' MUHAMMAD KHALID MEHMOOD KHAN, J.---Respondents Nos.1 and 2 filed a suit for declaration and permanent injunction against the appellants and one Mst. Murtazai Begurn, predecessor in interest of respondent No.3(1), claiming that they are the uterine brother and sister of one Mirza Ghias-ud- Din who was the owner of different properties including a house measuring 10 Marlas 25 sq. Ft bearing Khatta No.184/440, Khasra No.3491/2045 near Piran Waali Masjid, Wasanpura, Lahore.
Ghias-ud-Din died issueless. In the year 1989 Mst. Murtazai Begum prepared a forged Wakf deed bearing document No.7755, Bahi No.1, Book No.3162 registered on 22-8-1989 with the Sub-Registrar, City Circle, Lahore of the property belonging to Mirza Ghias-ud-Din. Murtazai Begum prepared the forged document with the mala fide intention to deprive respondents Nos.1 and 2 from their right of inheritance in the suit property (Wakf property). The property was in the occupation of appellants in the life time of the "Wakif' and Mst. Murtazai Begum was receiving rent in her life time. The respondent Mst. Murtazai Begum and the appellants contested the suit. The learned trial court framed the following issues:-- "ISSUES:
(1) Whether the plaintiffs are uterine brother and sister of late Mirza Ghias-ud-Din Ahmad Baig?
OPP
(2) Whether late Mirza Ghias-ud-Din Ahmad made an illegal and void Waqf deed bearing Dastawez No. 7755, Bahi No.1, Jild No.3162 dated 22-8-1989 at office of Sub-Registrar City, Lahore?
OPP
(3) Whether the said Waqf deed was executed to deprive the plaintiffs to get their due share according to Sharia? OPP
(4) Whether Mst. Murtazai Begum widow of Mirza Ghias-ud-Din Baig had been receiving the rent from tenants in her life time from defendants Nos.2 to 4, what is its effect? OPP .(5) Whether the suit is time barred? OPD
(6) Whether the suit is not properly stamped? OPD
(7) Whether the plaintiff has no locus standi to file the instant suit? OPD
(8) Whether the suit has been filed with mala fide intention to harass the defendants, hence liable to be dismissed with special costs under section 35-A CPC?0PD
(9) Whether the plaintiffs are entitled to get the due share from the property in question? OPP
(10) Whether the plaintiffs are entitled to the decree as prayed for? OPP
11. Relief".
' Both the parties adduced their respective evidence both verbal as well as documentary. The learned trial court vide impugned judgment and decree dated 28-10-2011 declared that Wakf deed is illegal and void ab-initio, thus has no effect on the rights of legal heirs of Mirza Ghias-ud-Din Baig. Hence, the present appeal.
2. Malik Abdul Aziz Awan, learned Assistant Advocate General submits that the impugned judgment and decree is against the law and facts. The learned trial court has no jurisdiction to pass the impugned judgment and decree. The impugned Wakf deed is an outcome of free will of Wakif. The Wakf is complete and the Wakif in his life time has not challenged the same. The beneficiary of the Wakf is Social Welfare department who is providing help and assistance to poor, further the owner has executed the Wakif deed and not the Murtazai Begum, the Wakf remain alive long time after the registration of Wakf deed.
3. Learned counsel for respondents supports the impugned judgment and decree and submits that Mst. Murtazai Begum was not the owner of the property, hence she cannot become Mutawalli nor she can create any Wakf. For creation of Wakf the Wakif must be the owner of property. Learned counsel for respondents has relied on Jafar Hussain, etc. v. Mian Muhammad Ham' (2001 CLC 628) and Niamatullah Shah V. Farmanullah and another (1980 SCM R 953) and submits that the beneficiary of the Wakf is not providing any help to poor nor is performing any religious activities, hence the Wakf is void ab initio.
4. I have heard the arguments of learned counsel for the parties and have gone through the record.
5. It is an admitted fact that Mirza Ghais-ud-Din Baig was the owner of property, subject matter of Wakf deed, Exh.D-1. The said document is a registered Wakf deed with the Sub-Registrar, City Circle, Lahore on 22-8-1989. It is also an admitted fact that Murtazai Begum is the wife of deceased Mirza Ghias-ud-Din Baig. According to argument of learned counsel for respondents the question which requires for determination is whether Wakif can appoint joint Mutawalli of the wakf property and non owner of the property can create Wakf? The second question whether non owner of the property can create Wakf or not, is not relevant in the circumstances of this case as the creator of Wakf Mirza Ghais-ud-Din is admittedly the owner of wakf property. The argument whether Wakif can appoint himself as Mutawalli or can appoint joint Mutawalli of the property, subject matter of the Wakf. The perusal of Wakf deed shows that Wakif while creating Wakf has appointed himself and his wife as the first Mutawallis in the following words:- "4. That the Wakf shall devolve on the 1st mutwalis. Mr. And Mrs. Mirza Ghais-ud-Din Ahmad Baig, who shall continue residing in the said property till their demise.
5. That after creation of this Wakf legal heirs of the Wakif shall have no right whatsoever in the Wakf property".
' Under Sections 203 and 204 of Muhammadan Law by D.F Mulla, it is clear that mere declaration by a Wakif is sufficient to complete a valid Wakf and it is not necessary that possession should be delivered to the mutwalli, more specifically when the Wakif himself is the first mutawalli. It is also an established principle of law that no Wakf shall be A deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a- permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the Wakf. This issue came up before a Division Bench of Dacca High Court in a case reported as Yunus Mia Chowdhury and another v. Firoz Ahmad Chowdhury and others (PLD 1952 Dacca 206) wherein it is held as under:- "The decisions of different High Courts in India show that they are in favour of the opinion of Abu Yusuf. It will be sufficient to refer to the case of Mst. Rahman v. Mst. Baqridan AIR 1936 Oudh 213 (FB)
ILR 11 Luck, 735. In this case the same question, namely whether under Sunni Law a mere declaration by a wakif was sufficient to complete a wakf, came up before the Court. The Court after discussing the various texts as well as judicial decisions of different High Courts held that a mere declaration by a wakif was sufficient to complete a valid wakf and it was not necessary that possession should be delivered to the mutwalli".
