Yorke, J.:— This Full Bench reference arises out of a suit for possession of certain property on behalf of a mosque known as Hazrat Shah Wali in the town of Nagina in the Bijnor district on the allegation that the plaintiff was the owner of this property by reason of a deed of waqf executed on May 11, 1939 apparently by one Maula Bakhsh, father of the defendant Rahinat Ilahi. The main contention put forward on behalf of the defendant was that no waqf had been validly created inasmuch as the plaintiff mosque had never obtained possession of the property. The trial court, the Munsif of Nagina, held that possession of the dedicated property had been given by the waqif Maula Bakhsh to the mutwalli of the mosque and therefore the waqf was not invalid on the ground of failure to give possession.
In the lower appellate court the Civil Judge of Bijnor has held that possession was never given to the plaintiff mutwalli and that the waqf was for that reason invalid and could not now be enforced. The appeal was therefore allowed and the plaintiff's suit dismissed.
It is against this decree that the plaintiff came in second appeal to this Court and put forward the contention that under the Hanafi. Law it was not necessary for the completion of the waqf that the person appointed mutwalli under the waqf should be given possession of the property and the mere declaration of waqf was sufficient. The case came before one member of this Bench when it was not disputed that in the light of the decision of this Court starting with the case of Mohd. Aziz Uddin Ahmad Khan v. The Legal Remembrancer to Government, North-Western Provinces and Oudh(1) the learned Civil Judge, if he came to the conclusion that possession had not been delivered to the plaintiff, was bound to hold that the waqf was invalid. It was, however, pointed out that the view taken on this point by the High Court was at variance with the almost unanimous view of all the other High Courts in India including the other High Court in these provinces, that is, the Chief Court of Oudh. In these circumstances, it was thought desirable to refer the appeal to a larger Bench for consideration of the question whether the view taken by this Court in the earlier decisions was a correct view of the Hanafi Law on the subject or not. On the matter being referred to a Bench of two Judges it was felt that if such a Bench came to the conclusion that the view of the Hanafi Law on the subject previously held by this Court was incorrect, the Bench would still not be in a position, properly speaking, to differ inasmuch as it would be a Bench of equal jurisdiction with the Benches which had previously expressed upon the point. The case was accordingly referred to the present Bench and we have been taken through the rulings of this High Court and a number of cases of other High Courts and have also considered the commentaries which deal with the matter.
A number of cases of this High Court have been put before us. The first of these is the decision, in Mohd. Aziz Uddin Ahmad Khan v. The Legal Remembrancer to Government, to which we have referred above. The head-note runs as follows:
“According to the law of Sunni Mohammadans it is essential to the validity of a waqf that the waqif should actually divest himself of possession of the wafq property. Hence where a Sunni Muhammadan executed and registered what purported to be a deed of waqf, but never acted upon it and retained possession until his death of the property dealt with by the deed, which property subsequently passed to his two sons by inheritance, held, that no valid waqf of the property mentioned in the said deed was constituted.
The question which the learned Judges put to themselves was:
Is this deed, as amongst Sunnis, so valid by virtue of its execution only that this action to compel the execution of the trust would lie?”
The learned Judges (Tyrell and Blair, JJ.) remarked:
“We Have been referred to authorities for the proposition that seisin, either formal or constructive, is essential to the validity of the waqf.”
The point is dealt with on page 115 of the Tagore Lecture on Muhammadan Law, Part II, for 1874, where the author sums up in the following sentences:
“Thus the appropriation becomes valid, that is, absolute, according to the various opinions of the three great lawyers; according to Abu Hanifa, in consequence of the appropriator's declaration, and the Magistrate's subsequent decree; according to Abu Yusuf, by his simple declaration, and, according to Muhammad, by his declaration and delivery to a procurator. It passes out of the possession of the appropriator.”
The learned Judges went on to quote from Hamilton's Hidaya on page 232 of the 1870 Edition. We need not here refer to the view of Abu Hanifa but to the opinions of the disciples, Abu Yusuf and Muhammad. “Abu Yusuf” they say,
“alleges that his (the appropriator's) right of property is extinguished upon the instant of his saying:
‘I have appropriated’, and such also is the opinion of Shaft, because that is a dereliction of property in the same manner as manumission. Muhammad says that it is not extinguished until he appoints a procurator and delivers it over to him; and decrees are passed upon this principle.”
They then went on to refer to and base their decision on a then recent decision of the Calcutta High Court. They said:
“A case lately came before a Full Bench of the Calcutta High Court, Bikani Mia v. Shut Lal Poddar in which the comparative authority of Abu Yusuf on questions of Muhammadan Law amongst Sunnis is discussed, and the majority of the Full Bench decided that the authority of Abu Yusuf is to be postponed to that of Muhammad. This latter's exposition of the law which has just been cited supports the appellant's case.”
They proceeded accordingly to find in favour of the appellant, holding that there never was a valid and operative waqf but an inchoate endowment only, which stopped short at the written and registered declarations of the defendants' father, from which he at once receded before he had put it out of his power to do so by divesting, himself of the property.
It has been observed by Sir Dinshah Mulla in his Principles of Muhammadan Law, 12th Edition, 1944, at page 25, paragraph 28, dealing with “General Rules of Interpretation of Hanafi Law”—
“that it is a general rule of interpretation of the Hanafi Law that where there is a difference of opinion between Abu Hanifa and his two disciples, Abu Yusuf and Imam Muhammad, the opinion of the disciples prevails where there is a difference of opinion between Abu Hanifa and Imam Muhammad, that opinion, is to be accepted which coincides with the opinion of Abu Yusuf. When the two disciples differ from their master and from each other, the authority of Abu Yusuf is general preferred.”
In this connection he has referred in a footnote to a number of decisions of different High Courts and specifically he has referred to the case, Muhammad Aziz Uddin Ahmad Khan v. The Legal Remembrancer to Government, and remarked that—
“in this case it was held that the opinion of Imam Muhammad should be preferred to that of Abu Yusuf, the Court thinking (though erroneously) that it was so laid down by the Full Bench in Bikani Mia v. Shuk Lal Poddar.”
