Hussain Bin Ali and Others vs Salah Bin Ahmed and Others

Saidat Ali Khan, J.—In this suit for account and injuncatioon the four Plaintiffs have sued their grandfatner, Salan Bin Anmed, with some other relatives. They allege that Salah Bin Ahmed has dedicated certain properties by two valid deeds of Wakf dated 16th Parwardy 1346 F. and 5th Khurdad 1351 F; that these deeds are deeds of WAKF-ALAL-AULAD conferring on them the right to the usufruct of the property; that the grand-father is not allowing them to derive any benefit from the properties; that, on the other hand, he is thinking of alienating them and, therefore he should be restrained by an injunction from alienating the property and compelled to account for its usufruct: and when this is done they should be awarded their share. In reply the Defendants have denied that the abovementioned deeds were deeds of WAKF-ALAL-AULAD. They allege that the deeds were mere wills and have been revoked by their author. The following issues were framed by my predecessor on 13th Dai 1359 F. corresponding to 13-11-1949 A. D.

Whether the suit is maintainable without the sanction of the Prime Minister, H. E. H. the Nizam''s Government:

Whether the valuation of the suit is correct and proper Court-fees have been paid.

Whether the Plaintiffs have any right of action.

Are not deeds dated 16th Farwardy 1346 F. and 5th Khurdad 1351 F. Wakfnamas but are wills and are, therefore, unenforceable during the lifetime of the Defendant;

Whether Defendant 1 can revoke the deeds dated 16th Farwardy 134C F. and 5th Khurdad 1351 F and whether they have been cancelled because of his revoking them;

Whether having regard to the content of the deeds the Plaintiffs have any right to account and whether the Plaintiffs can get during the lifetime of Defendant 1 any money by demanding statement of account;

Whether the houses mentioned in lists B and C were purchased or taken on mortgage by Defendant 1 from the income of the endowed property and as such this property comes within the meaning of endowed pro perty;

Whether the document dated 5th Khurdad 1351 F. was executed during the illness of Defendant 1 when he had despaired of life;

Whether the income of the endowed property as detailed in para. 5 of the plaint is cor rect; and

To what further relief are the Plaintiffs entitled?

The Defendants have adduced five witnesses including Defendant 1 and the Plaintiffs have adduced four witnesses including the Plaintiff Hussain Bin Ali. Of the five witnesses of the Defendants three were experts of Shafei Law about which my predecessor held on 11-7-1950 A. D. that they were unnecessary witnesses and as such their cross-examination was not required. The 4th witness Mohd. Ali is a Medical Officer and he has deposed that Defendant 1 was admitted into the Osmania Hospital on 13-4-1952 and discharged on 30-4-1942. Of the nine issues one has been decided on 17-1-51. The case was ably argued by the learned advocates of the parties, and the only question on which they laid emphasis was whether having regard to the tenets of the Shafei Law the Wakfs are valid. It is admitted that the parties follow the Shafei Law. As already stated, the case was well argued and reference to over 70 original books of highest legal authority on Shafei Law was given by the parties; in addition, a large number of cases decided .by the Indian High Courts were also cited. I have perused the original Arabic books referred to and also the Case Law and studied the whole question in the light of the record and state my opinion below.

The learned advocate for the Defendants has argued the following four points:

The object of the Wakf is benefit to the poor but here the property was bestowed upon the family to the exclusion of the poor and, therefore, the alleged Wakf is invalid;

That in Shafei Law it is necessary that all the beneficiaries should accept the Wakf; that here there was no such acceptance nor even an. offer and hence the alleged Wakfs are invalid;

That the enforcement of the Wakfs have been made contingent on the death of the Wakif, that is, Defendant 1; for the income of the endowed property has been bestowed upon the family after the death of the donor and, therefore, the Wakfs here are similar to a will entailing the power of revocation; and

That if the power of revocation is reserved in a deed of Wakf, the Wakf becomes void; and as such a power is reserved in the documents under consideration the Wakfs are void.

As this case has been much contested, it will be advisable to translate the operative portions and important recitals of the two deeds under consideration, which are Exs. A-5 and A-6.

