' These are two applications (C. M. A. Nos. 3106/78 and 3475/85) under Order I, rule 10, read with section 151, C. P. C., wherein it is prayed on behalf of the two applicants, viz. "Majeeda Faiz Ahmad Malik Charitable Trust" and National Institute of Cardio Vascular Diseases, Karachi, hereinafter called "the Trust" and "the Institute" respectively, for impleading them as parties to the above suit. It is alleged by the Trust that "since the applicant Trust has been constituted as a "Trust" in respect of the several properties, both movable and immovable, left by the deceased Begum Majeeda Faiz Ahmad Malik, being the properties in dispute in pursuance of the declaration of Trust dated 15-11- 1984", the Trust is the proper and necessary party and so the "Institute" as beneficiary of the said Trust. These applications arise out of the above suit for administration of the properties left by the deceased Begum Majeeda Faiz Ahmad Malik, who died issueless at Karachi on 11-11-1984 leaving behind the plaintiff and the defendants as her only heirs as residuary, as alleged.
2. Mr. Syed Inayat Ali, learned counsel for the applicant submits that a Waqf has been created inter vivos during lifetime of the deceased Mst. Majeeda Faiz Ahmad Malik. According to his submissions, there was no estate left by the deceased to be disrtibuted among the heirs in respect of ''Iiich the above administration suit for distribution of the estate has been filed. Learned counsel, referring to sections 173-76, 183, 184 and 186 from Mulla's Principles of Mohammadan Law, 14th Edition, page 161, also appearing at page 168 onwards of the. 16th Edition, submitted that Waqf of the properties in question has been created for charitable purposes in respect of the immovable and movable properties belonging to the deceased by her words of mouth, which is valid as no ' writing or registration is required for it, which may be created by act inter vivos or by will. Waqf inter vivos is completed by mere declaration.
3. On the other hand, Mr. Ahsan Rizvi, learned counsel for ' defendant No, 2 submitted that the applicant's case as pleaded in the application and the affidavit is that of a Trust and not that of Waqf, which the applicant's counsel has tried to make out in his argument. He placed his reliance on sections 203 and 205, relating to definition of Waqf and distinction between Trust and Waqf, of my book "A Code of Muslim Personal Law", Vol. 2, pages 101, 108 and 111 and the case reported as Anjuman Islamia Punjab, Lahore v. Mubarik Ali Khan and others (1), wherein it was observed that "In Muslim Law there is no set formula for creating Waqf. The only requirement is a clear intention of creating a Waqf and a declaration by the Waqf to that effect and the appointment {{FOOT NOTE}}
(1) PLD 1967 Lab. 1221 {{FOOT NOTE}} of a Mutawalli. It was thus submitted that no Waqf was created by the deceased during her lifetime. The Trust Deed filed by the applicant was made on 15-11-1985, whereby the alleged trust was created by the founder Trustees, who are the declarants to that Trust. Mr. Makhdoom Ali Khan, learned counsel for the plaintiff submitted that the said Trust is invalid for non-registration, as provided under section 5 of the Trust Act, 1882. Reliance was placed by him on a decision, reported as M. Ethirajulu Naidu v. A. Ranganatham Chetti and others (1).
4. It may be stated that Muslim Law of Waqf is a transfer of the corpus of valuable property to the ownership of Almighty Aliah with a declaration of dedicating its usufruct perpetually for religious, charitable or pious purposes as recognised by Shari' ah. The literal meaning of the word "Waqf" is 'stopping', 'binding' or 'keeping' in custody, detaining, closing or imprisoning. According to Imam Abu Hanifah (d. 150 A. H.) the detention of a specific property in the ownership of the Waqf and appropriation of its profits or usufructs in charity for the poor or other good deeds is called "Waqf".
According to him, a Waqf becomes absolute on creating "Waqf" in the manner, "I dedicate such and such property as Waqf in my life and after my death and forever", and only on obtaining of an Order from the Qazi (Judge) to that effect. According to the Sahibayn (Abu Yusuf and Muhammad al-Shaybani, the two illustrious disciples of Abu Hanifah), Waqf denotes the extinguishment of the proprietor's ownership in the property dedicated and its detention in the implied ownership of Aliah in a manner that its usufructs may accrue to or be applied for the benefit of humanity. However, according to Imam Muhammad Al-Shabani, delivery of "Waqf" property, according to its nature, to the Mutawalli is also a condition. According to Abu Yusuf, the taking of the corpus of any property of the ownership of one self-transferring it permanently to the ownership of Aliah and dedicating its usufruct to others is "Waqf". No delivery of possession of the property to Mutawalli is necessary. Only the Waqif's declaration is sufficient. In this regard, reference may be made to Al-Sarakhsi' (d. 482 A.
