MUHAMMAD YUNUS Vs. MUHAMMAD ISHAQ KHAN

JUDGEMENT

(1.) THE suit out of which this appeal has arisen was instituted by the plaintiff appellant for the recovery of plot No. 611 measuring 16 biswas on the following allegations. He stated that one Abdul Malik executed a deed of waqf in respect of plot No. 611 in 1905 in favour of the school called Anjuman-i-Sherwani at Aligarh. Subsequent to the creation of the waqf Abdul Malik sold the whole of his property to the defendants. THE latter are in possession of the waqf property also and resisted the claim of the school. THE plaintiff, as the Secretary of the school, sued to recover possession of the waqf property. THE claim was resisted on various pleas, one of which was that no valid waqf 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 waqf 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 waqf was executed and registered by Abdul Malik, but possession of the waqf property was not delivered to the school. THE plaintiff contends that the more execution of the document, unattended with the possession of the waqf property, is sufficient to have created the waqf. In support of this view reliance is placed upon thefatwa of Qazi Yusuf. Moreover, it is urged that where under the Hanafi law the Imam and his two disciples differ the opinion of Qazi 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/s. THE Legal Remembrancer (1893) I.L.R. 15 is directly in point. It was laid down in that case that according to the law of Sunni Muhammadans it is essential to the validity of a waqf that the wdqif should actually divest himself of possession of the waqf 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.