It may be noted in this connection that in a later case of this Court, Muhammad Shaft v. Muhammad Abdul Aziz, Ashworth, J. noted that in Bikani Mia's case it was nowhere expressly stated that Imam Muhammad was to be preferred to Abu Yusuf. He remarked:
“I concur with the finding (of Pullan, J.) on the ground that according to Imam Muhammad actual delivery of the waqf property to the mutwalli is a condition precedent of the waqf taking effect and on the ground that we have been shown no decision of this Court which dissents from the view expressed in Muhammad Aziz Uddin Ahmad Khan v. The Legal Remembrancer to Government, North-Western Provinces and Oudh, 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. 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 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 15 Allahabad or would justify our putting the matter up Before a Full Bench of this Court.”
What precisely was meant by this last remark does not appear.
In these circumstances, I have thought it desirable to look more carefully into the decision in Bikani Mia's case, though before doing, so I should note that it is clear that it has never been regarded in the Calcutta High Court as supporting the inference drawn from it by this High Court. In fact, in this subsequent case of Jinjira Khatun v. Mohammad Faqirulla Mia. Mookerji, J., although he remarked that—
“In a recent case in the Allahabad High Court, Muhammad Aziz Uddin Ahmad Khan v. The Legal Remembrancer to Government, where the decision in Doe dem Jaun Bibi v. Abdullah(2) was not brought to the notice of the Court, preference was given to the opinion of Imam Muhammad.”
made no reference to Bikani Mia's case as an authority for that proposition and inconsistent with Jaun Bibi's case. On the contrary he referred to a number of cases for the proposition that the rule enunciated in Jaun Bibi's case in 1838 had never been successfully challenged.
Turning now to Bikani Mia's case, the question at issue no doubt was the question of the validity of a waqf; but the I specific question was of the validity of a waqf for the I benefit of children, kindred or neighbours in perpetuity. The Full Bench consisted of five Judges, two of whom Prinsep and Trevelyan, JJ. held that upon the findings of the lower courts no second appeal lay, and it was not, therefore, necessary to express any opinion as to the validity of the instrument. Three Judges were of opinion that the instrument did not create a valid waqf, there being no substantial dedication to religious and charitable purposes. But a majority of the Full Bench nonetheless held that a charge created by the deed in question was valid. It is thus at once apparent that the question for decision was not he same question which was for decision in Muhammad Aziz Uddin Ahmad Khan's case, and Bikani Mia's case therefore can only be helpful in so far as it contains dicta upon the weight to be given to the opinions of the three Imams, Abu Hanifa, Abu Yusuf and Muhammad on a question of Hanafi law. The report contains a long statement of the authorities which were put before the Court and the arguments by which it was contended that the opinion of Abu Yusuf was to be preferred and in that connection reliance was placed on the case of Doe dem Jaun Bibi v. Abdullah. The first judgment was pronounced by Ameer Ali, J. and included in this judgment were quotations from numerous authorities, Fatawa Alamgiri, Radd-ul-Muhtar, Fatawa Kazi Khan, Fath-ul-Kadir and numerous others. At page 171 the learned Judge remarked:
“Before dealing with the case under reference, it seems to me necessary to clear away certain impressions regarding the respective opinions of Abu Hanifa, Abu Yusuf and Muhammad, which have formed the subject elaborate arguments at the bar. There is absolutely no difference between them as to the obligatoriness of a waqf or as to the validity of a waqf in favour of one's own or anybody elses family or descendants. The only dispute among them is (a) as to when and how it becomes binding and obligatory. Abu Hanifa thought a waqf to be revocable so long as the endower had not obtained the imprimature of the Kazi or ‘death came upon him,’ when it would become irrevocable. Abu Yusuf and Muhammad held that it was irrevocable, binding and obligatory (lazim) from the moment the consecration was made; but they differed as to how and when it should become operative. Abu Yusuf ruled that the waqf became binding upon the mere declaration of the dedication. Muhammad thought that it was not irrevocable until the property had been consigned to a mutwalli. With reference to these different views, Tahtawi says, ‘no one has accepted the opinion of the Imam (Abu Hanifa), some few have followed Muhammad, but the universality of lawyers have adopted Abu Yusuf's rule.’ The Manah; the Fath-ul-Kadir, etc., all say the Fatwa is with Abu Yusuf. The Alamgiri says that ‘the lawyers of Balkh follow Abu Yusuf, and we (meaning the Indian Judges) decree accordingly.’ I have given here the epitome of the dicta contained in the law-books, without burdening my judgment with quotations.”
Further down the same page (172), after saying that there are three other points upon which Abu Yusuf and Muhammad differ and stating the points of difference, he says:
“As regards the other matters, Abu Yusuf ruled that the waqf of Mushaa.’ was valid, and that the endower could lawfully reserve for himself the usufruct or indeed ‘make a waqf on himself,’ and all the Mohammadan lawyers and Judges ‘have followed Abu Yusuf.’ In India ‘the fatwa’ says the Alamgiri, ‘is with Abu Yusuf.’ And the British Indian Courts themselves have accepted and followed, under the guidance of their Law Officers, the rule of Abu Yusuf in (a), (b) and (c).”
(a) being the point referred to above as (a) and (b) and (c) the first two of the other three points.
The second judgment was pronounced by Ghose, J. He has quoted at considerable length from the authorities and at page 185 has referred to Doe d. Jaun Bibi's case, decided in 1838. It is significant, so far as relates to the decision of this Court in Muhammad Aziz Uddin Ahmad Khan's case, that Ghose, J., while quoting the questions put to the Moulavies of the Court in Doe d. Jaun Bibi's case and the answers given, did not even quote the second question,
“Whether delivery of the property is essential to render in endowment valid, according to the rule which governs other gifts?”
Upon which the answer which the Moulvies gave was:
“Abu Yusuf does not consider the consignment and delivery of consecrated real property to the Mootuwullee as necessary to render the waqf or consecration legal. In this opinion Muhammad differs, but the practice is in accordance with the opinion of Abu Yusuf, as written in the Mooneeah, Futhul Kuddeer, Seraj-ul-Wahaj, Hedayah, and Veekyat-ut-Rawahij”.