Ex. A-5 is headed as ''Wakfnama'' and runs as follows:

I, Salah Bin Ahmed Mohsin Lahamdi, resident of Chatta Bazaar adjacent to Nawab Salar Jung''s Devdi, Jamadar of Arabs, write in full possession of reason and senses and without force of coercion and of my own free-will and volition that, the following two houses which are my own property to the exclusion of any body else and which are in my full possession and disposal....(here comes the description of the two houses).... and the lands adjacent to them are hereby dedicated as WAKF-ALAL-AULAD in accordance with the Moslem Law and in the path of God. The income of the endowed houses and the land should be spent first in the maintenance of the houses and the land and the residue should be spent upon the subjects of the Wakf. Subjects of the Wakf.

Living sons:

(l) Ewaz Bin Salah, (2) Mohd. Bin Salah, (3) Ahmed Bin Salah; and (4) sons of the deceased sons Umar Bin Salah and Ali Bin Salah and their sons and the issues of all of them, generation after generation, as long as they exist and whether they remain in Hyderabad (Deccan) or Hazarmouth or any other place. All the sons should get equal shares, i.e. l/5th each of the residue of the income of the endowed property which will devolve after them upon their male and female issues in the proportion of 2 shares to male and 1 share to female; but the issues of the daughters will not get any share in the endowed property. Of my aforesaid sons, if any of them dies without any issue, his share will devolve upon the other sons. This Wakf property will be endowment upon my sons and their issues; and nobody clse will have any right in it.

''Towliath (Supervision)'': The supervision of this endowed property will pertain to the sniormost among my sons and issucs who would reside in Hyderabad provided that their conduct, integrity, trustworthiness and bona fides is admitted and, when they leave Hydera bad they will have power to appoint any trustworthy person as Agent and to entrust him with the administration of the work as also with the repair and maintenance, etc, of the endowed property.

''Control of the endowed property'': Every person from the subjects of the Wakf shall have the right to demand accounts of the income of the endowed property and check and audit them whenever he likes whether the Mutavalli may be from the sons or a stranger. On the above conditions I have endowed the aforesaid property on my sons and their issues till they remain, as a valid legal and perpetual Wakf so that the property will not be sold or given in gift or transferred and nobody can be its owner. Thus dedicating the property with all the legal and Sharai conditions on the aforesaid sons, I, myself, as long as I live, will keep it in my possession and disposal and will be its Superintendent and Mutavalli and after my demise the supervision and the distribution of the income, etc. may be arranged in the manner described above.

NOTE: If in my lifetime I do not build the dilapidated house on the east of the endowed house No. 6901, adjacent to Nawab Salar Jung Baradari, then, out of my estate, before it is distributed, Rs. 10,000/ should be set apart and the house built up by the Mutavalli and Exe cutor; and as to the rest of the estate it will be the bounden duty of my Sharers (heirs) to abide by the directions of God and Prophet and my will which is now made or which may be made in future. I have written these few words as Wakfnama before all the persons present so that it may be of authority in future. God suffices us.

Dated: 16th Farwardy 1346 F.

NOTE: The will which I have made separately or which I may make in future will have to be acted upon by the subjects of the Wakf.

Sd. Salah Bin Ahmed.

''Witnesses'':

(four in number)

The Wakfnama of 5th Khurdad 1351 P. is in exactly the same words as the Wakfnama I have described above, except that, instead of two houses five houses have been dedicated in it Exactly the same words have been used in the latter Wakfnama upto the note ending "will have to be acted upon by the subjects of the Wakf

then an explanation is added which runs as follows:

It may be explained that out of the houses I have dedicated by my Wakfnama dated 15th Farwardy 1346 P. one house situate inside Delhi Darwaza has been taken over by. the C. I.B. for public purposes, and that I have purchased in its place houses Nos. 6717 and 6718 situate in Hyderguda and also two more houses Nos 114/97/8B and 115/97/7B in Mukharab Gunj street and have dedicated all these houses and written this Wakfnama. I have given Toliath of this Wakfnama comprising the houses men tioned previously and specified here to my son Ahmed Bin Salah as he is most suitable and, therefore, as stated above he should after my demise act as Mutavalli of the endowed pro perty till he lives and after him the person who would be suitable.

Dated: 5th Kurdad 1351 F.

Sd. Salah Bin Ahmed.

