(From previous issue) :
The learned Advocate further submits that since the registered deed dated 10-3-2004 as well as late Jamaluddin Khan’s letter dated 20-12-2015 appointing the petitioner’ Mutawalli before’ his death has not been claimed to be forged or illegal and therefore the appointment of the petitioner is in accordance with the wishes of the waqif and the original waqf deed and the same cannot be questioned and therefore the impugned order of the respondent No.3 Deputy Administrator of Waqf is not sustainable in law.
7. As against this, Mr Mahbubey Alam assisted by Mr M Fida Kamal and Md Raihanul Mustafa, the learned Advocates for the respondent No.4 submits that in the registered deed dated 10-3-2004 executed by late Jamaluddin Khan he has travelled beyond the wishes of the waqif and the original waqf deed. The learned Advocate submits that the respondent No.4 was appointed official Mutawalli by the respondent No.2 Administrator of Waqf as the respondent No.4 was the elder brother of late Jamaluddin Khan who is a: senior person of the family and competent to conduct the affairs of the waqf estate. Furthermore the learned Advocate further submits that in the said deed of 2004 late Jamaluddin Khan stated how future Mutawallis for the said waqf estate are to be appointed after the death of the petitioner which is contrary to the mode of appointment of Mutawalli stated by the waqif in the original waqf deed. Finally the learned Advocate submits that since the deed of 2004 was made malafide and contrary to the terms of the original waqf deed the said deed should be struck down in its entirety as has been done by the respondent No.3 Deputy Administrator of Waqf . It has been further submitted that the petitioner was acting as Mutawalli prior to the death of Jamaluddin Khan since 2002 and he has been depriving the respondent No. 4 and other beneficiaries from the income of the waqf estate and therefore he has disqualified himself from being appointed as Mutawalli and the impugned order should not be interfered with.
8. It appears that the aforesaid waqf estate was created pursuant to waqf deeds dated 8-10-1945 and 13-6-1947 bearing registration Nos. 857 and 2342 respectively. After the death of the waqif Danu Mia became the Mutawalli. After his death Jamaluddin Khan became the Mutawalli. It may be mentioned that Jamaluddin Khan was alive during the life time of the waqif and he became Mutawal1i in accordance with the terms and wishes of the waqf deed. It appears that by a registered deed dated 10-3-2004 Jamaluddin Khan appointed his son the petitioner as Mutawalli of the aforesaid Waqf estate upon his death. Clause 1 of the Waqf deed states inter alia:
“??? ???? ?????? ??? ?????? ?š’?? ???? ????? ?? ??? ???? ???? ???? ???? ???? ????? ????? ??????????? ??????? ????????? ?????? ????? ?”????? ?? ????? ?????? ???? ????? ?????? ???? ????????? ????, ?? ????? ??????????? ??????? ????????? ????, ?? ????? ??????????? ??????? ????????? ??? ?????? ???? ?? ????? ????? ??????? ?? ???? ??????? ? ??????? ????? ????? ??? ???? ?????? ????? ?????????????? ????? ????????? ??????? ???? ??? ??????, ?? ??????? ????????????? ???????? ???? ???????? ??????? ?????????? ??????? ??? ????????? ??????? ???? ???? ?? ??????? ?????????? ???????? ???? ??????”
The aforesaid provision clearly states that Jamaluddin Khan will have complete discretion to appoint a Mutawalli upon his death and the appointed Mutawalli will again be empowered to appoint his successor and in this way through the generations Mutawallis for administering the waqf estate will be appointed in accordance with the original waqf deed and wishes of the waqif. In the instant case the petitioner was appointed Mutawalli by the aforesaid registered deed dated 10-3-2004 by late Jamaluddin Khan. This matter of appointment was also communicated to the respondent No.2 by Jamaluddin Khan by his letter dated 20-12-2015 under the heading ÒcieZx© †gvZvqvjøx wb‡qvM cÖm‡½|Ó which appears in Annexure G of the Affidavit-in-reply of the petitioner. The said letter is reproduced below:
??????,
????? ???????,
???????? ????? ????????? ????????,
??? ???????, ?????
????? ? ??? ??-?????, ???? ????? ??? ????? ??????, ??????????