He did, however, note that the Chief Justice (Ryan, C.J) had referred to the conflicting opinions of Abu Yusuf and Muhammad, and had held that, upon the authorities quoted by the Moulvies, the opinion of Abu Yusttf should be considered as the better law and sanctioned by the more recent authorities. So far as I have been able to ascertain, Ghose, J. nowhere expressed any disagreement with that opinion.
The third judgment is that of Trevelyan, J., one of the two Judges, who took the view that no question of law really arose in the appeal. Naturally, therefore, he expressed no opinion on the question as to the weight, to be given respectively to the opinions of Abu Yusuf and Muhammad. The same view was taken by the fourth Judge, Prinsep, J., who has stated in terms that he has thought it unnecessary to enter into any minute consideration of what might or might not be a valid waqf under the Muhammadan Law. He mentioned Doe d. Jaun Bibi's case among a number of cases but did not discuss in any way the question of the weight to be given to the opinions of the two disciples, when they differ.
Lastly, the learned Chief Justice, Petheram, C.J gave his judgment, in which again that particular question was not discussed. A number of cases were mentioned but the conclusion was reached that the intention of the grantor was to create a great family estate and that such a purpose was not one for which a valid waqf could be created within the doctrine laid down by the Judicial Committee of the Privy Council in Mohammad Ahsanullah Chowdhry v. Amarchand Kundu.
On a consideration of the judgments pronounced in Bikani Mia's case, I cannot but agree with the remark of Sir Dinshah Mulla that when this Court in Muhammad Aziz Uddin Ahmad Khan's case expressed the view that the opinion of Imam Muhammad should be preferred to that of Abu Yusuf, it did so on an erroneous interpretation of the decision of the Full Bench in Bikani Mia's case.
As appears from Ashworth, J.'s judgment in Muhammad Shaft v. Muhammad Abdul Aziz the view taken by the Bench in Muhammad Aziz Uddin Ahmad Khan's case has never yet been re-considered. In effect it might be said that it has been followed without, discussion no doubt for the reason that the dictum of the Judges that the authority of Imam Muhammad was to be preferred to that of Abu Yusuf was not questioned. Indeed, it seems to have been felt that proposition was supported by the well-known judgment of Mahmud, J. in Abdul Kadir v. Salima. That appeal had been argued before the Full Bench while Mahmud, J. was officiating as a member of the Bench. The appeal was not decided until after he had temporarily left the Court, but he gave a written opinion which was adopted by the members of the Full Bench and delivered as the judgment, of the Court. In the course of his judgment which did not relate to the subject of waqf but to a question of Marriage law he remarked at page 166:
“Imam Abu Hanifa and his two disciples are known in the Hanifa school of Muhammadan Law as ‘the three Masters’, and I take it as a general rule of interpreting that law, that whenever there is a difference of opinion, the opinion of the two will prevail against the opinion of the third.”
As a general statement that seems to have held good on most matters; but obviously it does not cover such a case as the present, one in which the Imam held different views and it cannot be said that any two of them agree together, except in so far as it may be said that, the two disciples agree in rejecting the opinion of Abu Hanifa that a decree of Court was necessary. Of course, it might equally be said that Abu Hanifa and Muhammad were in agreement that mere declaration was not sufficient. Elsewhere Mahmud, J. remarked that:
“Both Imam Abu Hanifa and Imam Muhammad were purely speculative jurisconsults, who spent their lives in extracting legal principles from the traditional sayings of the Prophet; but Qazi Abu Yusuf, while equally versed in traditional lore, had, in his position as Ghief Justice of the Empire of the Khalifa Harun-ul-Rashid, the advantage of applying legal principles to the actual conditions of human life, and his dicta (especially in temporal matters) command such high respect in the interpretation of Muhammadan Law, that whenever either Imam Abu Hanifa or Imam Muhammad agrees with him, his opinion is accepted by a well-understood rule of construction.”
In my judgment there is really nothing in Abdul Kadir's case which helps us in the present case.
The rule enunciated in Muhammad Aziz Uddin Ahmad Khan's case was followed without discussion in 1921 in Muhammad Yunus v. Muhammad Ishaq Khan. In that case it was sought to be argued that where under the Hanafi Law the Imam (Abu Hanifa) and his two disciples differ, the opinion of Abu Yusuf will prevail. That contention was repelled on the strength of the decision in Muhammad Aziz Uddin Ahmad Khan's case.
The point was discussed in the same year in Abdul Jalil Khan v. Obedullah Khan. That was a case in which the waqif appointed himself as the first mutwalli and the view was accepted that in such cases no actual transfer of possession is necessary since from the date of the declaration the possession of the waqif is in the capacity of a mutwalli. The learned Chief Justice (Mears, C.J) quoted the views of Imam Hanifa and his two disciples and remarked that the present case the Court must follow the opinion of Abu Yusuf and Muhammad, a proposition which although seemingly contradictory is not really so in a case of that particular kind where the waqif is himself the first mutwalli.
Another case of the same kind in which the waqif appointed himself as the mutwalli is Alimunnisa Bibi v. Mohammad Abdur Rahman(3), in which reliance was placed on the earlier case of Abdul Jalil Khan v. Obedullah Khan Reference was also made to Gazanfar Husain v. Ahmadi Bibi(4) and to Jinjira Khatun v. Mohammad Faqir Ullah Mia(5). The last reference is interesting because, as we have already pointed out, that case is an authority for the proposition that under the Hanafi Law a valid waqf is created by declaration of an endowment by the owner and delivery of possession is not essential. The passage in the headnote on which reliance was presumably placed to support the decision in Alimunnisa Bibi's case was, however, another one in which it was stated that where the settlor appoints himself as the first mutwalli, no delivery of possession is necessary, a proposition which is obviously not one which it is at all necessary to lay down if the former proposition that mere declaration is sufficient be accepted. In the course of this decision Mookerjee, J., referred to the view of the Calcutta Court stated in the judgment of Mr. Justice Kemp in Khaja Hussain Ali v. Hazara Begum and upheld in Letters Patent in the case reported in 12 W.R 498, that—
“decisions are primarily given according to Abu Yusuf and next according to Imam Muhammad and that this preference to the opinion of Abu Yusuf is supported by the statement in the Fatawai Alamgiri.”
