P L D 1958 (W (PLP)

B. Z. KAIKAUS, J.‑Regular First Appeal Nos. 32 and 93. of 1953 which are to be disposed of by this judgment arise out of a suit filed by Chaudhri Fateh Muhammad Shefta in respect of a fund called the Tablighi University Fund,

2. One Abdul Majid Qarshi was the Editor of a monthly "Iman" which was devoted to religious subjects and was issued from Patti, District Amritsar. He started at first a Seerat Com mittee, the object of which was the inculcation of Muslim morals and the preaching of observance of Islamic duties, and then in a meeting of that Committee held in the year 1938, at Nagpur, he proposed the establishment of a Tablighi University wherein preachers would be trained for the propaganda of Islam. This proposal was accepted and as a result Abdul Majid Qarshi began to make serious efforts to collect funds for the University. He issued appeals to the Muslims generally to contribute freely and he requested the subscribers of the "Iman" to secure as many more subscribers as possible because the income of .the "Iman",, after meeting his own expenses, was going into the Tablighi University Fund. He was himself the custodian of this fund till 1944 when the Ruler of Kurwai State having been associated in the collection of the fund, his mother became the treasurer. After some time, however, the custody of the fund reverted to Abdul Majid Qarshi. The appeal to the Muslim public was successful and a large amount of money was collected the details of which were regularly published in the "Iman". Collection of funds went on till the partition of India, when it was interrupted by the extraordinary events that occurred at that time. After the Partition Abdul Majid Qarshi came over to Pakistan. According to a statement which he published in the "Zamindar" of the 10th February 1949, there were with him, at the time of the Partition, Rs. 1,37,000 in this fund, and the whole of this fund he had brought to Pakistan. His personal contribution to the fund according to this declaration was Rs. 45,

000. He had put this amount in several banks, in some as deposit and in the Hindustan Commercial Bank as a security for the post of a cashier.

3. In March 1949, Abdul Majid Qarshi was murdered in Lahore. The amounts standing in the name of Abdul Majid Qarshi were transferred to the name of his brother Abdul Hamid Qureshi, the sole defendant in the suit out of which these appeals arise, and part of this sum, that is Rs. 45,000, the defendant had withdrawn. The present suit was filed on the 26th of May 1950, with the object of securing the Tablighi University Fund o the Muslim public and preventing the defendant from appropriating it. The plaintiff Ch. Fateh Muhammad Shefta claims that the is not only one of the persons who took an important part in the establishment of this fund, but that he had been nominated by the deceased Abdul Majid Qarshi as the trustee of this fund in case of his death, He is also a contributor to the fund. The allegations in the plaint are that this fund is waqf for the establishment of "Tablighi University" and was not owned by the deceased though he had personally contributed to it. The relief claimed is a decla ration that the fund is waqf for the purpose of the Tablighi University.

4. The defendant did not contest the existence of the fund. He conceded that from the Muslims of India some money had been collected by the deceased for the purpose of the establishment of a Tablighi University. He contended, however, that a target of three and a half lakhs had been fixed in respect of this fund and as that target was not reached, the matter of the establishment of the Tablighi University advanced no further than the stage of scheme and no waqf in fact came into existence. He pleaded too that on account of the Partition of the country the attainment of the object of the waqf became impossible, the waqf failed, and the money reverted to the donors. As regards the personal contribu tion of the deceased, the defendant contended that though the deceased had expressed an intention of donating Rs. 45,000 he had never divested himself of his ownership and never actually created a waqf of his money. The following issues were framed:‑ "(1) Has plaintiff a locus standi to sue? (2) Whether any valid waqf entitled Tablighi University Fund was created by Abdul Majid Qarshi? If so, what is the extent of the waqf property ? (3) Whether Abdul Majid Qarshi did divest himself of Rs. 45,000 ? (4) Whether the waqf has been extinguished its purposes hav ing become impossible for the reasons given in the written statement ? (5) On proof of issue No. 4 for the defendant to whom do the contributions revert ? (6) Is the suit malicious and vexatious ? If so, is not the defendant entitled to special costs under section 35‑A Civil Pro cedure Code ? (7) Relief. The learned Senior Civil Judge, Montgomery, who tried the suit held that the plaintiff had locus stands to sue because he was one of the donors of the fund and had been nominated its trustee by the deceased. The learned Judge found further that a valid waqf had been created of the money that comprised the fund and that it had not failed because its object was still attainable. He bound too that the deceased had divested himself of the owner lip of Rs. 45

000. Having also determined the extent of the we waqf pro perty the learned Judge passed the following decree :‑ "It is ordered that a decree for a declaration that, the follow ing items of money, namely:‑ (a) Rs. 60,000 lying in deposit with the Imperial Bank of India, Okara and Montgomery Branches now at Lahore. (b) Rs. 9‑6‑0 lying in the Australasia Banks Masjid Shah Chiragh, Lahore. (c) Rs. 5,000 lying in the Hindustan Comercial Bank, Lahore. (d) Rs. 30,000 lying in the Central Exchange Bank, Lahore, (now in liquidation). (e) Rs. 45,000 withdrawn by the defendant's son after the account being transferred to him by the defendant. Total Rs. 1,40,009‑6‑0, are waqf property belonging to the `Tablighi University Fund, and that the defendant is not entitled to it, is passed in favour of the plaintiff against the defendant with costs. The money shall be paid y the defendant or the Banks, as the case may be, into the said Fund. A., scheme is hereby settled that the said money when realised, shall be spent on the establishment of a resident Tablighi University or a similar college under the joint contry of the plaintiff and Anjuman Himayat‑i‑Islam, Lahore on the lines envisaged by the founder of the waqf. The details shall be worked out by the plaintiff and the Anjuman. And it is further ordered that the defendant do also pay Rs. 1,075‑1‑6 the costs of this suit to the plaintiff".

5. It will be observed that the learned Judge has gone further than the relief prayed ‑for. The decree purports to settle a scheme and the plaintiff and the Anjuman Himayat Islam have been appointed trustees.

6. Regular First Appeal No. 32 of 1953 has been filed by the defendant and the relief prayed for in it is the dismissal of the suit. Regular First Appeal No. 93 of 1953 has been filed by Ch. Fateh Muhammad Shefta who prays that he should be declared the sole trustee of the fund and that the provision as to settlement of a scheme be deleted from the decree. He has impleaded the Anjuman Himayat‑i‑Islam as a party to the appeal. The Anjuman has been represented before us.

7. The contentions of the defendant before us are :‑ (1) No valid waqf was ever created. (2) If a valid waqf as created it failed because its object became unattainable.

8. Learned counsel for the defendant has pointed out that the decreed exceeds that which appeared in the declaration of the deceased in the "Zamindar". He has also not given up the objection sin as to locus standi though he has not dealt with the matter at any length. He objects too to the form of the decree of the Court below.

9. The first question to be decided is whether a valid waqf was ever created. Learned counsel for the appellant contends firstly that no valid waqf could have been created in the present case because it is one of the essentials of wadf that the corpus of dedicated property is intended to be kept in‑tact and only the usufruct is to be available for human beings and the Tablighi University Fund was intended to be spent. He contends in the second place that (whatever the intention) a waqf of movables or cash, that is, property of a perishable nature, is not, in accord ance with the view of the Muslim Jurists, particularly Hanafi Jurists, a proper subject of a waqf at all. His third contention is that the waqf was conditional on the attainment of a target of three and a half lakhs of rupees and as that target was not reached the waqf did not come into existence.

