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First Appeal from Orders No. 70 of 1962/No. 1 of 1962 (BWP), decided on 26th April 1965.

S. 2(d)‑Waqf, what comprises‑Tauliyat‑Mutwalli and Sajjada- nashin‑Takia; ‑ Astana; khankah; and rouzah or dargah --Connotation of terms‑Maintenance of khankahs‑Valid object of waqf‑Property dedicated as waqf‑-Does not cease to be so merely because income of such property has for long been appropriated by mutwalli or Sajjada‑nashin himself.

Ameer Ali on Muhammadan Law, Vol. 1, Fourth Edn., p. 443 and Baillie, Book IX, Chapter III, Section First, pp. 565‑567 ref.

Sh. Muhammad Iqbal Hussain with Qazi Muhammad Ashraf for Appellant.

Gul Muhammad Khan for Respondent.

Dates of hearing: 27th April, 11th May, 23rd November, 7th December 1964, 15th March and 5th April 1965.

By Notification No. 3(481)‑Auqaf‑60‑1, dated the 30th of January 1961, the Chief Administrator of Auqaf, West Pakistan (respondent), in exercise of the powers conferred on him by section 6 of the West Pakistan Waqf Properties Ordinance, 1959, took over and assumed administrative control, management and maintenance of the wakf properties attached to the shrine of Hazrat Pir Abdul Qadir Jeelani Sahib, Mauza Pirkot, Tehsil and District Jhang, as per Schedule appended to the said Notification. The Schedule comprises an area of 8 kanals 14 marlas containing the said shrine, a Masjid, two kacha and one pacca houses and graveyard, income from the cash box placed at the shrine and offerings and subscriptions made to the said shrine, agricultural land measuring 122 acres, 4 kanals and 18 marlas and credit balance of the income of the said shrine and waqf properties attached thereto, lying with the Mutawalli. The details of the agricultural land situate in Mauza Fatehpur, Tehsil Khanpur, taken over as waqf property appear in the Notification itself and need not be repeated. The appellant Pir Aftab Ahmad Shah, son of Pir Muhammad Afzal Shah, brought an application under section 7(a) of the Waqf Properties Ordinance (XXI of 1959) for a declaration to the effect that agricultural land taken over by the respondent was not waqf property. The basis of the claim was that as per agreement dated the 11th of December 1936, one Muhammad Bakhsh, son of Ismail, of village Fatehpur, Tehsil Khanpur, had gifted one‑half share in Khatas Nos. 1, 3, 219, 220, 221, 223, 224, 225, 1415 144, 226, 155, 156, 259, 217, 285, 297, 298, 107, 301, 286, 287, 288, 307, 218 and 313 alongwith. Hissa shamilat in village Fatehpur to Pir Muhammad Afzal Shah, the father of the appellant, and he had made waqf the other half of this land in the name of Khanqah Sharif Pirkot, District Jhang, and that mutation No. 477 in this respect was attested on the 1st of October 1938 in the form of 'hiba bassorat waqf' but inadvertently the entire area was entered as waqf in the jamabandi. It was further averred that in the same manner vide mutations of sale Nos. 469, 472 and 473, incorporated in the jamabandi for the year 1937‑38, the appellant's father purchased agricultural lands in his own name but the same were entered in the jamabandi as waqf properties. Thirdly, it was averred that by virtue of iqrarnama dated the 21st of June 1947, the appellant's father purchased agricultural land measuring about 40 bighas from the aforesaid Muhammad bakhsh by mutation No. 829 dated the 24^th of March 1946, but this parcel of land was again erroneously entered as waqf in the revenue papers. It was lastly pleaded that the appellant's father, and after his demise the appellant, had remained in peaceful possession of this agricultural land as owners and they were ignorant about the erroneous entries in the revenue papers, and that it was only on the 2nd of February 1961 when he came to know of this error in the revenue record from citation in press. The prayer was that half of the agricultural land comprised in mutation No. 477 and parcels of land pertaining to mutations Nos. 469, 472 and 473 and mutation No. 829 entered as waqf should be declared not to be waqf property. The petition was presented on the 27th of February 1961 and a minor amendment was sought with regard to the date of the iqrarnama and mutation No. 829 pertaining to transfer of 40 bighas of land from Muhammad Bakhsh in favour of the appellant's father. This was allowed and the amended petition filed before the District Judge on the 6th of September 1961. The respondent resisted the petition and the following issues were framed by the District Judge:‑

"(1) Is the land in dispute not waqf property but personal property of the petitioner; if so, how

(2) Relief."

