Judgement Consolidated separate appeals by each of the two defendants from a decree of the Judicial Commissioner of Oudh (Feb. 24, 1899) reversing a judgment of the Additional Civil Judge of Lucknow (July 15, 1897). The main questions decided in this case relate to the validity and effect of a will executed on July 10, 1890, by Mussamat Zaibunnissa, alias Haji Begam, and to the respondents claim to succeed on an intestacy to her estate as her heirs. Haji Begam died on January 19, 1894. In case of intestacy the plaintiffs Anjuman Ara Begam and Wasi Ali Khan were admittedly entitled, if legitimate, to succeed to two-thirds of her estate, and the defendant Baker Ali Khan was entitled by inheritance to the remaining third. By her will Haji Begam bequeathed to Sadik Ali and Baker Ali Khan, mainly for religious and charitable purposes, Government promissory notes, forming a portion of her estate not exceeding one-third, a devise in excess of one-third being void under Mahomedan law. Probate thereof was granted to Sadik Ali alone as executor in consequence of the minority of -Baker Ali Khan. Sadik Ali and Baker Ali Khan obtained possession of the property bequeathed, which was in the possession of Haji Begam on her death. The two plaintiffs above named accordingly sued Sadik Ali and Baker Ali Khan to recover possession from them of two-thirds of Haji Begams estate, and thereby prayed that the will should be set aside on the ground of mental incapacity of the testatrix, fraud and undue influence on the part of Sadik Ali, and its invalidity as being waqf-bil-wasiat, or endowment by will. The written statement of the first defendant asserted that the will was valid, as it did not dispose of more than one-third of the property of the deceased. The statement of the second defendant asserted that Hadri and Jafri, the mothers of the plaintiffs, were illegitimate, and that they were not entitled as heirs of Haji Begam. This question of legitimacy depended upon proof of actual marriage of the plaintiffs mothers, Hadri and Jafri, to Zaka-ud-daulah. No acknowledgment by the father creating legitimacy was alleged. But Haji Begam, as daughter of the King of Oudh, and apparently as interested in one of the various loans made to the East India Company by that dynasty, was a wasikadar, or holder of a pension from Government. No acknowledgment by the father creating legitimacy was alleged. But Haji Begam, as daughter of the King of Oudh, and apparently as interested in one of the various loans made to the East India Company by that dynasty, was a wasikadar, or holder of a pension from Government. It appears that it is and was the practice of the wasika officer at Lucknow to require wasikadars to file in his office from time to time declarations stating the names of the persons who were their heirs. A declaration of this kind is usually called a wirasatnama. A series of these, extending from 1860 to 1890, and proceeding from Haji Begam, had been produced from the Wasika Office, and had been found by both Courts to be genuine. The judge of the First Court held that, having regard to the rest of the plaintiffs evidence, which he examined at considerable length, these documents were not sufficient to establish the marriages, and therefore found that the plaintiffs had failed to prove that they were the heirs of Haji Begam. With regard to the will, he decided that it was not executed under undue influence, and that it disposed of less than one-third of Haji Begams estate, and was to this extent valid. He, however, was of opinion that the document in question was not a will, properly so speaking, but a document by which Haji Begam created a waqf to take effect after her death, and thus being a waqf-bil-wasiat, i.e., the creation of a waqf by means of a will, was invalid. In the result he dismissed the suit with costs. The Judicial Commissioners found on the evidence that Hadri and Jafri were married to Zaka-ud-daulah in the mutai form, and held that under Shiah law an acknowledgment by the father was not necessary to the legitimacy of the children. They further held that the document dated July 10, 1890, was not a will, but a waqf-bil-wasiat, and was invalid by Mahomedan law. They further held that the document dated July 10, 1890, was not a will, but a waqf-bil-wasiat, and was invalid by Mahomedan law. The material passage of their judgment upon this latter point is as follows— "The deed begins in manner following According to the text, " every person is to taste of death," every person has one day to taste the cup of death, and to leave this transient world, and no one knows the time fixed for it; therefore, as a matter of precaution, one is bound to make arrangements in respect of his property during his lifetime in order that the mutual disputes may be prevented. For this reason, as prudence and expediency require it, it seems proper that I should dispose of by will a third part of my movable and immovable property and cash in the way of God for ever, in order to improve my condition in the next world and make arrangements for it in my lifetime, that no sort of quarrel may arise after my death. The deed then goes on to state that the executant makes the following will in respect of the one-third of her property specified