P L D 1989 Supreme Court 685 (PLP)

" ............. On this general question they reserve their opinion, but they think it right to decide the specific question which arises in the present case and hold that suits cannot competently be brought by or against such institutions as artificial persons in the British Indian Courts". As regards the extract from Baillie's Muhammadan Law and from Articles 1017 and 1018 of Mejella, the learned counsel pointed out that the very same Articles had been considered in the Lahore judgments (ibid) but were disregarded. Mr. M. Yunis Shah, in reply, drew our attention to Abdul Hamid Qureshi v. Ch. Fateh Muhammad Sheifta PLD 1958 Lahore 824, wherein B.Z.Kaikaus, J sitting with Shabir Ahmad, J has observed:‑‑ "When property is made Waqf its ownership vests henceforth in the Almighty and its usufruct is to be applied for the benefit of His Creation only." This observation was relied upon by him in support of the plea that a Waqf property is not vested in the Waqif as such but in God. Even if it was treated as a juristic person, no claim for pre‑emption can be made on behalf of the Waqif. According to him, in accordance with the principles of Muslim Law neither a Mutwalli nor a Waqif nor a beneficiary is entitled to claim pre‑emption in cases of sale of the property adjoining a Waqf Estate. This submission seems also to be supported by this Court in Sikandar v. Sultan Muhammad PLD 1974 SC 11, wherein it was held that where pre‑emption is claimed the pre‑emptor must have the Milkiat or ownership in the property on account of which he claims the right of preemption. This is based on the principle that a suit for pre‑emption can be filed only by a Shafi and Shafi under the Muhammadan Law must be the owner of the property on the basis of which he puts forward his claim for pre‑emption. The waqf property not being vested in the Waqif as such but in God, no claim for pre‑emption can be made on behalf of the Waqif even if it were to be treated as a juristic person. In Baillie's Digest of Muhammadan Law, Vol.l at page 474, the following passage occurs:‑‑ "When it is said that akar are proper objects of the right of pre‑emption, it is by virtue of a right of milk, or ownership they are so. Hence, if a mansion were sold by the side of a waqf the appropriator would have no right of pre‑emption; nor could the Mutawalli or Superintendent take it under that right." Again, in Tyabji's Muhammadan Law, Edn.3 at page 711 it has been said:‑‑ "Part of a land is waqf, and the other part belongs to S, who sells it to B. Neither the Mutawalli nor the beneficiary under the waqf, 'not even if he be a single individual' can pre‑empt. If a mansion by the side of a waqf were sold, the Waqif would have no claim to pre‑empt nor the Mutawalli or Superintendent. These two statements are from Shia and Sunni texts respectively. But under the Punjab Pre‑emption Act II of 1905, the Mutawalli could pre‑empt." In Fatwa Alamgiri (Vol. VIII, page 185) it is clearly provided that on the sale of the property contiguous to a waqf property there is no right of pre‑emption in favour of the Mutawalli or beneficiary. Reference may also be made advantageously to Baillie's Digest of Muhammadan Law, Part II (Imameea) at pages 177 and 178 where it is laid down:‑‑ "If a mansion should be partly wakf, or appropriated to pious or charitable purposes, and partly free, and the latter portion of it is sold, the person entitled to the benefit of the appropriation has no right of pre‑emption not even if he be a single individual, because he is not the proprietor of the substance of the waqf and is entitled only to its usufruct". Reference may next be made to the Fatawa‑i‑Alamgiri (Kitab‑al Shuf'a) translated by Al‑Haj Mammedullah ibn S.Jung, Chapter 1; dealing inter alia, with the conditions on which the right of pre‑emption is founded wherein it is stated at page 46:‑‑ "At the time of the sale there must be milk i.e. ownership of the pre‑emptor in some property by reason of which he claims the right of pre‑emption, the pre‑emptor has no right by reason of a mansion of which he is merely an occupier whether a tenant on hire or on ariat nor will he have a right of pre‑emption if he had sold this property before this transaction, nor if he has converted it into a masjid." Again it is said:‑‑ "And it is according to Chapters of Adab‑ul‑Qazi of Imam Khisal's Book of Pre‑emption that right of pre‑emption accrues by reason of milk i.e. ownership only; hence if a mansion was sold by the side of a waqf property, the waqif would have no right; nor could the Mutawalli pre‑empt the sale. This is according to the Fatwa‑i‑Kafiyah of Abul Lais. And according to the Muhit, if a mansion was made waqf for the benefit of private individual then also he has no right of pre‑emption by reason of the waqf property". Some observations from the judgment of Mr. Justice Pir Muhammad Karam Shah in the case of Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 may also be reproduced here with advantage. At page 396, the learned Judge has observed:‑‑ On the basis of the above authorities it appears that under the Islamic Injunctions a property on being made a waqf property vests in Almighty God and only its usufruct is to be applied by the Mutawalli, for the purposes of the waqf, who cannot, therefore, be deemed to have ‑milk over it. Section 12 of the N.‑W.F.P. Pre‑emption Act, it is well‑known, is founded on the principles of pre‑emption contained in the Injunctions of Islam and according to them, as noted already, a Mutwallli of a waqf is not vested with the milk or ownership of the waqf. Since the right of pre‑emption accrues by reason of milk only, a Mutawalli has no right to pre‑empt the sale. Thus, irrespective of the question whether a or estate be or be not recognised as a juristic person, no right or Pre‑emption, under the Muslim Law, can be claimed by it or, on its behalf, for the simple reason that under Muslim Law this is not possible. Accordingly it must be held that under section 12 of the N.‑W.F.P. Pre‑emption Act, 1950, a Mutawalli or a Waqif is not entitled to claim pre‑emption. The result is that the judgment of the Peshawar High Court is found to be correct and is upheld. This appeal must fail and is dismissed hereby, leaving the parties to bear their own costs. M.B.A./M‑1020/S Appeal dismissed.