6. The argument of learned counsel for respondents is that Mirza Ghias-ud-Din could not appoint himself to be the first mutwalli with his wife. This issue was dealt by the Hon'ble Supreme Court of Pakistan in a case reported as Anjuman Himayat-e-Islam, Lahore v. Syed Farooq Hassan (PLD 2007 SC 352) and the Hon'ble Supreme Court of Pakistan has held as under:-- "When clear wording of the Wakf deed leads to an irresistible conclusion that upon the demise of the last mutawalli of the Wakf property, the management of the said property would vest in a specified charitable institute and the benefits therefrom are to be used for the upkeep of Muslim orphans, the management and related benefits would vest in the said charitable institute on the demise of said last Mutawalli accordingly".
7. In a case of Muhammad Nawaz alias Tariq Mehmood v. Mian Muhammad Shafiq, (2005 YLR 2405) it is held that the Founder of the Wakf had power to appoint first mutawalli and to lay a scheme for the administration of Wakf property and also for succession to the office of mutawalli.
There is also no restriction with reference to appoint of more than one Mutawalli under the Islamic law. In a case reported as Abdul Razaq v. All Bakhsh and others (PLD 1950 Privy Council 1) it was held as under:-- "Qutab-ud-Din was appointed by the wakif as sole executor and mutwalli, and on the construction of the will of Qutab-ud-Din their Lordships; think that his three sons were appointed as joint mutwallis, that is to say as joint holders of a single office, and not as separate holders of separate offices. There is nothing in the will to suggest that the three sons were act independently of each other, and it is to be noted that on the death of Muhammad Shaft the office was treated as surviving to his two brothers. Their Lordships think that in the absence of any direction express or implied given by the wakif or other competent authority; or of any, evidence of custom supporting a usage to the contrary, the ordinary rule that an office held jointly will pass on the death of one holder to the survivors or survivor must prevail. On the death-of Abdul Ghani their Lordships think that the office of mutwalli survived to the appellant, that Abdul Ghani had no owner to appoint respondent No.2 as a mutwalli, and that the decision of the Courts in India cannot be upheld".
8. Likewise in Andhra Pardesh High Court in A.S. Abdul Khader Wakf for Deeni v. Saber Miah (2003
(6) ALD 625) it has been held as under:- "The position of a Mutawalli is just akin to a Trustee. It is no doubt true that a Mutawalli cannot act adverse to the interests of the Wakf. A Mutawalli is expected to administer and manage the properties of the Wakf keeping in view the wishes of the founder and a Mutawalli is expected to protect the interest of the beneficiaries as well. When there are more than one Mutawallis, we are also of the opinion that one of the Mutawallis can definitely maintain a suit representing the other Mutawallis as well unless there is conflict of interest otherwise. A co-owner can definitely maintain a suit for the relief of eviction and even in the case of Mutawallis, when there are more than one Mutawalli, one such joint Mutawalli can definitely maintain a suit. The principle applicable in the case of a co-owner in this regard can be extended even in the case of Mutawallis. In Damodaram Chetti v. Vengarala Rukmaniamma and another 1967 (2) An.WR 200, it was held by a Division Bench of this Court:
9. The perusal of Wakf deed Exh.D-1 shows that Mirza Ghias-udDin Ahmad Baig has created Wakf of his property in the following terms:- "8. That after their death the mutwalli will be the Director General, Social Welfare, Government of the Punjab, Lahore who shall utilize the said property for welfare purposes".
' The above referred clause shows the intention of Wakif, that the Wakif will remain joint Mutawalli in his life time with his wife and after his death, his wife will became sole Mutawalli as words used in this clause are "after their death". The word "their death" establish that after the death of husband or wife the survivor will became Mutawalli and after the death of both Mutawallis Social Welfare Department will became the Mutawalli. The purpose for creating Wakf is to help the poor through Government department, the department of Social Welfare has been established for the welfare of mankind specifically the citizens of Pakistan. Admittedly Social Welfare Department, Government of Punjab is helping the poor and providing assistance to widows etc. So no question of any inheritance to the uterine brother and sister of Mirza Abdul Khaliq arose. The Wakif Mirza Ghias-ud- Din Ahmad Baig remained alive up to 2-12-2004 whereas he created Wakf of his property on 22-8- 1989. Not a single iota of evidence is available on record which establishes that Mst. Murtazai Begum prepared the document and get the wakf deed registered as alleged in the plaint. The owner himself has created wakf, got it registered, appointed himself and his wife joint Mutawalli of the Wakf. The learned trial court has fallen in error while holding that Murtazai Begum was not the owner of property, hence she cannot create Wakf. Mst. Murtazai Begum has not created wakf, it is Mirza Ghias-ud-Din Ahmad Baig, husband of Murtazai Begum, who created wakf of the property and appointed himself and his wife joint mutwalli of the property in dispute. The above said facts establish the fact that Mirza Ghias-ud-Din Ahmad Baig created a valid wakf for the welfare of the poor, he along with his wife remained the manager of the property unless they both died and after the death of joint Mutawalli the mutawalli ship went to Social Welfare Department, Government of Punjab. The impugned judgment and decree thus is against the law and facts and as such the same is set aside and the suit of respondents is dismissed. The appeal is allowed.