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Hari Maulvi Mohammad Yunis Vs. Mohammad Ishaq Khan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in62Ind.Cas.896
AppellantHari Maulvi Mohammad Yunis
RespondentMohammad Ishaq Khan and ors.
Cases ReferredAhmad Khan v. Legal Remembrancer
Excerpt:
muhammadan law - hanafi school--wakf, whether created by registration without delivery of possession. - .....in favour of the school called anjumani sherwani at aligarh. subsequent to the creation of the wakf abdul malik sold the whole of his property to the defendants. the latter are in possession of the wakf property also and resisted the claim of the school. the plaintiff as the secretary of the school sued to recover possession of the wakf property. the claim was resisted on various pleas one of which was that no valid wakf, had been created. both courts accepted the pleas in defence and dismissed the claim. in second appeal to this court it is contended that the evidence on the record proves a valid wakf under the hanafi law and that the view taken of that law by the courts below is erroneous. according to the case for the plaintiff, a deed of wakf was executed and registered by abdul.....
Judgment:

1. The suit out of which this appeal has arisen was instituted by the plaintiff appellant for the recovery of plot No. 611, measuring 66 biswas, on the following allegations, He stated that one Abdul Malik executed a deed of waif in respect of plot No. 611 in 1905 in favour of the school called Anjumani Sherwani at Aligarh. Subsequent to the creation of the wakf Abdul Malik sold the whole of his property to the defendants. The latter are in possession of the wakf property also and resisted the claim of the school. The plaintiff as the Secretary of the school sued to recover possession of the wakf property. The claim was resisted on various pleas one of which was that no valid wakf, had been created. Both Courts accepted the pleas in defence and dismissed the claim. In second appeal to this Court it is contended that the evidence on the record proves a valid wakf under the Hanafi Law and that the view taken of that law by the Courts below is erroneous. According to the case for the plaintiff, a deed of wakf was executed and registered by Abdul Malik but possession of the wakf property was not delivered to the school. The plaintiff contends that the mere execution of the document unattended with the possession of the wakf property is sufficient to have created the wakf. In support of this view reliance is placed upon the fatwa of Kazi Yusuf. Moreover, it is urged that where under the Hanafi Law the Imam and his two disciples differ, the opinion of Kazi Yusuf will prevail. We find that the contention raised on behalf of the plaintiff-appellant in this case is covered directly by authority. The case of Muhammad Aziz-ud-din Ahmad Khan v. Legal Remembrancer to Government, N.W.P. and Oudh 15 A. 321 : A.W.N. (1893) 109 : 7 Ind. Dec. (N.S.) 922 is directly in point. It was laid down in that case that according to the law of Sanni Muhammadans it is essential to the validity of a wakf that the wakif should actually divest himself of possession of the wakf property. This case has never been dissented from in this Court. We are bound by it. The appeal, therefore, fails and is dismissed with costs, including in this Court fees on the higher scale.


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