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Appeal Side No. 74 of 1952-53, decided on 30th November 1953, from District Lahore.

, S. 11 (2) Explanation 2-Property not entered cis wakf by mutation in revenue records but, otherwise, wakf, change of possession being prima facie proved and income applied to purposes of wakf ---To be treated as wakf property for purposes of tax-Mutation not the only means to effect change of possession--Revenue Court not to go into intricate question of validity or otherwise of wakf.

The owner's plea was that some of the property assessed to tax was wakf but the wakf bad not been entered in revenue: records by mutation though there was other evidence to prove the wakf or change in character of possession:

Held that mutation of names is not tire only method to prove that possession has changed. Application of the usufruct to the purposes of the wakf is the strongest evidence of the change.

The appellant had filed audited accounts to prove that income of wakf was applied to purposes for which wakf was created. The property had been treated as wakf in previous litigation and the Government had extended exemption to the property under section 13 Mussalman Wakf Act in 1939.

This was sufficient to establish that property was wakf for purposes of Agricultural Income Tax.

Further that it is not for the Financial Commissioner's Court to go into the intricate question of law as to the validity or otherwise of the wakf.

Muhammad Akram, for Petitioner.

Sh. Muhammad Shaft, for Provincial Government.

-These are four appeals by Nawab Muzaffar Ali Khan Qazilbash, under the Punjab Agricultural Tax Act, against the order of the Commissioner, Lahore Division, dated the 3rd April, 1953 by which he rejected the claim of the Nawab that certain property in the Lahore dis trict was wakf and should not be included with his other lands for the purposes of assessment of Agricultural Income Tax.

The facts are that in 1950 the petitioner applied to the Collector, Lahore stating that as some portion of the agricultural land, of which he was shown in the revenue records as owner, situated in the Lahore Tahsil was, in fact, wakf property and was under his management as mutwalli, therefore that land should be excluded from the land owned by him for purposes of assessment of Agricultural Income Tax. The Collector rejected the application on the 19th January, 1951 on the ground that the wakf deed had not been incorporated in the revenue records, and as the land revenue was paid by the petitioner as owner the tax had been correctly assessed. This order of the Collector was reviewed by him with Com missioner's permission on 28th June 1952 and he held that the documentary evidence produced before him overwhelmingly proved that the property concerned was wakf and as such it should be consi4ered as a separate entity from the other proper ties of the Nawab for the purposes of assessment of Agricul tural Income Tax. Against this order an appeal was lodged on behalf of Government before the Commissioner who held a contrary view and relying on the principles laid down in 99 Indian Cases page 669, decided that the character of posses sion of the property in question had not changed, and that the petitioner was still the owner of that land. The peti tioner has come up to this Court in appeal against that order.

The definition of owner' is given under section 10 (2) of Act XV of 1948, and under Explanation (2) thereof a benefici ary under a wakf has been deemed to be an owner of the share to which he would be entitled if the land had not been under a wakf not being a public wakf. This definition was repeated in Acts XIII of 1949 and VII of 1950. In Act XVI of 1951 the words 'Not being wakf were omitted.

A 'public wakf' according to Mulla's Muhammadan Law, is one for a public religious or charitable object, while a private wakf is one for the benefit of the settlor's family and his des cendants known as wakf-alal-aulad.

The land in question in these cases is known as Khaliqabad Estate was admittedly created a wakf by a deed of endowment by Nawab Nasir Ali Khan on the 17th June, 1892. This deed was duly executed and registered, and under it Nawab Nasir Ali Khan appointed himself the trustee.

Under the Shia Law the validity of wakf is subject to the satisfaction of the following four conditions :-

(1) It must be perpetual ;

(2) It must be absolute and unconditional ;

(3) Possession must be given to the maukoof of the thing appropriated; and

(4) It must be entirely taken out of the wakif or appro priated himself.

In this case the only doubt is regarding condition No. (4), because as regards condition No. (3) the wakif has himself stated that henceforward he was holding the property as mutwalli and no delivery of possession is necessary. It is, however, necessary that the character of his possession should be changed. It is not for this Court to go into the intricate question of law as to whether the wakf is valid or not, but prima facie it appears to me that there is sufficient' evidence on the record to show that the character of posses sion has changed. It has been argued on behalf of Govern ment that the obvious means of showing that there was a change in the character of possession would have been muta tion of names but it as been held in various rulings that the mutation of name is not the only method to prove that possession has changed. Application of the usufruct to the purposes of the wakf is the strongest evidence of the change and the petitioner has filed audited accounts to show that the income from the Khaliqabad property is being regularly applied to the purposes for which the wakf was created. The fact that no mutation was entered was probably not any fault of the wakif who died four years after the deed of endowment was executed, and if the succeeding mutwalli failed to get mutations entered, the wakf does not get invalidated on that account. The petitioner's predecessors-in-interest have always, in litigation, which has gone up to the Privy Council admitted that they were mutwallis of this property, and this fact has never been challenged by anyone. It is also stated that a part of the property was alienated by one of the mut walli. This, again, has no bearing on the validity of the wakf, and, at the most, is a breach of the conditions of the wakf if true. Apart from this, this particular wakf was recognised as wakf by Government when they gave it an exemption under the provisions of section 13 of the Mussalman L17akf Act in August 1939 (vide Notification No. 4571/2127-S. M.-39/5451-S., dated the 25th August 1939).

For the reasons stated above I have no hesitation in holding that the property in question, i. e., Khaliqabad Estate, is a) wakf property and should be treated as such for purposes of assessment of Agricultural Income Tax. All the four appeals are, therefore, accepted, and the order of the Commissioner dated 3rd November 1953 set aside, and that of the Collector Lahore, dated 28th June 1952 restored only so far as the ques tion of wakf is concerned. This order will not affect the other findings of the Collector and the Commissioner, in regard to the Jagir property regarding which revision petitions are pending.

Parties to be informed.

A H Appeals accepted.

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