P L D 1969 Lahore 587 (PLP)

15. We find that there was an assertion by the respondent Khan Muhammad Sher Nawaz Khan, a brother of Mst. Sahib Jan, in Petition No. 23 of 1962 before the learned District Judge, Lahore, that the property obtained by him under Khatoni No. 22 in the estate of Bela Hithar had been obtained in his own right and had nothing to do with any property abandoned in India by Mst. Sahib Jan, but there does not appear to be any specific finding by the learned District Judge in this behalf, nor does the point appear to have been agitated before the learned Single Judge. As there is no material before us with regard to the true nature of this property, we shall deal with it on the assumption that it stands included in the second category, namely, that it was also obtained in lieu of properties of Pir Ahmad Ali Khan abandoned in India.

16. As regards the second category mentioned above, namely, the verified claim and the agricultural lands obtained by the respondents in Pakistan under the Rehabilitation Settlement Scheme or other provisions of the Settlement Laws in lieu of the estate of the late Pir Ahmad Ali Khan abandoned in India, it is to be observed that these properties, by themselves, are not Waqf properties and they are sought to be treated as such only in view of the deeming clause contained in Explanation 2 to clause (d) of section 2 of the Ordinance. The clause in question defines the term "Waqf property" as meaning "property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Mussalman Waqf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants". Explanation 2 to this definition lays down that "property allotted in lieu or in exchange of Waqf property left in India shall be deemed to be Waqf property". The question, therefore, arises whether the property of the late Pir Ahmad Ali Khan could be said to have become Waqf property by 1947 when Mst. Bubu Zohra and Mst. Sahib Jan,, who were holding the properties; were forced to migrate to Pakistan.

17. We have already reproduced the relevant provisions of the will made by Pir Ahmad Ali Khan on the 30th of March 1897, from which it is clear that on the testator's death the property was to devolve on Mst. Bubu Zohra as a life estate, with the result that irrespective of any question of the validity of the will, the dedication was to become operative on the death of Mst. Babu Zohra. Even otherwise the definition of the term "Waqf property" as given in clause (d) of section 2 of the Ordinance excludes property of any Wakf under which any benefit is for the time being claimable for himself by the person by whom the Wakf was created or by any member of his family or descendants. According to this definition, therefore, the property could not be regarded as Wakf property as long as it was held by Mst. Babu Zohra under the terms of the will, and it would become Wakf property only after her death. It follows, therefore, that by the time Mst. Babu Zohra migrated to Pakistan in 1947, the property held by her in India had not become Waqf property and, therefore, any property obtained by her, or any of the respondents claiming under her, in lieu or in exchange of the pro perties left in India could not be deemed to be Waqf property under Explanation 2 referred to above. This finding is sufficient to dislodge the claim of the Chief Administrator of Auqaf with regard to the properties said to have been obtained by the respon dents in lieu of the estate of the late Pir Ahmad Ali Khan abandoned in India.

18. It was contended by Mr. Dilawar Mahmood, the learned Assistant Advocate‑General, that as under the terms of the will the properties in India were to become Waqf properties on the death of Mst. Bubu Zohra the same would be the case with regard to the properties obtained in lieu thereof in Pakistan, and accordingly we should hold that from 1959 onwards the properties in dispute had become Waqf properties. The argument is certainly ingenious, but devoid of merit. Pir Ahmad Ali Khan had purported to create a Waqf with regard to his own properties situate in India, and the dedication could not extend to other properties over which he had no control, except by virtue of the Explanation to which we have already referred. The operation of this Explanation has obviously to be restricted to the properties described therein, and cannot be extended by the Courts on any extraneous considerations of a charitable or religious nature. The properties obtained by the respondents in Pakistan not being covered by the definition of the term "Waqf property", read in the light of the relevant Explanation, cannot be converted into Waqf properties by stretching the definition for the benefit of the Auqaf Department.

