1986 PLP 2750 (MLD)

(3) The Trust deed Exh.P‑48 is not void or voidable and is not liable to be cancelled. (4) Plaintiff is not entitled to any share in the properties mentioned in Schedules 1 and 2 of the plaint viz. Plot No.400‑V, Garden East, crossing Gold Street and Babar Street, E‑67, A, North Nazimabad Karachi and the said properties are not liable to partition and the plaintiff is not entitled to possession. (5) Plaintiff is not entitled to any mesne profit. (6) Plaintiff is entitled to get 5 Acres 13 Guntas in the agricultural land situated in Deh Sinjhoro District Sanghar." The plaintiff has attacked this Award on two grounds. First that the Award is based on no evidence. Secondly, the error of law is apparent on face of record. Messrs Abdul Majeed and Akmal Wasim the learned counsel for the plaintiff have urged the following points before me. (1) Award is based on no evidence. (2) The error of law is apparent on face of record. The first contention of the learned counsel for the plaintiff is that the evidence adduced before the Sole Arbitrator had not been considered by him. In the present case the evidence does not become a part of the Award so as to give the right to a party to refer to it and point out the inadequacies therein as a ground of attack in the objection under section 30 of the Arbitration Act. Unless the evidence adduced by the parties before the Arbitrator is set out and discussed in the award which is not the case in so far as the present award is concerned, the Court would not consider the evidence for the purposes of challenging the award. Here I may refer to a decision of a Single Judge of the then West Pakistan High Court, Karachi Bench in the case of Sulaiman Haji Muhammad 6 Co. v. State Bank of Pakistan P L D 1960 Kar. 78 where extensive reference has been made to various decisions of the superior Courts in Pakistan as well as from Privy Council. I am quote here a passage at page 87 of the aforesaid report:‑ "On consideration of the case on the subject it is very clear that the Court hearing the application for setting aside an award cannot constitute itself into a Court of Appeal over the decision of an arbitrator and cannot make a sifting investigation of the entire proceedings before arbitrator unless it is first shown that the award is bad on the face of it. It have already cited the view of their Lordships of the Privy Council that arbitrators are both Judges of Law and facts and in my view once the matter is found to be within the jurisdiction of the arbitrators, it is not permissible for Courts of law to find out whether their decision is right or wrong on the facts urged before them by travelling outside the award for finding out what evidence was led before them and whether their conclusions are based on sufficient evidence. I am fortified in my view by a decision of the Lahore High Court reported in J. Kaikobad v. F. Khambatta in that case also it was urged that the finding of the arbitrator was based on insufficient evidence, but the Division Bench observed:‑ "An arbitrator is fully justified in rejecting in part the case set up by either party and ascertaining the real facts according to his own view of the evidence. A counsel is not entitled to attack the findings of facts given by the arbitrator on the evidence led by the parties. Whether his conclusions are right or wrong is not a matter which is open for consideration by the trial Court or the Appellate Court on revision." This view is in accord with the view taken by this Court in Messrs Overseas Cotton Company v. Messrs S.M. Fazil & Company approved on appeal by a Division Bench of this Court in P L D 1959 Kar.

