2005 PLP 1172 (MLD)

The captioned Civil Revision is directed against the appellate judgment and decree dated 7-3-2000 whereby the appeal filed by the petitioner against the judgment and decree of the trial Court dated 8-10-1999 was dismissed.

2. The relevant facts giving rise to this Civil Revision are that on 30-12-1992, petitioner filed a suit for permanent injunction praying that decree be passed against the respondent restraining him from interfering in the management of the property in dispute which stood vested in the petitioner as Mutawali. It was alleged in the plaint that the property in dispute bearing No.SE/36-R/81 situated at Railway Road Lahore was originally owned by Rehmat Ali Khan who vide an instrument in writing dated 29-7-1931 registered on 31-7-1931 created a "Wakf-alal-Aulad" and in terms whereof, it was alleged, that the executant Rehmat Ali Khan would be the first Mutawali, whereafter, upon his death, Mst. Taj Begum his wife would be the second Mutawali. It was further stipulated that upon the demise of Mst. Taj Begum, Qamar Sultan and Daisy Dilara would be the next joint Mutawalis. The aforesaid Qamar Sultan and Daisy Dilara were the maternal grand children of the Wakif Rehmat Ali Khan being the children of his predeceased daughter namely Rehmat Jehan. And at the time of the execution of the Waqf, said Qamar Sultan and Daisy Dilara, were minors as stated in the Waqf deed. It was further alleged in the plaint that according to the Waqf deed, after the demise of Qamar Sultan and Daisy Dilara, the petitioner would be the Mutawali of the property in dispute. The respondent is the son of the last Mutawali namely Daisy Dilara who passed away in 1992, whereas Qamar Sultan as stated to have passed away earlier. In the above perspective, decree of permanent injunction was prayed for against the respondent restraining him from interfering in the management of the property in dispute.

3. Defendant entered appearance, filed his written statement and took up the plea that in terms of admitted Waqf deed, after the demise of Daisy Dilara, the respondent would be the Mutwali, and the management of the property would only vest in the petitioner upon the extinction of the line of descendant of the original Wakif namely Rehmat Ali Khan. Objections as to the maintainability of the suit were also raised and that the suit was not properly framed the relief of possession having not been claimed. It was further contended that the suit did not bear the requisite court-fee and had not been filed through the duly authorized representative of the petitioner.

4. The trial Court vide its order dated 21-2-1994 rejected the plaint. Being aggrieved, petitioner filed an appeal which was accepted by the first appellate Court vide its judgment and decree dated 18-5-1994, and the case was remanded with direction to frame the issues and to decide the controversy afresh.

5. Consequently, in the post remand proceedings, the trial Court framed one issue qua the competence of the suit in its present form. It appears from the record that petitioner did not produce any evidence and ultimately the suit was dismissed by the trial Court by means of its judgment and decree dated 15-11-1994 which was challenged, but petitioner's appeal failed to find favour in the first appellate Court and was dismissed vide judgment and decree dated 22-4-1997.

6. Petitioner filed C.R. No.787 of 1997 which was accepted and by setting aside the judgments and decrees of both Courts below dated 15-11-1994 and 22-4-1997, respectively the case was remanded to the trial Court for deciding the controversy afresh with direction that issues on all matters arising from the pleadings be framed.

7. In pursuance of the aforesaid order, the trial Court on 15-7-1999 framed 8 issues relating to the question of law and facts emanating from the respective pleadings of the parties, whereafter, the evidence was recorded and suit was again dismissed by way of judgment and decree dated 8-10-1999 holding that suit was not maintainable in its present form, inasmuch as, relief of possession had not been sought. It was also held that the plaint had not been filed by a duly authorized representative. It was however, held that proper court-fee had been affixed on the plaint. In respect of the pivotal matter inter se the parties, it was held that petitioner was not the Mutawali of the property.

8. Petitioner assailed the said judgment and decree by way of filing an appeal, but the same was dismissed by the first appellate Court vide its judgment and decree dated 7-3-2000 affirming the findings and conclusion of the trial Court on all issues, whereafter, petitioner filed a Civil Revision before this Court and in terms of order dated 26-10-2000, the same was dismissed by this Court holding that judgments and decrees of both the Courts below did not suffer from any irregularity and their finding could not be disturbed. And eventually, the petitioner invoked the jurisdiction of the apex Court and vide judgment dated 8-9-2004, the case was remanded back to this Court with direction to decide all controversial issues on merit and that the parties would be at liberty to raise the questions relevant for the resolution of the controversy arising in the instant case.

