PESHAWAR: Additional district judge Said Badshah has upheld the donation of a bungalow by its owner to the University of Peshawar for a charitable purpose as its caretaker.

A civil judge had decided the matter in favour of the UoP over a decade ago.

An appeal by the relatives of property owner, the late Begum Kulsoom Durrani, against the court’s decision was rejected by judge Badshah.

The UoP had filed a lawsuit in 2004 against them insisting that the bungalow located on the Gulmohar Road, University Town, an upscale area, was a “waqf property permanently dedicated for religious and charitable purposes by its owner through a trust deed” on Jan 2, 1974.

Declares under law, owner, as caretaker, can’t gift waqf property to anyone

It requested the court to declare that after the death of the owner, it (UoP) was the mutawali (caretaker) of that property and therefore, it was entitled to “administer and utilise property income in perpetuity for the purposes stated in the waqf deed.”

The trial court decided the lawsuit in favour of the university on June 22, 2013, prompting Haider Durrani and some of his other family members to file the appeal against the verdict.

They claimed that late Durrani, who was also the first mutawali (caretaker) of the bungalow, revoked that trust deed and transferred the property to their father, Naseer Ahmad Durrani, and another relative Bashir Ahmad Durrani through a deed on Jan 9, 1980.

The possession of the bungalow continued to be with the appellants.

An official of the university told Dawn that the bungalow’s current market rate was Rs2-3 billion and that the grant of its possession to the university would lead to the provision of free education to around 500 students.

Lawyer Jehanzeb Mohammadzai appeared for the UoP along with its law officer, Riaz Ali Khan, and contended that once Ms Durrani declared the bungalow a waqf property, she was no longer its owner and acted as its mutawali (caretaker) only.

They said Ms Durrani was not empowered to revoke the waqf deed and transfer the property to the two defendants by way of gift or otherwise.

The appellants contended that when Ms Durrani had reserved the benefits of the property for herself and did not hand over its possession to anyone, then it was in fact not a waqf and could be revoked by her.

The court observed that it was an admitted fact that the property was the ownership of Ms Durrani, who was issueless, and the same was waqf to the UoP through a registered deed on Jan 2, 1974 for the purpose mentioned in the deed.

It added that it was also an admitted fact on record that after the declaration and extinguish of her right of ownership by the owner through the said deed, she had appointed herself as the first mutawali in that deed and declared that after her death, the UoP should be the mutawali.

The court ruled that under the Islamic law, once the property was declared as wakf, then such property belonged to the Almighty Allah and no human being could alienate it for own purpose nor could the former owner be allowed to resume, retrieve or reclaim it under any law.

It added that in her capacity as mutawali (caretaker), the owner had no power under the law to gift the waqf property to anyone.

The court declared that as it was established that the suit property was waqf, then no question of revocation arose, so even if the appellants proved the revocation of the deed, then it had no legal value in the eyes of the law.

Published in Dawn, December 3rd, 2023