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P L D 1985 Karachi 478 -
Before Abdul Hayee Kureshi, C J
IN re: ESTATE OF LATE QUA.ID-E-AZAM
MUHAMMAD ALI JINNAH
Miscellaneous Application No. 9 of 1969, decided on 24th October, 1984.
Ss. 232 & -Muhammadan Law-Doctrine of "Cy-pres"Meaning-Hanafi School-Vagueness and uncertainty in ultimate object of benefit in a charitable trust could be considered even to render trust invalid-Doctrine partly given effect to-Conditions having been drastically changed, applications of funds of trust required deviation from text in the will-Recipient University being primarily a "Muslim" University catering needs of Muslims-Omission of word "Muslim" from name of University-Complexions of legatee had undergone drastic and fundamental change-Deviation from text of "will", considered necessary. -[Muhammadan Law].
Amer Ali on- Muhammadan Law, 5th Edn. Vol. 1, p. 403 ; Mulla's Muhammadan Law, 17th Edn., Topic 18; I L R 1934 Mad. 12 ; A I R 1920 Mad. 900 ; A I R 1942 Cal. 180 ; A I R 1952 All. 127 and P L D 1958 Lah. 424 ref.
-- Will-Deviation of-Purpose devised being identical and similar to purpose. underlying bequest approved.
Syed Hashim Raza, Muhammad Hayat Junejo and Liaquat Merchant Administrators.
A. Sattar G. Shaikh, Addl. A.-G.'
The Administrators of the Estate of late Quaid-e-Azam Muhammad Ali Jinnah have, in pursuance of, request, dated 16-9-1984, attended the Court today.
C. M. A. No. 6/1984 was filed by the Administrators on 8-12-1983, seeking deviation of the funds bequeathed by the late Quaid-e-Azam in favour of Aligarh Muslim University. In fact, by the Will of Quaid-e-Azam, three beneficiaries had been named, namely, Sind Madraiatul Islam, Karachi, Islamia College, Peshawar, and Aligarh (India) Muslim University. Out of the three legatees, two are located in Pakistan, whereas the Aligarh University is located in India. I had seriously thought whether the Will of the Quaid-e-Azam in respect of the bequest in favour of Aligarh Muslim University should be given effect to, and there were several reasons, which persuaded me to consider this question. The first question, that arose in my mind, was in regard to the power of this Court to deviate from the terms of the legacy. In such circumstances, I had requested Mr. Ali Ahmed Fazeel to appear and assist the Court on the following two points :
(i) Whether deviation in present circumstances could be resorted to
(ii) If the first question be answered in the affirmative, then who should be the beneficiaries
Mr. Ali Ahmad Fazeel invited me to examine the doctrine of cypres. and also examine the text in the both of Amir Ali on Muhammadan Law, Vol. 1, 5th Edn. page 403, and Mulla's Muhammadan Law, 17th Edn., topic 18. Besides, the learned Advocate also invited my attention to the following reported cases :
(i) I L R 1934 Mad. 12.
(ii) A I R 1920 Mad. 900.
(iii) A I R 1942 Cal. 180.
(iv) A I R 1952 All. 127.
(v) P L D 1958 Lah. 424.
--According to Hanafi School, vagueness and uncertainty in the ultimate object of the benefit in a charitable trust could be considered even to render the trust invalid. I would, however, not go to that extent. I must, at least say that, on account of the change of circumstances, leading to partition of the Indian sub-continent and establishment of a separate Muslim State of Pakistan, the conditions have so drastically changed that the application of the funds of the trust requires a deviation from the text, which finds a place in the Will of the Quaid-e-Azam. The Quaid-e-Azam was born a Muslim and indeed, he lived and died as a very great Muslim. In fact he will be remembered in history for having the cause of Muslims in India foremost in his mind, and that is why he has earned for himself the title of the front crusader amongst the Muslims for their homeland, namely, Pakistan. It can leave me in no doubt that the Quaid-e-Azam left 1/3rd of property in favour of Aligarh hluslim University (the underlining is mine). It N common knowledge that Aligarh University was a pioneer Muslim institution that had played a very great role in the renaissance of Muslims of India. One could even say, almost without fear of contradiction, that a vast of majority of Muslim educated persons of Pakistan had obtained their college education, and, in some cases, even school education at Aligarh. This institution has been so inextricably woven with the interest of Muslims of the sub-continent that to imagine Aligarh University to be anything else, but a Muslim institution, primarily catering to the needs of the Muslims of the Sub-continent, would be palpably absurd. What I am told now is that even the word "Muslim" from the name of the University has been omitted. That being so, the complexion of the legatee had undergone a drastic and fundamental change.