19. As regards the five houses situate in Kasur Town and specifically included in the will of the late Pir Ahmad Ali Khan, the following questions appear to arise for determination:‑ (a) Whether a Waqf could be validly created by means of a will, (b) whether the will was invalid on account of the fact that it was in favour of one of the heirs without the consent of the other heirs, and that it created only a life interest in favour of Mst. Bubu Zohra, (c) if the will was invalid for the reasons just mentioned, could it still operate to create the Waqf after the termination of the life estate of Mst. Bubu Zohra, and (d) assuming that the will was valid, did it operate to create the Waqf in spite of the fact that the dedication was postponed owing to the intervention of the life estate of Mst. Bubu Zohra and it was made dependent on a future contingency, namely, the absence of a male issue.

20. On the question of the creation of a testamentary Waqf the learned counsel for the parties have been good enough to refer to several authoritative decisions which may be usefully mentioned here. In Agha Ali Khan and another v. Altaf Hassan Khan and another (14 All. 429) a Full Bench came to the conclusion that according to the law applicable to the Shia sect of Muhammadans a Waqf bil‑wasiyat or a testamentary waqf was not valid unless actual delivery of possession of the appropriated property was made by the Waqf himself to the Mutwali, and in the event of the Waqif's death before actual delivery of possession of the appropriated property by him to the Mutwali or the beneficiaries of the trust, the heirs of the waqif could not validate the Waqf by consenting to the disposition. As a result, it was held that under Shia law a Waqf cannot be created by will, though the result can be secured indirectly by making a gift of the property with a direction to the donee to create the Waqf desired. This decision of the Full Bench was, however, dissented from by their Lordships of the Judicial Committee in Baqar Ali Khan v. Anjuman Ara Begum and another (25 All. 236), and it was laid down that by the law of the Shia sect of Muhammadans, as well as by that of the Sunni sect, a valid Waqf could be created by will. Again, in Muhammadi Ahsan and others v. Umar Daraz and others (28 All. 633), it was laid down that a Waqf could be created by a Shia by his will, and such a Waqf was not invalid on the ground that it was not absolute and unconditional merely because it contained clauses cancelling the will if any child should be born to the testator in his lifetime, and reserving to the testator power to cancel or modify any of the conditions of the will. We shall have occasion to deal later with this last proposition, and suffice it to say that no authority to the contrary on the question of the creation of a Waqf by a will, was cited at the Bar, and it was conceded that the position applicable to the Sunni sect, to which the parties before us belong, was the same as prevailing among the Shias. It is, therefore, not necessary to discuss this question any further, and we may proceed on the basis that a Waqf could be validly created by means of a will.

21. We have already stated that the validity of the will of the late Pir Ahmad Ali Khan came in for examination by the Chief Court of Punjab in the suit brought by Pir Rehmat Ali Khan, a first cousin of Pir Ahmad Ali Khan, to challenge the alienation of the property by Mst. Bubu Zohra in favour of the second wife Mst. Sahib Jan under a compromise arrived at between the two ladies. The Chief Court found that in the matter of wills the Pathans of Ferozepur were not governed by agricultural custom although they allowed widows to have a life estate, and consequently the will being in favour of one heir, to the complete exclusion of the others, was invalid under Muhammadan Law, even if the property dealt with in the will was not proved to be ancestral It is true that the judgment of the Chief Court delivered in litigation between Pir Rehmat Ali Khan and Mst. Bubu Zohra and others is not a judgment In rem within the meaning of section 41 of the Evidence Act, yet it is relevant for our present purpose. The judgment of the Chief Court does support the argument raised on behalf of the respondents that the will was invalid on account of being in favour of one of the heirs to the exclusion of the others without the latter's consent.

22. The same view was taken in Allah Din and another v. Abdul Gafur (A I R 1922 All. 283) and Aimna Khalun v. Siddiqur Rahman Dihidar and others (P L D 1960 Dacca 647). This view is consistent with Paragrah 117 of principles of Muhammadan Law by Mulla, 16th Edition.

