1. This is an appeal from the decree of the Subordinate Judge of South Malabar at Calicut dated 11th December 1930 in Order Section No. 56 of 1927, a suit to set aside an order passed in execution proceedings in O.S. No. 63 of 1924, which was a suit on the foot of a mortgage executed by defendant 5 in favour of the plaintiff, the Nedungadi Bank Ltd. The mortgage-deed, Ex. C, was one dated 8th May 1922. In execution of the decree the bank purchased the mortgaged property, but when an attempt was made to obtain delivery of possession there was resistance by defendants 1 to 4 in respect of the particular item which is the subject matter of the present suit, there being in all 21 mortgaged items. The resisters relied upon a wakf deed executed by defendant 5, namely Ex. 2 dated 29th September 1921, i. e. about seven months before the mortgage in favour of the Bank. An application by the Bank to remove the resistance of these defendants was made in 1926; that application was dismissed by the Subordinate Judge who upheld the contentions of defendants 1 to 4, though the plaintiff Bank relied on a cancellation deed whereby the wakf was revoked or cancelled not only by defendant 5 but also by defendants 1 and 2 and some others in April 1922, Ex. B. The present suit was one instituted with a view to set aside this order and the suit has been decreed by the Subordinate Judge, the main ground being that though the cancellation of a valid wakf is invalid, the wakf itself had not been completed or become valid by reason of the fact that there was no delivery of possession of the property. The decree was also based on a finding to the effect that there was an estoppel in favour of the plaintiff Bank; but this ground of the decision of the Court below has not been seriously supported in the arguments in this appeal. It is sufficient to say in this connection that so far as defendants 3 and 4 are concerned, there can be no estoppel as they are not parties to the cancellation deed, the estoppel being based on what is contained in the deed. As regards even the other defendants there is no evidence to show that the plaintiff Bank took the mortgage on the strength of any recitals contained in the cancellation deed. There is indeed no evidence whatever which bears on the plea of estoppel, and the finding of the Court below on the question of estoppel cannot therefore stand. It is also conceded during the arguments that if the wakf deed is valid, the cancellation is of no force. The main point therefore that was argued, and indeed the only point on which serious argument was possible, was that delivery of possession is not necessary to validate or complete a wakf which is otherwise valid. This is not a case in which it is found that the wakf deed was executed with a view to defeat or delay creditors; nor in there anything alleged against the deed which will have the effect of invalidating it except the want of delivery of possession. On this paint the finding of the Court below was that there was no delivery of possession. The correctness of this finding has been questioned in appeal by the appellants (defendants 1-4) but there is really no sufficient reason why the finding of the trial Court on a question of fact of this kind should be disregarded expressly in view of the fact that that is based on the recitals in Ex. B itself to which defendants 1, 2 and 5 were parties.
2. I must therefore proceed on the basis that this finding to the effect that there was no delivery of possession is correct, and address myself to the pure question of law, whether delivery of possession is necessary in order to constitute a valid wakf, On this point there is some difference of opinion; but there can be no doubt that the weight of authority is in favour of the view that delivery of possession is not necessary. The executant of the wakf in this case is a Mapilla of South Malabar, and it is well known that Mapillas in South Malabar are generally followers of the Shafi School of Mahomedan law. The Court below has however treated the question as if the law which applies to the present case is the Hanafi School of law. So far as the Shafi School is concerned, there is no doubt that delivery of possession is not necessary to constitute a valid wakf. In this connection I may refer to p. 231 of Amir Ali's Mahomedan Law, Vol. 1, 4th Edn., where there is a quotation from Ramz-ul-hakaik to the following effect:
According to Abu Yusuf, merely saying that 'I have made this property wakf' is sufficient to extinguish the proprietary right of the wakif, for by that the property is assigned over to God like the emancipation of a slave; and in this view the other three Imams agree (viz. Shafei, Malik and Ibn Hambal).
3. Even according to Hanafi School, it does not appear that delivery of possession is necessary to constitute a valid wakf, the only authority to the contrary being that of certain decisions of the Allahabad High Court. These decisions of the Allahabad High Court can be traced finally to Mohammad Azizuddin Ahmad Khan v. Legal Remembrancer to Government (1893) 15 All 321, on which the subsequent decisions are based. The decision in Mohammad Azizuddin Ahmad Khan v. Legal Remembrancer to Government (1893) 15 All 321, appears to be based on a mistaken notion of what was stated by a majority of the Full Bench of the Calcutta High Court in Bikani Mia v. Shuk Lal Poddar (1893) 20 Cal 116 (F B). This point has been noticed by-more than one text-book writer, and also in one comparatively recent decision of the Allahabad High Court itself. For instance, on p. 15 of Mulla's Principles of Mahomedan Law, the learned author says:
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 Mohammad, 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.