10. As regards tide first contention there can be no doubt that the word `waqf', according to its universally accepted connotation, is inapplicable to a case where the corpus of the dedicated property is intended to be consumed waqf literally means tying up or detention. Its origin according to Sunni Jurists is the direction the Holy Prophet gave to Omar who wanted to give his land in charity. The Prophet said.: "Tie up the property (asl or corpus) and devote the usufruct to human beings and it is not to be sold or made the subject of gift or inheritance : devote its produce to your children, your kindred and the way of God". According to the two disciples of Immi Abu Hanifa (whose opinion has been accepted by the Hanafi School as against the master) `waqf' is the detention of a thing in the implied ownership of Almighty God, in such a manner that its pr is may revert to or be applied for the benefit of mankind, and the appropriation is obligatory, so that the thing appropriated can neither be sold, nor given nor inherited (Baillie's Digest of Muhammadan Law‑Hanifia‑1957 Edition p. 558). When property is made waqf its ownership vests henceforth in the Almighty and its usufruct is to be applied for the benefit of His Creation only. The corpus cannot be touched for the corpus belongs to Him. (Rather, the fiction that it belongs to‑Almighty has been introduced to explain that the corpus is no longer available to human beings). As explained by Taybji in para. 366 of his treatise, Muslim Law observes a marked distinc tion between ayn, or mal that is the substance, or corpus and manafi that is the usufruct. The distinction between a hiba (not a `gift' which is a term of wider connotation) and a waqf as explained by the learned commentator at page 383 is that hiba is a disposition of the corpus while waqf is a disposition of the usufruct.

11. It is not necessary to labour the point. It has to be conceded that waqf implies the detention of the corpus and this word will be inapplicable to a case where the corpus itself is intended to be consumed. It is true also that in the present case the intention was to spend the fund for establishing a university. Does it then follow that this fund could not be waqf?

12. It would ordinarily follow. But there is a matter that requires consideration. Though the fund was intended to be spent it was ‑to be spent only to bring into existence a university and that university was intended to be a permanent institution. The E property of the university was to be waqf. In fact it would not at all be incorrect to say that the university as an institution would be waqf, for an institution, as such, can be owned and can vest in the Almighty. If we are to look to the substance of the transac tion in dispute we should say that the money was made waqf for the money was only to be commuted into that which was to vest F in the Almighty. There are: at least four cases, in which, in similar circumstances, a waqf of cash has been held valid. The first case is Haji Abdul Razak v. S. Ali Bakhsh and another (A I R 1946 Lah. 200). In that case the direction given in the will was that money was to be spent on "work acceptable to God". The money had in fact been spent on raising buildings that were to be waqf. Dealing with the objection that that waqf, being of cash, was invalid, Din Muhammad, J. (with whom Trevor Harries, C. J. concurred) said (p. 211) :‑ "The contention that no valid waqf could be created of cash or that the superstructures of the sarai could not be the subject of waqf is equally devoid of force. Even prior to the Act of 1913 which made it legal for any kind of property to be made waqf, the waqf of cash was favoured by Muhammadan Law. It is not necessary to burden this judgment with any full discus sion on the subject. Reference in this connection may be made to Chapter 9, S. I. of Ameer Ali's Muhammadan Law, Vol. I, where it is explained that despite the views of some of the jurists to the contrary, the majority of the eminent jurists have held that such a waqf is valid for cash can be invested in business or commerce and the benefit derived therefrom can be used for religious purposes. In the present part of the cash received was invested in buildings and lands and the usufruct thereof was spent on religious purposes. This waqf of cash consequently cannot be assailed on any valid ground". The learned Judge had relied on the fact that with the money buildings had been raised though even otherwise he rejected the contention that waqf of cash was invalid. In Abu Sayid Khan v. Bakar Ali and another (I L R 24 Al1.190) too there was an executory trust of money for the creation of a waqf and it was held that there was a valid waqf of cash. It is to be noted that in Kalsoom Bibi v. Ghulam Hussain (10 C W N 449) which is the leading case in favour of the proposition that a waqf of movables and cash is invalid this case had been distinguished on the ground that the cash had been converted into buildings though even with that distinguishing feature. It was not regarded as correctly decided. The third case is Yaqub Beg and others v. Rasul Beg and others (A I R 1923 Oudh 254), wherein Rs. 5,000 had been dedicated for the creation of a building which was to be waqf and it was held, with particular reference to this circumstance that the waqf of cash was valid. This case was affirmed on appeal by their Lordships of the Privy Council in Fida Rasul and others v. Yaqub Beg and others (A I R 1925 P C 101). The fourth case is Izzat Un‑Nisa Begum and another v. Kaniz Fatima Begum. and others (A I R 1916 Oudh 6) which related to the waqf of Government promissory notes. The learned Judicial Commissioner pointed out that the promissory notes had been invested in property which was devoted to the purposes of the waqf and held that there could be no objection to the validity of the waqf.

13. I would, therefore, hold that substantially the dedication of cash with which we are sealing would be a waqf. But I would accept that technically it is not a waqf, for waqf implies detention of corpus and application of usufruct to charitable purposes. I accept this without much hesitation because the transaction cannot be invalidated even if it be not waqf and will be perfectly valid as a public trust. To this subject I will revert after I have dealt with the second contention of learned counsel for the appellant, namely, that a waqf of cash or movables is not valid at all.

14. Learned counsel relies for this contention in the first place on the following passage in Abdur Rahim's Muhammadan Jurisprudence (p. 307) :‑ "But though the law is practically unfettered with respect to the objects of such a grant, the accepted juristic theory is certainly very narrow as to the forms of property which can be properly settled in waqf. The property must first of all answer the description of mal or tangible property, as in the case of a gift so that waqf of a mere right to the usufruct such as a rent charge is not allowed. In the next place it must be productive or capable of being used without the substance being consumed. This rule excludes movable property generally including money. A few specified articles and such movables with respect to which a prevalent practice (taammul) to make waqf has been established in the particular country in which the grantor resides are exempted from ‑the operation of the rule. It has been held in Kalsont Bibi v. Goulam Hu.sain Ariff 10 C W N 449 and 9 Bom. L R 1337 and 33 Mad. 118, following 9 C L R 66, and dissent ing from 24 All. 190, that waqf of shares in a joint stocks company and of Government promissory notes is not valid. This view is undoubtedly in agreement with the strict conception of waqf in Muhammadan Law, but it may be a matter for consideration whether it is in accord with the principles of construction and application of Muhammadan Law as enunci ated by the Privy Council. As the validity of a simple gift of Government securities and of shares in companies is well estab lished, it may be argued that the same principle should be analogically applied to waqfs, especially as the doctrine of riba has never been recognized by the British Indian Courts. The above restrictions regarding the property which may be made the subject of waqf are based on juristic deduction and not on any positive text, and it may also be said that they should not be followed to the latter as they are obviously unsuited to the modern circumstances of life." The learned author regards a waqf of movable and cash as not in accord with the strict conception of waqf in Muslim Law, but is himself inclined to regard it valid.