The learned Judge went on to quote a long passage from the Suzzat-ul-Fatawa dealing with this particular point and concluding with the words:
But in the Mohit it is laid down that universality of our jurists (that is Indian jurists) have adopted the rule laid down by Abu Yusuf (that is that under the Hanafi Law a waqf is completed by the mere declaration) and this is correct.
He went on to point out that the rule had been laid down 80 years earlier in Doe d. Jaun Bibi's case and was not shown to have been ever successfully challenged. He only referred to the fact that in this particular case the settlor had appointed himself as the first mutwalli and that in such a contingency no formal delivery of possession from himself to himself would be necessary even according to Imam Muhammad, as a further difficulty in the path of the appellants.
My learned brother Malik, J. has referred in his referring order to the decisions of the Rangoon High Court in Ma E Khin v. Maung Sein, of the Patna High Court in Muhammad Ibrahim v. Bibi Mariam, of the Lahore High Court in Muhammad Said v. Sakina Begam and Zaffar Hussain v. Mohammad Ghias Uddin, of the Madras High Court in Pathu Kutti Umma v. Nedungadi, Bank Limited, Calicut(6), of the Bombay High Court in Abdul Rajak v. Bai Jimbabai(7) and Husseinbhai Cassimbhai v. The Advocate General of Bombay(8) and of the Lucknow Oudh Chief Court in Rahiman v. Baqridan(9). We have not thought it necessary to ask learned counsel for the appellant to take us through all these cases, it not being disputed by learned counsel for the respondent that this Court stands by itself in the view it has taken on this point. Reference to a number of these cases was, however, made by Ziaul Hasan, J. who delivered the main judgment in the Full Bench case of Rahiman v. Baqridan, in the Chief Court of Oudh. I do not think it would serve any purpose to reiterate what has been said in that case. The learned. Judge quoted from Mr. Ameer Ali's Mohammadan Law, Volume I, Fourth Edition, pages 227 and 237, etc. and from the decision of the Calcutta High Court in Doe d. Jaun Bibi's case, and from Bikani Mia's case and he inferred from the latter case, as do I, that the only inference, if any, which can be drawn from it is that in India the opinion of Abu Yusuf prevails. He then went on to show that the High Court of Bombay had accepted the opinion of Abu Yusuf on this point as the correct opinion and that the Calcutta High Court had adopted the view expressed by the Moulvies and Rayan, C.J in Doe d. Jaun Bibi's case and the subsequent case of Jinjira Khatun v. Mohammad Faqir Ullah Mia. He made some reference to the original authorities quoted in this latter case and in Khaja Husain Ali's case. He further referred to the decisions of the Rangoon High Court and the Patna High Court.
In the light of all these decisions and of the authorities on which they are based, I do not think there is any room for doubt that the view taken by this Court in Muhammad Aziz Uddin Khan's case is incorrect and that the correct view of the Hanafi School of law is laid down by Abu Yusuf, namely, that for the completion of a waqf a mere declaration by the waqif is sufficient. Learned counsel for the respondent has not seriously sought to persuade us that the view taken by this Court in the past was correct.
The question which then arises is only whether, in view of the fact that the view taken in the past was incorrect and is at variance with the true view of the Hanafi law this Court should now come into line with the true view as laid down by the other High Courts in India. The only argument which, as it appears to me, is urged against so doing is that it would open the way for a new set of contests in the Courts about the execution of waqfs. Instead of contests on the question whether possession has been delivered, we should in future have before the Courts contests in regard to the fact of the declaration—whether the declaration, if oral, was ever really made or not, whether if it was documentary the waqif was compos mentis at the time of the execution of the document or was acting under the influence of fraud or undue influence. Perhaps we should have a series of contests on the allegation that the declarations were what is called fictitious, it being contended that the appropriator never intended to create a waqf but only intended to safeguard his property against seizure by creditors. It appears to me that the principle of stare decisis does not come into operation where the result of departing from an incorrect view of the law and following the correct view of the law is merely this, that in disputes on subjects to which that, law applies a new set of defences will be put forward in the Courts. That principle is applicable only where the effect, of departing from an established rule of decision will be to unsettle transactions which have been previously supposed to be finally settled. In my judgment, there is not anything in the present case which should deter us from holding that the view taken in Muhammad Aziz Uddin Ahmad Khan's case and the cases which followed that case is incorrect and the correct view of the Hanafi Law is that laid down by Imam Abu Yusuf, namely, that a mere declaration by the waqif is sufficient to complete a waqf and it is not necessary that possession be delivered to the mutwalli.
Malik, J.:— I have read the judgment of my learned brother Yorke, J. It is not necessary for me to deal with the points in detail, as I fully agree with the view expressed by him.
The question before us is whether under the Mohammadan Law it is necessary for the completion of a waqf that the waqif should deliver possession to the mutwalli. The view of Abu Yusuf is that a mere declaration is enough. Imam Mohammad, on the other hand, is of the opinion that delivery of possession is required for the completion of a waqf. It is the view of Imam Mohammad that was followed in the case of Muhammad Aziz Uddin Ahmad Khan v. The Legal Remembrancer to Government, North-Western Provinces and Oudh. In the other High Courts in India the view of Abu Yusuf has prevailed. It is urged on the strength of the case of Abdul Kadir v. Salima that the view of Abu Yusuf is entitled to preference when all the three Imams have given different opinions on a particular point, I do not think that any such general rule of preference can be laid down. I am in complete agreement, if I may say so with respect, with the view expressed by the learned Chief Justice, Sir Shah Sulaiman in Anis Begam v. Muhammad Istafa Wali Khan, that the rules of preference were for the guidance of ancient jurists and they are of no help when there is a clear preponderance of authority in support of one view. There is no doubt that the theologians, jurists and other recognised interpreters of Mohammadan Law have expressed their preference for the view held by Abu Yusuf. Most of these authorities have been discussed at length by Ziaul Hasan, J. in the case of Mst. Rahiman v. Mst. Baqridan. It is not necessary for me to discuss those authorities again, specially as none, of them were cited at the bar. The opinion of Abu Yusuf has been followed by all the other High Courts and by the text writers, as has been mentioned by me in my referring order. This consensus of opinion seems to be in favour of that view on the ground that a waqf under the Mohammadan Law is not a gift to God but is renunciation of one's ownership, and it is, therefore, that no delivery of possession arises. I must, therefore, hold that the Mohammadan Law, as interpreted by the Mohahrmadan Jurists, is, that a waqf by a Hanafi Musalman is completed by a mere declaration of intention and no delivery of possession is necessary.