D) : ' Al-Mabsut Kitab al-Waqf, Cairo, 1324 A. H., Vol. Xi', p. 27 : {{ARABIC TEXT}} and Al-Marghinani, Burhan al-Din, (d. 593 A. H.) : Al-Hidayah, (A41411) Kitab al-Waqf, Qur'an Mahal, Karachi, Vol. 11, p. 637 : {{ARABIC TEXT}} ' It will be of interest to note that famous Shi'ah Mujtahid, Najmuddin Al-Hilli : (d. 474 A. H.), in his noted work, Shara'i al-Islam (r)1/4....)!I ej-:;) published in Tehran, 1377 A. H. p. 152 has stated that - {{ARABIC TEXT}} that is, Waqf is a covenant that gives rise to the reservation of the corpus of the property and releasing its usufructs. Hence, according to Abu Yusuf, "Waqf" becomes complete simply by the use of the word alone ; decree of an official or delivery of its possession to "Mutawalli" is not necessary.
However, so far as creation of a `Waqf' is concerned there is consensus on the verdict of Abu Yusuf and same has been generally accepted. Reliance is placed on Shaikh Nizam al-Din Burhanpuri : Fatawa Almagiri, Kanpur, Vol. II, p. 315 : {{ARABIC TEXT}} ' It may further be stated that the creation of the Waqf, except by a will, must be immediate, and the property dedicated in Waqf must be known and specific.
5. As to the distinction between Trust and Waqf, it is to be noticed that the Waqf in Muslim Law differs from a Trust in various respects, such as in a Trust no religious motive is necessary, whereas a Wafq is generally made with a pious, charitable or religious purposes. A Trust may be for any lawful object, whereas the ultimate object for a Waqf must be benefit to mankind. A Trust property vests in the Trustees, whereas Waqf vests in Almighty Aliah. A Trustee has got a larger power than a Mutawalli of a Waqf, who is only a manager or superintendent. It is not necessary that a Trust must be perpetual, irrevocable or inalienable, whereas Waqf is perpetual, irrevocable and inalienable. A Trust results for the benefit of the founder when it is incapable of execution and the property has not been exhausted, whereas doctrine of cypres is applied to the Waqf property and it may be used to some other object, which is akin or similar to the objects for which the Waqf had been created. A Trust is regulated by the provisions of Trusts Act,,1882. The provisions embodied in the Trusts Act are not applicable to Muslim Waqf, as expressly provided in the saving clause of section 1 of the said Act. The Waqf, in Pakistan, generally speaking, is regulated by Muslim Personal Law, subject to any enactment.
6. Mr. Makhdoom Ali Khan, in support his contention that the Trust Deed is not a "Waqf", further submitted that the subject-matter of a Waqf under Muslim Law should remain in-tact, whereas the assets in question have been consumed. He placed his reliance on Abdul Hamid Qureshi v. Ch. Fateh Muhammad Sheifta (1) wherein at page 831 it was. Observed that "when property is made Waqf its ownership vests henceforth in the Almighty and its usufruct is to be applied for the benefit of His creation only. The corpus cannot be touched for the corpus belongs to Him. (Rather, the fiction that it belongs to Almighty has been introduced to explain that the corpus is no longer available to htiman beings"). The contention is not without force. On plain reading of the Trust Deed it appears that it {{FOOT NOTE}}
(1) P L. D 1958 (W. P.) Lab. 824 {{FOOT NOTE}} tends to dispose of the corpus of the properties and appropriate the same by paying a sum of Rs, 5 lacs to Mrs. Rehana wife of Abdul Qayum, alleged to be an heir, in settlement of his/her claim as heir. It further stipulates the distribution of the sale proceeds to the two institutions named in the Trust Deed. As to the retaining of the corpus, I may refer to the tradition of the Holy Prophet related to Hadrat 'Umar, the Second Caliph, Mishkat-ul-Masabih (al-Waqf), Law Publishing Co., Lahore, p.