23. It was, however, contended by Mr. Dilawar Mahmood that the only surviving heir of Pir Ahmad Ali Khan, namely, Pir Rehmat Ali Khan, had given his consent by his conduct inasmuch as he did not disturb the possession of Mst. Bubu Zohra, nor even of Mst. Sahib Jan, after obtaining the usual declaration under custom from the Chief Court of Punjab. It was submitted by the learned Assistant Advocate‑General that such conduct was significant and could be taken due note of, as held in Daulatram Khoshalchand v. Abdul Kayum Nuruddin and others (26 Bom. 497).

24. There is no merit in this submission for the reason that there is nothing in the conduct of Pir Rehmat Ali Khan which could be construed as consent to the disposition made by the testator in his will regarding the life estate of Mst. Bubu Zohra to the exclusion of the other heirs. On the contrary, Pir Rehmat Ali Khan had challenged, inter alia, the validity of the will and had succeeded in obtaining a declaration from the Chief Court that the will was invalid on account of the exclusion of the other heirs without their consent. Such being the case, it was not necessary for him to physically dispossess the widow Mst. Bubu Zohra who had perhaps to be maintained in any case. It appears from the judgment of the Chief Court that although in the matter of wills the Pathans of Ferozepur were not governed by custom, yet in the matter of life estates for widows they were so governed. Mst. Bubu Zohra must, therefore, have been allowed to remain in possession in accordance with this custom and not under the will. The correct position, therefore, appears to be, as held by the Chief Court of Punjab, that the will was invalid in so far as it made a disposition in favour of one of the heirs to the' exclusion of the others without their consent.

25. It was also suggested at the Bar, on behalf of the respondents, that the will was invalid for another reason, namely, that it sought to create only a life interest which was not permitted under the Muhammadan Law as it derogated from the established principles of ownership as recognised by that law. This proposition is, however, not supported by authority and, on the contrary, it has been expressly held in Naziruddin and others v. Khairat Ali (A I R 1938 Oudh 51) and Achiruddin Ahmad v. Sakina Bewa and another (A I R 1946 Cal. 288) that a life estate can be created by a will, as distingu ished from a gift, inasmuch as it pertained to the usufruct of the property. In fact the learned Judges went further and held that even a gift of usufruct of property for lifetime of donee is valid as Ariyat. However, we are not concerned with this last proposition in the present case and it is sufficient to state that the creation of a life estate in the usufruct of the property by means of a will has been accepted as valid under the Muhammadan Law. It is, however, always a question of construction whether there is a life estate simpliciter or a grant and a condition. In the case before us, there is no doubt that the late Pir Ahmad Ali Khan purported to create a life estate simpliciter, giving no power of alienation to his widow.

26. It was submitted by the learned Assistant Advocate- General that even if the bequest in favour of the widow Mst. Bubu Zohra was found to be invalid, owing to want of consent by the other heirs, the will could still operate to create the Waqf after the death of Mst. Bubu Zohra for the reason that the will could clearly be divided into two separate parts the first one creating a life estate in favour of Mst. Bubu Zohra and the second one creating the Waqf after her death. This proposition is, however, not supported by any authority. Superficially the rule laid down in Mst. Channo Bi and another v. Muhammad Riaz and another (P L D 1956 Lah. 7S6) seems to lend support to the submission made by Mr. Dilawer Mahmood, but a close, study of the judgment delivered by Shabir Ahmad, J. for the Division Bench shows that the rule laid down is somewhat different. In the case before the learned Judges the will showed that the main object of the testator was to benefit his daughter and her children, and the bequest in favour of Mst. Channo Bi was to enure only for her life. It was observed that under the will she was only to get a life estate in the property but by reason of the application of the Muslim law she became an heir entitled to full ownership rights in a part of her late husband's property. In other words the bequest in favour of Mst. Channo Bi in the first instance did not altogether fail, and accordingly the learned Judges held that the bequest which was to follow the termination of the life estate of Mst. Channo Bi would be valid. The learned Judges placed reliance on para. 596 of Tyabji's Muhammadan Law, Third Edition, which according to them correctly enunciated the law. This paragraph is to the following effect:‑ "Where a bequest of a limited estate in favour of an heir is followed by a bequest to another legatee of the reversion, and the other heirs do not consent to the prior bequest to the heir, so that it fails, in that case the bequest of the reversion does not necessarily fail, but may be accelerated, unless an intention is indicated that the reversioner shall not take till after the death of the prior legatee, or unless such acceleration would wholly defeat the intention of the testator. Semble, the same rule applies wherever the prior of two successive bequests fails."

