LexPUNJAB WAKF BOARD versus SHAKUR MASIH
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A B c PUNJAB WAKF BOARD v. SHAKUR MASIH OCTOBER 1, 1996 [K. RAMASWAMY AND G.B. PATTANAIK, JJ.) Mohammedan Law: Mussa/man Wakf Validating Act, 1913: s.3: Wakf-Continge11t wakf-Testator executing a will bequeathing all his properties i11 favour of his deceased so11's mother-in-law with a note that after her death the property would become wakf ai1d the income therefrom would be spent for maintena11ce of the Mosque-Held, a disposition by way of will give11 in future or subject to the contingency or conditional one is void under D Mohammedan Law-The bequest creating a wakf conti11gent upon the /if etime of the donee is invalid and contingent wakf is not valid wakf. Aamjad Khan v. Ashraf Khan & Ors., AIR (1929) PC 149; Rasoolbibi v. Yusuf Ajam Piperdi, AIR (1933) Born. 324; Bai Saroobai v. Hussei11 Somji & Ors., AIR (1936) Born. 330 and MT. Mehrai Begum v. Din Mohammad, E AIR (1937) Lahore 669, referred to. "Mui/a Plinciples of Mohammedan. Law'~ Nineteenth Edn. Edited by M. Hidayatullah, ss. 174, 176 and 191, referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8225 of F 1996. G From the Judgment and Order dated 16.3.94 of the Himachal Pradesh High Court in R.S.A. No. 97 of 1983. A. Sharan, Irshad Ahmad and Arvind K. Shukla for the Appellant. Seeraj Bagga for Mrs. S. Bagga for the Respondent. The following Order of the Court was delivered : This appeal by special leave arises from the judgment of the learned H single Judge of the High Court of Himachal Pradesh, Shimla made on 148 - PB. WAKFBD. v. SHAKUR MASIH 149 March 16, 1994 in RSA No. 97/93. The admitted facts are that Najaf Khan was the owner of the proper- ties, namely, houses and shops situafed in Jutog. He had executed a Will on August 29, 1949 bequeathing all his properties to his son's mother-in- law, namely, Smt. Musamat 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 and the inconie 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 A B c 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 D 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 Mohammedan Law, Nineteenth Edition edited by M. Hidayatullah, former Chief Justice of this Court, it is E stated that a wakf means permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mus- salman law as religious, pious or charitable. Under Section 174, the dedica- tion must be permanent. Under Section 176, the subject of wakf must belong to the wakif, namely, the property dedicated by way of wakf must belong to the wakif (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 F 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 contin- gency under the Mohammedan law would affe.ct such disposition, and the G 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 seen valid under the original law, but it does not abrogate the rule of contingency under the Mohammedan Law. H A B c D 150 SUPREME COURT REPORTS [_1996) SUPP. 7 S.C.R. 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 has 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
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