????? ??????? ?????????? ????? ?????????
????, ?????? ???????? ????? ???????? ??????? ?????????? ??? ???? ????? ???????? ??????? ?????????? ?? ???? ?????? ????? ???????? ???? ????? ????? ??????? ?????? ????????? ???? ????? ????? ??????? ?????? ????????? ???? ????? ????? ???????? ?????? ???? ????????? ???? ??-?-???? ?? ?????? ??? ???? ??????? ????? ????????? ???????? ????????? ??????? ?????????? ??? ????? ?????? ???????? ????????? ?????? ???? ????? ????? ??? ???? ????? ?????? ???????
????, ????? ????? ???? ????? ?????? ???? ?”????? ?? ????????? ???????? ????????? ?????? ???????? ????? ???????? ??????? ?????????? ?????? ????? ??????? ????? ???????
?????-??-??-??????
(???????? ??????????? ????)
??????????
????-????? ???? ???? ????
???, ?????????, ??? ??????
????-???????, ????-?????????,
???? ????? ??? ????? ??????,
??????????
Bwm bs-13598|
9. From the aforesaid letter it is clearly apparent that the earlier Mutawalli Md Jamaluddin Khan appointed the petitioner Mutawalli of the aforesaid waqf estate and in the said letter the aforesaid registered deed dated 10-3-2004 has also been mentioned. There is nothing before us to show that the existence of the deed dated 10-3-2004 or the aforesaid letter dated 20-12-2015 has been disputed or that the same has been forged or obtained illegally. No evidence has been adduced or statement made that the signatures of late Md Jamaluddin Khan appearing on the aforesaid letter dated 20-12-2015 or registered deed dated 10-3-2004 are not that of Md Jamaluddin Khan. The only submission by the respondent No.4 is that since in his registered deed of 2004 Md Jamaluddin Khan has given directions for apportioning the income of the waqf estate and appointing subsequent Mutawallis from amongst his decedents contrary to the provisions of the original Waqf Deed therefore the entire deed appointing the petitioner as Mutawalli is to be disregarded. We find the said submission and reasoning totally misconceived; simply because certain provisions of the deed of 2004 are inconsistent with the original waqf deeds does not make the entire deed of 2004 invalid or illegal. The primary objective and purpose of the deed of 2004 was to appoint a Mutawalli for the waqf estate to administer it in accordance with the wishes of the waqf. The submission of the learned Advocate for the respondent No.4 that such appointment can only be made when the Mutawalli is on his death bed or when he is in fear of his death has got no substance whatsoever. Human life” is uncertain and one never knows at what moment in time one will expire. It is sufficient if a Mutawalli makes an appointment of his successor in accordance with the terms of the original waqf deed and wishes of the waqifat any time before his death. In the instant case such appointment was categorically made in Md Jamaluddin Khan’s deed of 2004 and subsequently communicated by him to the respondent No.2 by his letter dated 20-12-2015 under the heading ÒcieZx© †gvZvqvjøx wb‡qvM cÖm‡½Ó leaving no doubt about late Md Jamaluddin Khan’s appointment of the petitioner as Mutawalli. Although certain allegations have been made about the administration of the waqf estate by late Md Jamaluddin Khan during his life time, such allegations will not be any impediment to the appointment of the petitioner as Mutawalli of the said waqf estate. If the waqf estate is not managed and administered in accordance with the wishes of the waqif and the original waqf deeds under section 32(1) of the Waqf Ordinance, 1962 the beneficiaries can always lodge complaint to the Respondent No.2 Administrator of Waqf. In such situation the respondent No.2 is empowered to interfere. However, in the present facts before us section 44 of the Waqf Ordinance, 1962 empowering the Administrator of Waqf to appoint Official Mutawalli has no manner of application and therefore the impugned order of appointment of Mutawalli under the said provision of law appears to be illegal and is set aside.
10. Accordingly, the Rule is made absolute. The impugned Memo No.16.02.0000.05.031. 396.57/273 (1-4) dated 1-8-2016 issued by the respondent No.3 and notification published in the Daily Azadi on 4-8-2016, appointing respondent No.4 Mutawalli is hereby declared to have been issued and published without lawful authority and of no legal effect.
There will be no order as to costs.
