Punjab Wakf Board Vs. Shakur Masih 
INSC 1232 (1 October
O R D
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.
admitted facts are that Najaf Khan was the owner of the properties, namely,
houses and shops situated in Jutog.
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:
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.
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 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 .
Will, the testator has stated as under :
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.
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
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 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
appeal is accordingly dismissed. No costs.