2. The appellant did not appear as his own witness but has examined three witnesses on his behalf, whereas the respondent produced copies of revenue records through one of its officials as D. W. 1. The learned District Judge after recording the evidence‑ has dismissed the petition and the present appeal is directed against that decision.

3. It was contended by the learned counsel for the appellant that by mutation No. 477 (Exh. P. 1) entered on .the 12th of December 1936 and attested on the 1st of October 1938, Muhammad Bakhsh donor is shown to have donated 95 acres 6 kanals and 15 marlas of his land in favour of Khanqah Sharif Pirkot, District Jhang, and the oral hiba in the form of waqf in favour of Pir Muhammad Afzal Shah was recorded with respect to the whole of the property and in the ownership column Khanqah Sharif Pirkot was entered as the transferee, whereas by virtue of Exh. P. 7, agreement dated the 11th of December 1936, Muhammad Bakhsh had bequeathed only one‑half of the property as waqf in favour of the Khanqah and the remaining half for the personal use of the Mutawalli, Pir Muhammad Afzal Shah. Secondly, it was urged that it was a case of sale in favour Pir Muhammad Afzal Shah to the extent of one‑half of this property and was not a gift or a waqf. This document (Exh. P, 7) makes interesting reading and it is worthwhile reproducing its operative part. The document starts with the usual preliminaries and goes on to say that:

"The land attached to Kumharwala well, rectangles Nos. 393/5, 393/6, 393/7, Pakhriwala well, rectangles Nos. 393/1, 393/4, Khanwala well, rectangles Nos. 372/1, 372/6, 372/10, 372/15, 372/14. Samundariwala well, rectangles Nos. 371/4, 371/8, 372/5, attached to Mauza Fatehpur, Gohalwala well, attached to Mauza Ghazi Brar, rectangles Nos. 372/2, 372/3, 372/7 and Addiwala well attached to Mauza Fatehpur, measuring 32 kanals, is owned and possessed by me and entered in my favour at Khatas and Khataunis in the revenue papers. I have made wakf (dedicated) of the land owned and possessed by me during my lifetime in favour of Hazrat Pir Sayyed Muhammad Afzal Shah Jilani, Sajjada Nashin, Pir Kot Sidhana, Tehsil and District Jhang. The Sajjada Nashin shall have power to expend the income as he likes. After him the person who will be the Sajjada Nashin out of his off‑spring will occupy this land, in the way that he shall spend half the income on his personal necessity and the remaining half shall continue to be spent on the Abadi and Urs Sharif of the shrine of Pir Sayyed Abdul Qadir Jilani situate at Pir Kot Sharif, Tehsil and District Jhang, and the Urs Sharif of Pir Sayyed Sarwar Shah, deceased on the proposal and desire of Sayyed Muhammad Afzal Shah. After today's date this land shall be considered as waqf."

4. It is not understood as to how this document in any manner supports the case of the appellant. No doubt, the document is not artistically drawn up and it talks of wakf in the name of Pir Muhammad Azfal Shah in the first clause and also says that the Sajjada Nashin Afzal Shah will have full right to utilise its income and after his demise half of the income is to be spent by the succeeding Sajjada Nashin for his personal expense and the other half for the shrine, but the concluding clause unequivocally says that on and after the date of execution of the document the property shall be considered as waqf. We find that the mutation (Exh. P. 1) attested on the basis of this deed has also been sanctioned as waqf in the name of Khanqah Sharif. There are some words which lend support to the view that it was hiba basoorat waqf' from Muhammad Bakhsh in favour of Muhammad Afzal Shah. The attestation, no doubt, is in that form, but mere attestation of mutation will not alter the situation and the actual fact is that it was a gift in the form of waqf in the name of Pir Muhammad Afzal Shah for the 'maintenance of the shrine. Muslim Jurists divided waqfs into three classes;

(a) In favour of the rich and the poor alike;

(b) In favour of the rich and then for the poor; and

(c) In favour of the poor alone.