9. It may be stated that during the course of the proceedings before this Court, an application (C.M. No.87-C of 2005) under Order I, rule 10, C.P.C. was filed by one Syed Farooq Qamar for being impleaded as a party as the applicant therein claimed himself to be the legal heir of aforesaid Qamar Sultan, which was resisted by the respondent.

10. Learned counsel for the parties have been heard and the record appended with this petition perused.

11. The learned counsel for the petitioner contends that both the Courts below have failed to exercise jurisdiction vested in them by law and have committed material irregularity in the exercise of jurisdiction by misconstruing and misinterpreting the oral as well as documentary evidence, and more particularly, the terms of the Waqf deed. It was next argued that the question as to the vesting of the management of the property in the petitioner as a Mutawali had been decided in the earlier round of litigation initiated by the collaterals of the respondent and the said proceedings had culminated in a DB judgment of this Court reported as Mst. Mubarik Jan v. Taj Begum and others (AIR 1938 Lahore 453), wherein it was held that upon the death of aforesaid Qamar Sultan and Daisy Dilara, the management of the property would vest in the petitioner as Mutwali, hence, the two Courts below could not and should not have reopened the issue. It was next asserted that the Courts below have erroneously held that the aforesaid judgment and the observations made therein are merely obiter dicta hence not binding. It was further argued that the suit had been validly filed and correctly framed and the findings of the Courts below in the particular matter are against the law and facts.

12. Conversely, the learned counsel for the respondent as also the respondent who appeared in person, have contended that the decision of the Division Bench of this Court rendered in Mubarak Jan's case, supra, was merely obiter dicta and not res judicata nor otherwise precluded this Court or the Courts below from interpreting the contents of the Waqf deed. It was next submitted that interpretation of the Courts below in this behalf was legally and factually justified and no exception could be taken thereto. It was also averred that the suit had not been validly instituted on behalf of the petitioner, and the person through whom the suit had been filed was not duly authorized to do so. And the findings of the two Courts below in this regard are in consonance with the settled provisions of the law on the subject. It was further submitted that the suit having not been properly framed, judgments of the Courts below are totally unexceptionable and the concurrent findings cannot and should not be interfered with.

13. It would be appropriate to advert to the contentions raised on behalf of the petitioner that the observations of this Court in Mubarak Jan's case is a complete answer to the defence taken by respondent and neither the Courts below nor this Court could go behind the observations emanating from the said judgment. In support of his contentions learned counsel relies upon the observation in the said case. Rehmat Ali Khan executed a Waqf-alal-Aulad on 29th of July, 1931, under which he was himself the first beneficiary, then his wife Taj Begum, defendant No.1, then his two grandchildren, Daisy Dilara and Qamar Sultan, after which the property was to go to Anjuman Harnayat-Islam. There is no question that Wakf is valid. In fact in the present case it goes completely to the Anjuman Hamayat-Islam after the death of the two grandchildren.

14. On the strength of the above observations, the learned counsel for the petitioner contends that it has been held that on the demise of Qamar Sultan and Daisy Dilara, the management of the property would vest in the petitioner as a Mutawali.

15. Whereas on behalf of the respondent, it has been stated that the aforesaid observations are not binding in the matter nor would operate as complete answer to his defence. In this behalf the counsel for the respondents has relied upon the following judgments: 1901 AC 495 Quinn v. Leathem, PLD 1975 Kar. 26, Messrs Jamia Industries Ltd. Karachi v. Karachi Municipal Corporation, PLD 1987 Supreme Court 145 Pir Bakhsh and others v. The Chairman Allotment Committee and others 1994 SCMR 2213 Trustee of the Port of Karachi v. Muhammad Saleem, PLD 1962 (WP) Karachi 620 Nooruddin v. The State, PLD 1977 SC 75 Ghulam Shabbir v. Mst. Noor Begum and others, PLD 1990 Lahore 432 Syed Ghayyur Hussain Shah and another v. Gharib Alam.

16. The learned counsel on the strength of the above judgments has drawn a distinction between res judicata, ratio decidendi and obiter dicta. He has also dilated upon the principles of stare decisis and the binding nature of the judicial precedent.

17. It is not the case of either of the parties that principles of res judicata as enunciated in section 11 of the C.P.C. is applicable to the facts and circumstances of the case. Furthermore the doctrine of estoppel per rem judicatum is also not attracted. The question of interpretation of a document (as in the instant case is the Wakf deed) is not a pure question of law.

