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First Appeal from Order No. 128 of 1963, decided on 5th May 1966.

--Muslim creating by will life estate for benefit of wife reserving remainder for charity‑Will Invalid for want of assent of other heirs of testator‑Bequest to charity also fails.

Wilson's Anglo Muhammadan Law, 3rd Edn. p. 304, Art. 273; Mulla on "Principles of Muhammadan Law", 15th Edn., p. 116; Tyabji's Muhammadan Law, 3rd Edn., para. 596 Muhammad Naqi v. Mst. Begum Jan and others P L D 1965 Lah. 337 ; Cassamally Jairabhal Peerbhai v. Sir Currimbhoy Ebrahim and others I L R (1912) 36 Bom. 214 ; Haji Muhammad Shaft and others v. Khadim Ali A I R 1944 Oudh 291; Agha Ali Khan and another v. Altaf Hasan Khan and another I L R (1892) 14 All. 429 and Baqar Ali Khan v. Anjuman Ara Begum and another I L R (1903) 25 All. 236 rel.

‑ Testamentary wakf under Muslim Law‑Must be operative from death of testator. The rigours of the essentials of a valid Wakf have been mollified a 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 applica tion to testamentary dedication. Like all other Wakfs under Muhammadan Law, a testamentary disposition to Wakf 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.

Mst. All Begum and others v. Badr‑ul‑Islam A I R 1938 P C 184 rel.

S. 2(d), Explanation 2‑Wakf property‑Property allotted in lieu of Wakf property abandoned in India can be termed as Wakf property.

Dilawar Mahmood for Appellant.

Abid Hussain and Sh. Iftikhar Ali for Respondent.

Dates of hearing : 21st and 22nd March 1966.

This judgment will dispose of four connected F. A. O. No. 125 of 1963, F. A. O. No. 126 of 1963, F. A. O. No. 127 of 1963 and F. A. O. No. 128 of 1963 which are directed against the order passed by the District Judge. Lahore, on the 30th of September 1963 in the proceedings under section 7 of the West Pakistan Waqf Properties Ordinance, 1961.

