' M.S.H. QURAISHI, J.-- The question arising in this petition is whether the Court can, against the express wish of the Wakif grant the Mutawalli of a Wakf Alal Aulad, permission to dispose of immovable properties constituting the Wakf and deposit the proceeds from the sale in the name of the Wakf for the interest and benefit of the beneficiaries.
2. The Wakf had been created through a Wakf deed dated 24-6-1936 by Khan Bahadur Mirza Sir Zafar All who was succeeded by Mirza Israr-ul-Qadir (respondent No,1) as Mutawalli on 20-9-1942.
One of the stipulations of the Wakf was that: {{URDU TEXT}} ' Nevertheless, with the consent of the Mutawalli and the beneficiaries the District Judge,Lahore, had, by an earlier order dated 6-8-1977, permitted the Mutawalli to sell some of the property of the Wakf subject to the condition that the sale price would be kept in the fixed deposit account in a scheduled bank and the amount of the interest would be distributed according to their respective shares in terms of the Wakf deed. In January, 1980, the Mutawalli (respondent No,1) again moved the District Judge, Lahore, for permission of sell the remaining properties constituting seven flats known as Zafar Ali Mansion, Canal Bank, and two bungalows bearing Nos, 8 and 10, Zafar Ali Road, Gulberg-V, Lahore, and to invest he proceeds in a more income yielding project for the interest and benefit of all the beneficiaries. The main ground was that the properties, which had become old and dilapidated, required extensive repairs costing several lees of rupees but even after incurring such huge expenditure, they were not likely to yield income compatible with the expenditure whereas if the properties be sold and invested, the yield thereby would be many times more. The application had first been opposed by the present petitioners but their counsel, after taking time to seek instructions from his clients, consented to the grant of the application subject to the condition that the sale should be conducted under the supervision of the Court, the sale-proceeds should be invested in a scheduled bank in the name of the Wakf and the Mutawalli should not operate the account without permission of the Court. These conditions having been accepted on behalf of the Mutawalli, the learned District Judge by his order, dated 30-7-1980 granted the permission and appointed a panel of two Advocates to take the initial steps. Aggrieved, the petitioners came in revision before the High Court, where they raised the contentions that (1) their counsel had not given his consent to the grant of permission for sale of the Wakf, property, (2) even if there was a consent the property constituting the Wakf would not be legally extinguished, (3) the sale of the property would be against the express wishes of the Wakf and (4) the District Judge had in passing the order acted with undue haste and failed to come to his own independent finding and had abdicated his jurisdiction in favour of the Mutawalli. All these contents were repelled after a detailed discussion of the relevant facts and law vide order, dated 23-5-1983 which is impugned before us.
3. The main contention raised by learned counsel for the petitioners is that the District Judge had no power to permit the immovable properties constituting the Wakf to be extinguished. For this learned counsel relied on the following commentary in Hedya (Hamilton page 235): "Upon an appropriation becoming valid and absolute, the sale or transfer of the thing appropriated is unlawful, according to all lawyers: the transfer is unlawful, because of a saying of the Prophet 'Bestow the ACTUAL LAND ITSELF in charity, in such a manner that it'. An appropriation, therefore, is incapable of sale or transfer, upon becoming valid and absolute."
' He also relied on the following observation in Muhammad Ismail v. Ahmed Moots AIR 1916 P C 132 which was a case of public Wakf relating to the property of a mosque: "He may not depart from the intentions of the founder or from any rule fixed by him as to the objects of the benefaction; but as regards management which must be governed by circumstances he has complete discretion. He may defer to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but his primary duty is to consider the interest of the general body of the public for whose benefit the trust is created. He may in his judicial discretion vary any rule of management which he may find either not practicable or not in the best interest of the institution."
' Learned counsel, therefore, argued that the power of the Court could extend only to varying the rule of management but not to extinguishing the corpus of the Wakf itself.
4. The High Court had rejected the contention by reference to Mahommedan Law by Syed Amir Ali.
It has been commented in that book, Volume I, Fifth Edition, at page 434, on the authority of Radd- ulMuhtar, that: "The Wakf can alter the investment only when the power of sale has been expressly reserved. In the absence of any such power, the Kazi, if he deems it expedient, may authorise the sale of the Wakf property and a re-investment of the proceeds in any shape conducive to the proper maintenance of the Wakf."
' It has been further commented in the same book that "when he (Wakif) has not reserved such power (to change the investment) then he must have recourse to the Kazi for the necessary permission". It has then been summed up at page 436 that: "The general result of the authorities seems to be that the Wakif may lawfully change the Wakf property, in other words, alter the investment provided he has reserved, at the time of dedication, power to that effect. Otherwise, no alteration can be effected without the leave of the Kazi or Judge, who has the power to authorise a change of investment whenever he considers it beneficial for the Wakf."
' Even in Muhammad Ismail's case which was a judgment delivered by the same learned author, a distinction had been made between public and private trust and it had been observed: "Generally speaking, in the case of Wakf or trust created for specific individuals or a determinate body of individuals, the Kazi, whose place in the British India system is taken by the civil Court, has in carrying the trust into execution to give effect so far as possible to the expressed wishes of the founder."
The prepondering view, therefore, seems to be that while the Court has to give effect "so far as possible" to the express wishes of the founder, it can authorise sale of the Wakf property for investing the proceeds in any shape considered conducive to the proper maintenance A of the Wakf even though the Wakif had not expressly reserved the power of sale. This being the legal position, no exception can be taken to the view held by the High Court.
5. Even otherwise, the petitioners' own conduct has not been consistent with their contention. As already pointed out, they had earlier been a consenting party to the disposal of a part of the property of the Wakf. During the present proceedings they had in para.6 of the preliminary objections of their written statement stated: "If the learned Court for any reason is of the opinion that the Wakf has served its purpose then the Court may dissolve the Wakf on its being not practicable and distribute the property to all the heirs in accordance with their shares under the Sunni Muslim Law of Inheritance. But for creation of the Waqf the sons and daughters of Khan Bahadur Sir Zafar All Khan would have inherited according to the Shariat. Since at the time of creation of Waqf Sir Zafar All ceased to be the owner and declared the property as Waqf Alal Aulad, therefore, the property should be distributed among the heirs according to Shariat Law."
' Again in para. 7 of the facts in the written statement they had taken the plea that: t as already stated in the preliminary objections above the property may be distributed according to Shariat of the Waqf property has served its purpose and is impracticable to manage it in its present form."
' Their counsel after taking to seek instructions from his clients had before the District Judge stated that he would agree to the grant of premission subject to only certain reservations and safeguards.
6. In view of the above discussion, we find no merit in this petition which we accordingly dismiss.