18. The principle thus attracted in the instant case is that " ..a case is only an authority for what it actually decides" as has been held by the House of Lords in the case reported as Quinn v. Leathem supra noted and quoted with approval of the apex Court in the case reported as 1994 SCMR 2213 supra.

19. The judgment in Mubarak Jan's case supra must necessarily be examined and interpreted on the touchstone and criteria set down in the said principle. The matter in issue in the said case was: The short point in the appeal is whether the Waqf is valid. It was contended that as it was against the Mahomedan Law of inheritance and the principal heir had been excluded it was illegal according to Mahomedan Law.

20. It is thus clear and obvious that the issue as to when the management of the property would vest in the petitioner was not the matter directly or substantially in issue before this Court while adjudicating upon Mubarak Jan's case supra, therefore, the contention of the petitioner that Wakf deed in question cannot be interpreted by this Court to examine and determine as to when or with the happening of what events, the management of the property would vest in the petitioner is not tenable. However, it may be added that the observations of this Court in Mubarak Jan's case must be viewed and treated with great respect and a heavy burden lies upon the respondent on whose behalf it has been canvassed at the bar that a different view may be taken by this Court.

21. It was next contended by the learned counsel for the respondent that the Waqf deed in question has been interpreted by the two Courts below who have returned a concurrent finding to the effect that the management and benefit of the property shall vest in the petitioner after the extinction of the line of the descendant of Wakif and it is contended that this Court in its revisional jurisdiction should not interfere with the concurrent/consistent findings.

22. This Court vide its judgment dated 26-10-2000 upheld the judgment of the trial Court without itself interpreting the document and it was set aside by the apex Court through its order dated 8-9-2004 whereby the case was remanded to this Court with a specific direction to decide all the issues/questions to be raised by the parties including interpretation of the Wakf deed and in view of the specific direction of the apex Court in its remand order, the contentions raised on behalf of the respondent are untenable.

23. Dr. Riaz ul Hassan Gillani, Advocate one of the counsel of the respondent contended that the document in question "Wakf-alal-Aulad" which necessarily implies that the benefit and management of the property subject-matter of the Wakf shall vest in the line of descendant of Wakif until its extinction. The learned counsel has relied upon Fatwa Alamgiri translated by Alama Maulana Syed Amir Ali Volume IV pages 79 to 83 to contend that the exact words till the end of the line of the Wakif need not necessarily be employed to extend the vesting of the management and benefits of the property in the Wakif's descendant till the extinction of the line of descendants.

24. It has been further contended that Aulad is not limited in its meaning merely to the offspring of the Wakif but would include the descendant howsoever low. Reference is also made to Mussalaman Wakf Validation Act, 1913, more particularly, sections 3 and 4, thereof.

25. There can be no cavil with the argument that Aulad in its meaning and import is not limited to the immediate offspring i.e., the children but can with reference to its context extend to descendants. However, the provision of the Mussalman Wakf Validation Act, 1913, more particularly, sections 2, 3 and 4 thereof are permissive in nature and permit a Muslim to create a Wakf wherein the benefit and management of the property vests in the family/children and descendants of the Wakif till the extinction of the line of descendant, whereafter, the property may be used for charitable purposes. This is clear and obvious from the tenor of section 4 of the Mussalman Wakf Validation Act. 1913 which is reproduced as hereunder: No such wakf shall be deemed to be invalid merely because the benefit reserved therein or the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the wakf.

26. The above quoted provision of law cannot be interpreted to mean that all Wakf-alal-Aulad must necessarily be for the benefit of the family and children and descendant of Wakif till the extinction of the line of descendant.

27. The relevant portion of the Fatawa Alamgiri relied upon by the learned counsel for the respondent is a series of example in which a Wakf-alal-Aulad has been considered to be valid or invalid, as the case may be, depending on the words employed. There. is nothing in the said Fatawa to the effect that merely because it is a Wakf-alal-Aulad, it automatically extends to the descendants till the extinction of the line of descent. There is also nothing in the said treatise to the effect that where the Wakif states that after the demise of the named descendant, the benefit of the property will be used for charitable purpose. It must necessarily be read into the Wakf deed that future generations also derive benefit therefrom or are entitled to its management. The intention of the Wakif must necessarily be gathered and construed from the Wakf deed itself. In this view of the matter, there is no other choice but to venture forth to gather the intention of the Wakif Rehmat Ali from the Wakf deed dated 27-3-1931.