15. Reliance is placed next on Hedaya wherein the subject is dealt with at (page 234 of Vol. II of Hamilton's Hedaya by Grady) :‑ "The appropriation of land is lawful; because several of the Prophet's companions appropriated their lands; but the appro priation of movable property is altogether unlawful, whether purposely, or as a dependent. This is the opinion of Haneefa Aboo Yoosaf alleges that if a person appropriates lands, together with the cattle and slaves attached to them, it is lawful; and the same of all instruments of husbandry; because those are all dependents of the soil in the fulfilment of the design; the appropriation of these, therefore, as dependents of the land, is lawful; for many; things are admissible dependantly, which are not so positively; thus the sale of wine (for instance) by itself is unlawful, whereas, along with land it is lawful, and in the same manner the appropriation of the beam of a house is un lawful, whereas where along with the house it is clearly legal. The opinion of Muhammad also, accords with that of Aboo Yoosaf in this point; because as he holds the appropriation of movables to be lawful merely in virtue of the appropriator's declaration, it follows that he admits the appropriation of them as a depen dant to be legal a fortiori. Muhammad is also of opinion that if a person appropriates horses, camels, or arms, to carry on war, against infidels, it is lawful in which opinion (as lawyers report), Aboo Yoosaf coincides with him. This proceeds upon a favourable construction; for analogy would suggest that such an appropriation is lawful, for the reasons already alleged. The reason for a more favourable construction, 1however, is that the Prophet once said, `KHALID has appropriated his HORSE and ARMOUR in the way of God; and TELLIHA has appropriated his HORSE in the way of God'.‑According to Muhammad, the appropriation is lawful of all movables, the appropriation of which is commonly practised, such as spades, shovels, axes, saws, planks, coffins (and their appendages) stone or brazen vessels, and books; but according to Aboo Yoosaf it is unlawful; because analogy cannot be abandoned but on the express authority of the sacred writings; and as horses and armour only are there mentioned, the admission must be restricted accord ingly. Muhammad says that analogy may be abandoned on account of utility (as in arts or manufactures, for instance); and utility exists in the articles in question. It is, moreover, recorded of Nasser Ibn Yehee, that he appropriated his books, as conceiving that to be analogous to the appropriation of a KORAN (in other words, as the appropriation of a KORAN is lawful, so also is the appropriation of any other book);. and this is approved, because other books as well as KORAN are kept for the purpose of reading and instruction. Most lawyers have passed decrees according to the opinion of Muhammad in this particular. It is written in the Fatavee‑Kazee‑Khan that there is a difference of opinion between the Elders concerning the appropriation of books.‑Fikkea‑Aboo‑al‑Seyd, however, holds it to be lawful ; and decrees pass accordingly. "It is not lawful to appropriate movables, the appropriation of which is unusual or uncommon, according to our doctors. Shafei alleges that the appropriation is lawful of everything which admits of the use without a destruction of the subject, or of everything lawfully saleable, because such articles as admit usufruct resemble land, horses or arms. The argument of our doctors is that appropriation requires perpetuity, according to what has been already stated; and this cannot exist in movables, since these are not of a lasting nature; analogy therefore suggests that the appropriation of movables in general is unlawful it is admitted, however, in some articles (although contrary to analogy), because of the traditions already recorded,‑and in other articles (such as, axes, saws and so forth), because of utility; but the appropriation of furniture, clothes, and slaves, is unlawful, as being contrary to the suggestions of analogy, because they have neither tradition nor utility to support the legality, and therefore resemble dirms and deenars. With respect to what Shafei has advanced that `those articles are analogous to lands, horses and armour; we reply that no analogy can be admitted between them; because land endures perpetually; and horses and armour are instruments of war against infidels, which is among the highest religious obligations, whence the property of piety exists in the appropriation of these articles in a much stronger degree than in the appropriation of other mov ables‑the analogy, therefore, .is not allowed." It will be observed that Aboo Haneefa is altogether opposed to a waqf of movables. Aboo Yoosaf concedes waqf of movables that are adjuncts of immovables, and Imam Muhammad makes its validity depend on custom. Waqf of horses and arms all are forced to regard as valid on account of the hadis of the Prophet of Islam.

16. Baillie says in the Digest of Muhammadan Law (Hanafia 1957 Edition):‑ "With regard to movables, when designedly appropriated, if they are beasts of burden or weapons of war, the waqf of them is lawful. As to other things than these, if they are such as it is not the custom to appropriate, the waqf of them is lawful. Where, again, they are such as it is customary to appropriate as Korans for instance, the waqf of them is lawful according to Muhammad, whose opinion is approved by the great body of the learned, and has been adopted for the futwa. When Korans are appropriated for the use of the people of a particular musjid, or for the musjid, the waqf is lawful, and they are to be read in the musjid. There is some difference of opinion as to other books, but Aboo Leeth held the waqf of them to be lawful, and the futwa is to that effect. "The appropriation of things from which advantage cannot be derived without destroying them, such as gold and silver, or eatables and drinkables, is not lawful according to the generality of lawyers; but by gold and silver are to be understood deenars and dirhems, or what is not ornament. And if one should make an appropriation of dirhems, or things estimated by measure, or clothes, it would not be lawful. But it is said that in places where this is customary, decrees are given in favour of the legality of the appropriation; and if it be asked how can that be? It is answered that the dirhems may be lent to the poor and taken back again, or given in moozarubut, and the profit laid out in charity; and wheat may be lent to the poor to sow and then taken from them, and clothes lent to them to when necessary, and then taken back."

17. Of the cases relied upon the first is Fatima Bibi v. Arif Ismailji (9CLR66), wherein it was held that waqf of shares in limited companies was void. No commentary on Muslim Law and no case was referred to. It was regarded as an accepted proposition that things that perish in the using cannot be the subject of wakf. In Kulsom Bibi v. Ghulam Hussain (10 CW N449), the subject is discussed at length. The learned Judge (Woodroff, J.) places his reliance mainly on the Hedaya which I have already quoted and applies what he regards as the Hanafi Law in all its strictness. He argues that by accepting the opinion of none of the three leading Hanafi Jurists Abu Hanifa, Abu Yusaf and Muhammad, can the waqf of shares in a company be justified for Abu Hanifa did not recognise a waqf of movables at all; Abu Yusaf allowed it only when the movable was an accessory to immovable property and Muhammad made its validity dependent on custom. The opinion of Zafar (who is regarded as next in authority after Muhammad) was quoted before the learned Judge that waqf of cash was valid even apart from custom because cash could be given in muzaribat (partnership) and the usufruct devoted to the purposes of waqf. The learned Judge rejected this opinion on the ground firstly that it was opposed to the opinion of the three leaders of the Hanafi School and secondly because in fact there was no muzaribat in the case before him. The learned Judge obviously was not applying the principle contained in the opinion of Zafar and was interpreting that opinion as lying down that muzaribat was the only form in which waqf of cash could be made. The opinion of Ameer Ali that such waqfs are valid was rejected by the learned Judge firstly on the ground that his translation of the Arabic texts relied upon by him is not correct and secondly on the ground that a departure from the limitations placed by the leading Jurists of the Hanafi School is not permissible. (To the alleged mistake in translation, I will revert). The main discussion in the judgment is as to whose opinion is to be regarded as the law. The rules laid down by the leaders of the Hanafi School as to the validity of waqf of movables are, in the opinion of the learned Judge, inflexible.

18. In Bai Fatima Bai v. Ghulam Husain (IX Bom. L R 1337), Fatima Bibee v. Ariff Ismadjee Bhan (9 C L R 66) and Kulsom BIN v. Ghulam Husain (10 C W R 449), were followed and a, waqf of Government Promissory Notes was held to be invalid. Kadir Ibrahim Rowther v. Mahomed Ragu madulla Rowther (I L R 33 Mad. 118), too has been relied upon. In that case it was held that the right to recover money under a decree could not be made waqf. The judgment is very short and there is no discussion.

19. That exhausts the authorities cited in support of the proposition that waqf of movables is invalid. Authority is not lacking for the contrary view. In Abu Sayid Khan v. Bakar Ali and another (I L R 24 All. 190), a wakf of cash was held valid. The case is important as this conclusion was based not only on Ameer Ali and Wilson but on the opinion of old Muslim Jurists and commentaries, that is, Zafar, Zuberi Radul Muhtar, Fatawa Kazi Khan and Mujtaba. In Banubi v. Narsingrao (I L R 31 Bom. 250), Jankin, C. J. and Beaman, J., were of the opinion that such a waqf was valid although the learned Judges did not record a final opinion. In Mirza Mohammad Sadiq Ali Khan v. Fakhar Jahan Begum and others (A I R 1929 Oudh 97), it was held, relying mainly on the opinion of Ameer Ali, that the Radde Mazalim fund was a valid waqf. This case went in appeal to the Privy Council in Muhammad Sadiq Ali v. Fakr Jahan Begum (AIR 1932 P C 13). Their Lordships found it unnecessary to express an opinion on the question whether such a waqf was valid because their Lordships were of the opinion that the fund had come into the hand of the deceased (whose estate was the subject matter of the suit before their Lordships) as a trustee and, there fore, was not divisible among his heirs. This observation I shall make use of when I come to the question whether the present disposition is valid even though it be not waqf.

20. To Yaqub Beg and others v. Rasul Beg and others (A I R 1923 Oudh 254). I have already referred wherein a sum of Rs. 50,000 had been made waqf. The learned Judicial Commissioner preferred to follow Abu Sayid Khan v. Bakar Ali and another (I L R 24 All. 190) and Syed Amir Ali's commentary on Muslim Law as against the Calcutta view and held that the waqf of cash was valid. This case went in appeal to the Privy Council in Fida Rasul and others v. Yakub Beg and others (AIR 1925PC 101). This objection to the validity of the waqf was not argued before the Privy Council and, therefore, their Lordships expressed no opinion on the point but their Lordships made it clear that they were not dissenting from what the Judicial Commissioner had held. This is what their Lordships said :‑ , "The .Court of the Judicial Commissioner further expressed an opinion upon the question whether according to the Mussalman‑law, a waqf of cash is valid. This has not been discussed before their Lordships, and, without indicating any dissent from the opinion of the Court of the Judicial Commissioner, their Lordships think it unnecessary to express any opinion upon this point of their own."

