MD AYUB ALI Vs. AMIR KHAN

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs and it is directed against the decision of the Subordinate Judge, First Court, Chittagong, modifying that of the Munaif, Fourth Court of that place passed in O.S.S. No. 539 of 1934. The facts are not disputed and the controversy, so far as this appeal is concerned, centres round a short point of law.

(2.) The plaintiffs commenced this suit for a declaration that they were the mutwall is of certain wakf estate created by Hazi Abdul Ali Sowdagar and the properties described in the schedule to the plaiut were wakf properties. It was alleged that Laturi Bibi, the wife of the founder, who was the previous mutwalli had committed various acts of breach of trust by executing benami conveyances in respect of some of the wakf properties in favour of defendants 2, 3, 5 and 7 and not paying the revenue in respect of the touzi described in Schedule 8 which led to that property being sold for arrears of revenue. The plaintiffs prayed for a declaration that the defendants did not acquire any title to these properties which they purported to purchase and that the surplus sale proceeds in respect of the Schedule 8 property which were still lying with the Collectorate was the wakf money. There was a prayer also for an injunction restraining defendants 5 and 7 from withdrawing any portion of the money that was deposited in the Collectorate. The defence of the contesting defendants inter alia was that there was no valid and legal wakf and the wakf namas alleged to have been executed by Abdul Ali were not bona fide documents and were never acted upon. The right of the plaintiffs to sue as mutwallis was also disputed and it was contended that the properties being the personal properties of the vendor, the alienees were bona fide purchasers and had acquired good title in them. The trial Court negatived all the defences and gave the plaintiffs a decree. It was found by the Munsif that there was a valid and legal wakf created by the vendor and that the wakfnamas were actd upon. The plaintiffs were also found to be the mutwallis of the wakf estate and as such competent to institute the suit. There was an appeal taken to the lower Appellate Court by the contesting defendants. The Subordinate Judge who heard the appeal substantially accepted the findings of the Munsif but he modified the decision of the latter to this extent, namely that the plaintiffs suit was dismissed with regard to the properties described in Schedules 4, 6, 8, 12 and 15, the Subordinate Judge being of opinion that these properties being undivided shares of certain properties, no valid wakf can be created in Mahomedan law in respect of the same. The sole point for determination in this appeal is as to whether the view taken by the lower Appellate Court is correct.

(3.) It is not disputed that under the Hanifa law the preponderance of authorities is in favour of the view that the wakf of musha Is perfectly valid : see Sir Roland Knyvet Wilson's Digest on Anglo Mahomedan Law, Edn. 6, p. 352, Section 321 and also Mahomedan Law by Ameer Ali, Vol. I, Edn. 3, page 196. This is the opinion of Abu Yusuf, Muhammad indeed gives a different opinion and this is the natural result of the difference in the view taken by him as to whether a wakf can be constituted by a mere declaration of intention, is being the opinion of Muhammad that an actual transfer of possession to the mutwalli is necessary for the purpose of completing a wakf. The opinion of Abu Yusuf is however approved by all modern authorities and can be regarded as an accepted doctrine on this point. To this general rule thus enunciated there is an exception recognized by Abu Yusuf himself, namely that: When there is a dedication of undivided property, whether naturally divisible or not, for use as a mosque or burying ground it is invalid in law.