2. The admitted or proved facts in brief are these: Pir Ahmad Ali Khan, son of Pir Abbas Khan, caste Pathan, resident of Ferozepur City (India), owned considerable landed properties situated in Revenue Estates of Ferozepur, Shah Din Wala, Bareki, Tehsil and District Ferozepur. He was also possessed of urban properties in Ferozepur and five houses at Kasur. On the 30th of March 1897 he executed a will (copy Exh. P. 5/8) in respect of the properties belonging to him. Thereby he devised that his widow Mst. Bubu Zohra shall succeed to him as a limited owner and after her death his properties mentioned in the will shall be the properties of the then Government, who shall manage the affairs thereof and apply their income in supplying the pilgrims with the travelling expenses and widow, orphans and famine- stricken people with maintenance, so that the noble deed might result in spiritual welfare of the testator and his ancestors. Pir Ahmad Ali Khan died on the 25th of October 1897 and Mst. Bubu Zohra, then, obtained the probate in respect of the will. Mst. Sahib Jan claiming to be a widow of the deceased brought a suit against Mst. Babu Zohra and another for recovery of Rs. 60,000 as the dower due to her from his estate. This suit was decreed by the first Court and Mst. Bubu Zohra went up in appeal against that decision before the then Chief Court of Punjab. In the course of the appeal the two ladies arrived at a compromise which was registered on the 22nd of March 1906. They agreed that Mst Sahib Jan shall be entitled to the possession of 2/5th share in the immovable properties left by the late Pir Ahmad Ali Khan and Mst. Bubu Zohra to the remaining 3/5th share thereof in absolute ownership, in lieu of their dowers of Rs. 60,000 and Rs. 80,000 respectively. This compromise between them was attested through the District Judge, Ferozepur and was sanctioned by the Division Bench of the Chief Court on the 18th of October 1906. As a result of this compromise the appeal filed by Mst. Bubu Zohra was accepted and a fresh decree was drawn up by the Chief Court in terms of the razinama between them. Some other suits which were at the time pending between them about the inheritance to the estate left by Ahmad Ali Khan were withdrawn in pursuance to this compromise. It appears that the two ladies stuck to the compromise and effect was given to it in the relevant revenue records as well. Soon afterwards on the 9th of January 1907, Pir Rehmat Ali Khan, a first cousin of Pir Ahmad Ali Khan, instituted a suit in the Civil Court for a declaration that the alienation by the deed of 22nd of March 1906 aforesaid, was void and shall not affect his reversionary rights after the death of Mst. Bubu Zohra. The suit of the plaintiff was dismissed by the trial Court on the 18th of May 1908. However, he went up in appeal, against that decision, which was accepted by the Chief Court of Punjab on the 22nd of May 1911. A certified copy of this judgment is Exh. P. W. 5/5. This is also reported in (1912) 13 P L R 489. The Chief Court had held that the razinama which virtually amounted to a sale of the estate by Mst. Bubu Zohra, the administratorix in favour of Mst. Sahib Jan was not effected with the previous permission of the District Judge and the transfer was voidable at the instance of the plaintiff under section 90 of the Probate Act, 1881. The Chief Court further found that there was absolutely no proof that in the matter of wills the Pathans of Ferozepur follow agricultural custom and the will by Pir Ahmad Ali Khan in favour of one of the heirs to the complete exclusion of the other heirs was invalid except with the consent of the heirs under Muhammadan Law. In the result the Chief Court granted the declaration to Pir Rehmat Ali Khan for which he bad sued. Even after this decision by the Chief Court of the Punjab, both the ladies continued to hold the estate left by Pir Ahmad Ali Khan until on account of the disturbances of 1947 they had to abandon Ferozepur (India). In Pakistan agricultural lands were allotted and confirmed in their names in lieu of the lands held by them in India. Mst. Bubu Zohra died on the 19th of October 1959 and Mst. Sahib Jan died about a month afterwards in November 1959 in Pakistan. Once again the disputes arose between the different claimants to the estate which originally belonged to Pir Ahmad Ali Khan and had devolved in the manner narrated above.

3. Meanwhile by Notification No. 3 (51)‑Auqaf‑62 dated the 29th of August 1962, the Chief Administrator of Auqaf, West Pakistan in exercise of the powers conferred on him by section 6 of the West Pakistan Waqf Properties Ordinance, 1961 assumed the administration and took over the control, management and maintenance of the properties described in the schedule annexed thereto. This included agricultural lands situated in the revenue estates of Khara, Kotli Rai Abu Bakar, Raja Jang, Bhelah Hithar, Lulyani, Kasur and Chak No. 43/3, Okara allotted and confirmed to the right‑holders in lieu of the abandoned lands allegedly dedicated by Pir Ahmad Ali Khan under his aforementioned will. The notification further included the five houses situated in Kasur left by Pir Ahmad Ali Khan and the verified claim, for Rs. 2,91,308.00, in respect of the urban immovable properties at Ferozepur dedicated by him under his will. This claim was verified in the names of Badar Din Khan, Qutab Din Khan, Daulat Khan, sons of Pir Rehmat Khan, etc.

4. This has led to four separate applications, by the respective claimants to the estate in dispute mentioned in the notification under section 7 of the West Pakistan Waqf Properties Ordinance, 1961 in the Court of the District Judge, Lahore, for declaration that these properties were not waqf.

(i) Petition No. 19 of 1962 was moved by Badar‑ud‑Din Khan, Qutab Din Khan, Daulat Khan, sons and Mst. Bubu Sahiban, daughter of the said Pir Rehmat Ali Khan, who has in the meantime died. Their case is that the will made by Pir Ahmad Ali Khan was wholly void and ineffective and they were entitled under law to inherit the estate left by him which was not Waqf. They have further alleged that agricultural land measuring 324 kanals 16 marlas situated in the estate of Chak No. 43/3‑R, Tehsil Okara described in para. No. 2 of the Schedule attached to the impugned notification was not Waqf. It was allotted to them in lieu of the private property inherited by them in India from their father Pir Rehmat Ali Khan and it has nothing to do with the estate left by Pir Ahmad Ali Khan. They have asserted that none of the properties left by Pir Ahmad Ali Khan was lawfully dedicated to Waqf. They claim to hold 3/4th share under Muhammadan Law in the estate left by the testator and likewise in the properties allotted in lieu thereof in Pakistan.

