observe that the word "trust" has been loosely expressed in most of such decisions or observations. It is not permissible to import, in toto, the Trusts Act or the concept of the law of trust, as it is understood in England, into the principles of wakf in Muslim Law. It is true that there is a good deal of similarity between the two, but there are also vital anti substantial differences. If any person can lay his finger at a property to be a wakf, it shall continue to remain as wakf as long as it can be identified. The question whether the said wakf retained its characteristics as wakf or whether it was transformed into a "trust" is, at the present moment, a mere academic question which need not be discussed any further. The learned Advocate‑General has tried to support the steps taken by various authorities under the Wakf Act of 1934 as amended by the East Pakistan Wakf Ordinance, 1962 and also under Act XX of 1863. It is not necessary for us to discuss these moot points, which are not directly involved in the disposal of the Rule which we are hearing. With regard to the first point, namely, whether the properties of the said wakf in East Pakistan had remained as wakf, we hold that they do. They had always been an integral part of the original wakf. We do not think that this can be con troverted. No question of a "trust" can arise in respect of the properties involved in this petition. Then the next question is: Have the aforesaid properties been acquired by the Province of East Pakistan (Respondent No. 1 before us) under the East Bengal State Acquisition and Tenancy Act, 1950? It is clear that they have been so acquired. We now turn to the third and final question which is relevant for disposing of this application, namely, what should be the destination of the moneys or annuities into which the aforesaid properties have been transformed after the acquisition by respondent No. 1 of the said properties under the East Bengal State Acquisition and Tenancy Act, 1950. On this question the law seems to be clear. The relevant section is section 58 of the said Act and subsection (4) thereof must govern the situation. The said subsection (4) reads thus: "Notwithstanding anything contained in subsection (2) and (3), an annuity referred to in clause (1a) of section 37 or sub‑section (la) of section 39 shall be paid to the Commissioner of Wakfs in the case of a wakf or wakf‑al‑aulad and to a trustee to be appointed in this behalf by the Provincial Government in any other case." Therefore, there can be no manner of doubt that in accordance with the express provisions of the East Bengal State Acquisition and Tenancy Act, 1950, as quoted above, (be proceeds of the wakf, whatever form they have now taken, upon such acquisition, must be made over to respondent /No. 3, namely, the Adminis trator of Wakfs East Pakistan, who has taken the place of the Commissioner of Wakfs. The Rule is, therefore, made absolute. We may, incidentally, observe that, as at present advised, our view is that the Governor‑General‑in‑Council and the suc cessive Revenue Authorities did not violate Muslim Law in creating the said Mohsin Endowment which, in our opinion, does not militate against the provisions of Wakf Act or the general provisions of the Muslim Law. They were integrated into the wakf itself. Having regard to the wishes of the wakif as the religious rites and observances appertaining to Shia community and for the discharge of their expenses, any authority administering the said wakf must bear in mind these paramount intentions of the wakif, Such intention cannot be nullified even if a part of the wakf fund is devoted to a similar purpose as was the objective of the said Mohsin Endowment. At the present moment, however, none of the religious institutions which grew out of the original wakf is situated in East Pakistan. Some of the properties as well as moneys which form part of the said wakf are not available to East Pakistan and are, in fact, in possession of the Government ok West Bengal in India. As to the ownership of some part of the said Endowment, negotiations have been, uptil now going on between the two Governments. The Administrator of Wakfs, therefore, will have to apply his mind to the primary question, namely, how best to carry out the intentions of the wakif, Haji Mohammad Mohsin, with due regard to religious 'observations of the Shia community and to the practice of helping Muslim education which have the sanctity of having prevailed for over hundred years in the shape of the Mohsin Endowment as mentioned above. We do not wish to be understood that we are, in any way, imposing any fetter upon the discretion of the Administrator of Wakfs, namely, respondent No. 3, or upon any scheme that may be submitted to him by the Mutawalli Committee as stated above. This is a matter which should be governed in accordance with the Muslim Law and in conformity with the intention of the wakif, in so far as such intention can be carried out. For reasons stated above, and having made the Rule absolute, we direct respondents Nos. 1 and 2 to pay the funds and annuities constituting the aforesaid wakf to respondent No. 3 to be dealt with by the latter in accordance with law. SATTAR, J.‑I agree. K. B. A. Rule made absolute.