21. In Ali Zamin v. Akbar Ali Khan and others (AIR 1937 P C 127) too a waqf of movable was involved but the objection as to its invalidity was given up. It will be observed that three times their Lordships of the Privy Council have in fact declared waqf of cash to be valid though their Lordships have not recorded an opinion on the point.

22. Haji Abdul Razak v. S. Ali Bakhsh and another (AI R 1946 Lah. 200) has already been referred to, wherein it was held by Din Muhammad, J. (Harries, C. J. concurring) that under Muhammadan Law a waqf of cash is valid. Reliance had been placed mainly upon Ameer Ali's commentary on Muhammadan Law. The discussion in the judgment is not full but the reason appears to be that the learned Judge did not feel the need of a lengthy discussion in view of the exhaustive discussion of the subject by Ameer Ali. '

23. Ameei Ali has in his commentary referred to a large number of Hanafi authorities‑Durrul Mukhtar, Fatawa Kazi Khan, Tahtawi, Mujtaba, Sarkhsi, Raddul Mukhtar, Fatehul Qadin, Khazanatul Muftien, etc.,‑in support of the proposition that a waqf of movable is according to the Hanafi School, valid. He has put forward a powerful argument in support of the proposition. In fact I began to doubt whether I should myself deal exhaustively with this matter. I reproduce below a part of his reference to the authorities. What I do not reproduce is similar. "After dealing with the subject of mushaa, the Durr‑ul- Mukhtar states the rules relating to the waqf of movables in the following terms:‑`And similarly is valid the waqf of all movables made intentionally, i.e., not as accessories to something else, which are the subject of mutual dealing among mankind (taamulunli' 1‑nas) such as spades and axes and even dirhems and dinars. I say, that even an order has issued from the sovereign to the Kazis in that respect (viz., to declare the validity of the waqf of dirhems and dinars) as is set forth in the Ordinances of Mufti Abu Saud ; and of everything which can be measured or weighed ; such things shall be sold and its proceeds shall be invested in muzaribat or bazaat (business or commerce). Thus if a person makes a waqf of several measures of wheat or barley on the condition that the mutwalli should loan it to a cultivator for purposes of sowing, and after the crop has been reaped take back the measure, and then loan it again and so on, it is lawful as stated in the Khulasa . . . . . And it is lawful to make a waqf of cauldrons and biers and shrouds and the Koran and books (in general) for custom excludes analogy according to the hadis (traditional saying of the Prophet) that whatever the Mussulmans hold to be good is good in the estimation of the Almighty. The Bahr has placed the waqf of boats and ships in the same category as the wakf of furniture, it not being customary.' "As Tahtwi points out in his Sharh (commentary) there is no difference of opinion among the Disciples regarding the validity of the wakf of horses and implements of warfare, `for with respect to them there are many traditions and proofs ;' the difference relates to objects other than these. According to Muhammed the wakf of all movables is lawful provided there is a practice with regard to them, whereas Abu Yusuf holds otherwise. `But in the Mujtaba it is stated that according to Muhammad the waqf of all movables is valid absolutely, and according to Abu Yusuf when there is a practice. Although the language of the Nahr‑ul‑Faik would give rise to an inference that the wakf of movable is valid only in places where the practice exists, Mufti Abu Saud has declared that there is no such limitation.' "And the same writer dealing with the conditions of wakf says :‑`Another condition is that the subject is suitable for dedication. According to the correct doctrine both immovable and movable property may be made wakf. ~ With respect to the latter anything which by usage and practice it is customary to dedicate like the Koran and books of traditions may lawfully be made wakf. From this it follows that though in the neighbourhood of Egypt, it not being customary a wakf of current coins may not be valid, in the countries of Rum (the Turkish Empire) the wakf of dirhems and dinars, being customary, is lawful. When such a wakf (viz., of actual money ‑dirhems and dinars‑or the equivalent of money) is made, it will be invested in muzaribat (business) and the income will be devoted to the purposes of the wakf.' "The rule relating to the wakf of movable property is enunciated in the following terms in the Khazanat‑ul‑Muftiin ; `If a man makes of a u,akf of dirhem (here used generally for money) or food or whatever is weighed or measured, according to Imam Zuffar it is lawful. When asked how such things can be made wakf, he answered the money should be invested in muzaribat, and whatever profit is derived therefrom will be devoted to the purposes of the wakf ; and what is weighed or measured will be sold and its price like money will be invested in business. And the jurists have held, and analogy is so, that if the wakif provide thus this measure of wheat will be loaned to the poor, for purposes of cultivation for themselves, and that after they have reaped the crops, the same measure will be taken back from them, and similarly for ever it should be loaned to other poor (people) ; this will be lawful. And like this there are numerous wakfs in Damawand and the hilly tracts of Tabaristan (Northern Persia). "It must be noted in this connection that Imam Zuffar is regarded in the Hanafi world as a mujtahid Imam‑a Jurist of the first rank entitled to lay down principles, standing next to Abu Yusuf and Mohammed. And as I shall show abundantly later on, it is open to the Mussulman Judge to follow Zuffar's or any other principal jurist's rule, if, in his considered judg ment, it appears more consistent with the needs of the times or the requirements of justice. "Accordingly to the great Jurist Shams‑ul‑Aimma as Sarakhsi," says Ka;zi Khan, `wakf of movables is valid; custom and usage, however, regulate what movables can be made wakf. The wakf of shrouds, books, etc., are lawful according to all. The wakf of the milk of a cow is valid if customary. The wakf of dirhems (money) is valid. They would be applied in business, and the profit arising therefrom would be used for the purposes of the wakf. In the same way, a measure of wheat may be dedicated." Woodroffe J. did not agree with the reasoning of Ameer Ali in Kulsom Bibi v. Ghulam Husain Ariff (10 C W N 449). In a later edition of his Commentary Ameer Ali discussed the reasoning in Kalsom Bibi v. Ghulam Husain Ariff exhaustively and contended that the case was wrongly decided.

24. Tyabji has in his commentary on Muslim Law stated that after the enactment of the. Mussalman Waqf Validating Act of 1913, which defines waqf as a dedication of any property, the Courts have followed that Act and have held ivaqfs of movable to be valid, but that he had, even before the passing of the Act expressed the view that waqf of movables was valid (vide para. 476). Abdur Rahim's Muhammadan Jurisprudence has already been quoted above. Abdur Rahim regards waqf of Government Securities and shares in companies as valid and considers that the same rule should apply to other movables as the prohibition is unsuited to conditions of modern life.

25. In 1913 had been enacted the Mussalman Waqf Validating Act. It defined waqf as the dedication of any property.' Following this definition it was held in Abdul Sakur v. Abubakkar (A I R 1930 Bom. 179) and Abdul Sattar Ismil v. Abdul Hamid Sait (A I R 1944 Mad. 504) that after the Act there could be no objection to the creation of a wakf in movable property.