4. In the foot-note to the last sentence the learned author refers to the decision in Mohammad Azizuddin Ahmad Khan v. Legal Remembrancer to Government (1893) 15 All 321, and points out that the Court in that case thought erroneously that the opinion of Imam Mohammad should be preferred to that of Abu Yusuf because it was so laid down by the Full Bench in Bikani Mia v. Shuk Lal Poddar (1893) 20 Cal 116 (F B). In Wilson's Anglo-Mahomedan Law, Edn. 5, p. 92, it is stated that the decision in Mohammad Azizuddin Ahmad Khan v. Legal Remembrancer to Government (1893) 15 All 321, was in fact based on a statement that in Bikani Mia v. Shuk Lal Poddar (1893) 20 Cal 116 (F B), the comparative authority of Abu Yusuf on questions of Mahomedan law among Sunnis was discussed, and the majority of the Full Bench decided that the authority of Abu Yusuf is to be postponed to that of Mohammad. The learned author adds that the report of the Calcutta Full Bench case shows that no general proposition of the sort was affirmed, but that while the one dissentient Judge based his opinion partly on a general preference for Abu Yusuf, partly on a number of untranslated Arabic authorities, the majority took their stand on a series of British decisions which were, as it happened, in agreement with Mohammad on the particular point in question, and refused to go behind those decisions or to bedrawn into a discussion about the relative weight of the ancient authorities.
5. Finally in Mohammad Shafi v. Mohammad Abdul Aziz AIR 1927 All 255, Ashworth, J. observes as follows:
This decision (Mohammad Azizuddin Ahmad Khan v. Legal Remembrancer to Government (1893) 15 All 321) purports to follow a Full Bench decision of the Calcutta High Court in Mohammad Shafi v. Mohammad Abdul Aziz AIR 1927 All 255. I have examined that decision of the Calcutta High Court, but cannot find that it expressly states that Imam Mohammad is to be preferred to Abu Yusuf.
6. The learned Judge also says that the contrary opinion of Mr. Amir Ali would require to be given due weight and that in Mr. Mir Ali's Handbook of Mahomedan Law published in 1925, he reiterated the view expressed by him in Bikani Mia v. Shuk Lal Poddar (1893) 20 Cal 116 (FB), that Imam Mohammad's opinion is not recognized among the Hanafis of India. It would therefore appear that the decisions of the Allahabad High Court to the effect that delivery of possession is necessary to validate a wakf according to the Hanafi law are to some extent the result of a misapprehension of what was decided by the majority of the Pull Bench in Bikani Mia v. Shuk Lal Poddar (1893) 20 Cal 116 (F B). It may also be partly due to the fact that according to Shiah law, which is prevalent in the United Provinces, delivery of possession is undoubtedly necessary to constitute a valid wakf. Whatever the case may be, it is only in Allahabad that the view has been taken that delivery of possession is necessary to constitute a valid wakf. Most of the other High Courts have expressed the opposite view. This High Court itself does not appear to have decided the question; at least no case of this Court has been brought to our notice. But the view that no delivery of possession is necessary to constitute a valid wakf has been expressed by several other High Courts, namely, Calcutta (Jinjirakhatun v. Mahomed Fakirullah Mea AIR 1922 Cal 429), Lahore (Mahomed Said v. Mt. Sakina Begum AIR 1985 Lah 626), Bombay (Abdul Kajak v. Bai Jimbabai (1912) 14 Bom LR 295 and Husseinbhai Cassimbhai v. Advocate-General of Bombay AIR 1920 Bom 152), Rangoon (Ma E Khin v. Maung Sein AIR 1925 Rang 71), and Patna (Mahomed Ibrahim v. Bibi Mariam, AIR 1929 Pat 410), and it has also found acceptance in a recent Full Bench decision of the Oudh Chief Court, Mt. Rahman v. Mt. Baqridan AIR 1936 Oudh 213. The view taken in Calcutta goes back to 1838. The case in 1838 (Doe d. Janu Beebee v. Abdullah Barber (1838) 1 Fulton 345) is of considerable importance and in view of its importance the judgment in that case has been reproduced in full in Ameer Ali's Mahomedan Law, Vol. 1, Edn. 4, p. 236. It is important in view of the fact that it was pronounced after consulting the two moulvies attached to the Court and in accordance with the opinion which they submitted and after a consideration of the important authorities which were quoted by the learned moulvies in support of their opinion. The exact question which arises for decision in the present case is the second question that was referred to the moulvies, namely, whether delivery of property is essential to render the endowment valid according to the rule which governs other gifts. The answer of the moulvies was:
Abu Yusuf does not consider the consignment and delivery of consecrated real property to the Mootuvullee as necessary to render the wakf or consecration legal. In this opinion Mohammad differs, but the practice is in accordance with the opinion of Abu Yusuf, as written in the Mooneeah, Furthul, Kuddeer Saraj-ul-wahaj, Hedayah and Veekyat-ul-rawahij.
