Find a Lawyer

Judicial Miscellaneous No. 35 of 1983, decided on 11th April,1984.

‑‑S.7‑‑Waqf Property exchange of ‑‑Considerations to be kept by Court(1) Wishes of person who created trust (2) Explore all possible means whereby property subject‑matter of trust yields maximum profits so as to fulfill wishes of creator to a substantial measure.

‑‑S.7‑‑Waqf property, alienation of ‑‑ Normally waqf property is not alienated‑‑Alienation not only preserving trust but also advancing objects of trust‑‑Such alienation, held, could be termed laudable (Mohsin)‑‑ Order of Court preserving trust property in better shape or form as to yield higher income, held, was perfectly in consonance with S.7‑‑ Exchange of properties advancing object of trust and making observance of provisions of trust feasible‑‑ Exchange of properties allowed in circumstances.

S. A. Wadood for Appellant,

A. Sttar G. Shaikh, Additional Advocate‑General for Respondent.

Date of hearing: 11th April, 1984,

The present application under section 7 of the Charitable and Religious Trusts Act, 1920, has been made by Haji Yousuf Haji Moosa Trust. The application is duly signed by the present trustees. These trustees have been appointed in substitution of the original trustees by reason of the death of the latter. Paragraph 9 of the trust deed provides for nomination, or, selection of the managing trustee and the existing trustees. The names of the present trustees have been recorded in the extract from the property register.. A photo copy of the same has been placed on record.

By a trust deed, dated 2nd July, 1935, duly registered before the Sub‑Registrar, Karachi, the creator of the trust Haji Moosa donated immovable property consisting of old Survey No.87, new Survey No.73, Sheet R.C‑5, Ranchore Quarters, Karachi, measuring about 56 sq. yds. to the trust. The deed provided that the trustees were to pay all the taxes, rates, repair charges, maintenance expenses, etc. and the balance, or, surplus was to be utilised for the upkeep of Masjid and Memon Musafirkhana, situated near the hot water spring of Manghopir, and also for ,paying expenses in connection with the observance of Roza.

The present trustees are now seeking advice and direction of the Court in respect of exchange of this Waqf property with some other property that is being by some philanthropist. They state that the monthly rent realised from the building, which is the subject‑matter of Waqf, is Rs.40. which is realised as rent from three tenants in occupation. It is stated that the building is in a ruinous condition, and the trustees have no funds to reconstruct, or, repair this building, and what is more that they have no right, or, power to sell, mortgage, or, alienate the property. It is stated that the property is almost of no value, or, utility at present, and does not provide any contribution for the upkeep of the mosque, which is the object of the trust.

A notice was published in a daily newspaper, inviting any objections from the public, but no objections have been received.

In these circumstances, the trustees seek a direction for exchange of this building with some other building. It is stated that the building, which will now be obtained in exchange would be of a larger area, constructed recently and fetching much more income. It is stated that the exchange of this building would be for better management and administration of the trust, and indeed necessary for continuation of the trust.

The Nazir of this Court was appointed a local Commissioner to inspect the present Waqf building, as also the building that is sought to be acquired in exchange. He has submitted a Report on 10th August; 1983. On a perusal of the Report, it appears that the building, that is being offered in exchange now, comprises of ground floor plus five floors in Plot No.73, Sheet R.S.2, Ramaswami Quarters, Karachi, admeasuring 92 sq. yds. It is stated by the Nazir that the building appears to have been recently constructed and is R.C.C. construction, whereas the existing building is stone built, but more than fifty years old. It is also stated that the building, sought to be acquired now, has two shops, and one doctor's clinic on the ground floor, besides seven other flats. It is stated that the building fetches a rent of Rs.1,400 per month.

In dealing with cases of this nature, the Court has to keep into consideration the wishes of the person, who created the trust, and also explore all possible means, whereby the property, which is the subject matter of the trust, yields maximum profits, so as to fulfil the wishes of the creator to a substantial measure. Normally, Wafq property is not alienated, but, if circumstances are such that alienation would not only preserve the trust, but also advance the objects of the trust, such alienation can be termed laudable (Mohsin). Indeed it is the recognition of this concept that finds a place in section 7 of the Charitable and Religious Trusts Act, 1920. This section makes a departure by providing in section 7, wide powers to the Court, so that, for the purpose of preservation and better application of the trust property, the Court has the power to give directions, affecting the management, or, administration of trust property. The only criterion is that orders should be of a nature which preserve and respect the intentions of the creator of the trust, and, if by orders of the Court, trust property is preserved in better shape, or, form as to yield higher income, the order will be in perfect consonance with section 7 of the said Act.

Applying the above principle to the instant case, I find that exchange of the properties (as described by the Nazir in his Report, dated 10th August, 1983) would advance the object of the trust, and make the observance of the provisions of the trust feasible. I, therefore, give advice and a direction to the petitioners to exchange the properties, as prayed for in their application. I would also refer to my order, dated 8th November,1983, which makes a reference to the statement that Mukhtar Ahmad made before me in regard to exchange of the property.

M.A.K. Application allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.