The main legal principle established in the judgment is that delivery of possession is not necessary to constitute a valid wakf, based on interpretations from the Shafi and Hanafi Schools of Mahomedan law and the weight of authority.

Pandrang Row, J.

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upheld the contentions of defendants 1 to 4, though the plaintiff Bank relied on a cancellation deed whereby the wakf was revoked or cancelled not only by defendant 5 but also by defendants 1 and 2 and some others in April 1922, Ex.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 generall