1. MUHAMMAD YAQUB ALI, J.--The litigation embraced in these appeals by special leave of the Court is between Mst. Ahmedi Begum and her son Muhammand Mushtaq Ali Khan. The dispute is in relation to distribution of lands released from Wakf under Para. 10 of the West Pakistan Land Reforms Regulation No, 64 of 1959.
2. In 1923 Dr. Khurshid Ali Khan of village Jalalabad, District Muzaffarnagar (India) created a wakf- alal-aulad of his landed and urban immovable properties by a registered deed and made himself the first Mutwaili. On his demise his maternal grandson Muhammad Mushtaq Ali Khan became the Mutwalli and he managed the Wakf properties until Partition when the family of the Wakif migrated to Pakistan.
3. In lieu of Wakf lands abandoned in India Muhammad Mushtaq Ali Khan obtained allotment of lands in district Jhelum which under the evacuee laws became Wakf and their income was to be appropriated in accordance with the terms and conditions of the instrument of Wakf.
4. On the promulgation of the West Pakistan Land Reforms Regulation No, 64 on 7th February 1959, the agricultural lands ceased to be Wakf and under Para. 10 (2) (c) were to be distributed among the heirs of the Wakif and non-heir beneficiaries as provided in the Regulation. Entitlement certificates in respect of the lands were issued by the Central Record Office exclusively in the name of Mst.
5. Ahmedi Begum as the only daughter of the Wakif. Muhammad Mushtaq Ali Khan challenged the decision of the Central Record Office by a Writ Petition in the erstwhile High Court of West Pakistan, Lahore Seat, which accepted his contention and held that he too was a beneficiary under the Wakf Deed. On appeal by Mst. Ahmedi Begum this Court held that the High Court was not competent to usurp the jurisdiction of the Land Commission under Martial Law Regulation No, 64 and to determine the extent to which under the said Regulation the contesting parties would be entitled to share in the Wakf properties since the matter itself is pending adjudication before the Deputy Land Commissioner. Thereafter the Deputy Land Commissioner decided that since Muhammad Mushtaq Ali Khan had, on the abolition of the Wakf, no duties to perform in respect of the Wakf lands, the entire property was given to Mst. Ahmedi Begum, as sole heir of the Wakif. On appeal the Land Commissioner took a different view and held that being a Mutwalli Muhammad Mushtaq Ali Khan was entitled to 2/3rd share in the land under the Martial Law Regulation No,
64. This decision was upheld also on revision by the Chief Land Commissioner.
6. Mst. Ahmedi Begum challenged the legality of the orders passed by the Land, Commissioner and the Chief Land Commissioner by a writ petition under Article 98 of the 1962-Constitution. A Division Bench of the High Court after labouriously examining the Wakf Deed came to the conclusion that Muhammad Mushtaq Ali Khan was not the only beneficiary in the Wakf Deed, but since the record did n-t contain specifically the names of the beneficiaries under the Deed on the 7th February 1959, when Martial Law Regulation No, 64 came into force, the case was remanded to the Land Commissioner to find out the beneficiaries in existence on that date and after fixing the share of each of them in the manner indicated by the High Court, determine the exact shares of the contesting parties.
7. The High Court was also of the view that if a beneficiary, who is so found to be entitled to benefit under the Deed, did not come forward to claim his or her share, the unclaimed share would have to be regulated in accordance with the general law and could not be given to any other beneficiary.
8. In the view of the High Court in so far as the Chief Land Commissioner had not taken these factors into consideration. he had acted without lawful authority and his decision was liable to be set aside.
9. Both Muhammad Mushtaq Ali Khan and Mst. Ahmedi Begum appealed from the judgment and order passed by the High Court being C. A. No, 26 of 1970 and C. A. No, 16 of 1970 respectively. On behalf of Muhammad Mushtaq Ali Khan it was contended that the High Court could not intervene on behalf of persons who were not before it while Mst. Ahmedi Begum claimed that she was entitled to all the lands and that during her lifetime none of her children was entitled to inherit from the Wakif.
10. We will first examine the relevant clauses in the Wakf Deed relating to appointment of Mutwalli and the share of the income reserved for him which will determine the share in the lands released from Wakf to which Muhammad Mushtaq Ali Khan became entitled under Para. 10 of Martial Law Regulation No,
64. In the Wakf Deed it is inter alia provided as under:-- "5. I shall remain Mutwalli during my lifetime myself, and shall have the powers to change the conditions and also the nature of expenses entered in this document if I found anything wrong and in place of the Wakf liabilities I may replace by increasing the same, or decreasing them, and none shall have any objection to it. After my death, the person nominated by me will function as Mutwalli and he will be nominated through some writing, and in case I could not get such an opportunity during my lifetime, then the elder son of my daughter named Muhammad Mushtaq Ali Khan will work as Mutwalli, and his functions will be looked after by his mother and his grand-mother till he reaches the age of majority. From my wife or my children of the present or the next born that person will perform the functions of Mutwalli who will be reliable according to age, follower of Hanfia faith, principles of Islam and should be of good character and be superior among the male members.
