JUDGMENT :

STANLEY, J.

1. The suit which has given rise to this appeal was brought by the plaintiff, Musammat Amina Begam, as heiress of the late Agha Ali Khan for possession of immoveable property which formerly belonged to Agha Ali Khan and for mesne profits. The defendant in defence to the action set up a deed of waqf, executed by Agha Ali Khan on the 29th of June, 1894, and also a supplementary deed of waqf also executed by Agha Ali Khan on the 26th of November, 1896, by the first of which deeds the property sought to be recovered in the suit is said to have been dedicated as waqf. The execution of the two deeds was admitted by the plaintiff, but she contended that these deeds were executed for the sole purpose of defeating her right of succession to the property on the death of Agha Ali Khan and were fictitious and illusory, and further that a valid waqf was not created by them according to the Shia Law to which sect Agha Ali Khan belonged.

2. The learned Subordinate Judge held that a waqf is not valid unless it be orally declared and that there was no evidence in this case of any oral waqf, that delivery of possession of the dedicated property by the wdqif is necessary in order to give validity to a waqf, and that there was in this case no delivery of possession, and further that the objects for which the property was dedicated were not proper objects of waqf and that, waqf was illusory, the intention of the wdqif in executing the documents being merely to deprive the plaintiff of her right to succeed to the property and not the intention of creating a valid waqf. He therefore decreed the plaintiff's claim.

3. After giving careful consideration to this case, I find myself unable to agree in the conclusion at which my learned colleague has arrived on some of the questions raised before us. In my judgment the court below, while deciding some of the points raised erroneously, rightly held that the waqf was illusory. Agha Ali Khan was one of the plaintiffs in the case of Agha Ali Khan v. Altaf Hasan Khan, [1892] I.L.R., 14 All., 429 in which it was held that according to the law applicable to the Shia sect a testamentary waqf is not valid, unless actual delivery of possession of the appropriated property is made by the waqif himself to the mut-walli. In view of the decision of their Lordships of the Privy Council in the case of Bakat Ali Khan v. Anjuman Ara Begam, [1902] I.L.R., 25 All., 236 this decision must be regarded as over-ruled, but up to the date of that decision the rule laid down in the case of Agha Ali Khan v. Altaf Husain Khan was a binding decision in this Court, and therefore Agha Ali Khan who was a party to the earlier suit understood at the date of the execution by him of the document of the 29th of June, 1894, that he could not by will create a valid waqf.

4. I may here set out at some length the provisions of the deed. After some introductory sentences this recital follows namely, “As Sadkah-i-jaria is one of the pious objects which will continue for ever,” Agha Ali Khan has made a perpetual and everlasting waqf of his 8-anna zemindari share “(here follows a description of the property)” for the performance of good (the word is translated ‘charitable’) deeds, such as the meetings of Ashra, of Muharram-ul-haram, Ashraf-Arbian and other monthly meetings, recitation of the Quran, Nazar and Niaz (presents and offerings), the charitable deeds detailed below, Then by the deed Agha Ali Khan purports to dedicate 6 houses in the city of Lucknow as waqf, one of them for the purpose of holding meetings, and the remaining five houses for the residence of Saadat-i-muminin, who observed prayer and fasting and who under a formal writing shall undertake the responsibility of making the necessary repairs of the waqf houses for their protection. Then follows a provision for the appointment of a mutwalli according to which Ag