MUHAMMAD ZAIN KHAN Vs. NUR-UL-HASAN KHAN

JUDGEMENT

(1.) The question for decision in these two connected, appeals is as to the validity of a deed of waqf executed by Abdul Ali Khan and his wife on the 26 of March, 1909. Abdul Ali Khan died on the 7 of May, 1917, and his wife shortly afterwards, and the present suit was brought by his brother Muhammad Ali Khan claiming possession of his legal share of the property as his heir under Muhammadan Law. Muhammad Ali Khan has died during the pendency of the proceedings and the appellants are his legal representatives. The parties to the suit are Sunnis. Muhammad, Ali Khan in his plaint denied that any waqf was ever dedicated and urged further that if there was a waqf it was fictitious and illusory. That a waqf name was executed has never been seriously disputed. The trial court, however, treated it as a waqf which would not really take effect until after the deaths of Abdul Ali Khan and his wife. It accordingly treated it as valid only to the extent of one-third of the property covered by it and decreed the suit as to the remainder. The learned Additional Judge, however, has upheld the waqf as valid and dismissed the suit. His findings are- (1) That the dedication was substantial and real. (2) That the dedication of the corpus was absolute and immediate. (3) That the reservation of a life-interest in the income, even if it were the entire income, which it is not, limited to the life of the two settlors does not render the waqf illusory and testamentary.

(2.) The third finding is one of law. The first two findings are findings of fact, except in so far as the reality of the dedication may be a matter of legal inference from the facts found. The points which are taken in this Court are two: (1) That the waqf was invalid for want of delivery of possession; and (2) that the settlor and his wife retained complete control over the income during their joint lives and that this renders the waqf illusory and invalid, either altogether, or in the alternative, as held by the trial court, for the period of their lives.

(3.) The only ground on which the waqf is assailed under the first head is that no application for mutation of names was made by Abdul Ali Khan, though he lived for eight years after the execution of the deed of waqf. On the other hand, it is proved that under the deed of waqf he appointed himself as first mutawalli and expressly declared that he was holding the property henceforth as mutawalli and not as owner. This, according to the Accepted rule of Muhammadari Law, is sufficient, and it was so held by this Court in Abdul Jalil Khan V/s. Obedullah Khan (1921) I.L.R. 43 All. 416. This ground of attack, therefore, fails.