(9) That at present my two wives, namely, Nazir Begum and Aftab Begum are alive and are included with me and they have foregone their dower money due from me in the name of Almighty and they have marked their thumb-impressions of their own accord on this document. I am responsible for their maintenance and other necessities till their lifetime, and I shall make arrangements and after my death, the other Mutwalli shall be responsible for their maintenance and persons expenses. He will keep them with him like me, as it is my pleasure now that after me my real maternal grandson should be Mutwalli, when during my lifetime I may not appoint another Mutwalli.
(10) That it will be binding on every Mutwalli that after me, he should act upon fully as per terms of this document, otherwise he will be removed.
11. (11)If by chance out of my sons or daughters, no male member is left, then the female member from them, shall be considered as Mutwalli according to above said conditions.
12. (a)The Mutwalli shall have 'do chand' share because of his services rendered by him and the residue will be distributed among my children, both male and female, according to the Shariat.
13. (b)That Mst. Min alias Umrao Begum widow and daughter of Ibrahim Khan deceased will get Rs, 60 per annum. Mst. Fatima Begum widow and daughter of Faiz Muhammad Khan, deceased, Rs, 24 per annum, Rs, 12 per annum will be given to Mst. Fatima Begum till the time she remains unmarried, Rs, 12 per annum will be given to Mst. Jehan Begum, widow and wife of Ibrahim Khan. deceased, Rs, 12 to Mst. Fatima Begum widow and wife of Nizam Khan, deceased, on the condition till they do not marry again and this money will be paid to them till their life time, and the orphan daughters, poor and dectitude will be helped with a sum of Rs, 10 at the time of their Nikah.
14. (c)Muhammad Mushtaq All Khan, the maternal grandson will be paid his expenses for education till the time he gets his education, from the income of the Wakf property and I the promising-holder shall remain bound for the same."
15. The Land Commission authorities interpreted Clause II of the Instrument of Wakf as reserving two- third share of the income for Muhammad Mushtaq Ali Khan and one-third for Mst. Ahmedi Begum.
16. The High. Court did not approve of this interpretation and held that Muhammad Mushtaq Ali Khan was entitled to receive double the share of other individual beneficiaries and not to two-third of the entire income and since this double share was in lieu of services rendered to the Wakif he was entitled to only one share as the Wakf had been abolished and there was no occasion for him to perform his former duties.
17. The construction placed on the Wakf Deed by the High Court is plainly correct and we find little force in either appeal except to examine the correctness of the direction given by the High Court to the Land Commission that if a beneficiare does not claim his or her share the same would not be distributed among the remaining heirs and beneficiaries.
18. As to the benefit reserved in the Instrument of Wakf for the heirs and beneficiaries we agree with the learned Judges that Muhammad Mushtaq Ali Khan was given only two shares one as a beneficiary and the other as Mutwalli and not that two-third of the entire income was reserved for him by the Wakif.
19. The words{{URDU TEXT}}_9." cannot mean two-third of the whole. The proper term for it is {{URDU TEXT}}"LA-3 _P" as pointed out by the learned Judges of the High Court. The literal meaning of is double. Question arises double of what? Of course, not double of the income reserved for all other beneficiaries put together, but double of what Muhammad Musht q Ali Khan would otherwise get as a descendant of the Wakif. It follows that if he ceased to perform the duties of Mutwalli, he was to get the same share as other male and female descendants of the Wakif. As seen above Muhammad Mushtaq Ali Khan was liable to be removed from the office of Mutwalli in case he was guilty of breach of any term and condition of the Wakf. Assuming that Muhammad Mushtaq Ali Khan was so removed, he would then have got the same share as any other descendant of the Wakif. As soon as the Wakf was abolished under Para. 10 of the Martial Law Regulation No, 64, the same situation was created. Muhammad Mushtaq Ali Khan had no duties to perform as a Mutwalli and consequent upon it he was to get only one share as a non-heir beneficiary. The decision of the Land Commissioner was in this view rightly set aside by the High Court.
20. We will now turn to the construction of Para. 10 of the Martial Law Regulation No,
64. It provides:-- "10. Wakfs.--(l) Land included in any Wakf of the nature described in section 3 of the Mussalman Wakf Validating Act, 1913 (VI of 1913), shall, on the commencement of this Regulation, cease to form part of such Wakf.
(2) Such land, except the portion, if any, already specifically dedicated for a religious, pious or charitable purpose, shall be appropriated as follows: (a)If the donor is alive and is the sale beneficiary of the Wakf, the land shall revert to him; (b)If the donor is alive and is not the sole beneficiary and there are other beneficiaries besides him, then such portion of the land as is reserved under the Wakf for the benefit of the donor shall revert to him, and the remaining portion of the land shall be divided among the other beneficiaries, non-heirs receiving share in proportion to the benefit reserved for them under the Wakf, and heirs according to the law of inheritance, as if succession had opened on the commencement of this regulation."