7. This answer is supported by the actual authorities and quotations therefrom subjoined below. This opinion of the moulvies was accepted by the Bench which held that the opinion of Abu Yusuf on both the points must be considered as the law now prevailing and sanctioned by the more recent authorities. They laid stress on the opinion of the translator of the Hedaya (i. e. Hamilton) who himself seemed inclined to Abu Yusuf's opinion as would appear from his note at p. 351 and also from certain passages in the text of the Hedaya itself where it was stated that Abu Yusuf's is the more generally received doctrine. This decision of 1838 has been followed till now, i. e. for nearly a century, in Calcutta. It is sufficient to make a brief reference to the decision reported in Khajah Hossein Ali v. Shah Zadee Hazara Begum (1869) 12 WR 344 at p. 346, in which Kemp, J. followed the ruling of 1838 and quoted with approval the following passage from Harrington's Analysis, Vol. 1, page 229:
When the two disciples, Abu Yusuf and Imam Mahommad, differ from their master Huneefa, the Mahomedan Judge is at liberty to adopt either of the two decisions which may seem to him the more consonant to reason. Futwahs or law decisions, are given primarily according to Abu Yusuf, next according to Imam Mohammad.
8. Reference was made to this observation of Kemp, J. by Woodroffe, J. in a later case reported in Kulsom Bibee v. Golam Hossain Cassin Ariff (1906) 100 WN 449 at p. 488; he says that where the two disciples differ from their master and from each other, it appears that the authority of Abu Yusuf was generally preferred and reference is made to Morely's Digest CCLXIII, Amir Ali XLIII, XLIV, and Harrington's Analysis, Vol. 1, at p. 229, besides Khajah Hossein Ali v. Shah Zadee Hazara Begum (1869) 12 WR 344. Our attention has been drawn to a decision of the Bombay High Court reported in Maher Hussein v. Ali Mahomed AIR 1934 Bom 257, where it was said that physical delivery is not essential, but such delivery as is possible must be given; this view is however based on the decision of the Privy Council in Abadi Begum v. Kaniz Zainab AIR 1927 PC 2, which was a case in which parties were governed by the Shiah School of law according to which a wakf is not complete unless possession is given. The decision of the Rangoon High Court reported in Suleman Hassan v. Sheikh Chand AIR 1927 Rang 125, merely decided that the wakif should actually divest himself of property to be made wakf in order that the wakf may be valid, and this does not necessarily mean that possession must be given to the mutavalli before the wakf can become valid. The divesting by the wakif himself can be completed by an unequivocal declaration that the property is made wakf. The opinion of the text book writers is also generally in favour of the view that the authority of Abu Yusuf is generally preferred, though there is no inflexible rule to that effect. I have already referred to the opinion expressed in Mulla's Mahomedan Law at p. 15. Abdur Rahim in his Mahomedan Jurisprudence, at p. 308, when dealing with this question whether delivery of possession is necessary, says:
The weight of juristic opinion seems to lie in favour of Abu Yusuf's view according to which delivery of possession is not necessary.
9. I may also refer to pp. 187 and 188 which deal with the general question of the difference of opinion between the various authorities and in particular to the following passage:
It is also stated that the learned have given fatwa according to the view of Abu Hanifa on all questions of 'Ibadat' or devotional matters and that, in all judicial matters and in questions relating to the duties of the Magistrate and the law of evidence, fatwa 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 Mohammad.
