JUDGMENT

Sen, J. - This is an appeal from the judgment and decree of the Subordinate Judge of Agra, dated 7th May 1925, dismissing the plaintiffs' suit for a declaration that the property specified in Sch. A. of the plaint was endowed property and as such was not liable to attachment and sale in execution of the decrees held by Kedarnath, defendant 2 and by Shankar Lal, defendant 3 against Hakim Saiyed Ali Ahmad, defendant 4.

2. Hakim Saiyed Mubarak Ali was a Mahomedan of the Hanif sect. His estate consisted of a residential house, 6 small houses which used to be rented out for shops and zamindari shares in two villages, namely, Nagla Patam and Phulpur.

3. His family consisted of his wife, Mt. Sitara Begam, two sons, Hakim Saiyed Nisar Ahmad and Hakim Ali Ahmad (who figures in the suit as defendant 4) two daughters, Mt. Mustafa Begam and Mt. Murtaza Begam and a grandson named Saiyad Wahajuddin.

4. On 22nd June 1909, he executed a will which sets out in detail the properties owned by him. This will which appears to have been attested by his wife, his sons and daughters and duly registered by the Sub-Registrar of Agra provided that one-third of the income of his property after paying the Government revenue, the rates and taxes and the salaries of servants should be utilized for necessary repairs and for expenses relating to marriage and deaths (presumably of the members of the family) and for the Fateha ceremony of his ancestors. The rest of the income of the property was to be divided amongst his wife, sons and daughters in certain fixed shares. This arrangement was to remain in force for a period of 25 years, after which the executors under the will were directed to divide the property among the heirs according to their Quranic shares under the Mahomedan law.

5. On 11th May 1911, Hakim Mubarak Ali executed a document which he describes as a codicil to the will dated 22nd June 1909. The scheme of the original will is not departed from. The legacies are confined to the members of the family but the original legacy in favour of the two sons is modified to this extent that in place of the legacies to the sons personally they are legacies to the sons, their wives, and children.

6. This document is also attested by his wife and children like the document first mentioned.

7. On 7th March 1913, the Musalman Waqf Validating Act (Act 6 of 1913) was placed upon the Indian Statute Book.

8. Saiyed Mubarak Ali did not contract any debts during his lifetime and his estate was not burdened with any liabilities.

9. The even peaceful tenor of his life appears to have been disturbed by his elder son, Saiyed Ali Ahmad who entered upon a course of extravagance, contracted debts and disgraced himself by ultimately seeking the shelter of the Court of bankruptcy. He was adjudicated an insolvent about the year 1910.

10. Matters stood thus, when on 23rd October 1913, Saiyed Mubarak Ali revoked the two wills already referred to and executed a fresh document, which purports to be an instrument of a testamentary character, under which a waqf was created relating to his entire property.

11. The governing idea of the testator as can be gathered from the first two wills, is that his estate should remain intact after his death. Although the consent of the heirs in the lifetime of the testator does not validate a will under the Hanifi law, he got these two documents attested by his heirs with a view to bind their conscience with a moral obligation to give effect to his wishes.

12. When the third document came to be executed, Hakim Mubarak Ali thought that he could create a perpetuity in favour of his descendants, by force of the Wakf Validating Act, and the assent of his heirs was no longer necessary. The third document dated 23rd October 1913, is not attested by his wife, his sons and daughters.

13. It opens with the following words:

I, the executant, am a Saiyad Musalman of Hanifi sect. Previously, I executed a will and codicil in respect of my property and had them regis