KOTAMBIYAKATH PATHU KUTTI UMMA Vs. NEDUNGADI BANK LTD

JUDGEMENT

(1.) This is an appeal from the decree of the Subordinate Judge of South Malabar at Calicut dated 11 December 1930 in Order Section No. 56 of 1927, a suit to set aside an order passed in execution proceedings in O.S. No. 63 of 1924, which was a suit on the foot of a mortgage executed by defendant 5 in favour of the plaintiff, the Nedungadi Bank Ltd. The mortgage-deed, Ex. C, was one dated 8 May 1922. In execution of the decree the bank purchased the mortgaged property, but when an attempt was made to obtain delivery of possession there was resistance by defendants 1 to 4 in respect of the particular item which is the subject matter of the present suit, there being in all 21 mortgaged items. The resisters relied upon a wakf deed executed by defendant 5, namely Ex. 2 dated 29 September 1921, i. e. about seven months before the mortgage in favour of the Bank. An application by the Bank to remove the resistance of these defendants was made in 1926; that application was dismissed by the Subordinate Judge who upheld the contentions of defendants 1 to 4, though the plaintiff Bank relied on a cancellation deed whereby the wakf was revoked or cancelled not only by defendant 5 but also by defendants 1 and 2 and some others in April 1922, Ex. B. The present suit was one instituted with a view to set aside this order and the suit has been decreed by the Subordinate Judge, the main ground being that though the cancellation of a valid wakf is invalid, the wakf itself had not been completed or become valid by reason of the fact that there was no delivery of possession of the property. The decree was also based on a finding to the effect that there was an estoppel in favour of the plaintiff Bank; but this ground of the decision of the Court below has not been seriously supported in the arguments in this appeal. It is sufficient to say in this connection that so far as defendants 3 and 4 are concerned, there can be no estoppel as they are not parties to the cancellation deed, the estoppel being based on what is contained in the deed. As regards even the other defendants there is no evidence to show that the plaintiff Bank took the mortgage on the strength of any recitals contained in the cancellation deed. There is indeed no evidence whatever which bears on the plea of estoppel, and the finding of the Court below on the question of estoppel cannot therefore stand. It is also conceded during the arguments that if the wakf deed is valid, the cancellation is of no force. The main point therefore that was argued, and indeed the only point on which serious argument was possible, was that delivery of possession is not necessary to validate or complete a wakf which is otherwise valid. This is not a case in which it is found that the wakf deed was executed with a view to defeat or delay creditors; nor in there anything alleged against the deed which will have the effect of invalidating it except the want of delivery of possession. On this paint the finding of the Court below was that there was no delivery of possession. The correctness of this finding has been questioned in appeal by the appellants (defendants 1-4) but there is really no sufficient reason why the finding of the trial Court on a question of fact of this kind should be disregarded expressly in view of the fact that that is based on the recitals in Ex. B itself to which defendants 1, 2 and 5 were parties.

(2.) I must therefore proceed on the basis that this finding to the effect that there was no delivery of possession is correct, and address myself to the pure question of law, whether delivery of possession is necessary in order to constitute a valid wakf, On this point there is some difference of opinion; but there can be no doubt that the weight of authority is in favour of the view that delivery of possession is not necessary. The executant of the wakf in this case is a Mapilla of South Malabar, and it is well known that Mapillas in South Malabar are generally followers of the Shafi School of Mahomedan law. The Court below has however treated the question as if the law which applies to the present case is the Hanafi School of law. So far as the Shafi School is concerned, there is no doubt that delivery of possession is not necessary to constitute a valid wakf. In this connection I may refer to p. 231 of Amir Ali's Mahomedan Law, Vol. 1, 4 Edn., where there is a quotation from Ramz-ul-hakaik to the following effect: According to Abu Yusuf, merely saying that I have made this property wakf is sufficient to extinguish the proprietary right of the wakif, for by that the property is assigned over to God like the emancipation of a slave; and in this view the other three Imams agree (viz. Shafei, Malik and Ibn Hambal).

(3.) Even according to Hanafi School, it does not appear that delivery of possession is necessary to constitute a valid wakf, the only authority to the contrary being that of certain decisions of the Allahabad High Court. These decisions of the Allahabad High Court can be traced finally to Mohammad Azizuddin Ahmad Khan V/s. Legal Remembrancer to Government (1893) 15 All 321, on which the subsequent decisions are based. The decision in Mohammad Azizuddin Ahmad Khan V/s. Legal Remembrancer to Government (1893) 15 All 321, appears to be based on a mistaken notion of what was stated by a majority of the Full Bench of the Calcutta High Court in Bikani Mia V/s. Shuk Lal Poddar (1893) 20 Cal 116 (F B). This point has been noticed by-more than one text-book writer, and also in one comparatively recent decision of the Allahabad High Court itself. For instance, on p. 15 of Mulla's Principles of Mahomedan Law, the learned author says: It is a general rule of interpretation of the Hanafi law that where there is a difference of opinion between Abu Hanifa and his two disciples, Abu Yusuf and Imam Mohammad, the opinion of the disciples prevails. Where there is a difference of opinion between Abu Hanifa and Imam Muhammad, that opinion is to be accepted which coincides with the opinion of Abu Yusuf. When the two disciples differ from their master and from each other, the authority of Abu Yusuf is generally preferred.