1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the unsuccessful plaintiffs to examine whether the waqf created by Ali Nawaz predecessor-in-interest in favour of Rehmania Mosque by a registered deed dated 18-10-1966 was not invalid on grounds taken up by them in the suit.
2. ' Ali Nawaz was the husband of appellant No,1 and respondent No,l. From the appellant he had the children appellants Nos, 2 to 8 while respondent No,1 was issueless. Ali Nawaz owned House No,R- 67, Jhangi Mohallah, Saidpuri Gate, Rawalpindi. He had got it allotted and held the permanent transfer deed for the same. On the 14th of October, 1967, he executed a document which is described as Waqf Deed whereby he dedicated this house to the Rehmania mosque respondent No,2 reserving the right of residence during lifetime first for himself and then for respondent No, 2.
3. This waqf deed was got registered on 18th of October, 1966. He died on 22-10-1966.
4. ' In November, 1966 the appellants instituted a civil suit claiming a declaration that they were the owners as heirs of Ali Nawaz of 7/8th share in the house and that the waqf deed was invalid on account of it being contingent, made during Marzul Maut and on account of the fact that there existed no Rehmania mosque for the one that was so described was in fact located on a "Mandar"
5. (temple) in possession of the Evacuee Trust Board. On an objection by the respondent No,1, the trial Court ordered that the Rehmania mosque itself should be impleaded as defendant in the suit.
6. Thereafter the appellants impleaded it and amended their plaint taking up the same grounds for challenging the waqf.
7. ' The two defendants-respondents contested the suit and the following issues were framed on the pleadings of the parties:-
(1) Whether the deceased Ali Nawaz made the waqf in dispute during Marzul Maut. If so with what effect. OPP.
(2) Whether the waqf is not valid. OPP.
(3) Relief.
8. ' After discussing the oral evidence led at the trial the Court held and recorded the following finding on Issue No,1:- "The above resume of the plaintiffs' evidence would show that it is contradictory in nature and further if we believe the same in toto even then it does not lead us to a conclusion that the deceased apprehended his death from the malady he was suffering and it was with this apprehension in mind that he made the waqf. The only reason that he died eight days after the execution of the deed of waqf would not suggest that really the waqf was made during Marzul Maut, especially when I find that two independent persons on the side of the defendants have deposed that it was the deceased who got the deed written in the Katchery and got himself registered by going to the Sub-Registrar's Office."
9. ' As regards the other objection to the validity of the waqf, that it was contingent the trial Court held as follows:- "If the deceased Ali Nawaz made provision in the waqf deed as to his residence and the residence of his wife after his death, this does not in any way invalidate the waqf. This issue is accordingly found against the plaintiff."
10. ' It appears that the argument that Rehmania mosque did not exist and its existence on the property at one time used as Mandar or temple could not qualify it as beneficiary of the waqf was not advanced before the trial Court as there appears to be no discussion on the subject in the judgment.
11. ' On these findings, the waqf in favour of Rehmania mosque was held to be valid and the suit was dismissed with costs.
12. ' On their appeal, the Additional District Judge maintained the judgment and decree of the trial Court. After discussing the evidence on the first issue, the District Judge affirmed the findings in the following words:- "I, therefore, agree with the learned Civil Judge that the mere fact that the deceased died about eight days after the writing of the waqf deed, should not outweigh the independent and disinterested testimony of Syed Riazat Hussain Shah, Advocate, and Bostan petition-writer. I am of the view that asthama is by itself not such a disease as to induce the sufferer thereof entertain the imminent apprehension of death.
13. ' As regards the other invalidity the learned Additional District Judge held as follows:- "A plain reading of the deed indicates that the house became vested immediately in the mosque and that the waqif consituted himself as its Motawalli during his lifetime and his wife, after his death. It is true that after constituting himself and his wife as Motawali, it is provided in the deed that the waqif and his wife will not pay rent for the house to the Mosque. But that is clearly lawful under the Mussalman Waqf validating Act of 1913.''