Secondly, there is a practical difficulty also, because this amount cannot be transferred to India, except by a long process of moving the State Bank. A letter from the Embassy of Pakistan to the Director of Quaid-e-Azam Academy, dated 27-8-1980, has also been placed before me by Mr. Syed Hashim Raza. In this letter, an extract from the Registrar of Bombay University has been reproduced. It seems that an unconditional bequest of Rs. 50,000 was made to the Bombay University by the Quaid-e-Azam in his Will, dated 30-5-1949. The amount was offered to the said University, and, in the letter of the Registrar of the University of Bombay in the matter of acceptance of this bequest, it is stated as follows :
"The syndicate of this University in 1971, decide to accept the unconditional bequest of Rs. 50,000 made to the University by the late Shri M. A. Jinnah by his Will dated 30th May, 1949, which was received from M/A Jamshedji Rustomji & Devidas & Jani & Merchant, Solicitors and Notary. It was also decided that the amount of Rs. 50,000 and the interest accrued thereon be added to the General Fund of the University.
Incidentally I may add for your ,information that the Syndicate at their earlier meeting held on 9th November, 1970, had decided that in the event of the Syndicate taking a decision to accept the bequest, the user of the bequest shall not take any form such as lectureship, scholarship or fellowship which would associate Jinnah's name with the University."
'This letter was written by the said Registrar to the Ambassador of Pakistan in India, and the text is clear, which would seem to indicate that the said University did not even wish the name of the Quaid-e-Azam to be associated with that University in any matter whatsoever.
In these circumstances, I am of the view that it is not only expedient. but even necessary to make a deviation. 1, therefore, direct that the legacy, which falls to the share of Aligarh Muslim University shall not be paid.
The next question, that arises, is in regard to the application of the .funds which, according to the Will, were to be given to Aligarh Muslim University. I have been anxious to devise a purpose, which should be identical and similar to the purpose underlying the bequest by Quaid-eAzam to Aligarh University. The purpose of Quaid-e-Azam in my view, could be none other except to support an educational institution, which had been catering to the needs of the Muslim populace of the sub-continent. In these circumstances, I am of the view that whatever has been left by Quaid-e-Azam as legacy for the Aligarh Muslim University should be spent for not other purpose, except education of the Muslims of this country.
The Administrators have submitted a statement before me today, and they propose that the amount of the legacy which, as stated by Mr. Liaquat Merchant, will be in the neighbourhood of Rs. 7 million should be utilized for the grant of scholarship in the name of "Quaid-e-Azam Aligarh Scholarship" to university students for graduate and post graduate studies in Pakistan and abroad. I entirely agree with the proposal submitted by the Administrators/Trustees because it aims at fulfilling the same objects as the Quaid-e-Azam had in his mind at the time of leaving the legacy. 1, therefore, accept the proposal.
The next question is in regard to the modalities in the performance of the scheme. I am of the view that the amount should be invested in Khas Deposit Certificate which would yield a fair return, so that a substantial number of scholarships could be given. A trust shall be created, of which the control shall be with three persons who shall work under the supervision of this Court. The three persons, who shall administer the trust and execute the orders of the Court shall be the following
(1) Mr. Syed Shareefuddin Pirzada, as a person, who has had association with the Quaid-e-Azam during his life time.
(2) Mr: Liaquat Merchant, who is linked with the family of Quaid-e-Azam.
(3) Mr. Ziaul Haq Channa, a retired Judge of this Court who had studied at Aligarh.
The matter shall be laid again before this Court, if for any reasons, any post of trustee is not taken, or, fall vacant.
The Administrators are directed to pay all the amount presently available to the three trustees named above.
The trust shall be named as "Quaid-e-Azam Aligarh Scholarship Trust"
Order accordingly.
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