(ii) Petition No. 23 of 1962 was filed by Khan Muhammad Sher Nawaz Khan, a brother of Mst. Sahib Jan. He has denied that Pir Ahmad Ali Khan deceased had made any valid Waqf in respect of the properties belonging to him. He relies on the compromise decree passed by the then Chief Court of Punjab on the 18th of October 1906 under which Mst. Sahib Jan was found to be entitled to the 2/5th share in the estate left by Pir Ahmad Ali Khan. Subsequently on the 28th of January 1907 Mst. Sahib Jan sold a portion of the land held by her under the compromise to the petitioner and his brother Khan Muhammad Nawaz Khan for valuable consideration. They entered upon the possession of the land purchased by them. After his migration to Pakistan, agricultural land equivalent to his share of 5,312 units comprised in Khatooni No. 25, situated in the estate of Bela Hithar was allotted to him, in lieu of the land abandoned by him in India. Similarly 657 kanals 14 marlas comprised in Khatooni Nos. 128 and 129 situated in the estate of Luliani, Tehsil Kasur, District Lahore, was confirmed in the names of the sons of his elder brother who had died in the meantime in lieu of their verified share in the land thus abandoned by their father in India. The petitioner has also alleged in his application that the land comprised in Khatooni No. 22, situated in the estate of Bela Hithar included in the notification under question was confirmed to him in his own right in lieu of the land abandoned by him in villages Mukham Bhatti and Ghododoo, Tehsil and District Ferozepur. The petitioner has also claimed that as the brother of Mst. Sahib Jan he was entitled to succeed to the remaining properties In dispute left by her.

(iii) The third Petition No. 21 of 1962 was moved by Abdul Aziz Khan and Ahmad Nawaz Khan, sons of Muhammad Nawaz Khan the other brother of Sahib Jan. Their claim rests on the basis of the sale effected by Mst. Sahib Jan in favour of her two brothers in respect of the part of the estate which devolved on her under the compromise decree passed by the Chief Court of Punjab. They maintain that the alleged will by Pir Ahmad Ali Khan was declared to be invalid on the suit brought by Pir Rehmat Ali Khan as a reversioner, and it was of no legal effect.

(iv) Petition No. 25 of 1962 was by Hamiday Khan, the son of Sadiq Muhammad Khan deceased, the brother of Mst. Bubu Zohra. His case is that Mst. Bubu Zohra was the only surviving widow of Pir Ahmad Ali Khan and had divorced his other wife, Mst. Sahib Jan in his lifetime. He has preferred his claim to the entire estate as the sole heir of Mst. Bubu Zohra.

5. The allegations of the petitioners in all the four cases were controverted by the respondent, the Chief Administrator of Auqaf, West Pakistan. He has filed a separate written statement in each case contending that the property which is the subject- matter of the notification was Wakf property and its adminis tration, control and management was lawfully taken over by him. He has relied on the will made by the late Pir Ahmad Ali Khan on the 30th of March 1897 in support of the dedication. He has further averred that the compromise and the decree based thereon passed in the suit brought by Sahib Jan had been set aside and were altogether ineffective. Mst. Bubu Zohra bad merely a limited interest for life in the estate left by deceased and she was not competent to dispose of the property which came to her hands on the death of her husband.

6. On the 17th of October 1962, the learned District Judge, Lahore, consolidated all the four petitions and recorded the evidence of the parties together in petition No. 19, Badar‑ud‑Din Khan and others v. the Chief Administrator Auqaf. In course of time the learned District Judge, Lahore, framed the following issues, common to all the cases, arising out of the pleadings of the parties before him:

(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.

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