1. ' NASIM HASAN SHAH, J.--This appeal, by leave of this Court, which impugns the judgment of a learned Single Judge of the Peshawar High Court dated 11-6-1975, arises in the following circumstances:-- ' Madrassa Qazi Hissamuddin, which is the appellant in this case, filed in the Court of the Senior Civil Judge, Kohat through its Mutawalli, a suit for possession by pre-emption respecting the house standing on an area of 6 Marlas in Kohat City. The case of the appellant was that whereas the suit property was contiguous to its own property the vendee/respondent had no such right is also that the actual consideration which respondent had paid to the vendor was Rs,3,000 and not Rs,13,000 as was claimed by the vendee.
2. ' In the written-statement filed by her, Mst. Shahgulah, respondent, denied the claim of the appellant on various grounds which gave rise to the framing of 10 issues. The parties adduced their respective evidence on these issues and in the end the learned trial Judge decreed the suit of the appellant on payment of Rs,3,000 as the price of the suit house. Against the judgment of the trial Court. Mst. Shahgulah went in appeal to the Court of the District Judge, who, however, dismissed her appeal with the modification that the appellant would pay Rs,7,000 as the price of the house before 15-8-1974, failing which his suit would stand dismissed. Feeling dissatisfied, Mst. Shahgulah filed a second appeal in the High Court, wherein she was successful, with the result that the suit of the appellant was dismissed as incompetent. The view taken in the High Court was that Madrassa Qazi Hissamuddin, the appellant in this case was not a juristic person to enable it competently to file a suit in its own name. In support of this view, the learned Judge mainly relied on the well- known judgment of the Privy Council in the case of Masjid Shaheed Ganj and others v. Shiromani Gurdawara Parbandhak Committee, Amirtsar and another AIR 1940 PC 116. The judgment of the High Court would show that in support of the contrary proposition, three judgments were cited before his Lordship, one from the Lahore High Court in the case of Jindu Ram v. Hussain Bakhsh and another AIR 1914 Lah. 444, another from Allahabad High Court in the case of Waqf Banam Khudawand Karim Mahal Faiz Muhammad Khan v. Mst. Raj Kali AIR 1938 Allahabad 157 and yet another from Lahore High Court in the case of Maula Bux v. Hafiz-ud-Din and others 94 Indian Cases 7. But his Lordship relying on the judgment of the Privy Council and the relevant passages from Bailie's Muslims Law as also from Articles 1017 and 1018 of the Mejella felt that he could safely disregard the three judgments of the High Courts cited before him.
3. ' Before us Mr. Iftikhar Ahmad Gilani, learned counsel for the appellant, submitted that the Privy Council's judgment was not relevant in the facts and circumstances of this case. He argued that the said case had nothing to do with rights of pre-emption. The only question which had fallen for consideration therein was that of limitation and in some measure of res judicata. He, therefore, contended that the dictum of their Lordships in that case would have no application to the facts of this case. He also contended that in that case the concept of a juristic person had no doubt been dealt with in some measure, as it was necessary for the disposal, of that case, yet their Lordships had themselves clarified that they were not laying down law on this question for all cases, originating under Muhammadan Law. The learned counsel in support of this submission, took us through the judgment of the Privy Council particularly the following_ extract therefrom, namely:- ' On this general question they reserve their opinion, but they think it right to decide the specific question which arises in the present case and hold that suits cannot competently be brought by or against such institutions as artificial persons in the British Indian Courts".
4. ' As regards the extract from Baillie's Muhammadan Law and from Articles 1017 and 1018 of Mejella, the learned counsel pointed out that the very same Articles had been considered in the Lahore judgments (ibid) but were disregarded.
5. ' Mr. M. Tunis Shah, in reply, drew our attention to Abdul Hamid Qureshi v. Ch. Fateh Muhammad Sheifta PLD 1958 Lahore 824, wherein B.Z.Kaikaus, J sitting with Shabir A hmad, J has observed:- "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.".
6. ' This observation was relied upon by him in support of the plea that a Waqf property is not vested in the Waqif as such but in God. Even if it was treated as a juristic person, no claim for pre-emption can be made on behalf of the Waqif. According to him, in accordance with the principles of Muslim'
7. Law neither a Mutwalli nor a Waqif nor a beneficiary is entitled to claim pre-emption in cases of sale of the property adjoining a Waqf Estate. This submission seems also to be supported by this Court in Sikandar v. Sultan Muhammad PLD 1974 SC 11, wherein it was held that where pre-emption is claimed the pre-emptor must have the Milkiat or ownership in the property on account of which he claims the right of pre-emption. This is based on the principle that a suit for pre-emption can be filed only by a Shafi and Shafi under the Muhammadan Law must be the owner of the property on the basis of which he puts forward his claim for pre-emption. The waqf property not being vested in the Waqif as such but in God, no claim for pre-emption can be made on behalf of the Waqif even if it were to be treated vs a juristic person.