14. ' As regards the other objection about the existence and capacity of Rehmania Mosque, the learned Additional District Judge made the following observations:- "The learned counsel for the appellants did not press the ground that the Mosque Rehmani does not exist."
15. ' On regular second appeal the High Court affirmed these findings by holding as follows:- "I have myself gone through the entire evidence on record and I find nothing to come to the conclusion different from the one arrived at by the learned Court below."
16. ' As regards the waqf being contingent, the High Court held as follows:- ' "On reading the wakf-deed as a whole it cannot be said that the wakf was to come into operation only after the death of Wakif or his wife or that under the wakf the ownership vests with the Manager of Managing Committee. The wakf vests in the Mosque under the wakf-deed."
17. ' Finally, the objection that Rehmania Mosque was not eligible for various reasons to be a beneficiary of such a waqf, the High Court held as follows:- "As regards the submission that Mosque cannot be legally considered to be in existence having been constructed on the land where earlier Mandar existed is also without substance. The Mosque, admittedly, exists as a fact and the public is also admittedly offering prayers regularly and Jumma congregation is also being held in the said Mosque. The identity of the Mosque as such factual and legal stands established on record."
18. ' The learned counsel for the appellants has reiterated the objections to the waqf taken up in the trial Court and dealt with in the manner already indicated by the three Courts dealing with the case. For the contention that the waqf was incomplete and contingent, the learned counsel for the appellants relied on the recital in the waqf deed itself that after their deaths i,e, the death of All Nawaz and respondent No,1 the Managers of the Rehmania mosque would become its owner. From this it is contended that till that event happened the waqf did not come into existence, the respondent No,2 could not claim any interest in the property and respondent No,1 could not deny to the appellants their share in it. Such a condition according to the learned counsel for the appellants derogated from the waqf itself and invalidated it.
19. ' Another ground based solely on the oral evidence and the fact that All Nawaz died a week after executing this document is that waqf even if made was during Marzul Maut and on that account could not be given effect to as waqf.
20. ' Finally much effort has been made by the learned counsel for the appellants in demonstrating that Rehmania Mosque came into existence in 1947 after the evacuees left the property. It is located on evacuee Trust Property which was in fact a Mandir or temple of the Hindus. Even the place where idol was installed is intact and the mosque is utilizing it for its own purposes. Such a mosque, according to the learned counsel, cannot be termed a mosque, has no legal status of a mosque and cannot be the beneficiary of Muslim waqf. He has relied on Mian Fazal Din v. Lahore Improvement Trust Lahore PLD 1969 SC 223; Chief Administrator Auqaf, West Pakistan v. Khan Muhammad Sher Nawab Khan PLD 1967 Lah. 672, Noor Muhammad v. Lt.-Col. Faiz Ahmad PLD 1960 (W.P.) Lah. 567, Anjuman Araian, Bhera v. Abdul Rashid and 5 others PLD 1971 Lah. 500, Darul Mukhtar and Baillie's Digest of Muhammadan Law.
21. ' The learned counsel for the respondents on the other hand has contended that the questions of fact stand concluded by the concurrent finding of fact of all the three Courts. Further, the appellants not having directly challenged the capacity of respondent No,2 to be a beneficiary of such a Waqf could not make it a ground for attacking the waqf. Besides, according to the learned counsel, it was a public waqf and even if the beneficiary did not qualify the waqf in favour of a mosque would still be valid.
22. The concurrent finding of all the three Courts that a public Waqf was created by the registered deed dated 18-10-1966, that it was not contingent or made during Marzul Maut is based on evidence on record and suffers from no legal infirmity.