''Witnesses'':

(four in number)

The real question is the interpretation of these Wakfnamas so as to judge their validity; and the four points made by the learned advocate for the Defendants invite attention to some of the important points involved in their interpre tation. Thus point No. (1) is that as no benefit has been reserved for the poor, the Wakfs under consideration cannot be deemed to be valid; for whether before the Mussalman Wakf Validating Act of 1913 or after it, it has been almost unanimously held by all the Indian High Courts that for a valid Wakf an ultimate gift: to charity should expressly or impliedly be given; otherwise the Wakf cannot be deemed to be valid. No doubt as held by the eminent judge, the late Amir Ali, in 20 Cal 128 (A), the more use of the word ''Wakf implies an ultimate gift to the poor and endowment in favour of one''s family is also regarded in Muslim Law as charity; but this view has not prevailed and the High Courts of Irfan Ali and Others Vs. Official Receiver and Others, , Mt. Ruqia Begam and Others Vs. L. Suraj Mal and Others, ; Masuda Khatun Bibi Vs. Mahomed Ebrahim, ; Mahammad Ali Vs. Dinesh Chandra Roy Choudhury and Others, and Oudh Sheikh Ramzan v. Rahmani AIR 1932 Oudh 71 (F); have held that no ultimate gift to charity can be deemed to be implied, where none is named, from the mere use of the word ''Wakf''. The Privy Council has also taken a similar view. AIR 1932 81 (Privy Council) . In the Wakf under consideration, there is not only no express limitation in favour of the poor, but there is also no implied reservation, as the Wakif has expressly stated ''the Wakf property will be endowment upon my sons and their issues; and nobody else will have any right in it. Thus having regard to the Indian decisions the Wakf documents cannot be deemed to be valid. But there appear to be other considerations: the parties are governed by the Shafei Law & in all the numerous works of highest authority cited by both the parties, Wakf-Alal-Aulad simpliciter is recognized as perfectly valid. None of these authorities make any mention of an express or implied ultimate gift to the poor and they (Faiz-it-Ilah-Malik by As-Sayeed Omar Barakar Vol. II p. 100, Al-Mughni-ul-Muhtaj, by Allahmah Sherbaini, Vol. II, p. 368; These autho rities show that if a property is dedicated on Zaid, and nothing further is said after Zaid it will be Wakf on the poor.) endorse the view that on failure of issue the poor will become the beneficiaries. This Court in 34 Deccan LR 412 (H) at p. 414 took similar view. This suit was instituted in Farwardy 1358 P. corresponding to February 1949 A. D.; that is about a year before the advent of the Constitution. Numerous Acts of the Central Government have been extended to Part B States by the Part B states (Laws) Act of 1951 and otherwise; but the Mussalman Wakf Validating Act of 1913 does not figure in any of such extending enactments. Thus, it appears to me, that the law applicable to the parties to this suit will be the pure Shafei Law, and having regard to it I cannot hold that the Wakf docu ments under consideration are invalid because of omission in them of any ultimate gift to the poor whether express or implied. In the result, this argument of the learned advocate for the defen dant is rejected.

The learned advocate for the Defendants laid great emphasis on his second point and it is in his argument on it that he has cited most of the original Arabic authorities, a reference to some of them will be found in the margin.(Kilabul-Umm by Imam Shafei. Vol. Ill, p. 274. Fathul-Jawwad a commentary on Irshad by Imam Sharfuddin, p. 482 Farwaid Mukkiah by Allamh Syed ''Alwi p. 41, (1317) A. H. Edition at Mecca); Gaijure''s commentary on Minhaj; Bag-Yatul-Mu-sturshidin by Mohd. Abdur Rahman, known as ''Alvi; Imam Zakaria Ansari''s commentary on Ibnul. Wardi''s Albahat; Syed Omar Barakat''s Faiz-il-Ilahil-Malik; Shcrbaini''s Al-Mughni-ul Muhtaj; Minhaj''s commentary Nihayatul-Muhtaj; Commentary of Abdul Hained Shcrwani Tahfatul Muhtaj (itself a commentary of Nuwi''s Minhaj); Mugni-ul-Muhtaj, a commentary of Minhaj; Ki tabul-Anwar by Imam Yusuf Al-arad-baili; Su laiman Bai-Irami''s commentary on Minhaj-ut-Tullab; Kitab-ur-Rahmatul Ganiyal by Ibn Ha-jar; Imam Zakaria Rawza-ut-Talabir; Syed Alvi-ul-Sakkaj''s Fathul-Mubean); (Minhaj''s commentary Tahfatul-Muhtaj; Minhaj-ul-Tullab''s commentary, Fathul-Wahhab; Minhaj commentary Nihayat-ul-Muhtaj; Irshad''s commentary Fathul Jawad by Ibn Hajar; Imam Safei''s Umm; Abu Ishak Shirazi''s Kitabul-Mohazzab)