320, which reads as under :- {{ARABIC TEXT}} ' That is, Ibn `Iimar reported that `Umar acquired a land at Khaiber and came to the Messenger of Aliah and said: 0' Messenger of Aliah, I acquired a land at Khaiber. I did never acquire before, a land so valuable to me than this. What do you enjoin me about it ? He said : If you like, you may keep the corpus intact and make its usufruct a gift in the name of Aliah. 'Umar made a gift of it on condition that its corpus shall neither be sold. Nor be made a gift, not be inherited. And he gave it in charity to the p )or, and to the nearest of kin, and to those in bondage and in the way of Aliah and guests.
There is no sin for one who is a Mutawalli over it to eat there from with equity or feed without hoarding. Ibn Sirin said : without hoarding wealth, (Narrated by both Bukhari and Muslim). The word "nabs" (confinement or restriction) in Arabic signifies perpetuity. If corpus of the. Waqf property be held to be liable, to disposal, the word `habs' becomes meaningless, and the words "it should not be sold, neither should it be given away in gift, nor should it be turned into heritage", sufficiently indicate the meaning of perpetuity.
7. Looking to the Trust Deed, as a whole, my first impression, subject to further scrutiny in appropriate proceedings, which I am going to indicate presently is that it lacks, in certain respects, as a Waqf and if it is regarded as a Trust Deed, other than a Waqf, the provisions of section 5 relating to registration and other things may, perhaps, be attracted to it. The section reads as under :- "Section 5. No trust in relation to immovable property is valid unless declared by a non- testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.
' No trust in relation to movable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee.
' These, rules do not apply where they would operate so as to effectuate a fraud."
' In this regard, reliance seems to have been rightly placed by Mr. Makhdoom Ali Khan on the Privy Council's decision, referred to above, as to the effect of non-registration.
8. It is noticeable that the Trust Deed also includes. Movable properties, such as bank account and the jewellery in the locker. In relation to movable property, a Trust under the Trusts Act is valid only when the ownership of the property is transferred by the owner to the Trustee that as it may, the applicants are not entitled to establish a case, in these proceedings, other than it is stated in the above applications. This preliminary enquiry as to the nature of interest of applicants E was necessary to ascertain if the applicants have a prima facie case to be established. Merely because a person who claims a particular right, it does not become necessary to exercise discretion in his favour by ordering him to be impleaded as a party to a pending suit. The Court, before passing such an order should prima facie be satisfied, about the plausibility of his claim and the nature of his interest in relation to the "questions involved" in the pending suit.
9. Mr. Syed Inayat Ali in order to show that the applicants are proper and necessary parties to the suit, placed his reliance on a number of decisions, reported as Vattam Rarnakrishnayya v. Vattini Satyanarayana and others (1), Vanjiappa Goundan v. N. P. V. L. R. Annamalai Chettiar and others (2), Parasuram Mangacharj.Lu and others v. Parasuram Balarama Krishnamacharyulu and another (3), Mir Hasmat Ali v. Birendra Kumar Ghosh and others (4), Asghar Jehan Begum v. Syed Jalilur Rehman and others (5), Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu & Kashmir and 13 others (6) and Syed Mehdi Hussain Shah v. Shadoo Bibi and others (7).
' In AIR 1929 Mad. 291 laying down the difference between a proper and necessary party it was observed that "A man may be a proper party as his presence may be desirable to bind him and prevent a multiplicity of actions or effectually to decide the equities between the parties and if the plaintiff joined him there can be no plea of misjoinder of parties. But a necessary party is one whose absence would entail dismissal of the suit for non-joinder. In all these cases what the Courts ought to see is whether there is anything which cannot be determined owing to his absence or whether a third person will be prejudiced by his not being joined as a party."
(ii) In AIR 1940 Mad. 69, it was observed that "the object of the provision is that where several disputes arise out of one subject-matter, all the parties interested in such disputes should be brought before the Court and all questions in controversy between them should be completely settled in the action".
