1982 PLP (Trib (PTD)

MIAN ABDUL KHALIQ (MEMBER).‑This appeal is directed against the order of the A. C. E. D., Lahore dated 17‑5‑1980. The appellant is one of the Accountable persons of the deceased S. M. E. who expired on 9‑1‑1979. In response to notice issued by the .Assessing Officer on 1 i‑3‑1979, E. D‑1 was filed. The appellant's objections are as under: Cash‑in‑hand.‑The Accountable Persons declared cash‑in‑hand at Rs.730. In view of the social and financial status of the deceased, the assessing officer proposed the same at Rs. 5,

000. The A. R. of the appellant contested the proposal by filing reply but the Assessing Officer adopted the proposed figure, It was held that as per wealth tax assessment of the deceased for the charge years 1977‑78 and 1976‑77 cash‑in‑hand and at bank being at Rs. 41,20 and Rs. 10,224 the deceased must have retained .substantial cash‑in‑hand. The appellant's A. R. submitted that the Assessing Officer erred in estimating cash‑in‑hand at Rs. 5,000 as against actual available amount of Rs.

730. The estimated amount having not been substantiated by any material on record was assailed to be mere imagination. We have no hesitation in accepting the grievance of the appellant's A. R. Presumption of cash‑in‑hand just on the basis of social and financial status of the deceased is totally erroneous. Financial status of the deceased established by bank depo sits had no relevancy for estimate of cash‑in‑hand and social status has nothing to do with cash‑in‑hand. We are satisfied that the order of the Assessing Officer on this issue is absolutely arbitrary and without justification. The Tribunal has already held in E. D. A. No. 40 of 1978‑79 dated 29‑12‑1979 and E. D. A. No. 42 of 1978‑79 dated 2‑1‑1980 that the Department has no reason to make own estimate of cash‑in‑hand. The burden of proof to establish that the deceased had at the time of his death with him the estimated amount of cash was on the Department, which it failed to discharge. Accountable Persons are in best position to say how much cash was available at the time of death of the deceased. The Department is not to fix cash in hand arbitrarily just on the basis of assumptions. The Assessing Officer while mentioning the wealth tax assessment of the deceased mixed up the bank deposits with cash‑in‑hand. The adopted estimate of cash‑in‑hand having no basis, following our consistent view of the earlier decisions, we modify the impugned order accepting the declared cash‑in‑hand. 3. (a) . . . . . . . . . . (b) . . . . . . . . . . 4. (a) . . . . . . . . . . (b) . . . . . . . . . . (c) . . . . . . . . . . (d) . . . . . . . . . . (e) . . . . . . . . . .

5. Insurance.‑The Accountable Persons claimed exemption of insurance amount of Rs. 2,00,000 the same having been settled in favour of a Religious Trust created by the deceased by a ' Waqf' during his lifetime. It was submitted before the Assessing Officer that the deceased had deducted by way of Waqf created through a 'will' executed in writing on 7‑1‑1979 surren dering his claim of insurance of Rs. 2,00,000 alongwith house at Gobind Ram Street and house occupied by M. G .& C S ..The Assessing Officer did not accept the plea of the Accountable Persons regarding creation of a Waqf by the deceased. It was held that the alleged Waqf was not completed during the lifetime of the deceased and in the absence of Waqf the claim for exemption could not be entertained. The Assessing Officer was of the view that Trust Deed having not been executed by the deceased himself, Waqf will be operative only from the date of execution of deed, i.e. 28‑9‑1979. The Assessing Officer held that Waqf having not been created by the deceased during his lifetime, insurance amount as well as both the properties passed on to the Accountable Persons at the time of death of the deceased. Valuation of insurance was taken at Rs. 1,83,103 and that of the two houses was fixed at Rs. 50,000 and Rs. 1,50,

000. After hearing the representatives of the parties, we feel that the Assessing Officer erred in not accepting the Waqf created by the deceased through `will'. 'Waqf' means a permanent dedication of any property by a 'Mussalman' for any purpose recognised by the Muslim Law as religious, pious or charitable. A Waqf may be created by act inter vivos or by `will' and it may be made either verbally or in writing. According to I...A...Y...a Waqf inter vivos is completed by a mere declaration of endowment by the owner. A Full Bench of Allahabad High Court in the case of M Y V R E ((1947) All. L J 85‑('47) A. All. 201) has held that a mere declaration of endowment by the owner is sufficient to complete the Waqf: In the case of Zainab Bibi v. Jamal Khan (1949 Nag. 426) the same view was adopted by Nagpur High Court. The Dacca High Court in the case of Y.......M V F A ((1951) Dacca 57=1951 Dacca 205), upheld the view of L A Y that a mere declaration by a Wakif is sufficient to complete a valid Waqf. In P L D 1967 Lah. 1221 it was held that there is no set formula for creating a Waqf. Clear intention for creation of a Waqf to that effect and appointment of Mutawalli are the only requirements for a valid Waqf. "Mullah" in his book titled as "Muhammadan Law" (16th Edn. p. 178 Article 186) has stated that Waqf inter vivos is completed by a mere declaration of endowment by the owner. S A A in his Book "Mohammadan Law" (5th Edition) has stated at p. 227 "No formality is required to be gone through for the purpose of creating a valid Waqf. It is enough if the donor declares that he constitutes a property waqf or has constituted it a Waqf: That declaration fixes upon the property purported to be dedicated all the character of a legal and binding Waqf and extinguishes the title of the donor vesting it in the Almighty." I A Y has laid down "that a Waqf comes into operation immediately on the declaration of the person making the dedication that he has constituted a particular property Waqf or constitutes it Waqf just like emancipation. Thus, according to this principle declaration of Waqf stands on the same footing as a declaration of emancipation and takes effect absolutely the moment the declaration is made. In view of the essential requirements of Waqf and decided case law on the issue, it is clearly established that Waqf is complete just on declaration of endowment by the owner. Once a Waqf is made it cannot be revoked. The deceased in his `will' executed in writing on 7‑1‑1979 in the presence of witnesses had created a Waqf and appointed himself as First Mutawalli. After his death his wife and son i. e. the present Accountable Persons were to act as Mutawalli. The Assessing Officer could not appreciate the legal requirements of creation of Waqf. Non‑execution of Trust Deed during the lifetime of the deceased could not extinguish the irrevokable Waqf legally created by the deceased on 7‑1‑1979. In this view of the matter. Insurance amount of Rs. 2,00,000 and two houses mentioned above became Waqf property w. e. f. 7‑1‑1979. The Assess ing Officer erred in treating this property as to be of the deceased. Property already settled in favour of Waqf did not pass on to the Accountable Persons. Valuation of Insurance Policy of Rs.2,00,000 of house at Gobind Ram Street at Rs. 50,000 and of house in occupation of M G .& ..C. S .at Rs. 1,50,000 is deleted from the Estate of the deceased. 6. . . . . . . . . 7. . . . . . . . . 8. . . . . . . . . 9. . . . . . . . . (b) . . . . . . . . . 10. . . . . . . . . 11. . . . . . . . . 12. . . . . . . . . Appeal accepted.