GHULAM SAFDAR SHAH, J.---The petitioner filed suit against the respondents for declaration that the suit property was a part of the Waqf-ul-aulad created by his late father Barkatullah, that respondents 2 to 6 had no right to dispose it of by sale to respon--dent Munawar Shah, and that the sale deed by which the property had been sold to Munawar Shah was wholly void and ineffective against his rights as Mutawalli. Respondents 2 to 6 did not choose to contest the proceedings and were proceeded ex parts. Respondent Munawar Shah alone contested the suit and In the written statement filed by him, he denied the claim of the petitioner on quite a few grounds which gave rise to the framing of following issues :-
(1) Is the suit in its present form maintainable?
(2) Is the plaintiff estopped by his conduct from instituting the present suit?
(3) Whether the suit property is a Waqf property and the plaintiff is its duly appointed Mutawalli?
(4) On proof of issue No. 3 whether defendants 2 to 6 were-- competent to transfer the suit property (half of the whole) to --defendant No. 1 ?
(5) Whether the plaintiff has a cause of action?
(6) Whether the Waqf in question is Benami and the deed in question was executed to defraud the creditors etc. And that it had never been acted upon?
(7) Relief.
2. On issue No. 1 the two Courts below reached the conclusion that the suit was incompetent ; for the petitioner war admittedly out of possession of the suit property and yet had chosen not to claim any consequential relief by way of possession. On issues Nos. 2, 5 and 6, which were considered together, the finding reached was that there was no cause of action for the suit, that the appellant was estopped by his conduct from instituting the suit, that the Waqf-ul-aulad created by late Barkat-- Ullah was executed only to defraud his creditors and that it was never meant to be acted upon. In regard to issues Nos. 3 and 4, the finding is that the property was not a Waqf property and that respondents 2 to 6 were competent to transfer the same in favour of respondent Mnnawar Shah. In this view, the suit of the petitioner was found devoid of merit and was accordingly dismissed.
3. As regards issue No. 1, I agree with the conclusion of the two Courts below that the suit was incompetent. The averments in the plaint as well as the evidence of the petitioner would show that he was out of possession of the suit property and consequently it was his duty to have asked for the relief of possession without which his suit would not lie under section 42 0 the Specific Relief Act.
4. The learned counsel for the parties, in so far as the rest of the issues are concerned, have confined their arguments only to the validity of the Waqf deed (Exh. P. W. 1/1) and rightly contended that if a valid Waqf can be said to have been created under it. Respondents 2 to 6 would have no power to dispose of the suit property. Nor would respondent Munawar Shah be able to sustain his title to it under the deed by which it had been sold to him.
5. I have gone through the deed (Exh. P. W. 1/1) with the assistance of the learned counsel for the parties and except for one legal objection against it with which I would deal later, it appears to have ostensibly created Waqf-ul-aulad at the behest of the petitioner, his brother Muhammad Sharif and his late father Barkatullah. The objection of the learned counsel to this deed, is that by the subsequent conduct of late Barkatullah and the petitioner it was not meant to create any Waqf-ul-aulad and consequently the two Courts below were right to non-suit the petitioner. The question, however, is as to how far the subsequent conduct of the Waqif can be taken into consideration when all that he wished to say had been stated by him in the deed? In other words, can the subsequent conduct of Waqif be looked into to see, if by the Waqf deed he really intended to dedicate his property? In this respect I would like to reproduce the following observations from page 382 of his book on Islamic Law in Theory of Practice by Aziz Ahmad (1956 Edition) :- "Subsequent conduct of dedicator---When and how far material.---If the intention of the dedicator was clearly expressed , in the Waqf deed itself, it might be either genuine or, disputed by the opposite-party. If there was a genuine intention the subsequent conduct, which in that case must necessarily be due to a reversal of the original intention to create Waqf, is absolutely immaterial and ineffective against God in whom the property has already vested. If the intention as expressed in the deed is disputed, it is open to the opposite-party to prove that it really did not exist. He may prove it by reference to the subsequent conduct. But he will have to show that the subsequent conduct was influenced not by reversal of the original intention but by the very non- existence of it at the time of the alleged creation of Waqf."
