1998CLC171 (PLP)

Witnesses of respondents Nos. l and 2 are: Muhammad Ali S/o Haji Ayaz. He deposed that the land in dispute was in possession of Maulvi Abdul Daim who stated 20 days before his death that this property will be given to Shaista Khan. In cross‑examination he denied that he has given unfair statement. Zarghoon. He deposed that Haji Daim came in his shop at that time Haji Nooruddin had a paper with him. He told him to put his signatures on the paper. The witness enquired from him that for what reason he should sign the document then he told him that ask to Haji Daim. Then he enquired from Haji Daim who told him, he has given his land to Muhammad Raz in gift. He gave the boundaries of 'the property. In cross‑examination he deposed that he has given the evidence in the name of Allah. Mulla Habibullah. According to his deposition he has purchased orchard from Abdul Daim. He further explained that its yields had been purchased by him. In cross‑examination he stated that he had also purchased the yields of the garden of Shaista Khan. Tajamul. According to him Mulla Daim was owner of the land and he had not seen any one to be the owner. He further states that Daim was his teacher. In cross he stated that in the name of Allah he has given the evidence. Maulvi Daulat, son of Momin. According to him Abdul Hakeem told him that there is a defect in the wasiat of deceased. According to which firstly it contains provisions of Hiba and then of waqf and thereafter, in respect of 1/3rd share there is a will, therefore, such wasiat is void, as such the property will revert back to its sharers and Shaista Khan became its entitled. As far as the widow is concerned, she would have 1/4th from the share and Rs.3,000 would be given to wassis. In cross he stated that he has constructed Madrissa in the name of Almighty Allah. Maulvi Najamuddin had worked as Mullah with him to whom salary was being given. 1/4th share is of the deceased and the remaining total share will devolve upon Shaista Khan. They are ascendants of two brothers due to which the respondents had become the legal heirs. Mulla Khari. According to him the suit pertains to waqf and Hiba. Petitioners Nos. l and 2 are Mutawalis of the waqf as well as wassis. Dispute is between the parties due to which 3 persons hamely Mulla Khan Muhammad, Mulla Abdul Hakim, Mulla Habibullah were appointed as "sharai". They gave decision against the plaintiffs. The decision is attached in the file. In cross he stated at decision was given in presence of plaintiffs. Mulla Habibullah son of Mulla Ghulam Nabi. As per his statement both the parties approached him for decision according to Shariat. Then he appointed Sarpanch. Then they decided that there will be no waqf or Hiba or 1/4th share will be given to the wife. In cross he stated that for the share of deceased Rs.3,000 were fixed. Haji Allah Dad S/o Mazway. He gave boundaries of the property. According to him Daim came from Dubai and then he contracted marriage. Haji Shaista Khan used to cultivate land. Haji Shaista Khan himself used yields of orchard. Last year it was sold by Maulvi Abdul Samad who is brother of. Mulla Habibullah. In cross‑examination he stated that Maulvi Daim had not given him books nor he has given evidence due to relationship. He had no knowledge about the waqf. Malik Karim son of Bungal. He gave boundaries of disputed land and stated that Shaista Khan used to cultivate it 20 days before Haji Daim came to their village and stated that my legacy belongs to Shaista Khan and similarly legacy of Shaista Khan belongs to me. Daim himself used to have yield of garden. He spent his whole life in the garden. He had no knowledge about the waqf in th6 property. In cross he stated that property was in the hand of Daim. Surprisingly, parties did not appear either personally or through their attorney to support the plaint and written statement respectively. In as much as none of the witnesses produced Wasiatnama/Waqfnama. However, two documents being Annexure‑F dated 2‑3‑1994 and F‑1 dated 5‑8‑1995 purported to be wills created by Maulvi Daim in his life have been annexed with the petition. Learned trial Court vide judgment dated 3‑9‑1996 decreed the suit in favour of petitioners. As such respondent Nos.l and 4 filed appeal; whereas respondent . No.3 Muhammad Raz did not challenge the order. On appeal order/decree of the trial Court was set aside on 15‑12‑1996, as such present revision petition has been filed. Mr. M.A. Chishti learned counsel stated that objection of petitioners that appellate Court interfered in the decree of the trial Court principally for the reasons that Maulvi Abdul Daim after creating waqf had not parted with its possession for the purpose of the benefit of the Madrissa and students, therefore, according to him solely for this reason a waqf cannot be declared invalid. Reliance was placed by him on PLD 1961 (W.P.) Lahore