26. I will now sum up the authorities and I will in appro priate places amplify an authority to which I may have made only a brief reference. According to Imam Aboo Hanifa waqf of movable is not valid. He would allow a waqf only of that kind of property which was made waqf during the life of the Holy Prophet. Waqf of land is valid according to him because (Hedaya p. 342, Vol. II) several of the companions of the Prophet made their lands waqf. Although he does lay down that waqf of movables is invalid the waqf of horses and arms has been accepted by him as valid because this is supported by hadis of the Prophet referred to in the quotation from Hedaya. According to Aboo Yoosaf waqf only of such movable property is valid as is accessory to immovable property. His objection to waqf of movables is presumably based on their perishable nature. He too accepts, however, that waqf of horses and arms, to carry on war against infidels, is valid, in view of the hadis of the Prophet. So far as Imam Muhammad is concerned his view as stated in Hedaya is, that the waqf of movables the appropriation of which is commonly practised is lawful. His opinion as inter preted in the Mujtaba, however is (p. 248 of Ameer Ali Vol. II) that waqf of all movables is valid without reference to the existence of a practice. That the opinion of Imam Muhammad on this point has been adopted by the Hanafi Jurists in preference to that of Aboo Hanifa and Aboo Yoosaf becomes evident on a study of the latef Hanafi authorities. Fatawa Kazi Khan, Durrul Mukhtar, Raddul Muhtar, Sarakhsi and so many other men tioned in Ameer Ali's commentary. In these commentaries it is stated that waqf of things with respect to which there is taamal (J‑1z) is valid. Ameer Ali interpreted the word taamal as meaning `dealing' and he stated that things in which people had dealings could be appropriated (made waqf ). Woodroffe, J. in 10 C. W. N. 449 accepted the contention that this word meant `practice` and that things with respect to which a practice or custom of making waqf existed could only be appropriated. Ameer Ali in a later edition criticised this translation but stated at the same time that even accepting this, definition a practice of making waqf of cash, etc., had been established.

27. So far as waqf of cash is concerned there is the opinion of Zuffar that it is valid. Zuffar as explained by Ameer Ali is a mujtahid and ranks next to Aboo Yoosaf and Muhammad. His opinion though not referred to in Hedaya has been accepted in Fatawa Kazi Khan, Mujtaba, Sharh (of Tahtawi) Khazanatul Muftien, Fahtul Qadin, Wajixul Mahit, Tahsil, Jauharatusmayyan and Ghaitulbayan.

28. Should we accept the view of Imam Muhammad (as reported in books other than Mujtaba) that waqf of movable is valid only if with respect to the particular movable a custom exists and decide a case of waqf of cash on that basis or should we accept the opinion of Zuffar and those who follow him that waqf of cash is valid without reference to practice ? Woodroffe, J. was not inclined to accept the view of Zuffar because it was opposed to that of Aboo Yoosaf and Imam Muhammad. I do not think he was justified in doing so. If among the later Hanafi Jurists, including a Mujtaliid there be practically a consensus on a particular point then even though the view be not quite in accord .with the opinion of the leaders of the Hanafi Schools it will be difficult to say that that is not the law according to the Hanafi School. And it will be observed that what Zuffar said was really only an extension of the view of Muhammad which had been universally accepted in preference to the view of Aboo Hanifa and Aboo Yoosaf. I would, therefore, hold that the view of Zuffar that waqf of cash is valid, which view has been accepted by a large t number of later Hanafi authorities correctly represents the Hanafi Muslim Law.

29. However, even if we .are to decide this case in accordance with the view of Muhammad (assuming also that the word taamal means practice or custom) there should be little doubt that this waqf is valid for there does exist a practice of creating of waqf of cash. A large number of cases there have been in prepartition India wherein the waqf of cash was declared valid. Even cases where such a waqf was not declared valid are instances of the practice. This practice started in fact not in prepartition India but much earlier. It started when the opinion of Zuffar was accepted by the later jurists. His opinion as I have stated was being almost universally accepted, and I can presume that the waqj of cash were being made in accordance with this opinion. And then there is the order of Sultan referred to in the first quotation from Ameer Ali. It cannot be said that even after that order there was no such practice. In India the law has recognised the practice of waqf of movables and in a number of Acts relating to waqf this word has been defined as dedication of any property. This is the definition in the Mussalman Waqf Validating Act of 1913, the Mussalman Wakf Act 1923, and the United Provinces Muslim Waqf Act of 1936. The Bengal Waqf Act of 1934 has gone a step further and has expressly referred to movable property in the definition.

30. In Turkey and Egypt waqf of cash and movables is valid. A number of institutions are in fact run in Egypt on income from Government Securities (p. 249 and 251 of Ameer Ali). Conditions have changed since the proposition was laid down by Aboo Yoosaf that waqf of cash was not permis sible. The reason he so held was that money was spent in use. Now it can be invested and can bring profit. It need not be consumed in use.

31. The opinion of all modern jurists Ameer Ali, Tyab ji and Wilson is in favour of the validating of a waqf of movable. They all recognize that according to modern condition such waqf should be allowed. Woodroffe, J. himself admitted in 10 C. W. N. 449 that the proposition he was putting forward was unsuited to modern condition.

32. I would hold, therefore, that a practice does, exist of making waqfs of cash and that even according to the rule enunciated by Imam Muhammad whose opinion is admittedly to t be preferred to Imam Abu Hanifa and Abu Yusuf, such waqfs should be declared valid.

33. The above conclusion relates to cash only, but I would go a step further. Why retain this useless technicality that waqf of a movable should only be valid if a practice exists. The spirit of Imam Muhammad's view is that people should be at a liberty to make waqf of things which they, as a whole, want to appropriate. That is what practice means. In prepartition India there was almost a consensus of opinion in favour of the waqf of movables amongst the commentators. Ameer Ali had expressed a clear and well reasoned opinion. Tyabji had stated that even before the Mussalman Waqf Validating Act he had expressed his opinion that such a waqf was valid. Abdur Rahim had stated that the prohibition against waqf of movables was unsuited to the conditions of modern life and should be abolished for it was not based on any positive text but on juristic deduction. The country as a whole had through the enactments of the legislature given approval to the waqf of movables. The word ivaqf as defined in the Mussalman Waqf Validating Act of 1913, the Mussalman Wakf Act of 1923, the United Provinces Muslim Waqf Act, 1936, and the Bengal Wakf Act, 1934, included movable property. Why not then put an end to this technicality as was done by the Sultan (mentioned in the first quotation from Ameer Ali) and hold that all waqfs of movables are valid ? And if we do not do this we will at the same time be creating an anomaly. So far as the fields covered by the Acts mentioned above are concerned a waqf of movable property must be held valid. The Acts of 1913 and 1923 exhaust between them all the waqfs for the one relates to waqf‑alal‑aulad and the other to all waqfs except waqf‑alal‑aulad. In the first mentioned three Acts waqf is defined as a dedica tion of any property. The Bengal Waqf Act as already stated goes a step further and expressly includes movable property within its definition.

34. I have discussed this matter from the point of view of authority but logically I do not see how an objection to the waqf of movables can be sustained. Those who maintain that waqf of movables is not valid do so on the ground that appro priation has to be in perpetuity and, therefore, it cannot be of a thing which is perishable. But when confronted with the hadis of the Prophet they concede that a waqf of horses and arms for the purposes of war is valid, and when asked how they reconcile the validity of that appropriation (waqf) with the proposition that appropriation must not be of a thing that is perishable they say it is because the characteristic of piety exists in a high degree in such appropriation. It is obvious in the first place that the hadis of ‑ the Prophet is inconsistent with the proposition that perishableness is a bar to appropriation. In the second place the hadis must at least establish that a waqf of a movable for the purpose of war is valid. If a horse or an arm can be appropriated why not a car, a truck or other movable for the purpose of war ? Almost everything that is used in peace may be needed for use in a war‑conveyances of all kinds, cats and pigeons for carrying messages, utensils for the food of soldiers, furniture and fittings for the houses where soldiers put up, and books for their reading.

35. The appropriation of all movables for purposes of war having been held to be valid, the next step would be that waqf involving as high a degree of piety as waqf created for, war would be valid for that is the reason given by the jurists for distinguishing a waqf of horses and arms from that of other movables. In determining whether the waqf of a movable is valid we would have to determine the degree of piety involved in the appropriation. There can be purposes which involve the same high degree of piety as war if we are to measure piety by the use to which the thing appropriated is put and in those cases n too the appropriation of movable will have to be valid. Let me ‑state, however, that I myself do not accept that a difference in a piety exists with reference to the particular charitable purpose of a waqf. He who appropriates, gives his property to the Almighty. If he keeps nothing for himself and gives the whole to the L Almighty the purpose for it is utilised should not make any difference so far as the piety of his act is concerned. Why should his piety be less because the best use to which, according to his interpretation of the will of the Almighty it should be put, is a use other than that of war, or because no war is on. The extent of piety is measured by the extent of sacrifice of self that is. involved in obedience to the will of God and not by the purpose which is accidentally served by that sacrifice. Is the act of a multimillionaire giving one horse for the purpose of war, of a greater degree of piety than the act of a poor person, the sum total of whose belongings is five rupees, giving the whole of that sum for the treatment of a sick person? .