He has argued that according to Shafei Law, acceptance of the Wakf is necessary when the Wakf is in favour of a speci fied person or persons: that the accep tance should be just after the utterance of the v/ords creating the Wakf and should be by all the persons on whom the endowment is made. I have carefully checked these statements and I do not agree with them. The founder of the Shafei School of Muslim Law, Imam Shafei, himself has stated in his work UMM that Wakf is among those transactions which are unilaterally complete as soon as the words making these tran sactions are uttered. This clearly rules out acceptance; but then it is said that if his two eminent disciples, viz., Imam Rafei and Imam Nuwi are agreed upon any point, they are to be followed in preference to what Imam Shafei is re ported to have said as they, being eminent lawyers and greatly conversant with Imam Shafei''s works and reasoning, are eminently fitted to say what really Shafei has said. Granting even this the texts do not uniformly show that Rafei and Nuwi are agreed on acceptance being a condition for the validity of a Wakf. They show that according to the accepted report only Rafei has laid it down as a condition, while Nuwi has agreed with him in his work Minhaj, but differed from him in his work known as Rowza. And it is agreed that if there are divergent views on any question of law in the various works of Nuwi, then the views expressed in Rowza are to be preferred to those expressed in Minhaj. To detract from the weight of this diver gence between Rafei & Nuwi it is argued that though acceptance is not made a condition of the validity of the Wakf in Rowza, still the chapter in which Nuwi has expressed himself thus is the chapter on theft, whereas he has made acceptance a condition in Minhaj in the relevant chapter on Wakf; and therefore, Minhaj is to be preferred in this particular case. It is not necessary for me to decide between these rules of preference: suffice it to say that not only many later Jurists have come to the conclusion that acceptance is not a condition of the validity of Wakf, but that they have also scrutinised the grounds of both the divergent views. I will first quote one or two Arabic texts to show that acceptance is not a condition and then a text or two in which the grounds for the divergent views are staled. Thus it is stated in Fathul-Wahab, a commentary on MinhaJ-ut-Tullab, Vol. I p. 292 that:

Conditions, for the validity of Wakfs are permanence and the dedication being absolute and unconditional; acceptance even from a specified person is not a condition; lor a Wakfs made with the intention of seeking nearness to God. What I have stated above about a spe cified person is reported from the majority and it has been preferred and adopted in Rowza in the chapter on theft, and also in the commen tary on Wasit where it is based on the autnority of a text of Shafei; & Awzae and others have stated also that that is the accepted view. It is stated also that acceptance is made a condition from a specified person for the reason that it (Wakf) is, conferring of ownership; and this was the original view.

In Fathul-Jawad, a commentary on Sharhul-Ir-shad at'' p. 460; after stating that acceptance is a condition for the validity of Wakf on the authority of Minhaj, it is stated further that:

In Rowza, in chapter on theft (non-acceptance and) non-rejection (by beneficiaries) is preferred and it is stated further that condition for the validity of Wakf is that it should not be rejected by beneficiaries; and it is this view for a long time; and the authority for it is that it is based on a text (of Shafei) and adopted by a vast majority.

The reasons for making acceptance a condition are stated to be as follows, viz., that where the beneficiaries are specified persons, accept ance is easy and possible; that it is difficult to hold that a thing or its usufruct can pass into the ownership of a beneficiary without his consent when it is not a case of inheritance. These grounds are considered and replied to in Nihaya-tul-Muhtaj, a commentary on Minhaj Vol. IV, p. 294 in the following words:

that is:

It is said that a Wakf is the ownership of usufruct and not of the property; but the better view is that in a Wakf not ownership passes to the beneficiaries; only as Subki has stated and explained the use is made lawful: he has said that no agreement or acceptance of a Wakf is necessary; for the beneficiary does not own the usufruct by any act of the person creating the Wakf; really he allows the use thereof for the sake of God.