993. On the other hand, Mr. K.N. Kohli learned counsel for the respondents argued that before institution of suit matter was placed before arbitrators namely, Mauivi Abdul Hakeem, Maulvi Khan Muhammad and Maulvi Habibullah who had given a decision that waqf created by the Maulvi Abdul Daim is invalid. He further contended that Maulvi Abdul Daim remained in' possession of his property. As much as he was running business in the shop, therefore, for all practical purposes waqf was not complete, therefore, after his lifetime it cannot be implemented. I heard parties' counsel at length and have also gone through the evidence on record. As far as trial Court is concerned it has examined oral evidence produced by both the parties and concluded that waqf was created by Maulvi Abdul Daim for the benefit of Madrissa and religious students. But the learned Majlis‑e‑Shoora had interfered in the judgment mainly for the reason that although waqf was created, but it is not valid because possession of waqf property was not handed over by the wakif to the mutawalis. It may be noted that under the Muslim Personal Law there is no provision of creating waqf by testator in particular form. It could be verbal or in writing. If the court‑fees satisfied in view of the material placed before i2 that a waqf was created by the deceased for a valid object it has no authority to question as to why the same was not reduced into writing. Honourbale High Court of Lahore in the case of Chief Administrator of Waqf (W.P.) Lahore v. Pir Rashiduddaullah and others (PLD 1961 Lahore 993) has held that it is not absolutely necessary that the writing by which a waqf was created should exist or that there should be direct evidence about the creation of a waqf and its terms and that a waqf may be created by user though the proper way of expressing this is that the creation of a waqf may be established by immemorial user of the property as waqf. It is hardly open to question that if any property has been used as waqf property from times immemorial a Court of law would be justified in drawing inference that a valid waqf had been created. When a Court had drawn this inference it is acting in complete accord with the law because Article 2, Qanun‑e‑Shahadat (section 3 of the Evidence Act) makes it clear for the purpose of Courts a fact can said to be proved if on the material before the Court a reasonable person would believe that the fact exist. In the instant case evidence of P.Ws. Abdul Samad, Haji Mulla Wazir, Abdul Razzaq, Khurasan and Maulvi Muhammad clearly suggest that late Maulvi Abdul Daim had created a waqf of his immovable property. As far as evidence of respondents is concerned that suffers from material discrepancies. One set of the witnesses produced by respondent Muhammad Raz had stated that the landed property was given in gift to Muhammad Raz; whereas other set of witnesses tells us that the property was given by Maulvi Abdul Daim in his life to Shaista Khan who was cultivating the same. As far as shops in which Maulvi Abdul Daim was running business, there is absolutely no evidence, therefore, for such reasons I am inclined ,to hold that a valid waqf was created by Maulv Daim for the benefit of Madrissa and religious students. Now turning to next objection taken into consideration by Majlis‑e Shoora that without parting with possession of the waqf property it would not be a valid and complete waqf. In this behalf there are opinions of jurists as well as superior Courts. However, in a Full Bench case from the jurisdiction of Allahabad High Court this question has been settled in the case of Muhammad Yaseen v. Rehmat Illahi (AIR (34) 1947. Allahabad 201). For guidance consistent opinion of 3 Honourable Judges of the High Court who had written separate notes are re‑produced hereinbelow:‑ (I) Note of Mr. Justice Yarke "In the light of all these decisions and of the authrorities on which they are based, 1 do not think there is any room for doubt that the view taken by this Court in 15 ALL.321 is incorrect and that the correct view of the Hanafi School of law is laid down by Abu Yusuf, namely, that for the completion of a waqf a mere declaration by the waqf if sufficient. Learned counsel for the respondent has not seriously sought to persuade us that the view taken by this Court in the past was correct. (II) Note of Mr. Justice Malik: "I must, therefore, hold that the Muhammadan Law, as interpreted by the Muhammadan jurists, is that a waqf by a Hanafi Musalman is completed by a mere declaration of intention and no delivery of possession is necessary. " (III) Note of Mr. Justice Waliullah: "Wali Ullah J.‑ I have had the advantage of reading the judgments of my learned brothers and I agree that the correct view of the Hanafi law on the point involved in this case is that propounded by Imam Abu Yusuf, namely, that the waqf becomes complete and binding on the mere declaration by the Waqif and it is not necessary that possession be delivered to the mutwalli. In view of the general importance of the question, how ever, I consider it desirable to deal with the matter at some length. " In view of above unanimity on the point of delivering possession or otherwise at that time of making declaration of the property to the waqf and other points discussed in the judgment the Court decision was unanimous, consequently the appeal was allowed. Following the above guideline I am pursuaded to hold that a waqf created by a testator in his life cannot be declared invalid if he had not parted C with possession of the property and a mere declaration of endowment is sufficient to treat the waqf valid for all intents and purposes. Thus, it is concluded that appellate Court/Majlis‑e‑Shoora had proceeded on wrong interpretation of Muslim Personal Law dealing with the subject of waqf in holding that without delivering possession of property by Maulvi Abdul Daim the waqf is invalid. For the foregoing reasons appeal is accepted, impugned order/decree dated 15‑12‑1996 passed by Majlis‑e‑Shoora Loralai is set aside, consequently order/decree of Qazi Muslim Bagh is restored. Parties shall bear their own costs. H.B.T./645/Q Appeal accepted.