36. The argument is that what is perishable cannot be appropriated. But what is not perishable ! Are buildings not perishable ? Do they last for ever ? Do they last longer than a movable made of metal or stone ? Is even land not perishable ? How do we know that what is land today may not be only water tomorrow? It may even be destroyed by a hydrogen bomb. It is to be remembered in this connection that the permanence of a thing is to be determined with reference to the possibility of a permanent use for human beings are only concerned with the usufruct. If the usufruct cannot be per manent then it cannot be an appropriation in perpetuity. I have already explained that waq f is truly only the appropriation N of usufruct, that being the difference between hiba and waqf. There is nothing that is literally permanent. Some things last longer than others. That is all. There can be no division o things into permanents and not permanent (if this word is to be used literally) and the attribute of permanence cannot be employed for distinguishing waqfs that are valid from those that are not.

37. I would hold that anything can be appropriated (made waqf) the only condition of a valid waqf being that the corpus should vest in the Almighty and the usufruct alone should be available to human beings. It may last long or it may not last long. As long as it lasts it would be waqf. A dedication, however, the very intention of which is that the corpus be, consumed would not fall within the definition of waqf. If a thing be such that the only use to which it can be put is its consumption then too it could not be said that there was any intention to preserve the corpus and dedicate only the usufruct and there would be no valid waqf. This is how I would determine the validity of a waqf.

38. I pass on now to a discussion of that which I want to make the main basis of my decision. 50ume that no waqf, in its technical sense was created and assume further that the fact that substantially the transaction amounts to a waqf does not help in validating it as waqf. What is the effect ? Does the transaction fail altogether ? It can hardly be contended that Islam with its persistent emphasis on charity does not permit a gift to charity. That in fact is not even the contention before us. What learned counsel for the appellant contends is that the donation of money to the University Fund amounts to a sadaqa. His next contention if we accept it to be a sadaqa is that it had not yet been completed for a sadaqa is a gift and has to be completed by a delivery of possession. Possession of the money which the deceased himself contributed remained according to learned counsel with him, therefore, he never lost his right of ownership in it.

39. Now it is true that the donation in dispute does amount to a sadaqa as understood in Muslim Law. Ameer Ali defines sadaqa as an offering of gift made with the object of obtaining the approval of the Almighty'. The best translation of the word according to the learned commentator is "charity' (Muhammadan Law Vol. II, p. X14). Tyabji defines it similarly (p. 471 of Tyabji's Muhammadan Law 1940 Edition). Sadaqa is stated to be in all respects like hiba. It is, however, irrevo cable, the reason being that donor has received an iwis or return, namely, the approbation of God. Sadaqa like any other gift requires to be completed by delivery of possession. While the transaction in dispute does amount to a sadaqa, this word does not bring out its prominent characteristic which is that it is a public trust. Saddqa may or may not be in the form of a trust. If a person gives alms to a beggar 'that is sadaqa. Here the property which is the subject‑matter of sadaqa has in the act of sadaqa been put to the use to R which it was to be put. But when the donor does not apply the donated property to the object of the sadaqa and simply creates a trust charging either himself or another person to apply the property to a charitable purpose, it amounts to the creation of a public trust, and it is better to describe the transaction as a public trust or as what is called in English Law a `charity' rather than as a sadaqa.

40. Between this kind of sadaqa, or this public trust and waqf there is substantially no difference. In each case the donor divests himself of the ownership of subject of waqf or trust and dedicates it to a charitable use. The only difference is that in the case of waqf this use does not consume the corpus while in the case of trust (which does not amount to a waqf) the use is such as consumes the property dedicated. The incidents o S public trust should be similar to those of a waqf. What Muslim Law calls waqf is only a trust in other systems of Law. Little distinction is generally observed between the two in com mentaries and judgments. If Privy Council judgments and commentaries are studied it will be found that the two terms are being used interchangeably.

41. It is clear that there can be no point in objecting to a transaction on the ground that the property dedicated is intended to be consumed in use and is, therefore, not waqf T for in such a case the transaction will be a public trust, while it seems clear that public trusts are valid as saddqa (when they do not constitute waqf) they have sometimes been regarded valid under Muslim Law without reference to their being sadaqa. In Haji Abdul Razak v. S. Ali Bakhsh and another (A I R 1946 Lah. 200) to which I have already referred, Din Muhammad J, had put the case in the alternative and had held that even if the cash could not be made waqf a trust had been created of it and he pointed that there was nothing in the Muslim Law which prevented the creation of a public trust apart from waqf. The learned Judge said (p. 209, Col. 1) :‑ " Fourthly, even if there be no waqf in the proper sense of the term, a property may be declared to be trust property if it' is found to be burdened with obligation for the purposes of a charitable or religious nature. This principle can easily be deduced from 15 Cal. 329, as well as 42 Mad. 161 and has been explained at some length by Khawaja Muhammad Noor J. in A I R 1932 Pat. 33 at p. 48."

42. An observation had been made by Karamat Hussain J. in Puran Atal v. Darshan Das (X I I C 166) to the effect that a trust apart from waqf is unknown to Muhammadan Law.. This view had not been shared by the other member of the Bench,. Chamiers J., nor was it approved by the Bench that decided the Letters Patent Appeal against this judgment (it was a Letters Patent Appeal from a decision of a Bench to a Division Bench). There is no discussion at all by Karamat Hussain J. of the subject. The case related to grant of property by a Muslim Ruler to a Sikh gaddi and no question of a dedication of corpus as against a dedication of usufruct, was involved. On the other hand, Muhammad Noor J. had in Muhammad Kazim v. Ali Saghir and others (A I R 1932 Pot. 33) fully discussed the question and held that trusts apart from waqfs were valid in Muslim Law. I have already referred to Muhammad Sadiq Ali v. Fakr Jahan Begam (A I R 932 P C 13) wherein their Lordships of the Privy Council held with respect to the Raddi Mazalim fund that it had come into the hands of the deceased as trustee and was not divisible amongst his heirs although their Lordships expressed no opinion on the question whether it constituted a waqf. That by a will a trust could be created in Muslim Law is well established. It is called a bequest to alt charity or a bequest for a pious or charitable purpose. Till subject is discussed at some length in Ameer Ali (p. 636 of Vol. 1) and Baillee (p. 624 of Hanafia). In Ameer Ali the difference between various bequests for pious purposes has been explained. There is also a quotation from Raddul Mukhtar which says :‑ "It should be remembered that bequests are necessarily of two kinds either entirely in favour of the Almighty God or for His servants or for both jointly and it is laid down that bequests in favour of the Almighty God should have pre ference over the others." These bequests are generally of money or a share of the property of the deceased which is to be converted into money and to belt spent on a charitable ,object or they are simply donation to some charitable institution. In all such cases whether an executor be appointed to carry out the intention of a testator by spend ing money on a charitable object, or whether that be a gift directly to a charitable institution a charitable trust is created in respect of the money that is the subject‑matter of the bequest.

43. I may also draw attention to the Punjab Muslim Personal Law (Shariat) Application Act which mentions, among the subjects to which it applies, charities, charitable institutions, charitable and. religious endowments. If waqf is the only form that a public trust can take in Muslim Law it would have been unnecessary to refer to all these subjects. Waqfs, it may be pointed out were all governed by Muslim Law by virtue of the Central Shariat Act of 1937 and there was no need to refer to them in the Provincial Act.

44. At the same time I see no reason in principle why a dedication of corpus should not be valid if a dedication of usufruct is allowed. Both are charitable uses of a thing the only difference being that in the first case the use consumes the corpus. I would hold that the Tablighi University Fund was a sadaqa or a public trust and valid as such. The next point to consider would be the contention of learned counsel for the defendant that Abdul Majid Qarshi never diverted himself of the ownership of his own contribution to the fund because sadaqa had to be completed by delivery of possession of the property involved and such delivery never took place.