10. Reference may also be made generally to pp. 237 and 238, in Ameer Ali's Mahomedan Law, Vol. 1, where according to several authorities the fatwa' is that of Abu Yusuf; in other words, the legal decision is to follow the opinion of Abu Yusuf. Wilson, at p. 344 of his Anglo-Mahome-dan Law, states as follows:
The difference between Abu Yusuf and Mohammad on this point follows naturally from their divergence as to whether wakf can be constituted by mere declaration of intention without transfer of possession to a mutawalli. But the Fatwa Alamgiri, which on that question declared that opinions were equally balanced, says nevertheless that on this point the moderns decide according: to the opinion of Abu Yusuf, and that is approved.
11. The learned author adds that according to M. Clavel such wakfs are common in modern Egypt. This is perhaps because it is Egypt which is the stronghold of the doctrines associated with the name of Shafei which also find acceptance among the Mapillas of South Malabar generally. It will thus be seen, apart from the fact that the executant of the wakf in the present case is governed by the Shafei School of law and therefore the doctrine of Shafei must apply without question to the present case, that even according to the Hanafi School the weight of authorities is certainly in favour of the view that no delivery of possession is required to validate a wakf which is otherwise valid. This view would moreover bring all the four schools into line, because there is no doubt that the founders of the other three schools are of this opinion. I am satisfied that the law as actually understood by the Courts, the Mahomedan jurists, and the bulk of the Mahomedans who are governed by the Hanafi law, is that delivery of possession is not necessary in order to constitute a valid wakf. The insistence on transfer of possession in the opinion of Mohammad must have been due to the importance attached by him to archaic doctrine according to which generally possession is regarded as nine points of ownership, and no transfer of property could be conceived without actual change of seisin or possession. In all comparatively ancient systems of law we find the same stress placed on what the old English lawyers called "livery of seisin." No feoffment was regarded as a valid transfer of property unless it was accompanied or followed by livery of seisin, and even in cases where the property to be transferred was such that it lay in grant and not in liyery, nevertheless any one who took the grant found himself in a very precarious position unless he had taken care to get livery of seisin subsequently.
12. The view taken by Abu Yusuf appears to bo more in accordance with modern conditions, and certainly more in accordance with modern legal principles which have found favour with advancing times. I have therefore no doubt that we should regard Abu Yusuf's view which has been accepted by the majority of the High Courts in India and also by most of the text book writers as the correct view of law, not only as regards the Mapillas, but also as regards all Mahomedans governed by Hanafi law. It follows therefore that the finding on this point by the learned Subordinate Judge must be set aside, and as there is no other objection to the validity of the wakf with which we are concerned in this case, the wakf must be declared to be a valid and completed one. It follows that the decree appealed from must be set aside and the suit dismissed with costs in this Court and in the Court below.
Yaradachariar, J.
13. I concur, though not without some hesitation, in allowing the appeal. Once it is found that the wakf has been duly constituted, the plain. tiff cannot certainly rely on the deed of cancellation, Ex. B, either as affecting the operation of the wakf deed or as supporting a plea of estoppel. But in deciding the question of the completeness of the dedication, the statements of fact in Ex. B to which some of the defendants are parties may be used as evidence; and those statements, in the light of the other probabilities appearing in the case, seem to support the finding of the lower Court, on the point of fact, namely that the wakf deed had not been accompanied by a transfer of possession to the mutawalli. I find nothing in the evidence to suggest that the defendants intended to defraud the Bank in the matter of the creation of the mortgage in its favour, nor to suggest that the Bank acted negligently in taking the mortgage. The Bank seems to have acted on legal advice and though the lawyer's memorandum makes no reference to the deed of cancellation (because it was prepared before the date of Ex. B) or even to the wakf deed, both parties seem to have acted under the impression that on the facts stated in Ex. B it was open to defendant 5 to ignore the wakf and deal with the property as his own. It is this view of the conduct of the parties that inclined me at. one stage to consider whether I might not adopt the course recognized by the Mahomedan authorities themselves, that where' the Muslim jurists have expressed different, opinions, the Court may take that view which is most in accordance with justice in the particular circumstances. If I am right in my opinion that the parties acted honestly in the matter, there can be very little doubt that the justice of the case would require me to uphold the validity of the mortgage. But a view of the above kind, though sanctioned by the Mahommedan authorities, would undoubtedly introduce an element of uncertainty in the law; and it is this consideration which has weighed with me in agreeing with my learned brother in the decree that he proposes to make. I agree with him that the weight of authority, both according to the text writers and according to the decisions, is in favour of accepting Abu Yusuf's view in the matter and that the decisions to the contrary effect in Allahabad seem to be based upon a misreading of the judgment in Bikani Mia v. Shuk Lal Poddar (1893) 20 Cal 116 (FB).