The view expressed in the case of Muhammad Aziz Uddin Ahmad Khan has, however, now been followed by this Court for over fifty years, and we have seriously to consider whether it is desirable that a view so well settled in this Court should be now disturbed or that we should abide by it and now adhere to that opinion.
It is no doubt true that decision is based, if I may say with great respect, on a misreading of the case of Bikani Mia v. Shuk Lal Poddar. Even then I would have been reluctant to differ from that view if it were not that I feel that it is not likely that our decision would affect many transactions entered into or acted upon under the view as expressed in Muhammad Aziz Uddin Ahmad Khan's case. Unless the question arises immediately after the waqf, in all cases of genuine declaration of waqf, the mutwalli must have started functioning and must have got possession of the property and the question of non-delivery of possession is generally relied on merely in disproof of the fact that there was a genuine intention to make a waqf. It may be urged that the decision in favour of the appellant may encourage a dishonest litigant to set up an oral waqf to defeat his creditors. I do not think any such result would follow as even under the present law no delivery of possession is necessary if a waqif constitutes himself the mutwalli. The question being of law applicable to the Hanafi Mohammadans in this country and it not being peculiar to this province, any decision by their Lordships of the Judicial Committee in a case going from any province would overrule the view in Muhammad Aziz Uddin Ahmad Khan's case. I cannot, therefore, expect that on the principle of stare decisis the view in Muhammad Aziz Uddin Ahmad Khan's case would always prevail in this province even if that view is wrong. After carefully considering the question I think it is desirable that the law on the point should be uniform and it must be brought into line with the view of the other High Courts in India.
Wali Ullah, J.:— I have had the advantage of reading the judgments of my learned brothers and I agree that the correct view of the Hanafi Law on the point involved in the case is that propounded by Imam Abu Yusuf, namely, that the waqf becomes complete and binding on the mere declaration by the waqif and it is not necessary that possession be delivered to the mutwalli. In view of the general importance of the question, however, I consider it desirable to deal with the matter at some length.
The relevant facts of the case are quite simple and are set out in the judgment of my learned brother Yorke, J. The main question which arises for consideration is whether under the Hanafi law a mere declaration by a waqif is sufficient to complete a waqf or delivery of possession of the endowed property to a mutwalli is also necessary. It is well-known that there is a great divergence of opinion among the three principal exponents—the three masters—of the Hanafi Law. A waqf inter vivos is completed according to Imam Abu Yusuf by a mere declaration of endowment by the owner according to Imam, Muhammad the waqf is complete only if after the declaration a mutwalli is appointed and possession of the endowed property is delivered to him. According to Imam Abu Hanifa, the founder of the school, however, the only way of making a waqf complete and irrevocable before the death of the endower is to obtain a decree to that effect in a fictitious suit; the decree is to be obtained by a procedure somewhat similar to that of an in jure cessio of the Roman Law and fines and reconvenes of early English Law (Cf. Hedaya 253, Baillie 1550). Both the disciples are at one in holding that the waqf is complete without the order of a Judge (vide Baillies's Digest p. 550), and Tahtawi says:
“No one has accepted the opinion of the Imam (Abu Hanifa), some few have followed Muhammad, but the universality of lawyers have adopted Abu Yusuf's rule.”
The question, however, remains as to how the law is to be determined when there is a difference of opinion between Imam Abu Hanifa and his two disciples or when the two disciples differ from their master as well as from each other. Sir Dinshah Mulla in his Principles of Mohammadan Law (1944) 12th Edition, p. 25, has stated:
“It is a general rule of interpretation of the Hanafi. Law that where there is a difference of opinion between Abu Hanifa and his two disciples, Abu Yusuf and Imam Muhammad, the opinion of the disciples prevails. Where there is a difference of opinion between Abu Hanifa and Imam Muhammad, that opinion is to be accepted which coincides with the opinion of Abu Yusuf. When the two disciples differ from their master and from each Other, the authority of Abu Yusuf is generally preferred.”
This statement about the rules of interpretation of Hanafi Law is based substantially upon the observations of Mahmud, J. in the Full Bench case of Abdul Kadir v. Salima. The judgment of Mahmud, J. was adopted by the Full Bench after the learned Judge had temporarily left the Court. At page 166 it was observed by Mahmud, J.:
“I take it as general rule of interpreting that law, that whenever there is a difference of opinion the opinion of the two will prevail against the opinion of the third.”
A similar observation was made by the same learned Judge in another Full Bench case of this Court in Agha Ali Khan v. Altai Hasan Khan. Ameer Ali in his Mohammadan Law, 4th Edition, Vol. II, Chapter 12, Section 3, at pages 516 and 517, has referred to the case of Abdul Kadir v. Salirna and has shown that there is no such fixed rule as was laid down in that case. He has further pointed out that over and over again Fatwas have been delivered in accordance with the opinion of only one of them. He has also referred to the well known judgment of the late Maulvi Sami Ullah Khan, District Jude of Rae Bareilli in the case of Mst. Rasulan and Zahuran v. Mirza Naimulla Beg (1891). The judgment was printed in the Indian Press, Allahabad. In it the learned Maulvi has cited authorities in support of his proposition that the opinion of Imam Abu Hanifa has greater authority than that of his disciples singly or together. Again in his Mohammadan Law, 4th Edition, Vol. 1, p. 17 Ameer Ali has, referred to certain authorities including Kazi Khan in support of the proposition that the joint opinion of the two disciples can be preferred to that of Imam Abu Hanifa if the difference is due to a change of circumstances and alterations in the conditions of mankind. In Anis Begam v. Muhammad Istafa Wali Khan, the late Sir Shah Sulaiman, C.J in a very learned judgment has fully discussed this question at pages 749 and 750 and has come to this conclusion:
“There appears to be no such invariable rule which would make the decision depend on the majority of votes only.”
