1. The plaintiffs who are the managers of a mosque brought this suit for a declaration that a certain house is wakf property and not liable to be sold in execution of a decree against the original owner.
2. The Court of first instance dismissed the suit on the ground that the wakf is invalid under Mahomedan Law, but the lower appellate Court reversed the finding and decreed the suit.
3. The execution of a wakfnamah by Amir-ud-din and his wife Umda on 28th May 1912, is admitted, and they were fully competent to make an endowment of the house to the mosque. We have only to consider whether the endowment so made is valid and complete under Mahomedan Law. The document purports to be a waqf of the house in the name of a certain mosque under the management of punchas, represented by the present plaintiffs, but the executants were to keep their residence in the house up till their death, and after their death the punchas were to have a right to manage the property and spend its income on the mosque. In commenting on the terms of the deed the learned District Judge states:
It will be observed that the waqf was to take effect at once and the property became invested in the trustees at once, but the executants reserved a right of enjoyment during their lifetime.
4. It does not appear to me that this is a correct interpretation of the document. The learned Judge has himself agreed that the authority of Imam Muhammad is to be preferred to that of Imam Abu Yusuf. This is the view taken by this High Court in the case of Muhammad Aziz-ud-din Ahmad Khan v. Legal Remembrancer  15 All. 321. Abu Yusuf makes simple declaration sufficient to create a valid wakf, but Imam Muhammad requires that the wakif should divest himself of possession. In the present case it is certain that the wakif did not divest himself of possession at once, though he subsequently after his wife's death left the house in order to take up service. Nor did he appoint himself mutawalli to manage the property in the interest of the mosque. Thus the learned Judge was compelled to fall back upon his second position that the waqf was rendered complete when possession was transferred or abandoned by Amir ud-din, and the plain tiff began to realize rent on the property.
5. I agree with the lower Court that the authority of Imam Muhammad should be preferred generally to that of Abu Yusuf, and do not find that the Full Bench ruling of the Allahabad High Court reported as Abdul Kadir v. Salima  8 All. 149 lays down anything to the contrary. The proposition there enunciated was that whenever the opinion of Abu Yusuf is supported by either Abu Hanifa or Imam Muhammad, that opinion should be accepted, not that the opinion of one should be preferred to that of the others.
6. In my opinion there are two points which are fatal to the acceptance of the deed in suit as being a valid and complete wakf. In the first place it is of the nature of a testamentary wakf which would only come into effect on the death of the wakif, and Amir-ud-din is still alive. I am not of opinion that the removal of Amir-ud-din from the house accelerated the operation of the deed, and is equivalent to his death. In the second place the deed is a wakf in favour of a mosque, in which the wakif has reserved to himself a benefit; in fact he has stayed the operation of the wakf so that he may have full enjoyment of the property during his lifetime. It is true that the Musalman Waqf Validating Act (6 of 1913) accepts the opinion of Abu Yusuf that the waqf may derive personal benefit from a waqf, against the opinion of the other authorities, but this is not the case when the waqf is created for the benefit of a mosque. On this point the Muhammadan lawyers are unanimous. (Tyabji's Principles of Muhammadan Law, Section 515.)
7. For these reasons I would hold that the deed executed was in substance a testamentary wakf which could not come into operation until the death of the wakif, and that it was invalid as such because the wakf being in the name of a mosque, the wakif reserved a benefit to himself.
8. I concur with the finding on the ground that according to Imam Muhammad actual delivery of the wakf property to the mutawalli is a condition precedent of the wakf taking effect and on the ground that we have been shown no decision of this Court which dissents from the view expressed in Mohammad Aziz-ud-din Ahmad Khan v. Legal Remembrancer  15 All. 321, that the authority of Abu Yusuf is to be postponed to that of Imam Muhammad. This decision purports to follow a Full Bench decision of the Calcutta High Court in Bikani Mia v. Shuk Lal Poddar  20 Cal. 116 (F. B.). I have examined that decision of the Calcutta High Court but cannot find that it expressly states that Imam Muhammad is to be preferred to Abu Yusuf, but indirectly this decision appears to have followed Imam Muhammad and there have been other decisions apparently preferring the authority of Imam Muhammad even though they do n not expressly state that he is a superior authority for this Province to Abu Yusuf. The case has not been argued before us in a manner which would, I think, justify a refusal to follow the decision in Muhammad Aziz-ud-din Ahmad Khan v. Legal Remembrancer  15 All. 321 or would justify our putting the matter up before a Full Bench of this Court.
9. If, however, the question were res integra the contrary opinion of Mr. Ameer Ali would require to be given due weight. In his Student's Handbook on Muhammedan Law, 1924, which is later than the last published Edition of his larger edition of Mahomedan Law he expresses on page 158 the opinion that Imam Muhammad's view is not recognized among the Hanafis of India and this is the view which he expressed in his dissentient judgment in the case referred to in Bikani Mia v. Shuk Lal Poddar  20 Cal. 116 (F. B.).
10. I am not disposed to concur with my brother Pullan in the view that the wakf deed should be construed as a testamentary deed, that is to say, as postponing all effect of the dedication until the waqif's death. As I read the deed, it came into effect at once although the persons nominated as managers were not to exercise management until after the testator's death and the executants were to reside in the house until their death. If the deed were testamentary it should have expressed that the deed of dedication and not merely the direction as to management was not to take effect until the waqif's death, and again, if it were testamentary, there would be no need to re serve to the wakif a right of residence in the house until his death.
11. Nor again do I find sufficient authority for the statement that there can be no reservation when the wakf is in favour of a mosque. It is true that Tyabji on page 640 of his Muhammadan Law, 2nd Edition, states that even according to Abu Yusuf when a mosque is the object of the 'wakf,' the waqif cannot be a beneficiary. Bat in the light of Ameer Ali's Student's Muhammadan Law (referred to above), I take this to mean that the wakif cannot be a beneficiary where someone else is appointed manager from the date of the wakf. For on page 156 of this handbook, para. 41, Ameer Ali (who considers Abu Yusuf supreme authority in India and Imam Muhammad no authority therein, see page 158 note) says:
Under the Hanafi Law, a wakif may constitute himself the first beneficiary of the trust, and if he does so, he can lawfully reserve the benefit for himself or partially.
12. He makes no distinction in the case of a building dedicated as a mosque and a fortiori no distinction in the case of a building dedicated to, and not for, a mosque, as is the case in the present suit. This deed, I construe to be one where no curator has been appointed to function during the lifetime of the wakif and consequently the office could appertain to the wakif qua wakif, and he could reserve the use to himself.
13. On the sole ground, therefore, that I am not prepared to dissent from the decision of two Judges of this Court in Muhammad Aziz-ud-din Ahmad Khan v. Legal Remembrancer  15 All. 321 to the effect that Imam Muhammad is to be preferred as an authority to Abu Yusuf, I concur in the order of my learned brother and would allow this appeal.