The abovementioned reasons for acceptance being necessary for the validity of a Wakf or not speak for themselves and no comment is requir ed. I am satisfied that though there is a difference of opinion in the learned of the Shafei School as to whether acceptance is a condition of Wakf or not the true position is as stated by Subki in the following words at p. 368 of Mughni-ul-Muhtaj by Allama Sherbaini, Vol. II. viz:

that what is gathered from the language of Shafel and his followers is that they do not make acceptance a condition (for the validity of Wakf).

The same author Subki is reported in the same book just quoted to have further stated that:

and this (non-acceptance) is evident from texts of shafei in other places (in chapters other than the chapter on Wakf); and accepted and preferred by Sheik Abu Hamid, Salim and Mawardi, as also by the author (Nuwi) in Rowza in the chapter on theft; and he (Nuwi) has reported it in Wasit also from Shafei; Ibn Salah has also adopted and preferred this view; and our Sheik is also of the same opinion in his Munhaj and in Al Mohemmet, and (perhaps) Rafei''s view also is agreeable with this.

And lastly it is elucidated in Kitabul-Anwar by Imam Vusuf Ai-Araobaili, vol. 1, p. 414 a work of mgn authority that:

originahy this (acceptance) was made a condition of the validity of Wakf as is reported in Minhaj; but later on this view was correct ed by Imam Shaiei and others.

All this will show that according to Shafei School acceptance cannot be deemed to be a condition of the validity of Wakf, and I hold the same. As suming for the sake of argument that it is a condition, the evidence of the Plaintiffs show that it was accepted by all the grandsons and that both the surviving sons of the Wakif were also then present. It is true that according to the tenets of Shafei School, no inference is usually drawn from mere silence; but in the circumstances of the Wakf under consideration when their father was creating a Wakf by which the sons of two of his deceased sons disinherited according to Muslim Law were getting a share equal to them, they should have spoken; and if they did not speak, the only conclusion is that they accepted the Wakf. As the learned advocate for the Defendants has not adduced any evidence to rebut this evidence of the Plaintiffs, I must attach credence to it.

In this second argument of his, the learned advocate for the Defendants has also stated that there was no offer of a Wakf and therefore no acceptance. I will consider this after dealing with his argument at serial (3) of para. 2 of this judgment.

In my opinion the most important point made by the learned advocate for the Defendants is about the Wakf being contingent. This I have numbered as serial (3) of para 2 of this Judgment. Briefly the argument is that as Defendant 1 has withheld the usufruct from the use and enjoyment of the beneficiaries till after his death, the Wakf is a contingent Wakf and one of its incidences is that it can be revoked like a will. First I will examine the Shafei Law on this point and then see whether in the Wakf-deeds under con sideration, the Wakf is made contingent on Defendant 1''s death, I began by quoting from the commentary of Imam Zakaria Ansari, on the text Al-Bahjat of Ibn-ul-wardi, where on p. 272 it is stated that:

there are four conditions for the validity of a Wakf viz., (1) statement of the use, (2) making it absolute & unconditional (3) perpetuity & perfomance & (4) making it binding. A Wakf can only be valid if it is absolute and unconditional: thus a Wakf like a gift cannot be deemed to be valid if it is made contingent (e.g., when the doner says .''I dedicate my house when the beginning of the next month comes'' but If he were to say I dedicate my house to the poor after my death, Al Ustad Abu Ishaq held in a Fatwa that the Wakf is valid and it becomes opera tive alter his death like the manumission of a slave whose enfranchisement has been agreed to. All the learned and the Imams have agreed with him and Rafei has stated this Wakf Is like a will; for Kaffal has stated that If the Wakif puts the property endowed in this manner to sale it will be deemed that he has revoked the Wakf. And the Imam (Ibnul Wardi) has said that this is not simply making the Wakf contingent but it is more than that, for the disposal of the proper ty is ordained in it to be alter death. Subki has stated that what Shafei and his followers are at one is that such a Wakf is valid and this is also the Fatwa of Ustad Abu Ishaq. This statement of the Imam (Ibn-ul-Wardi) that the Wakf here is contingent is correct; but it should be noted that in a will the devo lution of property is validly made contingent on death, hence it can also be valid in a Wakf.