The first class of waqfs would comprise what might be termed in modern law public trusts of a charitable or beneficial character. The second class would include family waqfs in favour of a settler's family, the ultimate benefit of which goes to the poor. The thrid class would comprise endowments for giving food, clothing or medicial relief to the needy alone. In all the three classes corpus of the property is tied up and its usufruct left free for mankind arid this rule of Muslim Law is based on the tradition from the Holy Prophet (peace be on him) when he ordained Omar:‑

"Tie up the property and devote the usufruct to human beings, and it is not to be sold or made the subject of gift or inheritance; devote its produce to your children, your kindred, and the poor in the way of God."

According to the Disciples waqf means the tying up of property so as to subject it to the rules governing property belonging to God, and accordingly the right of the waqif in the property becomes extinguished and it goes to God and its benefit is applied for His creatures. Syed Ameer Ali in his celebrated work on Muslim Law, (Muhammadan Law, Volume I, Fourth Edition), while discussing the subject of taulyat, observes at page 443:

"But where the mutwalli has to perform religious duties or spiritual functions in connection with the waqf, which, as regards men, can only be performed by a man, a woman cannot be appointed to the office. For example, if the mutwalli is also the superior of a religious establishment, and as such, has to officiate by occasions of religious festivals, a woman is precluded by her sex from holding the towliat. Such superiors in India (now Indo‑Pakistan sub‑continent) are called sajjada -nashins (sajjada is the carpet on which prayers are offered; and nashin is the person created thereon). The sajjada‑nashin is not only a mutwalli but also a spiritual preceptor. He is the curator of the dargah where his ancestor lies buried and in him is supposed to continue the spiritual line (silsila). These dargahs are the tombs of celebrated dervishes, who, in their lifetime, were regarded as saints. Some of these men had established khankahs where they lived, and their disciples congregated. Many of them never rose to the importance of a khankah, and when they died their mausolea became shrines or dargahs. These dervishes professed esoteric doctrines anti distinct systems of initiation. They were either sufis or the disciples of Mian Roushan Bayezid, who flourished about the time of Akbar, and who. had founded an independent esoteric brotherhood, in which the chief occupied a peculiary distinctive position. They called themselves fakirs on the hypothesis that they had abjured the world; and were humble servitors of God; by their followers trey were honoured with the title of shah or king."

Again at pages 392 and 393 the history of khankahs and tombs has been traced by the learned author as under:

"In India (now Indo‑Pakistan sub‑continent), khankahs have generally sprung up in the following way:‑‑

A dervish or a person who, by leading a pious life, has won the esteem and veneration of the neighbourhood, of a sufi of particular sanctity has settled down in some locality. So long as he has not attained sufficient importance, his place of abode is called a takia. But when he is a man of importance or has attained sufficient eminence, is designated as astana. His pious life and religious ministrations attract public notice, disciples gather round him, and a place is constructed for their lodgment. Ana the humble takia grows into 'a khankah. After the death of the holy personage, the spot where he is buried becomes a shrine and an object of pilgrimage not only for ‑ his disciples, but for people of distant parts, both Mussulmans and Hindoos, and is designated either as a daragah or astana or rouzah . . . . .

"And grants have been made by pious chiefs and sovereigns to these holy men for their maintenance and the maintenance of their descendants in perpetuity and the performance of pious acts."