At page 636 he observed:
“Different doctors have followed different rules of preference. Those who were more orthodox and, generally speaking, more ancient, in many cases preferred the solitary opinion of Abu Hanifa to even the joint opinion of his disciples. There are later textbook writers who have preferred the opinion of two as against that of one. But such rules are helpful only when there is no clear, consensus. In the early days when new points arose and the decision, had to depend on an inference drawn from other Fatwas or from analogy, it was open to the learned doctors to prefer one opinion over the other which they considered more correct and consonant with the other principles, inasmuch as the three imams were, not law givers but merely interpreters of the law.”
Again at page 750 it is stated:
“Rules of preference were for the guidance of ancient jurists and they are of no help when there is a clear preponderance of authority in support of one view. It would be too late now to resort to such rules in support of a new conception as to how a point ought to have been decided though contrary to accepted opinion.”
The learned Judge has then referred to the opinion expressed by Maulvi Abdul Hai of Lucknow—the most renowned Hanafi jurist of his time—in his introduction of Sharah Wiqayah. In this connection reference might also be made to Sir Abdul Rahim's Muhammadan Jurisprudence, pages 187 and 188, where “rules for guidance in cases of difference of opinion” have been indicated. At page 187 the learned author quotes from Durru'l Mukhtar Vol. I, page 52 to this effect:
“According to some Fatawa …. ought to be given absolutely according to the opinion of Abu Hanifa, even if all his disciples differ from him, and in absence of any dictum of his in accordance with the opinion of Abu Yusuf, then Muhammad, then Zafar, and then Hasan Ibn Ziyad. This, however, cannot be said to be the accepted rule.”
Then with reference to Raddul's Mukhtar, Vol. 1, page 53, he says:
“It is also stated the learned authors have given Fatawa according to the view of Abu Hanifa on all questions of Ibadat or devotional matters and that, an all judicial matters …. Fatawa is based on the Opinion of Abu Yusuf because of his experience as the Chief Qazi of Baghdad and in questions relating to the succession of distant kindred on the opinion of Muhammad.”
He then proceeds:
“But though this may be correct as a general statement, it would be misleading to regard it as a rule of invariable application. Al-Hawi lays down as the correct rule that in such cases of difference of opinion regard should be had to the authority and reasons in support of each view and the one which has the strongest support should be followed: and this is undoubtedly in strict accord with the principles of Muhammadan jurisprudence apart from the great weight which attaches to that eminent authority (Ch. Durrul's Mukhtar, Vol. I, p. 52).”
In the light of the authorities referred to above, it must be held that there are no fixed and inflexible rules of interpretation when there is a difference of opinion among the three masters. The subsequent history of the conflicting opinions expressed by the masters, and particularly the views held by later doctors Regarding the correctness or otherwise of those opinions, will generally speaking be of much greater importance.
According to the recognised doctrine of Taqlid of Muhammadan jurisprudence, jurists are classified as under: (1) Jurists who founded schools of law, such as Abu Hanifa, Malik, Shaft'l and Ibn Hanbal, the founders of the four Sunni Schools. To them is conceded an absolute and independent power of expounding the law. (2) Jurists who are conceded authority to expound the law according to a particular school. They were the disciples of jurisconsults of the first rank. Abu Yusuf, Muhamihad, Zufar and Hasan Ibn Ziyad are among the most prominent jurists of this class in the Hanafi School. (3) Jurists who were competent to expound the law on particular questions not settled by jurists of the first and the second ranks. Among the Hanafis Tahawi, Sarakhsi, Bazdawi and Qazi Khan attained this position. (4) Jurists who occupied themselves in drawing inferences and conclusions from the law laid down by jurists of higher ranks and expounding and illustrating what had been left doubtful. Abu Bakru's Razi occupies a place in this rank. (5) Jurists who are generally held competent to discriminate between two conflicting opinions held by jurists of a higher rank. Qaduri and the author of Hedaya have been assigned a place in this rank. (6) Jurists who have authority to say whether a particular version of the law which has come down from eminent jurists of a particular school is strong or weak. The great jurist Sadrush Shariat who has been called Abu Hanifa the second has been given a place in this rank; and lastly (7) Lawyers who have to accept what the jurists of the above-mentioned classes have laid down. On any question not dealt with by jurists of the higher classes they have to proceed upon the analogy of what has been laid down in similar matters, taking into account the change in the customs and affairs of men. The author of Durru'l Mukhtar belongs to this class. “A lawyer of the present day should”, according to Sir Abdur Rahim, Muhammadan Jurisprudence, p. 188,
“in such cases accept the view which according to the jurists of the fourth, fifth and sixth degrees is correct and has been acted upon. But if in any case the later doctors have not adopted in clear language any one of the conflicting opinions, the law is to be ascertained by proceeding on the view which is most in accord with the habits and affairs of men.”
To the same effect is the observation of Sir Shah Sulaiman, C.J in the case of Anis Begam v. Muhammad Istafa Wall Khan (Ubi Supra). At page 752 the learned Judge after referring to Raddu'l Mukhtar, Vol. I, p. 73, proceeds:
“It would follow that if jurists of the first rank have differed among themselves but the jurists of the second, third and, fourth ranks have followed the opinion of one of them, it would not be proper in later times to go behind the opinion of these jurists and prefer the opinion of the majority of the jurists of the first rank which has been discarded by those of subsequent periods. The proper course undoubtedly is to abide by the opinions which have been adhered to in the commentaries which are of recognised authority in India and not to decide the point on any general rule of interpretation based on the majority of votes of the ancient jurists. Their Lordships of the Privy Council in the case of Agha Mohammad Jaffar Bindanim v. Koolsom Bibi remarked:
It would be wrong for the courts on a point of this nature (the right of the widow to inherit) to attempt to put their own construction on the Quran in opposition to the express ruling of commentators of such great antiquity and authority as the Hedaya and the Fatawai Alamgiri.”