And it is stated in Bagyatul Mustarhashaddin by Mufti Abdul'' Rahman Ibn Mohd., known as at p. 192 in question No. 10:

A Wakf cannot be made, contingent; for example, if a donor says ''I dedicate my house three days before my death-sickness; the Wakf cannot be valid; but there are two exceptions to the invalidity of a contingent Wakf; one is where the Wakf is for public purposes and expressly stated to be so; for the agreed reason that in such a case the ownership of the endowed property like mosques and schools in God; thus such a contingent Wakf is valid absolutely; secondly when a Wakf is made contingent upon death as when the donor says ''I dedicate my house after my death'' or when he says "when I die my house is a Wakf, the Wakf will be valid and will take effect after death. By consensus of opinion it will go the way of a will, inasmuch as it will be liable to revocation and will be valid to the extent of a third of the donor''s estate only, and in case it is made in favour of an heir the consent of the other heirs will be necessary; in all other respects it will go the way of a Wakf and it will be governed by the rules pertaining to the Wakf.

In Vol. Ill of commentary Allamah Sulaimanul Baijrami on commentary of Manhajutullab p. 206 it is stated that:

a condition for the validity of a Wakf is perpetuity and therefore, it will be invalid if it were timed, as when a donor says ''I have dedicated it on ''Zaid for an year''; and another condition is Tanj is, that is, the Wakf should be unconditional and absolute and, therefore, if it were made contingent as when a donor says T dedicate it on Zaid when the beginning of the next month comes it would be invalid. But if a Wakf is made contingent on death, it is valid, as when a donor says ''I dedicate any house after my death on the poor''. Both the Sheikhs (Rafei and Nuwi) have stated that "it is like a will; as Kaffal nas said that if the house is put to sale, it will be deemed that the Wakf is revoked Zarkashi has related from Alkazi that ''if a donor were to make an unconditional Wakf but were to make the enjoyment of its usufruct contingent upon his death, the Wakf will be valid and will be like a tfi-13; and the donor will have the power of revocation; a similar proposition that it is like a will will be found in Sharhae Minha-Jutullab.

These quotations establish quite clearly that though it is a condition of the validity of the Wakf that the Wakf should be unconditional and absolute without being contingent upon any future event, still if it is made contingent upon death it is deem ed to be valid by Shafei and his followers including Rafei and Nuwi, It will be seen further that though such a Wakf is deemed to be valid, still it is regarded at least partially a will inasmuch as it can be revoked like a will, and like a will can only be enforced to the extent of a third of the donor''s property only and if it were in favour of an heir the consent of other heirs is required for its validity. In all the numerous books cited by the Plaintiffs no reference is given to any book or text which establishes a contrary view. The Fatwa filed by Liu! Plaintiffs and written by Al-Habib Abdullah Bin Ahmed of the Nizamia College also does not contain anything on Janjis of contingency of the Wakf. I am, therefore, persuaded that this state ment of law by the authorities quoted is the correct Khafoi Law.

Now I pass on to examine the two Wakf docu ments under consideration in the light of the above condition of Tanjis. No doubt, Defendant 1 has stated in so many express words that he has dedi cated his property in perpetuity and that it cannot be sold or given in gift or transferred and so forth in more than one place; yet the following portion of the deed requires careful consideration. It is found verbatim the same in both the deeds and it is as follows:

Thus dedicating the property with all the legal and Sharai conditions on the aforesaid sons, I myself as long as I live, will keep it in my posses sion and disposal and will be its Superintendent and Mutavalli ''and after my demise the super vision and the distribution of income etc., may be arranged in the manner described above

The first thing to consider about this passage is the Wakifs statement that he will keep the property in his possession and disposal as long as he lives. Is the possession and power of dis posal to be that of an absolute owner? There is no difficulty in answering this question, for not only he has stated in the lines just above this passage that there will be no owner of the property as it will be Wakf, but in the passage itself and just after the words under considera tion he has qualified his possession and power of disposal by stating that he will be the Superin tendent and Mutavalli of the property. The only conclusion from this, especially when it is considered in the light of the context of the whole of the deed wherein he has repeatedly declared the property to be Wakf is tljat, the possession and power of disposal reserved are those of a Mutavalli.