(iii) In AIR 1940 Mad. 225, it was observed that "A person may be added as a party to a suit when his presence before the Court is necessary to enable the Court effectually and completely to adjudicate and settle all the questions involved in the suit and not merely the questions between the parties to the suit". {{FOOT NOTE}}
(1) AIR 1929 Mad. 291 (2) AIR 1940 Mad. 69
(3) A 1.R 1940 \lad. 225 (4) PLD 1965 Dacca 56
(5) PLD 1969 Kar. 436 (6) PLD 1985 SC (A & I K) 102
(7) PLD 1962 SC 291 {{FOOT NOTE}}
(iv) In PLD 1965 Dacca 56, it was observed that "party" may be added under the inherent powers of the Court or under Order I, rule 10 of the Code of Civil Procedure.
(v) In PLD 1969 Kar. 436, referring to a number of cases, it was observed as under :- "After examining the case-law on the point, their Lordships were pleased to hold that Order 1, rule 10, C. P. C., specifically empowers a Court to add a party to the suit for the purpose of effectually deciding "all the points involved in the suit". The phrase "all the points involved in the suit does not mean all the points that are raised by parties". The phrase is not amenable to any such restricted meaning. Ali the points, though not raised as between the parties themselves, as are material to a proper decision of the suit, are necessarily points "involved" in the suit."
(vi) In PLD 1985 SC A J & K 102 it was, inter alia, observed that "where a party is remotely interested in the fate of the petition and as such is only a proper party, its non-implement would not be fatal to the proceedings. This view prevailed in Atiar Rahman v. M. A. Bari and others (1). Likewise, it does not require any deep argument that if all the heirs of the deceased party are not impleaded it would be said that such a party has not been properly represented and the party who omits to do so cannot escape the legal consequences."
(vii) In PLD 1962 SC 291 commenting on the nature of administration suit, the Honourable Supreme Court observed as under :- "It is clear that for distributing the estate of the deceased among those entitled to it the Court has to find out who the persons entitled are and, therefore? It will be proper to join in the suit all those persons who claim to be so entitled. According to Order I, rule 10, of the Civil Procedure Code any persons whose presence is "necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit" may be added as a party to the suit."
10. On the other hand, Mr. Makhdoom Ali Khan relied on the following cases; namely; Vaithilinga Pandara Sannidhi Audhina Karthar Tiruvaduthurai Adhinam v. Sadasiva Iyer and others (2), Jamilur Rahman v. Muhammad Asghar and others (3), Sanaullah Khan v. Lahore Municipal Corporation, Lahore and another (4) and Hussain v. Mansoor Ali and 5 others (5).
(i) In the case, AIR 1926 Mad. 836, it was observed that "to argue that the applicant was a necessary party to the suit in the sense in which that expression is understood in the law relating to parties to actions, that is to say, in other words, as a party without whom there can be no properly constituted suit, having regard to the cause of action alleged and the relief claimed. If it is to be only a question of a permissible party, then on principle it follows that such cannot generally be ordered when it is opposed by the person to fight whom he is so brought on the record." {{FOOT NOTE}}
(1) PLD 1968 Dacca 17 (2) AIR 1926 Mad. 836
(3) PLD 1968 Lah. 1076 (4) 1979 CLC 891
(5) PLD 1977 Kar. {{FOOT NOTE}}
(ii) In the Lahore case, PLD 1968 Lah. 1076, it was observed as under ;- "We cannot disregard the principle of law that a plaintiff has the dominos litis and, as far as possible, no person should be joined as a party to the suit against his wishes. There is not the slightest doubt in our mind that for the questions involved in the pre-emption suit the appellant's presence is not necessary, and an effective relief can well be granted in the suit without impleading him as a party. It is, however, open to the appellant to challenge the alienation made by him in favour of Mst. Razia Beguni,, wife of respondent No, 1, by a separate suit."
(iii) In 1979 CLC 891 it was held that a person who wants to introduce a new cause of action in the suit is not a necessary or a proper party.
(iv) In PLD 1977 Kar. 8, it was held that creditors and legatees are not necessary parties to administration suit between the heirs.
11. Mr. Ahsan Rizvi, learned counsel for defendant No, 1 submitted that it will be proper for the intervenors to file separate suit in order to avoid multifariousness in the above suit. Reliance was placed by him in Hakim Ali and others v. Syed Imam Ali Ahmad Qadri and others (1).