8. ' In Baillie's Digest of Muhammadan Law, Vol. At page 474, the following passage occurs:-- "When it is said that akar are proper objects of the right of pre-emption, it is by virtue of a right of milk, or ownership they are so. Hence, if a mansion were sold by the side of a waqf the appropriator would have no right of pre-emption; nor could the Mutawalli or Superintendent take it under that right."
9. ' Again, in Tyabji's Muhammadan Law, Edn.3 at page 711 it has been said:-- "Part of a land is waqf, and the other part belongs to S, who sells it to B. Neither the Mutawalli nor the beneficiary under the waqf, 'not even if he be a single individual' can pre-empt. If a mansion by the side of a waqf were sold, the Waqif would have no claim to pre-empt nor the Mutawalli or Superintendent. These two statements are from Shia, and Sunni texts respectively. But under the Punjab Pre-emption Act II of 1905, the Mutawalli could pre-empt."
10. ' In Fatwa Alamgiri (Vol. VIII, page 185) it is clearly provided that on the sale of the property contiguous to a waqf property there is no right of pre-emption in favour of the Mutawalli or beneficiary. Reference may also be made advantageously to Baillie's Digest of Muhammadan Law, Part II (Imameea) at pages 177 and 178 where it is laid down:- "If a mansion should be partly wakf, or appropriated to pious or charitable purposes, and partly free, and the latter portion of it is sold, the person entitled to the benefit of the appropriation has no right of pre-emption not even if he be a single individual, because he is not the proprietor of the substance of the waqf and is entitled only to its usufruct".
11. ' Reference may next be made to the Fatawa-i-Alamgiri (Kitab-al Shuf'a) translated by Al-Haj Mammedullah ibn S.Jung, Chapter 1; dealing inter alia, with the conditions on which the right of pre-emption is founded wherein it is stated at page 46:-- "At the time of the sale there must be milk i.e, ownership of the pre-emptor in some property by reason of which he claims the right of pre-emption, the pre-emptor has no right by reason of a mansion of which he is merely an occupier whether a tenant on hire or on ariat nor will he have a right of pre-emption if he had sold this property before this transaction, nor if he has converted it into a masjid."
12. ' Again it is said:- "Anti it is according to Chapters of Adab-ul-Qazi of Imam Khisal's Book of Pre-emption that right of pre-emption accrues by reason of milk i.e, ownership only; hence if a mansion was sold by the side of a waqf property, the waqif would have no right; nor could the Mutawalli pre-empt the sale. This is according to the Fatwa-i-Kafiyah of Abu] Lais. And according to the Muhit, if a mansion was made waqf for the benefit of private individual then also he has no right of pre-emption by reason of the waqf property".
13. ' Some observations from the judgment of Mr. Justice Pir Muhammad Karam Shah in the case of Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kemal Shah PLD 1986 SC 360 may also be reproduced here with advantage. At page 396, the learned Judge has observed:- {{URDU TEXT}} ' On the basis of the above authorities it appears that under the Islamic Injunctions a property on being made a waqf property vests in Almighty God and only its usufruct is to be applied by the Mutawalli, for the purposes of the waqf, who cannot, therefore, be deemed to have milk over it.
14. Section 12 of the N.-W.F.P. Pre-emption Act, it is well-known, is founded on the principles of pre- emption contained in the Injunctions of Islam and according to them, as noted already, a Mutwallli of a waqf is not vested with the milk or ownership of the waqf. Since the right of pre-emption accrues by reason of milk only, a Mutawalli has no right to pre-empt the sale.
15. ' Thus, irrespective of the question whether a waqf estate be or be not recognised as a juristic person, no right of pre-emption , under the Muslim Law, can be claimed by it or, on its behalf, for the simple reason that under Muslim Law this is not possible. Accordingly it must be held that under section 12 of the N.-W.F.P. Pre-emption Act, 1950, a Mutawalli or a Waqif is not entitled to claim pre- emption.
16. ' The result is that the judgment of the Peshawar High Court is found to be correct and is upheld.
17. This appeal must fail and is dismissed hereby, leaving the parties to bear their -own costs.