27. In Wilson's Anglo Muhammadan Law, Third Edition, Article 273 lays down that the failure of the original bequest for want of assent of the other heirs will involve the failure of the subsequent bequest also. Mulla has dealt with this question on page 118 of his book, Sixteenth Edition, by observing that the bequest of the rents of a house to one of the sons, without the consent of the others, being void, the subsequent bequest to charity also fails. In Aimna Khatun's case the view taken by a Division Bench was that "under the Muhammadan Law if A bequeathes a life interest to an heir B and thereafter the remainder to "C", a non‑heir, the bequest to "C" will fail if the life estate to "B" is invalid for want of consent of the heirs". The same view was taken by the learned Single Judge, whose judgment is now under appeal, in a reported case, namely, Muhammad Naqi alias Naqi Muhammad Khan v. Mst. Begum Jan and others (P L D 1965 Lah. 337) The true test to apply in such a case appears to be whether the intention of the testator was to benefit the prior legatee as much as the subsequent one, and if so, the failure of the first bequest will also result in a failure of the second. Now, reading the will of the late Pir Ahmad Ali Khan, we are left in no doubt that he was very much concerned with making provision for his widow Mst. Bubu Zohra and he was also concerned with making provision for any male child which may be born to him from this wife, and in fact in that case the Waqf was not to come into existence at all. It appears, therefore, that in accordance with the accepted view, of the law the dedication would fail on account of the bequest in favour of Mst. Bubu Zohra failing for want of consent of the other heirs. We, therefore, endorse the view taken in this behalf by the learned Single Judge.

28. We now come to the last question arising in the context of the will, namely, assuming that the will did not suffer from any invalidity on account of the reasons just discussed, could it, however, operate to create a valid Waqf in spite of the fact that the dedication was postponed owing to the intervention of the life estate of Mst. Bubu Zohra, and it was made dependent on a future contingency, namely, the absence of a male issue. The learned Judge in Chambers has observed that "according to the directions in the will, the Waqf was to come into existence only after the death of Mst: Bubu Zohra provided she died issueless. Not only the appropriation to religious and charitable purposes was postponed; it was also dependent on future contingencies. As such the dedication of the properties under the will to the Government for religious and charitable purposes was ineffective and it did not result in creating a valid Waqf under Muhammadan Law". It was submitted by Mr. Dilawar Mahmood that in so far as intervention of the life estate of Mst. Bubu Zohra was concerned the learned Judge in Chambers had not correctly applied the rule laid down in Mst. Ali Begum and others v. Badr‑ul‑Islam (A I R 1938 P C 184). The relevant passage reads as under :‑ "If the will can be read as intending that on the death of the testator these two properties should become "wakf", it would be in no way unlawful that a life interest in the usufruct should be reserved for the beneficiaries above named. On the other hand, a direction that the property should become wakf after the death of a person surviving the testator is contrary to the principles applied by the Shia law to dedications inter vivos. Though the fact that the law permits a Shia to create a wakf by will is itself a mitigation of the rigour of this principle, yet the principle is not abrogated for all purposes in the case of a testamentary disposition, nor can it be confined to cases where the passing of the property to the endowment is made to depend upon an event which is problematical as well as future." The submission of the learned Assistant Advocate‑General is that the Waqf would be unlawful only if the corpus of the property goes to the immediate beneficiary and the direction is that the property should 'become Waqf only after the death of drat beneficiary, but in the present case the testator only reserved a life interest in the usufruct for his widow. It seems to us that the learned Assistant Advocate‑General is right in so far as the proposition of law laid down by their Lordships of and the discussion of this point Judge does give the impression that he was the view that the intervention of a life estate might the dedication; but he has not; however, held so in categorical terms. During the course of the discussion of this aspect of the question the learned Judge has observed that "the test for deciding as to whether or not a particular Waqf deed was good, would be to see whether the dedication was complete at the time when it was made and not dependent upon any contingent event, which may or may not happen. However, the mere interposition of an estate would be no reason for saying that the religious appropriation would fail altogether". These observations are reconcilable with the view taken by the Privy Council in the case of Mst. Ali Begum.