12. Mr. Andleeb Alvi, learned counsel for defendant No, 2 submitted that in the circumstances of the case no relief can be given to the applicants/ intervenors as they are not in possession of the property. To this, Mr. Inayat Ali submitted that after the applicants are impleaded as party to the suit, he will file a counter-claim for declaration and injunction and possession of the suit properties.
13. The cases cited by Mr. Syed Inayat Ali are distinguishable inasmuch as the applicants in most of the cases either claimed to be co-sharers or legatees under a Will. In none of those cases, any plea as to the accrual of a new cause of action was considered, whereas in almost all the cases cited by the defendants' counsel the plea of accrual of a new and distinct cause of action ha:: been raised, and is applicable to the facts of the present case.
14. A person is a proper party whose presence before the Court is deemed necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit, whereas a necessary party is one whose presence is necessary to pass an effective decree. After a careful study of the entire case-law cited at the bar on the point at issue, I am clear in my mind that the applicants are neither proper nor necessary party. The relevant provisions of Order I, rule 10(1), C. P. C. Provides, inter alia, that if a suit has been instituted in the name of right plaintiff, the Court, may at any stage of the suit, order F any other person to be added as plaintiff if it is necessary for the determination of the real matter in dispute so to do. Clause (2) of the said rule further provides that the Court may at any stage of the proceedings, either upon or without the application of either party, order that the name of any person, who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. Clause (2) of rule {{FOOT NOTE}}
(1) 1982 CLC 946 {{FOOT NOTE}} 10, therefore, is not to be read as requiring that all persons who claim to have a right, title or interest of any nature whatsoever in respect of the subject-matter of a suit, should all be made parties. The expression used "all the questions involved in the suit", to my mind, refers to the questions involved in the suit instituted in the Court as are common between the parties to the suit and the applicants.
It is true as observed in AIR 1940 Mad. And PLD 1969 Kar. 436 that the questions involved may not be restricted between the parties, but the question raised by the applicants seeking to be joined as party to the suit should not pertain to such a matter which is quite independent of both the parties to a pending suit. The underlying object of such a provision, is to afford an opportunity to settle "all the questions involved in the suit", effectually and completely. In the instant case, the intervenors claim their interest in the property having been created in their favour during the lifetime of the deceased lady, whereas in the matter of inheritence the interest has devolved on the heirs after her death. It is, therefore apparent that the cause of action which has accrued to the intervenors is a new cause of action, They, in fact, want to introduce a new cause of action in respect of a separate transaction in the suit. Furthermore, their interest, as claimed, is ,.Either that of a plaintiff nor defendant. It is against both. So they cannot be joined as either plaintiff or defendant. Their cause of action is that of a distinct nature, and independent of the present suit. Admittedly none of the intervenors is in possession of any property. Mr. Inayat Ali submitted that the relief which he intends to claim will be achieved by way of counter-claim, about which I am also doubtful whether it can be said to be a counter-claim or set off, as provided in the Code of Civil Procedure. The claim as set out by the applicants, I think, can be properly adjudicated by filing a separate suit. Much stress has been laid by Mr. Inayat Ali that the provision of Order I, rule 10 has been made in order to avoid multiplicity of the suit. It is correct, but the multiplicity of the suit is relateable to the questions involved in the suit, whereas, I feel, the adding of the intervenors will bring in multifariousness of proceedings viz. Misjoinder of the causes of action and the parties, which must also to be avoided.
15. The provision of Order I, rule 10, C. P. C., which is procedural in nature, can be looked at with another angle, that is, the Judgment in suit, generally speaking, is a judgment in personam and not in rem. It binds the parties and no other person. So if a party not being a proper and necessary party, is not joined as a party to the pending suit, it may be clarified, his remedy to invoke his right is not foreclosed. It has got a -right to file a separate suit, if otherwise permissible in law. It will, therefore, be open to the intervenors to file a separate suit.
16. Before parting with this case it may be added that the observation made hereinabove with regard to the nature of interest of the intervenors, as that of Trust or Waqf, is merely tentative, for the purpose to see if the intervenors have a prima Jack plausible case and a right to be established which is, perhaps, the first thing to be looked into while adding party to the suit. These observations will have no bearing on the merits of the suit, if filed by the intervenors.
17. For the foregoing reasons, the applications are dismissed.