According to Baillie, (Book IX, Chanter III, Section First at pages 566‑567), the maintenance of a khankah is one of the valid objects of waqf, and, therefore, the mutation in the instant case, (Exh. P. 1). has to be interpreted to mean that the property has been dedicated for the maintenance of the shrine of Hazrat Pir Abdul Qadir Jeelani Sahib, Mauza Pirkot. Tehsil and Distric Jhang, under the towliat of Pir Muhammad Afzal Shah and the property in no case vested in the said Sajjada Nashin as his private property.

5. The next contention is with regard to 32 acres and 1 marla of land comprised in mutations sanctioned on various dates ranging from the 20th of September 1937 to the 24th of March 1946, namely, Exhs. P. 3 to P. 6. These parcels of land are 'shown to have been sold by different persons in favour of Pir Muhammad Afzal Shah and have been entered in the revenue records as waqf. The argument advanced on behalf of the appellant is' that the entries in the revenue papers are erroneous, It is too late in the day for the appellant to urge it. His father and after the demise of his father, the appellant is said to have enjoyed this property but the status in which he has enjoyed this property has all the time been of a sajjada‑nashin and if he has appropriated the income of this waqf property to himself, he has been guilty of breach of waqf but it does not mean that the property has' lost its character as waqf. The jamabandis from the years 1939‑40 to 1955‑56 (Exhs. D. 4, D. 5, D. 6, D. 7 and P. 9) clearly established that the land pertaining to, Exhs. P. 1 and P. 3 to P. 6 has been throughout shown as basoorat waqf zer‑i‑ihtmam Mian Muhammad Afzal Shah wald Jalal Shah, Sajjada Nashin, Pir Kot, District Jhang'. The entries in the various Khatas have been split up showing the share of the Sajjada Nashin as owner in his personal capacity and as‑Sajjada Nashin for the waqf respectively and it is ‑this latter area entered as basoorat waqf' in different Khatas that has been taken over by the Auqaf Department. It, therefore, cannot be urged with success that the property belonging to Pir Muhammad Afzal. Shah or the appellant has been assumed control of by the Auqaf Department, Their personal property no doubt is there in Mauza Fatehpur and that has been explicitly excluded by the Auqaf Department.

6. Lastly coming to Exh. P. 8, the so‑called agreement with respect to 40 bighas of land between Muhammad Bakhsh and Pir Muhammad Afzal Shah, suffice it to say that the document is dated the 21st of June 1947 and a feeble attempt has been made by the appellant to connect it with mutation No. 829 attested on the 24th of March 1946. The learned District Judge has rightly remarked that the document does not specify where this land is situated, what are its boundaries and whether this property is at all subject‑matter of the litigation before the Court: In addition, it is highly discrepant that attestation of mutation takes place in 1946 and a document with regard to that is executed between the parties almost a year and a quarter later. The document is of a highly suspicious nature and cannot at all be relied upon. Faced with this situation, the learned counsel for the appellant fairly conceded that Exhs. P. 7 and P. 8 are not relatable to Exh. P. 1 or Exh. P. 3. We are, therefore, only left with Exh. P. 1, the mutation dated the 12th of December 1936, pertaining to 95 acres, 6 kanals and 15 marlas of land, and Exhs: P. 3 to P. 6 covering 32 acres and 1 marla of land, which property has been ‑held by me to be waqf property and out of this property the Auqaf Department has taken over only 122 acres, 7 kanals and 12 marlas as per Jamabandi for the year 1955‑56. The result is that the appellant has failed to establish that any private property belonging to him has been over by the Auqaf Department erroneously as waqf. The mutation of inheritance (Exh. P. 2) on which reliance has been placed that it pertains to the inheritance of Pir Muhammad Afza1 Shah on his demice with regard to land covered by Exh. P. I also does not show that the Auqaf Department has in any manner over‑stepped its jurisdiction in taking over personal property of Pir Muhammad Afzal Shah, which devolved on his heirs as private property. Whatever property belongs to Pir Muhammad Afzal Shah in his personal capacity stands excluded in the Jamabandi for the year 1955‑56 (Exh. PA) and has been left untouched.

7. The result, therefore, is that the judgment of the learned District Judge is affirmed, the appeal fails and is dismissed with costs.

K. B. A. Appeal dismissed.

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