45. There are many reasons why this contention should be held as entirely without force. It was a sadaqa no doubt, but the sadaqa took the form of a public trust and on account of its close resemblance to a waqf or rather on account of the Y absence of any difference in substance it is the principles of the law relating to waqf that should apply. A waqf according to the view of Aboo Yoosaf is constituted just by a declaration. According to the view of Imam Muhammad it needs appointment of a mutwalli and delivery of possession of, the property to him. In prepartition India the view adopted by the High Courts was that of Aboo Yoosaf except the High Court of Allahabad which adopted the view of Imam Muhammad. Tyabji has expressed the opinion that the divergence of views is really apparent and he has stated the true view of the autho rities to be the following :‑ "Dedication by way of waqf is completed when the waqif makes a declaration in good faith with a real intention of divesting himself of the ownership of the property which he intends to dedicate : (a) if he nominates another person as mutawalli such intention is ordinarily evidenced by delivery of the wakf property to him as mutawalli ; failure so to deliver needs at least some explanation : want of such intention may be inferred if there is no explanation (b) the fact that no person is nominated as mutawalli, does not necessarily show a want of such intention ; it may (in proper cases) be presumed that the wakif himself intended to act as mutawalli : but this last presumption may be rebutted by evidence that the wakif did not act as such, and neither himself gave, nor requested (or permitted) another to give, any effect to his declaration, or by evidence of similar circumstances and the circumstances may warrant the inference that the declaration was not made in good faith and that the owner had no intention of di vesting himself of the ownership of the property : in which case no valid dedication will take place." This passage means that a bona fide declaration is sufficient to constitute a waqf. I would hold that the same rule should be followed in the case of a trust which is not waqf and that a bona fide declaration should complete the trust. But let me assume that even in the case of a waqf delivery of possession is essential and that it would be needed in the case of a trust. The delivery has to be made to the trustee and in case the trustee is the creator of the trust himself the delivery will be complete when he changes the nature of his possession. It is well settled that as regards waqfs delivery takes place if the wakfs along with his declaration constitutes himself the first.

46. The facts in this case are that Abdul Majid Qarshi was admittedly the trustee of a fund which was to be applied to a religious or charitable purpose, and which had been contributed to by the Muslims of India. On a large number of occasions Abdul Majid Qarshi had declared that he had given his own money also in the fund. On 20th June 1945, when he issued an appeal for funds (vide P/4) he declared that he had begun with himself and that whatever he possessed he had given to the fund. On 15th December 1945, (vide P/13) he had again said that lie had given the whole of what he owned to the fund. In the letter (P/1) which lie had written to the plaintiff he had said "this is not my personal property". It is not necessary to mention all the occasions when he made such declarations and it will be sufficient to refer to his declaration in the `Zamindar' of 10th February 1949, wherein he said that the fund consisted of Rs. 1,37,000, which included his own contribution of Rs. 45,

000. He had continuously been publishing the amounts contributed to the fund in the `Iman' and those accounts always showed his own contribution. He had put the whole money including his own contribution in banks under the name of the `Tablighi University Fund'. At the same time let it be remembered that the amount which he showed as his own was also in fact a kind of contribution by the public. He had issued appeals saying that the income of the `Iman' was to be put in the fund after meeting his own small personal expenses, and for this reason the public should become subscribers to his paper. On the 20th October 1946 (P/27) he had stated that there was a great increase in the number of subscribers to his paper because people knew that the income of the paper was going into the Tablighi University Fund.

47. Not only had Abdul Majid Qarshi been making declara tion that he was holding this money as trust, he had even actually handed over the amount to another person who became the trustee. I have already stated that at one time the mother of the . Ruler of Korwai had been made treasurer of the fund. At that` time the whole of the fund including the personal. contribution of Abdul Majid Qarshi had been delivered to N Highness the Ruler of Korwai. In the letter which he wrote t Mr. Abdul Ha q Qureshi the deceased said (P.W.9/5), "On my personal request the mother of His Highness has agreed to become our treasurer and I am sending my personal contribution amounting to Rs: 30,000 and the public contribution of Rs. 26,000 to her." In his appeal to the public on 20th June 1945 (P/4) he had given a direction that all monies were to be sent to His Highness the Ruler of Korwai. On 15th December 1945 (P/13) he had stated : "In this connection my last and humble service is that I have given the whole of my personal reserve fund amounting to Rs. 23,000 into the Tablighi University and I have sent Rs. 87,000 which I collected."

48. It is not necessary to refer to other evidence. of the complete divesting of ownership that took place. Even if a person simply declares that he is the trustee of the money that he holds there is sufficient transfer of possession. If he puts ;the, money in a bank in the name of the trust though he himself is to operate the account there is sufficient transfer of possession. But in the present case the money had actually been physically handed over to another person as trustee. Even as sadaqa there was sufficient delivery of possession. The plea is almost frivolous and is just an attempt by an heir, for his own selfish ends, to deprive the deceased who was a great selfless worker in the cause of religion, of the merit which he earned.

49. The plea that the waqf was conditional on the collection of three and a half lakhs of rupees is equally devoid of force. It D is true that targets were being fixed but they were only intended D to give an impetus to the collection. Originally the target was fixed at Rs. 50,000 only. It was first raised to one lakh and then to three and a half lakhs. The defendant had led some oral evidence to show that if the amount of three and a half lakhs was not collected the contributions were to be returned. It is admitted that there was never any declaration in the `Iman' that it is only if the limit of Rs. 3,50,000 be reached that the contribution would be kept and that otherwise they were to be returned. Even defendant's own witnesses do not all of them support this plea. Reference may be made to the statement of Muhammad Iqbal Sulaimani who had sometimes been the editor of the `Iman', and who has been produced by the defendant as. a witness who should be well aware of the relevant facts. He does not even refer to the limit and when asked as to why the university did not come into existence he simply stated that the establishment of , the university was postponed because on the Partition of the country Abdul Majid Qarshi became a Muhajir and then he was murdered. It is not necessary to examine the oral evidence in detail for the absence of any statement in the `Iman' is a sufficient rebuttal of the plea. Abdul Majid Qarshi was making statements in the `Iman' continuously in respect of all matters connected with the fund and such an important matter could not have been omitted from the statements. Some evidence has also been led about the return of some contributions. Haji Fazal‑i‑Ilahi of Quetta has deposed that he had paid Rs. 1,000 into the fund but that the money had been returned to him on the ground that tabligh work was not to be done in Baluchistan.' Assuming the statement to be correct it does not, prove the plea put forward. Haji Fazal‑i‑Ilahi does not even say that his donation was conditional. There is no proof at all on the file that any person gave a conditional donation. The defendant is really concerned with the donation of Abdul Majid Qarshi and it has not even been alleged that his donation was conditional.

50. It is not correct too to say that the waqf had failed because its object cannot now be achieved. The object of trust was the establishment of a university in which preachers would E be trained who would preach to non‑Muslims as well as Muslims. E How can the need of such a university be affected by the Partition of India? Feeling the weakness of this stand it was suggested in the evidence of Mirza Muhammad Akhtar Beg that the object of the Tablighi University was only to help the backwards areas of India, like Central Provinces and Behar. This plea did not even find a place in the written statement.

