P L D 1967 Lahore 672 (PLP)

(1) Whether the property in dispute is not Wakf property? (2) Relief. .

7. The learned District Judge found these issues in favour of the petitioners‑respondents and accepted their petitions by a single order passed on the 30th of September 1963. He has held that Pir Ahmad Ali had made the will in respect of his properties on the 30th of March 1897. His cousin Pir Rehmat Ali on the 9th of January 1907 brought the suit against it. This suit was dismissed by the trial Court on the 9th of January 1907. But the decision was reversed on appeal which was accepted by the Chief Court on the 22nd of May 1911. In the judgment Exh. P. W. 5/5, the Chief Court in addition to the other issues between the parties, found that in matter of wills, pathans of Ferozepur were not governed by agricultural custom, although they allowed their widows to have life estates, that the will in a question made by Pir Ahmad Ali Khan in favour of one of his heirs only was invalid under Muhammadan Law. In the will it was stipulated that on the death of Mst. Bubu Zohra, the entire estate would be managed by the Government so that first of all it shall pay the land revenue out of the income accruing from the landed property and rent, etc., of the houses and thereafter it shall effect repairs to houses, etc., and if any amount remained, it shall be spent in supplying the pilgrims with travelling expenses, widows and orphans and famine‑stricken people with maintenance. The learned District Judge was of the opinion that inasmuch as the will was declared by the Chief Court to be invalid, whatever was contained therein, including the stipulation just mentioned was of no legal effect. As such the will as a whole was inoperative. As regards the agricultural land measuring 324 Kanals 2 Marlas 197 sqr. ft. situated in the revenue .estate of Chak No. 43/3‑R. Tehsil Okara, District Montgomery, mentioned in para. 2 of the petition of Badar‑ud‑Din and others, the learned District Judge found that it was not included in the will in question and as such it could not be taken over by the Chief Administrator of Auqaf. On these findings the learned District Judge accepted all the four petitions and the declaration was granted to the petitioners to the effect that the properties in dispute were not Waqf.

8. These are the four separate appeals by the Chief Administrator of Auqaf, against the petitioners in the four cases, against the order passed by the District Judge, Lahore, on the 30th of September 1963.

9. The case of the appellant entirely rests on the will dated the 30th of March 1897 (Copy Exh. P. 5/8) made by Pir Ahmad Ali Khan in respect of his properties, mostly agricultural lands situated in Ferozepur (India). It is vehemently asserted that by that will the testator had lawfully dedicated his estate to Waqf for religious and charitable purposes. It is further maintained on behalf of the appellant that, on migration to Pakistan on account of the disturbances of 1947, the evacuee properties confirmed and allotted to the right‑holders in lieu of the properties, comprising the estate of Pir Ahmad Ali Khan, abandoned in India, should be deemed to be Wakf in the same manner and to the same extent. None of the parties who have appeared before me has challenged the execution of that will by the deceased.

10. Exh. P. 5/8 is a copy of the English translation of the will by Pir Ahmad Ali Khan. To start with the testator has listed in his will the considerable properties belonging to him. He has then referred to the fact that from his wife two sons were born to him but both of them had died in his lifetime. He developed serious differences with his second wife Mst. Sahib Jan and later on divorced her so that his only lawfully wedded wife living with n him was Mst. Bubu Zohra who was the only heir to his estate. Otherwise he had no issue born to him to succeed to his estate. He, therefore, devised that he shall be the proprietor and manager of all the properties owned by him till his death. If any male issue was born to him by Mst. Bubu Zohra, he shall succeed to his entire property. If per chance no such issue was born, Mst. Bubu Zohra shall succeed to the house and landed properties, movables and immovables properties of all kinds (barring some few exceptions specified in the will) after the death of the testator, provided that she remained faithful to his memory and led a moral life. In case she turned out to be unchaste, she shall not be entitled to succeed to the property. If she remained faithful, she shall be absolute proprietor of the income accruing from the entire property mentioned in the will. She shall pay the Government revenue payable for the said property. She shall have no power to mortgage or sell the property. If there was any occasion of pressing necessity such as payment of Government revenue or ordinary food expenses, she shall have the power to transfer any part of the property to the extent of the said necessity. She shall have no power to waste the property of her own accord without any pressing necessity. These recitals in the will are followed by the instructions given by the testator for the settlement of the income from some of the properties specified therein. These are then followed by an important portion of the will relating to the dedication of his properties by the testator to the Wakf, on which the appellant has relied. The will, inter alia, lays down as under‑ "If no issue born by Mst. Bubu Zohra to me survives, then after the death of Mst. Bubu Zohra the entire property above mentioned shall be the property of the then Government. The then Government shall manage the affairs in this way that it shall first pay the Government revenue out of the income accruing from the landed property and rent etc., of the houses and thereafter it shall effect repairs to houses, etc., if there remains any amount, it shall spend the same in supplying the pilgrims with travelling expenses and widows, orphans and famine‑stricken people, with maintenance so that this noble deed might result in the spiritual welfare of myself and my ancestors. This will made by me should be acted upon for ever. If anything is done against this will, it shall be invalid."

