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PETITIONER: PUNJAB WAKF BOARD

       Vs.

RESPONDENT: SHAKUR MASIH

DATE OF JUDGMENT:       01/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the  learned single  Judge of  the High Court of Himachal Pradesh, Shimla made on March 16, 1994 in RSA No.97/93.      The admitted facts are that Najaf Khan was the owner of the properties,  namely, houses and shops situated in Jutog. He had  executed a  Will on  August 29, 1949 bequeathing all his properties  to his  son’s  mother-in-law,  namely,  Smt. Musomat Kariman.  He added a note to the Will on dated 29.9. 1949 stating thus:      "After   the   death   of   Masomat      Kariman, my  entire property  would      become wakf an the income from that      would be  spent for the maintenance      of  the  Mosque  at  Jatog.  Nobody      shall  have  the  right  either  to      mortgage or sell these properties."      The appellant filed the suit for declaration that it is a wakf  property and  the respondent  has no manner of right whatsoever. All the courts below have concurrently held that the wakf  has not been created by Najaf Khan and, therefore, the will  is void and the wakf thereby has not been created. The question  is: whether the view taken by the courts below including the High Court is correct in law?      In Chapter  XII of  the principles  of  Mohomedan  Law, Nineteenth Edition  edited by  M. Hidayatullah, former Chief Justice of  this Court,  it is  stated  that  a  wakf  means permanent dedication  by a  person professing  the Mussalman faith of  any property  for any  purpose recognized  by  the Mussalman law  as  religious,  pious  or  charitable.  Under Section 174, the dedication must be permanent. Under Section 176, the  subject of  wakf must  belong to the wakf, namely, the property  dedicated by  way of  wakf must  belong to the wakf (dedicator)  at the  time of  dedication. Under Section 191, contingent  wakf is  not valid.  It is essential to the validity of a wakf that the appropriation should not be made to depend  on a contingency. Where the deed of wakf provides that the  ultimate gift to charity is to take effect only if a certain person dies without leaving any issue, the rule of contingency  under  the  Mahomedan  law  would  affect  such

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disposition, and the position in that respect is not altered by anything in the Mussalman Wakf Validating Act, 1913. That Act undoubtedly  authorizes a  postponement of  the ultimate gift to  charity, which  would not have been valid under the original  law,   but  it  does  not  abrogate  the  rule  of contingency under the Mohamedan law .      In the Will, the testator has stated as under :      "I am  writing this  will  for  the      reasons that  I have become old and      I do  not know  when I would die. I      have neither  any child and nor any      legal, heir,   the  only person who      have served  me,  is  my  late  son      Gohar Khan’s  mother-in-law and she      is still  serving me,  and she also      ha no legal heir. She does not have      any property,  for  the  income  of      which she  may be  able to maintain      herself after  my death. Since this      lady Musamat  Kariman has served me      devotedly  and   has  been  looking      after my houses and shops which are      situated at  Jatog and I therefore,      execute this will, written by me in      my own hand writing and attested by      the executive  officer of the Jatog      Cant  and   also  signed   by   the      witnesses.  Whatever   movable  and      immovable properties  I  have,  she      will   own    and   possess   these      properties. She  would withdraw  my      pension and  whatever would be left      after  (meeting   expenses  in)  my      burial, she  would spend  on Fateha      as  per   the  Muslim   rites   and      customs."      A reading of it would indicate that the testator’s only son died during his life time. He left behind his mother-in- law, namely,  Smt. Musamat  Kariman who  was living with the testator. She also had no other issue. She was looking after him and  the properties. Therefore, he had executed the Will and bequeathed  the movable  end immovable properties to her in those  wors. "She  will own and possess these properties. She would  withdraw my  pension and  whatever would  be left after (meeting  expenses in)  by burial,  she would spent on Fateha as  per the  Muslim rites  and customs." Thus, he had given the  properties by way of absolute disposition to her. The question  Arises: whether the contingent wakf created in the note  would be  valid in  law and  a valid wakf has been created thereunder? It has been held by the Privy Council in Aamjad Khan  vs. Ashraf  Khan  &  Ors.  [AIR  1929  PC  149] followed by  other decision  in Rasoolbibi  vs.  Yusuf  Ajam Pipersi [AIR  1933 Bom. 324]; Bai Saroobai vs. Hussein Somji & Ors.  [AIR 1936  Bom. 330  and MT.  Mehraj Begum  vs.  Din Mohammad [AIR  1937 Lahore  669] that  in Mohammad Law, if a bequest is  made by  way of Will in future or subject to the contingency, the  condition is  void. In  Section 191 of the Mulla’s Principles  of Mohamedan Law it is stated that it is essential to  the validity  of a wakf that the appropriation should not be made to depend on a contingency. It would thus be clear  that a  disposition by way of Will given in future or subject  to the  contingency or  conditional one  is void under  the   Mohamedan  Law.   A  bequest  creating  a  wakf contingent upon  the life  time of  the Mussamat  Kariman is invalid and,  therefore, the  contingent wakf  is not  valid

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wakf as  per Section  191 of the principles of Mohamedan Law referred to  hereinbefore. It  would thus  be seen that view taken by  the High Court is not vitiated by any error of law warranting interference.      The appeal is accordingly dismissed. No costs.