320. I, therefore, do not find any force in the contention raised by the learned counsel for the defendants and hold that in law it is not open to this Court to consider the evidence led by the parties before the arbitrator not set out and discussed in the award." The above passage was duly approved by my learned brother. Mr. Nasir Aslam Zahid, J in the case of Messrs Sind Construction Co., v. Karachi Port Trust, Karachi 1981 C L C 1282. I may quote here a passage at page 1296 of the aforesaid report. "I am in respectful agreement with the aforesaid view expressed by Waheed‑ud‑Din Ahmad, J. I am, therefore, of the view that although reference has been made to the documents and the evidence produced /adduced by the parties in the award, the same by mere reference do not become incorporated in the award and the Court would not look in the evidence and documents to come to a conclusion that the arbitrator had given a wrong decision on evidence. I am accordingly of the view that the award in question Cannot be set aside on the ground that evidence has not been property considered by the arbitrator." In the case of Premier Insurance Co. (Pakistan) Ltd., Karachi v . Ejaz Ahmad Khawaja 1981 C L C 311 where a Division Bench of this Court while rejecting the contention of the appellant held as follows: "It was open to the Umpire to have believed the evidence produced by one party while disbelieving the other and also to base his award on such considerations. The question of appreciation o the evidence by the Umpire was accordingly not open to challenge in the proceedings before the learned Single Judge. A Court while examining the legality of the award under section 33 of the Arbitration Act could not substitute its own finding of appreciation of the evidence, in place of the one given by the Arbitrators or the Umpire, even if the Court had reached a different conclusion on that evidence. The proceedings before the Arbitrators or the Umpire are in the nature of proceedings before a domestic Tribunal and strict compliance of procedure law or the law of evidence cannot be insisted upon is such proceedings. We are accordingly of the view that the contention of the learned counsel for the appellant that the award was based on no evidence, has no substance." I am in respectful agreement with the aforesaid views of my brother Mr. Nazir Aslam Zahid, J. I am accordingly of the view that the award in question cannot be set aside on the ground that evidence adduced by the parties had not been considered by the Arbitrator. The last contention of the learned counsel for the plaintiff is that the arbitrator had committed an error of law which is apparent on the face of record. It is well‑settled that in order to entitle a Court to set aside an award the mistake of law must appear on the face of the award. Where an Arbitrator makes a mistake either of law or of fact in determining the matters referred, but such mistake does not appear on the face of the award, the award is good notwithstanding the fact of mistake and will not be remitted or set aside. An error of law on award means that one can find in the award or a document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which can be said to be erroneous. In the case of Aslam Saeed & Co. Trading Corp. of Pakistan Ltd. P L D 1985 S C 69 where the Hon'ble Supreme Court while accepting contention of the appellant that the award given by the Arbitrator was a speaking award because specific reference to the terms of the agreement are made in the award and the Arbitrator has given his finding in relation thereto held as under:‑ "The above case is on all fours as discussed above. Alongwith the statement of claim filed on behalf of the respondents a copy of the agreement was also filed and marked as Annexure P‑1 which we are, therefore, entitled to look into and we have done accordingly." In view of the above authoritative pronouncement of the Hon'ble Supreme Court, I can also look into the document P‑48 that is, Trust Deed. The learned counsel for the plaintiff have reiterated the objections to the Trust Deed taken up before the Arbitrator and dealt with by him. The first objection of the learned counsel for the plaintiff is that the deed Exh.P‑48 is a will. The finding of the Arbitrator is that a perusal of the deed will show that the Wakif relinquished all his rights of ownership forthwith on the execution of the deed. The Wakf is complete and operative forthwith with the execution and registration of the deed. The law on the subject of Wakfs is summarised in para. 186 of the Principles of Muhammadan Law by Mulls. (Pakistan Edition P.20). Waqf inter vivos is completed, according to Abdul Yousuf, by a mere declaration of endowment by the owner. This view has been adopted by the High Courts of Calcutta, Rangoon, Patna, Lahore, Madras and Bombay and by the Oudh Chief Court. According to Muhammadan Law, the Wakf is not complete unless, besides a declaration of Wakf, a Mutawalli (Superintendent) is appointed by the owner and possession of the endowed property is delivered to him. The Arbitrator had no difficulty in concluding that the Wakf was created by late Ihsanul Haq with a view to avoid litigation between the heirs of the Wakif from his both wives and the plaintiff failed to establish that the Wakf was Wakf‑bil‑Wasiat. In my opinion the Arbitrator rightly held that the Wakf deed is not a will. As regards the second contention of the learned counsel for the plaintiff is that the Wakf deed is void and/or voidable as the plaintiff, has been deprived of his legal share. According to section 3(b) of the Mussalman Waqf Validating Act, 1913, it is lawful for a person professing the Mussalman faith to create a Waqf for the maintenance and support wholly or partially of his family, children or descendants, "provided the ultimate benefit is reserved for the poor or for any other religious, pious or charitable purpose. I am of the opinion that the Arbitrator is right in holding that the deed is not invalid. The deed of Waqf in the instant case before me cannot be struck down merely en the ground that it has excluded him. See A I R 1938 Lah.453, A I R 1948 P C 1968 and P L D 1977 S C