(Concluded)
The learned Advocate further submits that since the registered deed dated 10-3-2004 as well as late Jamaluddin Khan’s letter dated 20-12-2015 appointing the petitioner’ Mutawalli before’ his death has not been claimed to be forged or illegal and therefore the appointment of the petitioner is in accordance with the wishes of the waqif and the original waqf deed and the same cannot be questioned and therefore the impugned order of the respondent No.3 Deputy Administrator of Waqf is not sustainable in law.
7. As against this, Mr Mahbubey Alam assisted by Mr M Fida Kamal and Md Raihanul Mustafa, the learned Advocates for the respondent No.4 submits that in the registered deed dated 10-3-2004 executed by late Jamaluddin Khan he has travelled beyond the wishes of the waqif and the original waqf deed. The learned Advocate submits that the respondent No.4 was appointed official Mutawalli by the respondent No.2 Administrator of Waqf as the respondent No.4 was the elder brother of late Jamaluddin Khan who is a: senior person of the family and competent to conduct the affairs of the waqf estate. Furthermore the learned Advocate further submits that in the said deed of 2004 late Jamaluddin Khan stated how future Mutawallis for the said waqf estate are to be appointed after the death of the petitioner which is contrary to the mode of appointment of Mutawalli stated by the waqif in the original waqf deed. Finally the learned Advocate submits that since the deed of 2004 was made malafide and contrary to the terms of the original waqf deed the said deed should be struck down in its entirety as has been done by the respondent No.3 Deputy Administrator of Waqf . It has been further submitted that the petitioner was acting as Mutawalli prior to the death of Jamaluddin Khan since 2002 and he has been depriving the respondent No. 4 and other beneficiaries from the income of the waqf estate and therefore he has disqualified himself from being appointed as Mutawalli and the impugned order should not be interfered with.
8. It appears that the aforesaid waqf estate was created pursuant to waqf deeds dated 8-10-1945 and 13-6-1947 bearing registration Nos. 857 and 2342 respectively. After the death of the waqif Danu Mia became the Mutawalli. After his death Jamaluddin Khan became the Mutawalli. It may be mentioned that Jamaluddin Khan was alive during the life time of the waqif and he became Mutawal1i in accordance with the terms and wishes of the waqf deed. It appears that by a registered deed dated 10-3-2004 Jamaluddin Khan appointed his son the petitioner as Mutawalli of the aforesaid Waqf estate upon his death. Clause 1 of the Waqf deed states inter alia:
“??? ???? ?????? ??? ?????? ?š’?? ???? ????? ?? ??? ???? ???? ???? ???? ???? ????? ????? ??????????? ??????? ????????? ?????? ????? ?”????? ?? ????? ?????? ???? ????? ?????? ???? ????????? ????, ?? ????? ??????????? ??????? ????????? ????, ?? ????? ??????????? ??????? ????????? ??? ?????? ???? ?? ????? ????? ??????? ?? ???? ??????? ? ??????? ????? ????? ??? ???? ?????? ????? ?????????????? ????? ????????? ??????? ???? ??? ??????, ?? ??????? ????????????? ???????? ???? ???????? ??????? ?????????? ??????? ??? ????????? ??????? ???? ???? ?? ??????? ?????????? ???????? ???? ??????”
The aforesaid provision clearly states that Jamaluddin Khan will have complete discretion to appoint a Mutawalli upon his death and the appointed Mutawalli will again be empowered to appoint his successor and in this way through the generations Mutawallis for administering the waqf estate will be appointed in accordance with the original waqf deed and wishes of the waqif. In the instant case the petitioner was appointed Mutawalli by the aforesaid registered deed dated 10-3-2004 by late Jamaluddin Khan. This matter of appointment was also communicated to the respondent No.2 by Jamaluddin Khan by his letter dated 20-12-2015 under the heading ÒcieZx© †gvZvqvjøx wb‡qvM cÖm‡½|Ó which appears in Annexure G of the Affidavit-in-reply of the petitioner. The said letter is reproduced below:
??????,
????? ???????,
???????? ????? ????????? ????????,
??? ???????, ?????
????? ? ??? ??-?????, ???? ????? ??? ????? ??????, ??????????
????? ??????? ?????????? ????? ?????????