28. It was submitted on behalf of the respondent that true and faithful interpretation of the Wakf deed in question leads to the conclusion that the benefit and management of the property would vest in the petitioner, only if, Qamar Sultan and Daisy Dilara had died in their minority. In support of his argument, the learned counsel has relied upon the following portion of the Wakf Deed: Urdu Page 1180-1181

29. The word (ﻫﻰ) is being read as word (ﻫﻰ) which is disputed by the learned counsel for the petitioner. Be that as it may, we are not left at the mercy of the scribe alone, as the intention can be gathered from the undisputed portion of the Wakf deed including the succeeding portion of the para. relied upon by the respondent which reads as follows:--

30. The intention of the Wakif is also evident from the following portion. of the Wakf deed.

31. It may be noted that Wakif in clear and unambiguous terms states that upon the demise of the Daisy Dilara and Qamar Sultan, the management and related benefits of the property would vest in Anjuman Himayat-e--Islam. Furthermore, any term or words to the effect that the benefit or the management of the property would vest in the descendants of Qamar Sultan and Daisy Dilara are conspicuous by their absence.

32. The clear wording of the Wakf deed leads to an irresistible conclusion that upon the demise of the last Mutawali Mst. Daisy Dilara, the management of the property would vest in Anjuman Himayat-E Islam, and the benefits therefrom are to be used for the up-keep of Muslim orphans. Similar are the observations of the Division Bench judgment of this Court in Mubark Jan's case, supra, and the counsel for the respondent were unable to persuade this Court to take a contrary view.

33. Such an interpretation of the document is not only reasonable and logical but also in accordance with the traditions of the classic Islamic Law as is obvious from the following extract from Mahommedan Law by Syed Amir Ali 5th Edition by Raja Said Akbar Khan (page 293): "This is different from the case a Wakf on so and so and so and so, naming them specifically among his (the Wakif's) children, and then on the poor, in such a case upon the death of any of the specific individuals so named, the share of such deceased would be for the poor, etc."

34. The learned counsel for the respondent at this stage attempted to argue that in fact the document is Umra Gift, and in this behalf referred to (PLD 1997 Supreme Court 730) Abdul Hameed and 23 others v. Muhammad Mohiyuddin Siddique Raja and 3 others. I am afraid this contention cannot be accepted. Transaction in question is a Wakf whose validity has been sanctified and upheld in the Mubark Jan's case, supra. The validity has also been upheld by the apex Court in its remand order dated 8-9-2004. Even otherwise, no plea has ever been taken by respondent that the Wakf was not valid and the transaction was in fact and in law a gift of usufruct of the property. Hence, the contention is repelled.

35. Adverting to the maintainability of the suit, in this context suffice it to say that admittedly petitioner is a registered society, and section 6 of the Societies Registration Act, 1860 clearly provides that all litigation/legal proceedings must necessarily be initiated in the name of the principal officer or the trustees and not in the name of the society, as in the instant suit, which must necessarily fail. I am fortified in this view by the judgment reported as (PLD 1992 Karachi 54) Muntizma Committee, Al-Mustafa Colony (Regd.) Karachi and 3 others v. Director Katchi Abadies Sindh and 5 others. The suit had been filed through Azmat Ullah the Estate Officer of the petitioner. No authority in favour of Azmat Ullah has been produced in evidence. It has also been noticed that no document pertaining to the constitution of the society or identifying the persons authorized to initiate legal proceedings or to delegate such powers has been produced in evidence. Thus, the Courts below rightly concluded that the suit was not validly initiated. In addition thereto, the form of the suit is also dubious. In the facts and circumstances, the suit for injunction simpliciter is not maintainable. Relief of declaration and/or possession must necessarily should have been made. Thus, it is clear and obvious that the suit has neither been filed through a duly authorized representative nor is framed in accordance with law, hence not maintainable and liable to be dismissed.

36. That CM filed by the applicant referred to hereinabove is not maintainable. The petitioner filed a suit for permanent injunction raising a grievance only against the respondent and not the said applicant. The said applicant is neither necessary nor proper party. Even otherwise, the said application being palpably belated is bound to be dismissed.

37. The upshot of the above discussion is that pursuant to the demise of Daisy Dilara the last surviving named Mutwali and beneficiary of the Wakf, the petitioner would inevitably be entitled to the management of the property as a Mutwali, and of course, benefits derived therefrom would be used for the up-keep of Muslim orphans in line with the unambiguous intention of the Wakif. However, the suit from which civil revision arises has not been validly filed is liable to be dismissed. Civil Revision dismissed in the terms enumerated above leaving the parties to bear their own costs. M.B.A./A-455/L Order accordingly.