JUDGEMENT

Appeal (No. 68 of 1930) from a decree of the High Court (January 16, 1928) which modified and in part reversed a decree of the Subordinate Judge of Patna (July 31, 1922).

The action out of which this appeal arose was brought on January 9, 1920, by the present respondent, Syed Akbar Ali Khan, one of the two surviving brothers of the settlor, for (inter alia) a declaration that a wakf deed executed by the settlor, dated May 25, 1917, was invalid and did not in law operate as a dedication of the properties comprised therein, and that he (the plaintiff) was entitled to possession of a third share of the properties by inheritance from his brother, the settlor, who died on March 19, 1919. The appellant, who was the first defendant in the suit, was by the terms of the deed appointed to be sole mutwalli on the death of the settlor.

The main question for determination in this appeal was whether the wakf deed, and a supplementary deed, dated February 15, 1919, were valid and operative documents according to Shia law, by which the parties to the suit were governed.

The facts and the material provisions of the wakf deed appear from the judgment of the Judicial Committee.

The Subordinate Judge of Patna declared the deed to be inoperative and the properties mentioned therein to be part and parcel of the estate which Badshah Nawab, the settlor, left at his death, and he passed a decree in favour of the plaintiff accordingly.

On appeal the High Court (Sir Dawson Miller C.J. and Adami J.) modified the decree of the Subordinate Judge in part, but concurred with him on the main question of the invalidity of the deed. The appeal is reported at ( 1928) I. L. R. 7 Pat. 426.

1937. Jan. 18,19, 21, 22, 25, 26. Sir Herbert Cunliffe K.C., Abdul Majid and Mrs. M. J. Clark for the appellant. The wakf deed was an effective wakf there was effective acknowledgment in (a) witnesses to original deed; (b) registration; (c) petition to the District Judge to appoint mutwalli; (d) a partition suit in July, 1918, in which the settlor and Syed Ali Zamin were impleaded as mutwallis and described as such in the decree ; and (e) a partition suit in September, 1918, in which they sued as mutwallis—the present respondent appeared in that suit and did not deny that they were mutwallis. The wakf deed was not illusory it was executed by Badshah Nawab when he was of sound and disposing mind—on this there is a concurrent finding of facts by the lower Courts in favour of the appellant. The respondent is estopped from alleging that there was not an effective wakf. The settlor divested himself of all proprietary interest in the subject matter of the wakf as required by Shia Mahomedan law, and there was a change of character of possession. The High Court, having found that the deed itself did not purport to retain proprietary rights in the settlor, erred in inferring from the appropriation to himself for his personal use of the income of the property that he had not completely divested himself of the property as required by Shia law. The acts might be breaches of trust, but the fact that a breach was committed by the trustee could not be ground for holding the trust invalid. Acknowledgment is evidence of change of character of possession. Transfer of possession may be actual, constructive, or symbolical. Mutation in part is symbolical of mutation of the whole. A wakf is defined in Ameer Alis Mahommedan Law, 4th ed., vol. I., 497, 499. [Reference was made to Ghazanfar Husain v. Ahmadi Bibi (( 1929) I. L. R. 52 A. 368, 372.) ; Kali Das Mullick

v. Kanhya Lal Pundit (( 1884) L. R. 11 I. A. 218.) ; Mahomed Buksh Khan v. Hosseini Bibi (( 1888)

L. R. 15 I. A. 81, 95.) ; and Mohammad Abdul Ghani v. Fakhr Jahan Begam. (( 1922) L. R. 49 I. A. 195.)] The settlor here, by what he has done, must be held to be in constructive possession as mutwalli. There was mutation of part of the property he has done all he could. [Reference was also made to Abadi Begum v. Kaniz Zainab (( 1926) L.