????, ?????? ???????? ????? ???????? ??????? ?????????? ??? ???? ????? ???????? ??????? ?????????? ?? ???? ?????? ????? ???????? ???? ????? ????? ??????? ?????? ????????? ???? ????? ????? ??????? ?????? ????????? ???? ????? ????? ???????? ?????? ???? ????????? ???? ??-?-???? ?? ?????? ??? ???? ??????? ????? ????????? ???????? ????????? ??????? ?????????? ??? ????? ?????? ???????? ????????? ?????? ???? ????? ????? ??? ???? ????? ?????? ???????
????, ????? ????? ???? ????? ?????? ???? ?”????? ?? ????????? ???????? ????????? ?????? ???????? ????? ???????? ??????? ?????????? ?????? ????? ??????? ????? ???????
?????-??-??-??????
(???????? ??????????? ????)
??????????
????-????? ???? ???? ????
???, ?????????, ??? ??????
????-???????, ????-?????????,
???? ????? ??? ????? ??????,
??????????
Bwm bs-13598|
9. From the aforesaid letter it is clearly apparent that the earlier Mutawalli Md Jamaluddin Khan appointed the petitioner Mutawalli of the aforesaid waqf estate and in the said letter the aforesaid registered deed dated 10-3-2004 has also been mentioned. There is nothing before us to show that the existence of the deed dated 10-3-2004 or the aforesaid letter dated 20-12-2015 has been disputed or that the same has been forged or obtained illegally. No evidence has been adduced or statement made that the signatures of late Md Jamaluddin Khan appearing on the aforesaid letter dated 20-12-2015 or registered deed dated 10-3-2004 are not that of Md Jamaluddin Khan. The only submission by the respondent No.4 is that since in his registered deed of 2004 Md Jamaluddin Khan has given directions for apportioning the income of the waqf estate and appointing subsequent Mutawallis from amongst his decedents contrary to the provisions of the original Waqf Deed therefore the entire deed appointing the petitioner as Mutawalli is to be disregarded. We find the said submission and reasoning totally misconceived; simply because certain provisions of the deed of 2004 are inconsistent with the original waqf deeds does not make the entire deed of 2004 invalid or illegal. The primary objective and purpose of the deed of 2004 was to appoint a Mutawalli for the waqf estate to administer it in accordance with the wishes of the waqf. The submission of the learned Advocate for the respondent No.4 that such appointment can only be made when the Mutawalli is on his death bed or when he is in fear of his death has got no substance whatsoever. Human life” is uncertain and one never knows at what moment in time one will expire. It is sufficient if a Mutawalli makes an appointment of his successor in accordance with the terms of the original waqf deed and wishes of the waqifat any time before his death. In the instant case such appointment was categorically made in Md Jamaluddin Khan’s deed of 2004 and subsequently communicated by him to the respondent No.2 by his letter dated 20-12-2015 under the heading ÒcieZx© †gvZvqvjøx wb‡qvM cÖm‡½Ó leaving no doubt about late Md Jamaluddin Khan’s appointment of the petitioner as Mutawalli. Although certain allegations have been made about the administration of the waqf estate by late Md Jamaluddin Khan during his life time, such allegations will not be any impediment to the appointment of the petitioner as Mutawalli of the said waqf estate. If the waqf estate is not managed and administered in accordance with the wishes of the waqif and the original waqf deeds under section 32(1) of the Waqf Ordinance, 1962 the beneficiaries can always lodge complaint to the Respondent No.2 Administrator of Waqf. In such situation the respondent No.2 is empowered to interfere. However, in the present facts before us section 44 of the Waqf Ordinance, 1962 empowering the Administrator of Waqf to appoint Official Mutawalli has no manner of application and therefore the impugned order of appointment of Mutawalli under the said provision of law appears to be illegal and is set aside.
10. Accordingly, the Rule is made absolute. The impugned Memo No.16.02.0000.05.031. 396.57/273 (1-4) dated 1-8-2016 issued by the respondent No.3 and notification published in the Daily Azadi on 4-8-2016, appointing respondent No.4 Mutawalli is hereby declared to have been issued and published without lawful authority and of no legal effect.
There will be no order as to costs.
(Concluded)