21. Clauses (a) and (b) of sub-para. (2) of para. 10 deal with cases in which the donor is alive with which we are not concerned. Clause (c) which is directly relevant provides: "(c) If the donor is dead, the land shall be divided among the beneficiaries, non-heirs receiving share in proportion to the benefit reserved for them under the Wakf, and heirs according to the law of inheritance, and if succession had opened on the day the donor died."
22. Beneficiaries are divided into heirs and non-heirs. Those who fall in the first category will get the share to which they would have succeeded on the demise of the donor if the lands had not been made Wakf. The beneficiaries in the second category who would not have otherwise succeeded will, however, get a share in the land in proportion to the benefit reserved for them under the Wakf.
23. The terminal date is 7th February 1959 when the Regulation came into force. It is to be deemed that the donor died on that date and succession is opened as on that date. On the present record Mst. Ahmedi Begum was the sole heir of her father Dr. Khurshid Ali Khan while the rest of his descendants including her son Muhammad Mushtaq All Khan were included in the category of non-heir beneficiaries. Under Hanafi Law Mst. Ahmedi Begum succeeded to one half of the Wakf lands and the remaining half therefore devolved on the non-heir beneficiaries under Para. 10(c) of Martial Law Regu-lation No,
64. They will get equal shares i,e,, per capital making no distinction between males and females, because their interest is not defined in the Wakf Deed. It is said in Clause 11 (a); {{URDU TEXT}} The shares of heirs are fixed by Shariat, but the non-heir beneficiaries cannot claim any definite share in the income of Wakf properties except under the rule stated in Muhammadan Law by Amir Ali, Vol. I, Chapter IX, page 366.
24. "When a Wakf is made in favour of children the income is to be divided among them equally. This is according to Abu Yusuf and `the Fatwa is with him.' A condition in the Wakfnama giving to one child a greater interest than the other, or to the sons more than the daughters is sinful, as it is sinful to make any difference in gifs. This is the opinion of all leading jurists. Shaikh Nur-ud-Din Mukaddasi, Mufti of Cairo, and Shaikh-ul-Islam Muhammad Tahtawi, Shafei Mufti of Egypt, have given decisions to the same effect, that is, when the Wakif makes a Wakf in favour of a class, all persons belonging to that class take equally whether they belong to the same sex or not, or whether they differ in their `roots'. For example, when it is in favour of brothers, consanguine and uterine brothers take together and not according to their shares under the law of succession.
25. Similarly, if a man were to say that in case of his dying without issue, the Wakf would endure belonging to the class nearest to him in degree, and he dies leaving only one paternal uncle's son and two paternal uncle's daughters, the male and female cousins take the income in equal shares.
26. The meaning, therefore, of the expression Faraiz-ullah is not that the division should be according to their shares under the law of inheritance, but according to the rule laid down by the Prophet in which he declared that no preference should be shown in gifts; and consequently the donees will take equally." (Raddul Mukhtar, Vol. III, p. 672).
27. No arguments were addressed by the learned counsel for the parties on this part of the case, but we find that the view expressed by the learned Judges sums up the legal position correctly. The non-heir beneficiaries which include Mushtaq Ali Khan and all other male and female descendants of the Wakif will, accordingly, get equal shares in one-half of the lauds released from Wakf. The contention raised by Mst. Ahmedi Begum that she alone is entitled to get the lands released from the Wakf and the claim by Muhammad Mushtaq Ali Khan that he is entitled to two-third share in the land are equally untenable.
28. The number and particulars of non-heir beneficiaries other than Muhammad Mushtaq Ali Khan or not known on the present record. In the circumstances the High Court felt constrained to remand the case to the Chief Land Commissioner to determine the shares of the beneficiaries of the Wakf in the light of the construction placed by them on the Instrument of Wakf and their interpretation of Para. 10(2)(c) of the Martial Law Regulation. It is further laid down that if any one of the beneficiaries does not come forward to claim his or her share that share would not be available for distribution among the remaining beneficiaries. We do not see any warrant for this enunciation.
29. Indeed if it was a correct rule then on the demise of a beneficiary who leaves behind no heir his share in the income of the Wakf properties would remain in medio. Such a situation is not countenanced by Muslim Law.
30. We, accordingly, modify the direction given by the High Court and hold that while Mst. Ahmedi Begum is entitled to one-half of the erstwhile Wakf lands the other half share is to be distributed under Para. 10 (2)(c) of Martial Law Regulation No, 64 among the non-heir beneficiaries. In case one or more non-heir beneficiaries fail to claim their shares, the same will C be distributed among the rest of them pro rata. The Land Com missioner will decide the case accordingly.
31. The Income of the lands which has accrued during the pendency of the appeals will be distributed in the same proportion as indicated above.
32. In the result Civil Appeal No, 26 of 1970 by Muhammad Mushtaq Ali Khan is dismissed in toto and Civil Appeal No, 16 of 1970 by Mst. Ahmedi Begum is accepted in part. In the circumstances, there will be no order as to costs in either appeal.