11. At the outset the learned counsel for the appellant in all these appeals has taken exception to the finding by the learned District Judge, Lahore, that the will in its entirety, including the dedication to Waqf, made by Pir Ahmad Ali Khan was of no legal effect. This finding in its turn is based on the findings of the Chief Court of the Punjab in the appeal, arising out of the suit brought by Pir Rehmat Ali Khan. In that connection it is contended that the judgment Exh. P. W. 5/5 passed by the Chief Courts was misinterpreted by the lower Court. There is no force in this contention of the learned counsel. In the previous case, the Chief Court found that in the matter of will the testator was governed by Muhammadan Law under which the will in favour of one of his heir, Mst. Bubu Zohra was invalid, except with the consent of the remaining heirs of the deceased. The will Exh. P. 5/8 in effect created a life estate for Mst. Bubu Zohra and reserved the remainder for charity. In such circumstances, if the life estate were to fail under Muhammadan Law, the bequest in favour of the remainder was likely to be defeated. In Wilson' Anglo Muhammadan Law, Third Edition, Page 304, Article 273, it‑is laid down as under: "If a testator bequeathed a property to one of his heirs for life, or to two or more of his heirs for their joint life, and the life of the survivor, with remainder to some stranger to whom he lawfully bequathed it or to some lawful charitable purpose; then the failure of the original bequest, for want of assent of the other heirs will involve the failure of the subsequent bequest also." Similarly Mulla in his "Principles of Muhammadan Law", Fifteenth Edition on page 116, has observed that if "A bequeathed the rents of a house to one of his sons for life, and after his death to a charitable society for the benefit of the poor, and the other sons do not consent to the legacy. The bequest to the son being void for want of assent of the other sons, the subsequent bequest to the charity also fails." However, in paragraph 596 of Tyabji's Muhammadan Law, Third Edition this principle is accepted with a qualification. It is laid down that:‑ "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. Sembles the same rule applies wherever the prior of the two successive bequests fail." The legal position was discussed by me in a single bench case in Muhammad Naqi v. Mst. Begum Jan and others (P L D 1965 Lah 337). In the present case it is evident that the testator attached considerable import ance, to the first bequest to his wife Mst. Bubu Zohra. It was a important, if not more, as the bequest to the remainder. The intention of the testator was to benefit the reversion after the death of his wife and not immediately on his own demise during the lifetime of Mst. Bubu Zohra. In such circumstances, on the failure of the bequest to his wife for want of the assent of his other heirs, the bequest to the charity also failed altogether. Therefore, the dedication to the Wakf under the will was rendered ineffective.

12. There is another way of looking at this case. It was held in Cassamally Jairabhai Peerbhal v. Sir Currimbhoy Ebrahim and others (I L R (1912) 36 Bom. 214 ) as under :‑ "It appears to be the Muhammadan Law that a donor may give his property in Wakf, that is to say, appro priate 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 appro priated to its intended purpose. But it is plainly otherwise, while the gift is conditioned upon the happening of some future uncertain events. 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."

13. Similarly in Haji Muhammad Shafi and others v. Khadim Ali (A I R 1944 Oudh 291) it was held that under the Muhammadan Law, Wakf must be constituted immediately, and its creation should not be deferred to a future date. In other words the legal estate must pass to the public trust, though an equitable interest for a definite and certain period may be given to any one else. 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 Muslim Wakf, for such a reservation only defers for a time the appropriation of the usufruct to the religious and charitable usage. The dedication should not depend upon a contingency and the appropriation must at once be complete and not suspended. The interposition of an intermediate estate limited in duration would not invalidate the creation of a Wakf if there is an out and out appropriation at the time of the settlement. Where the immediate appropriation has been made in favour of an individual and the property is to become Wakf only after his death, the endowment clause must fail. The fact that the event on the happening of which the Wakf is constituted is certain and definite does not mitigate the rigour of the main principle that the appro priation must be immediate. It is settled law and it goes without saying that according to Muhammadan Law a contingent Wakf is not valid. The dedication should be complete and should not depend on a contingency and the appropriation must at once be complete and must‑ not be kept suspended. The test for deciding as to whether or not a particular, Wakf deed was good, would be to see whether the dedication was complete at the time when it was made and not dependant on any contingent event, which may or may not happen. However, the mere interposition of an estate C would be no reason for saying that the religious appropriation would fail altogether.