23. ' The term 'wakf' literally means detention. The legal meaning of wakf, according to Abu Hann, is the detention of specific thing in the ownership of the wakif or appropriator, and the devoting or appropriating of its profits or usufruct "in charity on the poor or other good objects. According to the two disciples, Abu Yousuf and Muhammad wakf signifies the extinction of appropriator's ownership in the thing dedicated and the detention of the thing is the implied ownership of God, in such a manner that its profit may revert or be applied 'for the benefit of mankind' (Mullah, Principles of Muhammadan Law 154). One of the recognised objects of a waqf is mosque. A mere declaration is sufficient to complete the waqf. According to Muhammad, the waqf is not complete unless, besides a declaration of waqf, a Mutawalli is appointed by the owner and possession of the endowed property is delivered to him.
24. ' Applying these legal tests to the registered deed under consideration, we find that it bears the heading "URDU TEXT". After reciting the preliminaries the operative part is as hereunder:- {{URDU TEXT}} ' There is an unequivocal declaration of wakf in present, consequential change in the nature of interest of the declarant, the appointment of first two Mutawallis in succession, and indication that their continued possession over the house will be in the capacity of a Manager or Mutawalli and not as an owner. There is no contingency prescribed, no precondition required to be satisfied for bringing the wakf into existence. With the declaration the wakf came into existence. The property vested in Almighty God. The capacity of All Nawaz changed from that of an owner to that of a Mutawalli. His continued possession over the property as its Mutawalli did not derogate from the dedication. He had the power while making the wakf to designate the Mutawalli as well.
25. ' There is no doubt an element of contradiction in the deed inasmuch as in summing up All Nawaz stated, {{URDU TEXT}} ' This portion of the deed has been interpreted by the learned counsel to imply that Ali Nawaz in his lifetime and Mst. Akbar Jan in her lifetime were to remain owner of the house and its ownership was to pass on to the Management of the mosque only on their death and not earlier.
26. ' Any such conclusion, as has been drawn by the learned counsel for the appellants is negatived by words creating the wakf, the rights of the Mutawallis during their lifetime and the restraints placed during their lifetime on the powers of the managers of the mosque to utilize this property or to charge the Mutawallis for its use. What it in fact implied was that the property's management was to completely vest in the managers of mosque. This is manifest from the words immediately preceding the summing up. These are as hereunder:- {{URDU TEXT}} ' The next objection of the learned counsel for the appellants to the wakf that it was made by Ali Nawaz during Marzul Maut has not been sustained by the three Courts. It was found that the deceased was suffering from no such ailment as could reasonably give rise to the apprehension that he would die of it. As a matter of fact the diseases mentioned are dysentery and asthama. He had been attending to routine out door duties. This appears more convincingly from the fact that he got the deed written himself on one date and attended the registry for getting it duly registered.
27. The learned counsel for the appellants has by reference to a large number of decided cases, already noted, attempted to establish that Rehmania Mosque being established on premises belonging to evacuee temple could not qualify under Islamic law as a mosque. It could not be the beneficiary of a wakf. It is not denied on facts that a mosque does exist there since 1947 and that no part of the premises is being used any more as a temple. Further, none of the cases or Texts relied upon by the learned counsel refer to the incapacity of such a mosque to receive property in wakf or otherwise. Mian Fazal Din's case actually recognizes the principle of Muslim Law common to Hanafi and Shia Schools that the property dedicated should be wakif's otherwise wakf is not valid.
28. In the present case none is disputing the title of Ali Nawaz to the house he dedicated. In the case of Anjuman Araian, a trespasser, over land even though a mosque, was not recognised as an aggrieved person in the matter of disposal of land occupied by it by the competent authority. The case of Noor Muhammad involved prosecution under section 295, P.P.C. And it was held that dedication for a mosque must come from the owner himself. It being absent there could be no question of conviction under section 295, P.P.C. In case such a mosque was demolished. Besides, even the evidence with regard to the use of Thara as mosque was found insufficient. None of these cases helps the proposition advanced by the learned counsel for the appellants.