6. The Privy Council had the occasion to consider the same question in the case of Bell Ram & Bros.
And others v. Chaudhra Muhammad Afzal and others (PLD 1949 P C 8) and their Lordships came to lay down the following principle :- "It is no doubt a law that the validity of a Waqf involves that there was an intention to dedicate on the part of the Waqf. Where there is evidence that a Waqfnama has been retained by the Waqif and never acted upon, and that the property comprised therein has peen dealt with by the Waqif as his own, such evidence may lead to an inference that no dedication to Waqf was ever intended, and that the deed was designed merely to provide a shield against possible claims which the Waqif anticipated might be made against him (See Muhammad A.I Muhammad Khan v. Mst.
Bismillah Begum 35 C W N 324). On the other hand it is established law that once there Is an effective dedication in Waqf it cannot be revoked ; and it is obvious that breaches of trust on the part of a trustee. However numerous, and extending over however long a period, cannot put an end to the trust."
"If a person executes a deed of Waqf but without any intention of his divesting himself of his ownership of the property, the real intention being to utilize the document, should it become necessary as a shield against any claims that any other person might have against him either then or at any future time, the deed cannot be given effect to as a Waqf."
7. The principles of law which seem to have been laid down in these judgments are that if by scrutinizing a deed, the Court comes to the conclusion that the property had been effectively B dedicated by the Waqif, then the subsequent breaches of the Waqif (i.e., his subsequent conduct) would be immaterial. On the other hand, if it is found that the Waqif had no intention to dedicate the property and that there was evidence that he had never acted upon the Waqf deed or had dealt with the property as his own, then the Court would be justified to draw an Infer--ence that no dedication to Waqf was ever intended by him and that the deed was merely designed to provide a shield against possible claps which the Waqif anticipated might be made against him. This being the legal position, in the light of which the validity of the deed (Exh. P. W. 1/1) has to be seen, let us first advert to the deed itself and then to the evidence on record to see if by the subsequent conduct of late Barkatullah and the petitioner it can be said that the deed was never meant to be acted upon. The deed, doubtless, created an ostensible Waqf-alal---aulad, but it ends with the narration which, when translated into English, would read :- "The object of creating this Waqf is that it should provide sustenance to us, to our present children and to the children of our children in perpetuity. In case, a stage is reached when there is no one left from our children and the grand children of our children, either male or female, including any one from their Nasal, then the income of the Waqf property should be used for charitable objects as well as for giving stipends to widows and orphans."
8. This provision in the Waqf deed appears to have nullified the dedication of property to Waqf-ul- aulad ; for the word "Nasal" used therein may include persons not related to Waqif as his distant kindred and therefore, not his descendants. A similar question had arisen for consideration before Dacca High Court in the case of Syed Abdul Fazal v. S. Sayyeda Khatoon and others(PLD 1963 Dacca 343) and their Lordships held the Waqf deed in that case to be invalid with these observations :- "This view of the learned Subordinate Judge seems to be correct. The wife of the Waqif is certainly a member of the family but her heirs may or may not be the descendants of the Waqif. As for example ; the Waqif dies leaving behind a widow and other children. After the death of the Waqif, the wife inherits but after the wife her heirs may not be only the children by the Waqif but also some other persons who may be her parents. Then again if there is no child by the wife, then in that case her inheritance certainly will go according to the provisions of the Mohammadan law to some other persons who cannot be called either the members of the family, or the children descendants of the waqif. So the provision in the Waqifnama that the heirs of children will inherit the properties left by the Waqif has provided for some persons who cannot at all be the members of the Waqif's family or his children or descendants. This provision is not valid in law. Hence we find that the Waqfnama in question is not valid."
9. The subsequent conduct of late Barkatullah and the petitioner as well as respondents 2 to 6 would show that the --Waqf deed (Exh. P. W. 1/1) was never meant to be acted upon.
10. In view of this discussion, this revision application has no force and is dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.