76. The third contention of the learned counsel for the plaintiff is that late Ihsanul Haq has given power to the Mutawalli to dispose of the property. Clause 6 of the Wakf Deed provides that no Mutawalli shall be entitled to mortgage, gift or alienate the Waqf property or any part thereof but he shall be entitled to lease the property for period not exceeding three years provided however, that a Mutawalli with the permission of the principal civil Court of Original Civil Jurisdiction at Karachi sell or mortgage all or any part of the Waqf property for legal necessity. The power of Mutawalli to sell or mortgage is summarised in para. 207 of the Principles of Muhammadan Law by Mullah (Pakistan Edition). "A Mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange Wakf property or any part thereof unless he is expressly empowered by the deed of Wakf to do so. The powers of Mutawalli to grant lease is summarised in para. 208 of the Principles of Muhammadan Law by Mulla (Pakistan Edition) as follows: ‑ "Power of Mutawalli to grant leases. A Mutawalli has no power to grant a lease of wakf property, if it be agricultural for a term exceeding three years, and, if. non‑agricultural, for a term exceeding one year‑‑ (a) unless he has been expressly authorised by the deed of wakf to do so; (b) or, where he has no such authority, unless he has obtained the leave of the Court to do so, such leave may be granted even if the founder has expressly prohibited a lease for a longer term." Late Ihsanul Haq has not given power to the Mutawalli to dispose of the property except in the case of legal necessity that also with the permission of the civil Court. This contention has no force and fails. The fourth contention of the learned counsel is that the deceased had no intention, to create the wakf. This contention has no force. The Arbitrator rightly held that Waqf Deed was a genuine transaction. Late Ihsanul Haq executed and registered the deed with the real and bona fide intention to dedicate his properties for requiring eternal peace and provide maintenance for his second wife's children. Therefore, the Waqf once made cannot be invalidated by any subsequent conduct on the part of the Waqf derogating to the Waqf. It is the established law that once there is an effective dedication in Waqf, it cannot be revoked and that breaches of trust on the part of the trustee cannot put an end to the Wakf. The contention of the learned counsel is that the Wakif did not divest himself completely of the ownership and possession of the property with which the Wakf was created but he retained the same during his lifetime. Wakf means the permanent dedication by a person professing Islam of movable or immovable property for any purpose recognised by the Islamic law as pious, religion or charitable and includes a Wakif by user. In this connection I may refer to section 3 of the Mussalman Wakf Validating Act, 1913 which declares that it is lawful for a person professing the Mussalman faith to create a Wakf which in all other aspects is in accordance with law, for the following among other purposes:‑ (a) for the maintenance and support wholly or partially of his family, children or descendants, and (b) where the person creating a Wakf is a Hanafi Mussalman, also for his own maintenance and support during his life time or for the payment of his debt out of the rent and profits of the property dedicated: Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purposes recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character. It is to be noticed that by clause 5 (ii) of deed the Wakif expressly reserved the ultimate benefit for such purpose or purposes as is or are recognized by the Mussalman law as religious, pious or charitable. The object of the Wakf is, therefore, a lawful one. There is no provision in the deed which shows any intention on the part of the Wakif to retain ownership of the property to himself. By the deed, the Wakif created a Wakf‑alal‑Aulad for lawful objects. I am not at all impressed with the argument of the learned counsel for the plaintiff which is based on mere assumption. There is evidence that mutations were made in respect of the properties and municipal taxes in the name of the Wakif. This is borne out from the award. The plaintiff has not brought any evidence on record to show that the conduct of Ihsanul Haq, to lead to the conclusion that he had repudiated the Wakf or he had over acted upon. Therefore, it could hardly be urged that he acted against the Wakf deed. The fifth contention of the learned counsel for the plaintiff is that Ihsanul Haq kept the deed as top secret from his relations, friends and plaintiff. I have already held that the Wakf deed was a genuine deed. Ihsanul Haq executed and registered the deed. The Arbitrator rightly held that from the Wakf deed it is clear that dedication was there and Wakf became operative forthwith on the execution and registration of the Wakf. I agree with the Arbitrator that the fact that the Wakif kept the Wakf deed as top secret from his relatives, friends and the plaintiff will not invalidate the Wakf particularly when it is a registered document and the name of the first Mutawalli was mutated in the record of the rights. The sixth contention of the learned counsel for the plaintiff has also no force and fails. Para. 187 of the Principles of Muhammadan Law by Mullah states that a Wakfnama by which immovable property of the value of Rs.100 and upwards is dedicated by way of Wakf requires to be registered under the Registration Act, 1908, though the Waqif may have constituted himself sole Mutawalli thereof, but a "Trusteenama by which he appoints additional Mutawallis does not require registration if the document does not purport to transfer any interest in the property to them. The Privy Council in the case of 1920

471. A 224 while rejecting contention of the heirs that it was not duly registered as certain rules made under section 69 of the Registration Act were contravened held that it was duly registered. The learned counsel for the plaintiff has placed reliance on a number of decisions which relate to the question as to the validity of the Wakf. I am of the view that the learned counsel has completely misconceived the decisions which are, quite irrelevant for the consideration of the said question. The objections to the Award made by the plaintiff in this suit have no substance, as a result C.M.A. No.4301/84 in Suit No.464 of 1984 is dismissed and the Award is made rule of the Court and I pass decree in terms thereof. The parties shall bear their own costs. The arbitrator has submitted a statement that at the commencement of the proceeding a sum of Rs.5,000 was paid to him (Rs.2,500 by each party). This was a tentative amount payable as arbitrator fee. He has claimed a sum of Rs.20,000 as arbitrator fee and after taking a sum of Rs.5,000, a sum of Rs.15,000 was payable to him, out of which the defendants have already paid to him a sum of Rs.7,

500. A sum of Rs.7,500 still remains payable as balance of the arbitration fee. The plaintiff has filed objection that the arbitration is not entitled to exorbitant fee of Rs.20,

000. The other objection is that the arbitrator is not entitled to get arbitration fee of Rs.20,000 when he agreed to accept Rs.5,

000. I do not find any force in the objections of the learned counsel for the plaintiff. The objections are overruled. I direct the plaintiff to pay balance of Rs.7,500 within two weeks from today. H.B.T. Award made rule of Court.