29. In Haji Muhammad Shaft and others v. Khadim Ali (A I R 1944 Oudh. 291) it was hold that under the Muhammadan Law waqf must be constituted immediately and its creation should not be deferred to a future date, but if the property is forthwith constituted a property of the Almighty, it may be permissible to reserve a benefit out of its usufruct for the life of any person named, and in this manner an interposition .of an intermediate beneficiary would not militate against the conception of the Muslim Waqf, for such a reservation only defers for a time the appropriation of the usufruct to the religious and charitable usage. The same view was expressed in Cassamally Jairabhal Peerbhai v. Sir Currimbhoy Ebrahim and others (I L R 36 Bom. 214) and Muhammad Ahsan's case.

30. The last point needing consideration in this context is whether the Waqf was invalidated on account of the fact that it was made dependent upon a contigent event, namely, the birth and survival of a male child. The learned Single Judge appears to think that such a condition would invalidate the Waqf by making it dependent on a contingent event which may or may not happen. The learned counsel appearing for the respondents supported this view of the learned Single Judge by reference to Paragraph 191 of Mulla's Principles of Muhammadan Law, Sixteenth Edition, which lays down that "it is essential to the validity of a Waqf that the appropriation should not be made to depend on a contigency". It was submitted that in the present case the testator clearly laid down that if any male issue was born from his wife Mst. Bubu Zohra, then that child would succeed to the entire estate, but if no such male child was born or one did not survive, only then the entire property was to be dedicated for the purposes of Waqf on the death of Mst. Bubu Zohra. There is writ in this submission as from these stipulations in the will it is clear that there was no immediate, absolute and unconditional dedication, there was not only the intervention of a life estate in the usufruct of the property before dedication was to become effective, but the dedication was to disappear altogether on the happening of a certain contigent event, namely, the birth and survival of a male child.

31. The consensus of judicial authorities appears to be that in such a case the dedication would be void on account of being conditional and uncertain. In Cassamally Jairabhai Peerbhai's case, already referred to in this judgment, it was laid down that :‑ "It appears to be the Muhammadan Law that a donor may give his property in wakf that is to say, appropriate and dedicate the corpus to the service of God, while reserving for himself a life‑interest in the usufruct. But as in the case of gifts to private individuals the Muhammadan Law never contemplated and will not allow a merely contingent gift in wakf. This necessarily flows from the jural conception of a wakf which is the immediate appropriation and consecration of specified property to the service of God and the reservation of the donor's life‑interest in that property does not in any way clash with that conception for the corpus is there and then definitely and finally appropriated to its intended purposes. But it is plainly otherwise, while the gift is conditioned upon the happening of some future uncertain event. There can, in such circumstances, be no appropriation synchronizing with the declaration because should the future events happen it is neither the donor's intention then nor after the happening of that event that the property ever should be appropriated to the service of God."