14. Relying on these principles it was asserted on behalf of the respondents that no valid Wakf could at all be created by a testamentary disposition because the operation of a will is always contingent on the death of the testator and he may even revoke it at any time during his lifetime. In this connection reliance has been placed on Agha Ali Khan and another v. Altaf Hasan Khan and another (I L R (1892) 14 All. 429). In this case it was held that "according to the law applicable to the Shia sect of Muhammadans a Wakf‑bil- Wasiyat, or testamentary Waqf, is not valid unless actual delivery of possession of the appropriated property is made by the Waqif (or appropriator) himself to the Mutwalli (or superintendent appointed by the Waqif). But this case does not hold the field and was expressly over‑ruled by the Privy Council in Baqar Ali Khan v. Anjuman Ara Begum and another (I L R (1903) 25 All. 236). The Privy Council found that "by the law of Shia sect of Muhammadans, as well as by that of the Sunni sect, a valid Waqf can be created by will". Their Lordships noticed that as the essential conditions of a valid Wakf there must be delivery of seisin, the gift must be uncondi tional and nothing must be reserved for the settlor. But these essentials do not detract from the creation of a valid Wakf by a will. The Privy Council observed that :‑ "If a Waqf may be made by will speaking from the death, there is ao condition and no reservation in such a case as the present." It appears to me that the rigours of the essentials of a valid Wakf have been mollified to little in their application to testamentary Waqf under Muhammadan Law. But it cannot be said that these principles have been altogether abrogated for all purposes in their application to testamentary dedication. Like all other Wakfs under Muhammadan Law, a testamentary disposition to Wakfs must also fulfil the essential requirements of a valid Wakf. The Wakf under a will must be operative and the dedication complete, at least speaking from the time of the death of the testator and it should not remain suspended any longer and must not be made to depend on future contingencies. In this connection the law was summed up as under in Mst. Ali Begum and others v. Badr‑ul- Islam (AIR 1938 P C 184). "This raises a question of some nicety in this application of the Shia Law. 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 dedication inter vivos." These principles are applicable to both the Sunni and Shia Muhammadan Law alike and there is. no difference of opinion in the two schools of thought in this respect.

15. Returning to the fact of this case, I find that under the will of Pir Ahmad Ali Khan the dedication to Wakf does not come into operation immediately on the death of the testator. On his death his estate devolved upon his widow Mst. Bubu Zohra for her life as a limited owner. According to the directions in the will, the Wakf 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 dependant on future contingencies. As such the dedication of the properties under the will to the Government for religious and charitable purposes was ineffec tive and it did not result in creating a valid Waqf under Muhammadan Law.

16. It is also interesting to find that according to Explana tion 2 to the definition of "Wakf property" contained in clause (d) of section 2 of the West Pakistan Wakf Properties Ordinance (XXVIII of 1961), "property allotted in lieu or in exchange of Wakf property left in India shall be deemed to be Wakf property" within the meaning of the Ordinance. Before this provision can be invoked, it must be established that the property left behind in India was Wakf property and that the allotment of the property in Pakistan was made in lieu of the Wakf property abandoned in India. In the present case the estate of Pir Ahmad Ali Khan devolved on Mst. Bubu Zohra as a limited owner for life. The appropriation to Wakf was to take place after her death. By the time of her migration to Pakistan the properties forming the estate of late Pir Ahmad Ali Khan in India did not become Wakf. On the other hand they still continued to be secular properties in the hands of Mst. Bubu Zohra. Assuming that the properties in question (enumerated in the impugned notification) were allotted in Pakistan in lieu of the properties (listed in the will of Pir Ahmad Ali Khan) situated in India; even then these could not be deemed to be Wakf properties within the meaning of the Ordinance. Mst. Bubu Zohra died long after her migration to Pakistan on the 19th of October 1959 and on her death the character of the allotted properties in her hands cannot change to turn them into Wakf properties by any process of reasoning.

17. The evidence in all the four cases is too meagre and hardly sufficient to satisfactorily connect the properties enumerated in the will of Pir Ahmad Ali Khan with the different items of the properties in question mentioned in the notification. But in the above view of the case it is hardly necessary for me to discuss this matter any further. As regards the land measuring 324 Kanals, 16 Marlas situated in the estate of Chak No. 43/3‑R, Tehsil Okara (mentioned in para. 2 of the application No. 19 of 1962, Badar Din and others v. The Chief Administrator of Waqfs), the learned District Judge found that this was not mentioned in the will of Pir Ahmad Ali Khan and was not Wakf property in any case. The learned counsel for the appellant has said nothing to challenge this finding before me. It appears that this property was allotted to Badar Din and his brothers (Annexures R. 1, R. 2 and R. 3), on the basis of their own verified claims in lieu of the land abandoned by them in India. This does not seem to have any connection with the properties enumerated in the will in question. I, therefore, agree with the learned lower Court in holding that this item of the property could in no case be considered to be Wakf property.

18. For the reasons discussed above, I see no force in any of these four appeals. They are, therefore, dismissed with costs. K. M. A. Appeals dismissed.