Bearing in mind the principles which flow from the authorities referred to above, we have to see whether on the questions before us there is any consensus or preponderance of authority of jurists of later times in favour of the view of Imam Abu Yusuf or that of Imam Muhammad. Before proceeding further I might refer to Surrat-ul-Fatawa—a well recognised authority on Hanafi Law —in which pointed reference has been made to the views held by a number of well-known authoritative books on the Hanafi law and the opinions held by a number of well-known doctors on the Hanafi law have been collated. Surrat-ul-Fatawa at page 430 states:
“Though, according to Mohammad, consignment of the dedicated property and separation of it (from the other properties of the waqif) are necessary to the completion of a waqf, according to Abu Yusuf, the waqf, becomes absolute and binding, like emancipation on the mere declaration of the waqif, and his right therein becomes extinguished at once. And in the Khulasa it is lad down that the jurists of Balkh decide according to the rule laid down by Abu Yusuf, and Sadrush Shahid has stated that the fatwa is according to him and in the Fath-ul-Kadir it is mentioned that Abu Yusuf's opinion is the accepted doctrine: and in the Munieh it is stated that the fatwa is with Abu Yusuf; and this is the rule accepted by the jurists of Balkh. But the Bokhariots have adapted Mohammad's opinion. And in the Sharh-i-Vikayah and the commentary of Mulla Khusru (the Durrar-ul-Akham) it is laid down that the, Fatwa is with Abu Yusuf. In some places, it is mehtioned in the Khanteb (Fatawai Kazi Khan) that the fatwa is with Mohammad …. But in the Muhit it is laid down that the universality of our jurists have adopted the rule laid down by Abu Yusuf—and this is correct.”
It is clear from the quotation made above that such authorities as the Khulasa, Sadrush Shahid, Fath-ul-Kadir, Sharh-i-Vikayah, Mulla Khusru's Durrar-ul-Akham, the Muhit as well as the Surrat-ul-Fatawa itself have shown a clear preference for the opinion of Imam Abu Yusuf as opposed to the view of Imam Muhammad. The Khanieh (Fatawai Kazi Khan) to doubt states at some places that the fatwa is with Imam Muhammad, but it must be remembered that Kazi Khan was himself a prominent jurist of Bukhara and, as stated above, the Bukharites have adopted the opinion of Imam Muhammad as against the jurists of Balkh who upheld the rule laid down by Imam Abu Yusuf.
Ameer Ali in his Mohammadan Law, Vol. I. 4th Edition, at page 227 says:
“As already stated, no formality is required to be gone through for the purpose of creating a valid waqf. It is enough if the donor declares that he constitutes a property waqf or has constituted it a waqf. That declaration fixes upon the property purported to be dedicated all the character of a legal and binding waqf, extinguishes the title to the donor, vesting it in the Almighty (whatever the object to which it is dedicated), and makes it irrevocably inalienable and non-heritable.”
In support of his opinion he has quoted Siraj-ul-Wahaj and Fath-ul-Kadir (two very high authorities on the Hanafi Law: also quoted by the Law Officers in the case of Jaun Bibi v. Abduila Barber. Again, at page 237 he observes:
“In order that a waqf should become operative or binding, it is not necessary under the Hanafi Law that the property should be actually delivered by the waqif to a trustee. Delivery of seisin is not necessary in waqf as it is in hiba. The mere declaration of the waqif is sufficient to constitute the property waqf, and the waqif from that time forth is a mere trustee.”
It is clear from the above that Siraj-ul-Wahaj and Fath-ul-Kadir, two very high authorities on the Hanafi Law, also adopt the same opinion. As mentioned above, according to Tahtawi also—
“The universality of lawyers have adopted Abu Yusuf's rule.”
On the contrary, there are no doubt some text books of Mohammadan Law such as Majmaul Anhar, Sirajia and Bahrur Raiq which are in favour of adopting Imam Mohammad's opinion, but it seems to me quite clear from all that has gone before that the great preponderance of authority, if not the consensus of authority, is on the other side. Coming to more recent times Maulvi Abdul Hai of Lucknow, the most renowned and learned Hanafi jurist of his time, has expressed his clear preference for the opinion of Imam Abu Yusuf. In his marginal notes to Hedaya Vol. 2, p. 484, the learned Maulvi has expressed himself thus:
“And this is also the dictum of most of the learned, i.e, waqf is constituted by the mere use of words such as ‘I have made a waqf. On this ground the dictum of Abu Yusuf is more reasonable according to the learned Muhaqqin and Fatwa is given in accordance with this view, and it is stated on Munia and this is the opinion of the learned of Balkh, but the Bukharites have adopted the dictum of Imam Muhammad.”
Again, Maulvi Abdul Hai, in his learned introduction to Sharh-i-Vikayah, has dealt with this question at great length and has expressed a preference for the opinion of Imam Abu Yusuf. As mentioned above, Ameer Ali in his Mohammadan Law, Vol. 1. Fourth Edition at page 237, is clearly of the same opinion and says that mere declaration of the waqif is sufficient to constitute the property waqf. Sir Abdul Rahim in his Muhammadan jurisprudence at page 308 has expressed the same opinion. He states:
“Opinion is considerably divided among the jurists on the question whether delivery of possession to a trustee at the time of making a waqf is necessary in law, but the weight of juristic opinion seems to lie in favour of Abu Yusuf's view according to which delivery of possession is not necessary. (Fatwa-i-Alamgiri Vol. 2, pages 454 and 455).”
Turning to the case law on the point, it is quite clear that the view of Imam Abu Yusuf has been adopted by the High Courts of Calcutta, Madras, Bombay, Rangoon, Patna and Lahore and by the Oudh Chief Court. It is not at all necessary, to consider the decisions of other High Courts for it is common ground between the parties that the position is as has been seated above, Passing reference might, however, be made to the more important decisions of the Calcutta High Court in the cases of Doe d. Jaun Beebee v. Abdullah Barber and Jinjira Khatun v. Mohammad Faqirulla; to the decision of the Madras High Court in the case of Pathu Kutti Umma v. Nedungad Bank Ltd. and to the decision of the Full Bench of the Oudh Chief Court in the case of Rahiman v. Bakridan where this question has been discussed with reference to some of the original authorities and the case law on the point. The decisions of out own Court, however, can all be traced finally to the decision of two learned Judges of this Court, Tyrrell and Blair, JJ., in the case of Mohammad Aziz Uddin Ahmad Khan v. The Legal Remembrancer to Government. All subsequent decisions of this Court—viz., (i) Muhammad Yunus v. Muhammad Ishaq Khan, (ii) Muhammad Shaft v. Muhammad Abdul Aziz and (iii) Muhammad Imdad Ullah v. Bismillah Bibi—are clearly based on that decision. In Muhammad Aziz Uddin Ahmad Khan's case the learned Judges formulated the question which they had to consider thus:
“Is this deed, as amongst Sunnis, so valid by virtues of its execution only that this action to compel the execution of the trust would lie?”