The next thing to consider is the effect o� the underlined (herein) words, viz., ''and after my demise the supervision and distribution of the income etc. may be .arranged in the manner described above''. The plain and impor tant question about this sentence is: � Has Defendant 1 made the usufruct contingent upon his death? If this question is answered in the affirmative the Wakf will be liable to revocation like a will and if it is answered in the negative, the Wakf will be binding and irrevocable. The question is of the intention of Defendant 1, and, bf course, I will have to gather it not only from the underlined (herein) sentence, but from the whole deed. The sentence taken by itself is almost liable to the construction that the gift of the usufruct is made contingent, almost but not quite; for the Urdu words used are ''IHTEMAM HOTA RAHIGA & not'' IHTEMAM HOGA: had he used the latter words, then the intention that the distribution of income etc. should be after his death will be stronger; but as he used the former words it appears to me that the intention is to refer to the ''continuity of the arrangements he has detailed and not to its contingent character. I cannot forget that the underlined (herein) sentence has come just after the passage in which he has described his possession and power of disposal to be that of a Mutavalli: and also after repeated declaration of Wakf in the deed.

It may also be noted that he has expressly re ferred to the income and usufruct in another place in the deed, where he has said that the income of the endowed houses shall first be used in their repair and maintenance and that the residue shall be distributed between the beneficiaries. Ml this, I think, goes to show that the intention was.to make.the Wakf binding and effective and not to make the usufruct contingent on death. the learned advocate for the Defendants has stressed that in both the Wakf deeds the last line s about the will of the Defendant being binding on the beneficiaries. I do not think that this las'' the effect of making the Wakf contingent: for the notes to the Wakf deeds show that Defendant 1 is treating the Wakf as separate from the will; he speaks of his Matruka along with the endowed property, and directs that Rs. 10,000/ should be taken out of the Matruka for construction and repair of the endowed house No. 6901, which is the first house endowed in the first Wakf deed Ex. A-6. The directive that his will shall be binding on the beneficiaries perains by express intendment not only to future vills but also to a present will co-existing with he Wakf: and this indicates that he does not regard them conflicting; and as he has spoken of his Matruka, it shows that he has other pro erty left, as in fact he has, after endowing he property specified in the two Wakf deeds: and that it was in respect of the Matruka that he wanted his behests to be binding on the beneficiaries.

Thus I do not think I will be justified ir egarding the last sentence of the deed as indiating an intention on the part of the donor that he Wakf deeds he has so solemnly made are here wills; and liable to revocation. The plain ruth of the matter is that if he had intended hat the Wakf deeds should have effect after his eath he should have stated that the houses specified in both the deeds shall be wakf after is death.. He has not done that. On the other and he has not only endowed the houses by sing express words of Wakf repeatedly but also xpressly stated that the income shali be distributed between the beneficiaries. Thus on very ireful consideration, I have come to the conclu on that the Wakf is not a contingent Wakf ad I, therefore, reject this argument also of the arned advocate for the Defendants. this judgment I have reserved for consideration the learned advocate for the Defendants'' jgument, that in the Wakf deeds under consiedration there is no offer of Wakfs and, therefore, here. cannot be any acceptance of them. What he means is that as the Wakfs were contingent and .hence. governed by the rules pertaining to ills, they were wills and not Wakfs. As I have now after careful consideration held that the "akfs are not contingent, this part of his rgument also falls to the ground and I reject it. he Wakf deeds contain all the conditions neces ry for the creation of Wakfs and are therefore seeds of Wakfs and not wills.

There remains the fourth point and argu ent of the learned advocate for the Defendants famely, that as a power of revocation has been served in the Wakf deeds, Exs. 5 and 6, these dcuments and the Wakf contained therein are said. I have dealt with this in the proceeding paragraphs and I do not think that the mere atement by Defendant 1 that the will he has ready made or the will that he may make in ture will be binding on the beneficiaries can didly be deemed to be a revocation of a very demply created Wakf. I, therefore, reject this argument also of the learned advocate for the Defendants.