51. It may be that the sum that has been collected is insufficient for the establishment of a university. But more money E can be collected and in any case the waqf of Muslim Law cannot H fail because its object cannot be achieved. As Ameer Ali states in his Muhammadan Law (Vol. 1, p. 414) the Cypres doctrine has carried to its utmost limit in Muslim Law and similar is the opinion of Tyabji (p. 600) who says the principle underlying the doctrine is deeply rooted in Muslim Law. Wilson has expressed the same opinion in para 422 of his Anglo‑Muhammadan Law. According to the Fatawa Kazi Khan (p. 595 Note II of Tyabji) "when the purpose of a waqf fails, it is lawful to apply the income of the wakf property to an object NEAREST IN ITS NATURE TO THE ORIGINAL PURPOSE. For example if the object of a wakf is a fountain the income may be applied to a tank or canal ; if it is a mosque the income is to be applied to another mosque, or to fasting, prayers, etc." Ameer Ali thus states the rule of Hanafi Law:‑ "In connection with the foregoing subject, it must be remem bered that the failure or non‑existence of the initial or primary object of a waqf does not, under the Hanafi Law, affect the operative character or validity of the waqf; or avoid it. So also the failure or extinction of the intermediate objects only accelerates the ultimate reversion, but does not cancel or avoid the waqf." In Sharaiul‑Islam it is stated :‑ "If one should make an appropriation for a maslahat, or object of general utility, which has ceased to be used, it is to be applied to any good and pious purpose. And if it is for such purposes generally, it is to be expended on the poor and indigent, and in any other way by which an approach is made to Almighty God," (p. 599 of Tyabji). Para 481 of Tyabji runs :‑ "(1) Where a dedication by way of wakf expresses or implies a general charitable intention, but either specifies no objects, or specifies objects that have failed, the property may, by an order of the Court, be devoted to the poor, or to charitable objects approximating to those that have failed. (2) A dedication made generally for charity for good objects, without specifying them, may be given effect to, if necessary, by the Court framing a scheme. Explanation:‑Where a dedication by way of wakf is purported to be made without specifying its objects and the wakf takes no step to give effect to the dedication or to utilize the property for objects which may lawfully be the objects of a wakf an inference may be drawn that no dedication was in good faith intended or completed: (Section 462). Under Abu Yusuf's exposition of Hanafi Law, if a declaration of wakf is made, it is conclusive proof of a general charitable intention; but, it is submitted that the true effect of the law at the present time is as stated and explained above". In Abdur Rahim's Muhammadan Jurisprudence the doctrine is similarly expressed (p. 305) :‑ "If, however, the specified objects be limited or happen to fail but a general charitable intention is to be inferred from the words of the grant, the waqf will be good and the income or profit will be devoted for the benefit of the poor, and in some cases, to objects as near to the objects which failed as possible. This rule is analogous to the doctrine of Cypres of the English Law." It will be observed that in Fatawa Kazi Khan and the Sharaiul Islam as well as Ameer Ali there is no condition as to the existence of a general charitable intention which is mentioned in Abdur Rahim and Tyabji. But this really does not make any difference. When a Muslim creates a waqf his object is to obtain the approval of God. He may give directions for the application of the income of the property to that charitable object for which he feels the need or which is nearest his heart but it is not to be presumed that in case the particular object fails he intends the property to revert to him for that is not consistent with the pious intention which is the motive for the act. In the absence of clear evidence to the contrary we should assume a general pious intention when a Muslim creates a waqf or trust for a charitable or religious object. This is in accordance with the opinion of Abu Yusuf. It is stated in Hedaya (Vol. II p. 341) :‑ "Abu Yusuf maintains that when the appropriation names an object liable to termination (as if he were to say `I have appropriated this to Zaid'). It is valid and after the death of Zaid it passes, as an appropriation to the poor although the appropriation has not named them."

52. I would, therefore, hold that even if the establishment of a Tablighi University be now impracticable the waqf (or trust) 11 will not fail and the money can be applied to other similar f objection.

53. Locus standi to sue sufficiently exists in the plaintiff. Learned counsel for the defendant is constrained to admit that the plaintiff had contributed Rs. 1,100 to this fund though the plaintiff claims to have contributed a much larger sum. It is proved further by unimpeachable evidence that Abdul Majid Qarshi had nominated the plaintiff as the person who was to be the custodian of the fund after his death. On the 8th of January 1947, Abdul Majid Qarshi had written a letter to the plaintiff (P/1) saying that he had signed a document directing the Hindustan commercial Bank (Patti Branch) to pay the fund, in the event of his demise to the plaintiff. On the 30th `March 1947, he declared in the `Iman' (P/32) that he had, after full consideration, selected the plaintiff as the person who was to be in charge of the fund should he, die. He had said much in praise of the plaintiff in this declaration. The plaintiff had, on the other hand, suggested (P/5) that there should instead be a committee to take charge of this fund. To thi3 the deceased had replied (P/2) that during the preliminary stags of the work a committee would not be helpful.

54. Whether Abdul Majid Qarshi could or could not nominate a successor is a different question. I may point out that he could like the mutawalli hand over actual charge of the money to any person in case he found his health failing and he apprehended death. For the purpose, however, of giving the plaintiff a locus standi either of the two facts that is the donation of Rs. 1,100 and nomination as a successor by the deceased is sufficient.

55. Apart from these two facts even a member of the Muslim Community who were to benefit by this trust can sue for, the protection of the trust property in case there be no trustee to take proceedings with respect to it. The position of the plaintiff in this' case is that of a part founder, a nominee of the sole trustee who is himself dead, and a beneficiary. Each of these capacities is by itself sufficient to confer a locus on the plaintiff to sue for protection of the waqf.

56. There remains only the question of the relief to be granted to the plaintiff. The suit was only for a declaration as to the fund being waqf and not the personal property of the deceased or the defendant. The learned Senior Civil Judge not only granted a declaration, but appointed the plaintiff and the Anjuman Himayat‑i‑Islam joint trustees and also declared that he was settling a scheme of management though actually there was no detailed scheme. It has been objected and with force that the appointment of a trustee and the settling of a scheme of manage ment was not possible without a suit under section 92 of the Civil Procedure Code. Appointment of a trustee and settling of a scheme are reliefs mentioned in subsection (1) of section 92 of the Civil Procedure Code and subsection (2) of that section h debars the Court from entertaining a suit with respect to reliefs mentioned in subsection (1) except in accordance with that section. The decree, therefore, in so far as it relates to the appoint ment of trustees and settling of a scheme has to be set aside. A separate suit under section 92 shall have to be brought for the appointment of a trustee and for directions of Court.

57. However, although trustees cannot be appointed in this suit there can be no objection to a direction that the trust property be handed over to a particular person who will keep it till a regular trustee is appointed. For this the Court has" inherent jurisdiction. In fact‑it would be the duty of the Court to take all steps to protect any property which is public trust and with which it has to deal.

58. In the present case there is need that the fund be handed over to some person because the defendant has withdrawn Rs. 45,000 from the Hindustan Commercial Bank and there should be some person to whom he pays this amount. In the decree of the lower Court there is an injunction to the defen dant to pay this sum into the fund, but there should be some person who receives the amount and in whose name the fund stands. There is no person better suited to take charge of this fund than the plaintiff through whose efforts the fund is being restored to the Muslim public.

59. Before passing the final decree there is one matter which has to be attended to. Learned counsel for the defendant has urged that the amount of the fund, according to the declaration of Abdul Majid Qarshi in `Zamindar', was only Rs. 1,37,000 whereas the amount decreed is Rs. 1,40,009‑

6. As the plaintiff depends for proof of the amount only on the declaration of Abdul Majid Qarshi I think the excess amount of Rs. 3,000 should be allowed to remain with the defendant. This amount may be deducted out of the Rs. 45,000 that the defen dant has been directed to pay back into the fund.

60. As a result, I would accept both the appeals in part and would pass a decree in the following terms :‑ (1) It is declared that Rs. 60,000, lying in deposit with the Imperial Bank of India, Okara and Montgomery Branches and now lying at Lahore, Rs. 9‑6‑0 lying in the Australasia Bank, Shah Chiragh, Lahore, Rs. 5,000 lying in the Hindustan Com mercial Bank, Lahore, and Rs, 30,000 lying in the Central Exchange Bank, Lahore (in liquidation), and Rs. 42,000 out of Rs. 45,000 withdrawn by the defendant belong to the Tablighi University Fund. (2) All the amount lying in the banks shall be transferred to the name of the plaintiff Chaudhri Fateh Muhammad Shefta and the amount of Rs. 42,000 shall be paid by the defendant in the Australasia Bank in the account of the Fund which too shall be in the name of the plaintiff. (3) The plaintiff shall be the custodian o f the fund till a trustee is appointed by a competent Court. (4) The plaintiff shall have his costs in the trial Court as well his costs in the appeal filed by the defendant that is R. F. A. 32/53. There in no order as to costs in the appal filed by the plaintiff, R. F. A. 93/53. SHABIR AHMAD, J.‑I agree. K. M. A Appeals partly accepted.