The learned Judges, before answering the question observed:
“We have been referred to authorities for the proposition that seisin, either formal or constructive, is essential to the validity of the waqf.”
They then refer to the Tagore Lectures on Muhammadan Law, Part II (1874), at p. 115, where the views of the three masters, namely, Abu Hanifa, Abu Yusuf and Muhammad, are summarised. Hamilton's Hidaya, 1870 Edn., p. 232 is next referred to and this again summarises the views of the three masters with out expressing in clear language preference for any one of those views. Lastly, the learned Judges refer to the then recent Full Bench decision of the Calcutta High Court in Bikani Mia v. Shuk Lal Poddar and hold that in that case—
“The comparative authority of Abu Yusuf on questions of Muhammadan Law amongst Sunnis is discussed, and the majority of the Full Bench decided that the authority of Abu Yusuf is to be postponed to that of Muhammad. This latter's exposition of the law which has just been cited supports the appellant's case.”
In this view of the matter the appeal was allowed and the waqf was held to be invalid and inoperative. It is, therefore, obvious that the view of the law taken in the case of Muhammad Aziz Uddin Ahmad Khan was substantially based upon the decision of the Full Bench of the Calcutta High Court in Bikani Mia's case. My learned brother, Yorke, J., has closely examined the decision in Bikani Mia's case and has shown that the decision in that case does not in reality support the view taken by the learned Judges of this Court in 15 All. If I may say so with all respect, I entirely agree with the reasons given by my learned brother. It is, therefore, wholly unnecessary for me to do anything more than to say that I concur in holding that the decision of this Court in 15 All was incorrect. It was based upon an erroneous interpretation of the decision of the Full Bench of the Calcutta High Court in Bikani Mia's case. This point has been noticed by several of the well-known writers on Muhammadan Law vide Mulla's Muhammadan Law. 12th Edn., 1944, p. 25 (foot-note); Wilson's Anglo-Muhammadan Law, 5th Edn. 1921, p. 92, and Tyabji's Muhammadan Law, 3rd Edn. 1940, p. 556 (foot-note). The correct view of the Hanafi Law on the point is that which was propounded by Imam Abu Yusuf, i.e, a mere declaration of endowment by the waqif is sufficient for the completion of a waqf and it is not necessary that possession be delivered to the mutwalli.
Lastly the learned counsel for the respondent has made an appeal to the well-known principle of stare decisis. It is no doubt true that the decision of this Court in the case of Mohammad Aziz Uddin Ahmad Khan v. The Legal Remembrancer to Government, has stood for nearly half a century and has been followed by this Court in subsequent cases. It is also true that courts always hesitate to overrule decisions which have stood for a long number of years unchallenged and are not at the same time manifestly erroneous and mischievous. The reason for this obviously is that security of title may not be endangered and transactions settled on the basis of the old decisions may not be unsettled by a reversal of the old view of the law. On the other hand, there is no room for the application of the principle of stare decisis when the reversal of the old view of the law does not really Unsettle transactions entered into on the faith of the preexisting law. In the present case, as shown above, the decision in the case of Mohammad Aziz Uddin Ahmad Khan v. The Legal Remembrancer to Government (ubi supra) clearly proceeded on an erroneous interpretation of the Hanafi Law of the point and the effect of overruling that decision will not, in any case, be to unsettle transactions relating to rights of property to any appreciable extent. To adopt the language of Mukerji, A.C.J in delivering the judgment of the Special Bench of seven Judges of the Calcutta High Court in Chandra Binode Kundu v. Ala Bux Dewan with which all the other learned Judges agreed, “our decision will not embarrass trade or commerce, nor will it affect transactions which may have been adjusted, tights which may have been determined, titles which may have been obtained or personal status which may have been acquired.” In this connection reference might also be made to the decision of their Lordships of the Privy Council in two cases, namely, (i) Pate v. Pate and (ii) Tricomdas Cooverji Bhoja v. Sri Sri Gopinath Jiu Thakur, where their Lordships in effect observed that a long series of decisions based upon a clearly erroneous construction of an act is not to be followed, while a long series of decisions based upon a construction not free from doubt should not be disregarded. So long as the decision in Mohammad Aziz Uddin Ahmad Khan's case stands, the waqif has not only to make a clear declaration of endowment but also to do something more, namely, to deliver possession of the subject-matter of waqif to the mutwalli, but if that view be reversed and the principle enunciated by Imam Abu Yusuf be affirmed the result will be only this that the waqif need only make a declaration of the endowment and stop there. It seems to me, therefore, that any question of unsettling a settled transaction can hardly arise. I may add here that it is clearly desirable and in the interest of justice that, so far as possible, there should be unanimity among the several Courts in India on those matters where local conditions do not call for different results. As noted above, all the other Courts in India, including the Oudh Chief Court, have taken a view contrary to that held so far by this Court since the decision in Mohammad Aziz Uddin Ahmad's case in 15 All. It seems to me, therefore, that the principle of stare decisis does not really apply and, should not weigh with us in the present case.
By the Court—Being unanimously of the opinion, for reasons given in our separate judgments, that the decision of the lower appellate court based on the view expressed by this Court in Muhammad Aziz Uddin Ahmad Khan v. The Legal Remembrancer to Government, North-Eastern Province and Oudh is incorrect, we allow this appeal, set aside the judgment and decree of the lower appellate court and restore the decree of the trial court. Plaintiff appellant will have his costs throughout.