In the light of the above findings I have to decide the various issues. As stated above issue No. 1 has already been decided by my predecessor. Issue No. 2 is about Courtfees, The learned advocate for the Defendants did not press the point; on the valuation stated in the plaint the Court-fees appear to be proper; and if in the accounts that would be taken in the preliminary decree, mere Court-fees will be found to be due, they will be realized. Issue No. 3 is "Whether the Plaintiffs have any right of action". In the light of the above findings they clearly have a right of action for a statement of accounts as also for a perpetual injunction to restrain the alienation of the Wakf property. I hold the same and decide this issue in favour of the Plaintiffs. Issue No. 4 is about the nature of the deeds dated 16th Farwardy 1346 P. and 5th Khurdad 1351 F. I hold that they are valid Wakf deeds and are enforceable during the lifetime of Defendant 1. Issue No. 5 is

Whether Defendant 1 can revoke the above mentioned two Wakf deeds and whether they have in fact been revoked and cancelled by Defendant 1.

In the light of the above findings, these Wakf deeds are not revocable and their cancellation by Defendant 1 is of no effect. Issue No. 6 is ''Whether the Plaintiffs have any right to account during the lifetime of Defendant 1''. I hold that they have, and decide this issue in favour of the Plaintiffs. Issue No. 8 is Whether the Wakf deed, dated 3th Khurdad 1351 F. was executed during the illness of Defendant 1 when he had des paired of life. The Defendants have adduced no evidence in respect of the seriousness of the ill ness of Defendant 1. Their witness No. 4, a medical attendant, has just stated that the Defendant was admitted into the hospital for about three weeks and was then discharged. He docs not depose to the seriousness of the illness or oven to the nature of the illness at all. It appears. from the evidence adduced on behalf of the Plaintiffs that he was suffering from Hernia and was always in full possession of his senses. I therefore, decide this issue againt the Defendants.. Issue No. 9 is as to whether the income of the endowed property as described in para. 5 of the plaint is correct. Sufficient materials to decide this issue is not brought on record and I, there fore, leave it to be decided later on after taking due evidence. There remains issue No. 7 which is

Whether the houses mentioned in lists B and C attached to the plaint were purchased and taken on mortgage by Defendant 1 from the income of the endowed property and are, therefore, endowed property?

The learned advocate for the Plaintiffs waxed eloquent on this point and argued that having regard to the Indian Trusts Act these houses should be regarded as Wakf property; for, they were purchased from the income of the houses expressly endowed in the two Wakf deeds and therefore, on the doctrine of ''following the trust property'' the Plaintiffs should be allowed to follow them. I do not agree with him. The Plaintiffs have not adduced sufficient evidence to show that these houses were purchased from the income of the endowed property. They have just stated that their grand-father, Defendant 1, used to speak like that; but that is not suffi cient. Defendant 1 has totally denied that he purchased these houses from the income of the endowed property. Section 1, Indian Trusts Act is quite clear and it states that ''Nothing here in contained affects the rules of Mohammadan Law as to "Wakfs". There are number of cases in which it has been held that the rules regulating trusts cannot be applied to Wakfs. Besides, according to Muslim and Shafei Law a property cannot be dedicated except by the use of certain words uttered with intention of creating the Wakf. There is no such evidence here and the donor himself has deposed that he did not dedicate these houses.I therefore, decide this issue against the Plaintiffs and hold that the houses mentioned in lists B & C cannot be followed as trust property. The Plaintiffs have a right to account to a 1/4 (one fourth) share of the income of the Wakf pro perty and nothing more. The last issue is to what furter. relief are the Plaintiffs entitled?'' X have already said that they arc entitled to the perpetual injunction prayed for and to a preliminary decree of accounts and I, therefore, direct that such a decree be passed and accounts be stated from the date of the Wakfs till the date of the suit and also of this Judgment.

Before I close I may refer briclly to the cases cited by the learned advocate for the defen dant like, the case in Mohammad Ali Khan Vs. Ahmad Ali Khan and Others, and AIR 1944 291 (Oudh) . These and similar cases cited by him bold that for a Wakf to be valid the dominant intention Should be charity. I have already dis cussed in para 4 of this judgment that I have In this case to apply pure Shafei Law and have re ferred to the authoritative works on Shafei Law which validate Wakf-Alal-Aulad pure and simple. Paragraph 4 of this judgment may, therefore, be referred to in this connection. I therefore, pass a preliminary, decree of accounts with costs and direct that the Defendants be restrained from alienating the property. I fix a period of three months for stating the accounts. I will appoint a Commissioner if the need is folt and the plain tiffs approach me for that purpose. I direct defen dant 1 to state the accounts within the next 3 months from the date of the decree. The suit shall stand adjourned for making a final decree to 5-10-1951.