' This order will dispose of Writ Petitions Nos. 2513 and 3379 of 1978 and 1977 respectively since common questions of law and fact are involved.
2. Brief facts of the case are that by notification dated 4th October 1977, the Administrator-General of Auqaf took over immovable properties mentioned in the Schedule (Annex. 'H') at Serial Nos. 1 and 2, u der section 7 of the Auqaf (Federal Control) Act, 1976, along with the income from the cash box, offerings and subscription made to the said waqf. By way of both the writ petitions challenge has been thrown to this take-over. As regards Writ Petition No, 3379 of 1977 Hasham made a gift of certain area of land in favour of Darbar Sain Barkat Ali and Mutation No, 2822 was entered on 1st August 1942, which was sanctioned on 24th of the same month. Ch. Muhammad Hussain petitioner in the other writ petition made a gift in favour of Darbar Sain Barkat Ali and Mutation No, 2816 was entered on 28th June, 1942. It was sanctioned on 15th April, 1943. Similarly Mst. Hayat Bibi gifted some land in favour of Darbar Sain. Barkat Ali and Mutation No, 3095 was entered on 5th February, 1944. This was sanctioned on 6th May, 1946.
3. The first contention raised by learned counsel for the petitioners is that the property is not waqf and a gift could not be made in favour of Darbar Sharif Sain Barkat Ali because Darbar Sharif could not formally enter into its 'possession after the donor physically departed from the premises with all his goods and chattels. Reliance is placed on section 152 of Mahomedan Law by D. F. Mulla and reference is also made to section 151. In subsection (2) of section 151 it is mentioned the a Muslim cannot through the medium of trust settle property for the benefit of persons who are incapable of taking under a gift. Darbar Sharif falls in such a category of persons.
4. The next submission was that assuming if it is treated as Waqf property, which it is not, the donors being alive, proviso to section 7 of Auqaf (Federal Control) Act, 1976, will come into operation and the Administrator-General could not take over and assume the administration of such a property except with the consent of the persons and on such terms and conditions as may be agreed upon between them and the Administrator-General during their lifetime.
5. Mr. Riaz Kayani, learned counsel for the Department, vehemently contested the petitions and argued (i) that since Sain Barkat Ali was alive at the time the mutation was sanctioned in his name, therefore, the proviso to section 7 (ibid) could not be attracted; (ii) gift could be made in favour of shrine in accordance with section 151 of Mahomedan Law; (iii) after the take-over by the Auqaf Department, the Department has stepped into the shoes of Mutwalli and (iv) the property falls within clause (f) of section 2 of the Act. There is hardly any force in any of the submissions made by learned counsel for the Department. The mutations clearly mention that the gift was made in favour of Darbar Sharif Sain Barkat Ali Shah and A not in favour of Sain Barkat Ali. Darbar Sharif formally could not enter into possession. According to para. 152 of the Mahomedan Law the gift is prima facie invalid. Similarly, according to subsection (2) of section 151 of the Mahomedan Law a Muslim cannot through the medium of trust settle property for the benefit of persons who are incapable of taking under a gift. Person here would include Darbar Sharif since Sain Barkat Ali was neither the donee nor Mutwalli of the said Darbar. Assuming for the sake of arguments that the property falls within the definition of waqf property even then proviso to section 7 of the Act would come into operation. The Administrator-General could not take over the property without the C consent of the donors who are still living. Both the petitions are accepted. The order to the extent of the gifted property is quashed. Parties shall bear their own costs.