The main legal point established in the judgment is the determination of wakf properties and the sharing of surplus offerings at a religious institution.

Judgement

Appeal (No. 118 of 1921) from a judgment and decree (January 2, 1917) of the Chief Court reversing a judgment of the District Judge of Multan.

The suit was brought by the appellant against the respondents in the District Court. He claimed by his plaint that as sajjadanishin of Taunsa Sharif he was solely entitled to possession of wakf properties specified, to administer the affairs of the institution, and to lead in the prayers without interference by the defendants. He prayed for declarations, an injunction, and to recover Rs.5000 on account of

Law Rep. 50 Ind. App. 92 ( 1922- 1923) Khwaja Muhammad Hamid V. Mian Mahmud

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offerings which he alleged defendant No. 1 had unlawfully taken away. The defendants by their written statements pleaded that there was no religious institution or gaddi at Taunsa, that all the properties in suit were acquired by Khwaja Allah Baksh, the common ancestor of the parties, and were his private properties devolving upon his heirs according to Mahomedan law. It was denied that the plaintiff-appellant was sajjadanishin, or that any of the properties, other than a mosque, were wakf; and it was contended that the offerings were divisible between the parties according to their shares.

The facts of the case appear fully from the judgment of the Judicial Committee, which also states the effect of the judgments of the District Judge and upon appeal to the Chief Court.

The learned judges of the Chief Court held that apart from the mosque there was no religious institution properly so called. They said that the decisions showed that " there must, for the creation of wakf, be unmistakable proof of actual dedication, or at least clear proof of facts from which inference of dedication must necessarily be drawn; also that offerings made to a saint cannot be presumed to be wakf. That though the manner in which the property has been used and enjoyed is an important circumstance, an endowment of an institution with given property cannot be inferred from mere devotion of the income of that property to the institution, even if this was done by family arrangement. Further, that there must be delivery of the property to another person (mutawalli)." Upon a consideration of the evidence they came to the conclusion that no dedication as wakf was to be implied. If there was an institution the appellant, they said, was sajjadanishin.

1922. July 27, 28, 31; Aug. 1. De Gruyther K.C., Bevan-Petman and Dube for the appellant. The evidence established that Taunsa Sharif was a religious institution, and that the properties in suit were wakf properties to the possession of which the appellant was entitled as sajjadanishin. The origin and history of Taunsa Sharif shows that it was a khankah corresponding to the institution described in Piran Bibi v. Abdul Karim (( 1891) I. L. R. 19 C. 203, 220, 222.) in passages cited in the judgment of the Board in Vidya Varuthi Thirtha v. Balusami Ayyar (( 1921) L. R. 48 I. A. 302, 322.) see also Ameer Alis Mahommedan Law, 4th ed., p. 431. The judgment of the Board in that case shows that a sajjadanishin in relation to the property of the institution is in the same position as the mahant of a Hindu math, and is entitled to possession of the properties. There is abundant evidence of gifts and voluntary labour; that is consistent only with the view that this was a foundation, not private property. The judgment of the Board in Makhdum Hassam Bakhsh v. Ilahi Bakhsh (( 1913)

P. R. No. 23, p. 96.) shows that the user of property may give rise to the inference that it has been dedicated as wakf. It can hardly be disputed that the appellant was sajjadanishin; apart from the custom that the eldest son succeeded, found by the District Judge, the appellant was installed and recognized.

Sir George Lowndes K.C., E. B. Raikes and Abdul Rashid for the respondents. With the exception of the mosque, none of the property was wakf; it was family property divisible according to Mahomedan law. Although th