32. Again, in Pathukutti v. Avathalakutti and others (I L R 13 Mad. 66), it was observed that there were four essentials of a valid Waqf, namely, (1) the ultimate applications must be to objects not liable to become extinct; (2) the appropriation must be at once complete; (3) there must be no stipulation for sale and expenditure of the price on the appropriator's necessities; and (4) perpetuity is a necessary condi tion. It was added that where there was a condition in the will that if one of the testator's children had lived to attain majority, he would have taken an absolute interest, and the religious and charitable appropriation would have altogether failed, the appropriation as Waqf would not at once be complete and the Waqf would fail. Such a situation was distinguished from a case where the corpus of the property was irrevocably, dedicated to charitable and religious purpose though as to the income there was a perpetuity created in favour of the descendants of the founder as long as any should exist.

33. Mr. Dilawar Mahmood, the learned Assistant Advocate General, however, referred to Muhammad Ahsan's case, which we have already mentioned in another connection, as an authority for the proposition that a Waqf created by a will was not invalid on the ground that it was not absolute and unconditional merely because it contained clauses cancelling the will if any child should be born to the testator in his lifetime and reserving to the testator power to cancel or modify any of the conditions of the will. As far as the question of the power to revoke the will is concerned, there can perhaps be no dispute with the proposition laid down by the learned Judges that such a stipulation would not invalidate the Waqf, for the reason that it is open to a Muslim testator to revoke the will, and by doing so, he is not revoking the Waqf which is nothing more than a bequest for a religious and charitable purpose to take effect after his death. This rule is clearly stated by Mulla in Paragraph

189. The position, however, is different where the Waqf suffers from uncertainty by being made dependent upon a future contingent event, namely, the birth and survival of a child. The view taken by the learned Judges in the case of Muhammad Ahsan on this particular point seems to run counter to the essentials of a Muslim Waqf, and to the view generally accepted by Muslim jurists. The consistent view seems to be that in order to create a valid Waqf there must be an immediate dedication of the corpus of the property, not dependent upon any contingent event, although the benefit to charitable purposes may be postponed by the interposition of the life‑estate of the waqif himself or of his heirs and descendants. For these reasons, we are of the view that even assuming the will to be valid in all respects, it would fail to create a valid Waqf for the reason that it made the dedication contingent on an uncertain future event, the dedication disappearing altogether should that event come to happen, viz. the birth and survival of a male child.

34. We are now in a position to sum up our conclusions with regard to the creation of the Waqf in respect of the five houses situate in Kasur and mentioned in the will executed by late Pir Ahmad Ali Khan. While the Muslim Law, applicable to both the Shia and the Sunni sects, permits the creation of a Waqf by means of a will, the validity of the Waqf would depend upon the validity of the will; and if for any reason the will is held to be invalid under the Muhammadan Law, then it could not operate to create a valid Waqf. Further, in order that a valid Waqf be created, the dedication must be immediate and complete and not be made dependent on a future contingency like the absence of a male issue, the only exception being the interposition of a life estate in the usufruct of the property. Now, in the instant case the will was invalid on account of the fact that it created a life estate in favour of one of the heirs without the consent of the other heirs, with the result that the bequest in favour of the dedication must also be held to be invalid, the two parts being inseparable for the reason that the widow would not be holding under the will with the necessary consequence, that after her death the property would not be governed by the further stipulation in the will regarding the creation of the Waqf. Finally, no valid Waqf was created in this case for the reason that there was no immediate and complete dedication of the property, which was to come into effect only if no male issue was born to the testator from Mst. Bubu Zohra or if one was born, but did not survive. In other words, if a male issue had been born and had survived, there would be no dedication at all. This is repugnant to the Muslim concept of a Waqf.

35. For these reasons, we must hold that no valid Waqf was created in respect of the five houses owned by the testator in Kasur Town. The same reasons would have applied to save the other properties even if they did not otherwise stand excluded from the mischief of the definition clause as contained in the Ordinance. It thus become clear that none of the properties forming the subject‑matter of these appeals could be regarded as Waqf property under the will of the late Pir Ahmad Ali Khan, read with the relevant provisions of the West Pakistan Waqf Properties Ordinance, 1961. The appeals, therefore, fail and are hereby dismissed with costs. K. B. A. Appeals dismissed.