below, amounting to Us.54,100, which has been set apart for the expenses of the Imambara, having appointed two executors and mutawallis, namely, Sadik Ali Khan and Baker AH Khan. By the 1st clause the executant places the Imambara and its appurtenances, together with the furniture and other things in the Imambara, under the mutawalliship of the said mutawallis/ and appropriates for the expenses of the Imambara for ever four Government promissory notes amounting to Rs.54,100, of which she gives the particulars, the annual interest of which amounted to Rs.2164. By the 2nd clause the executant provides for the expenditure of Rs.2164 in connection with the Imambara, directs that the said executors shall not have at any time the power to reduce or increase the desa or majlises of the sacred month of Moharram till the fortieth day, and empowers them to dismiss and appoint the servants connected with the Imambara. By the 3rd clause the executant provides that Baker Ali Khan, when he attained his age of majority, shall superintend and manage the business of the Imambara in conjunction with Sadik Ali Khan, and directs that the pay fixed for him shall, while he is a minor, be kept as g trust property/ or shall be paid to his guardian. By the 4th clause the executant pro vides for the appointment of the descendants of old servants attached to the Imambara who may die to the posts occupied by such deceased persons, if such descendants are fit persons, and empowers the executors/ where such descendants are not fit persons, to appoint other persons, and also to dismiss any servant who may misconduct himself. By the 5th clause the executant provides that Sadik Ali Khan and Baker Ali Khan shall be mutawallis and managers for their lives, and that their descendants, generation after generation, shall succeed them. By the same clause the executant provides for the appointment of mutawallis by the English ruler of the time being and the Mujtahid of the day in case any of the descendants of Sadik Ali Khan and Baker Ali Khan are not able persons or are not of good character. By the same clause the executant also empowers a mutawalli to relinquish his office and to appoint another mutawalli in his place. By the 6th clause the executant directs that Mir Husain, mukhtar, is to draw the interest of the Government notes and to manage the Imambara for life in subordination to the mutawallis. By the 7th claus the executant provides that the balance of the income derived from the houses and shops attached to the Imambara, after payment of the miscellaneous expenses of the Imambara, shall be given to Saiyeds who are true believers. By the 8th clause the executant provides for the removal of the mutawallis, and the appointment of new mutawallis in their place by the ‘district officer in case the mutawallis are guilty of misappropriation, &c. By the 9th clause the executant forbids any kind of transfer by the executors of the Government promissory notes. By the 10th clause the executant empowers the said mutawallis to indorse the notes in execution of their office after her death. By the 10th clause the executant empowers the said mutawallis to indorse the notes in execution of their office after her death. By the same clause she declares that she is the owner of Ali the property while she is alive, and provides for certain other matters. By the 11th clause the executant provides for the removal of her body to Karbala. By the 12th clause she authorizes the mutawallis to permit persons to be buried in the Imambara. By the 13th clause she covenants not to make another will. "According to the law governing the Shia sect of Mahomedans, to bequeath is to confer a right to the substance or the usufruct of a thing after death Baillies Imameea Law, 229; Amir Alis Mahomedan Law, vol. i. p. 460. A will may be constituted by the use of any expression that sufficiently indicates the intention of the testator; so long as it is apparent that the intention of the testator is to make a disposition operative on his death, it will be regarded as a wasiat. The devise may be either to the legatee beneficially or in trust for some purpose or object Amir Alis Mahomedan Law, vol. i. p. 460. "It appears, therefore, that to constitute a will there must be a devise to some person either beneficially or in trust for some purpose or object. "It is contended for the appellants that the deed contains bequests for religious and meritorious purposes. “It seems to me that there is no devise of any property by the deed. The executant does not devise the Government promissory notes to Sadik Ali Khan and Baker Ali Khan in trust to pay the expenses of the Imambara out of the interest. She sets apart and appropriates for ever the notes for the expenses of the Imambara, and places the Imambara under the superintendentship of Sadik Ali Khan and Baker Ali Khan. "Waqf, according to the Shia doctrines, is a religious act, the effect of which is to tie up the corpus or substance of a thing and to leave its usufruct free Amir Alis Mahomedan Law, vol. i. p. 390. According to the Jawahir-ul-Kalam, the object of a waqf is the continuance in perpetuity of a benefaction in the service of the deity, and it is an act of worship. i. p. 390. According to the Jawahir-ul-Kalam, the object of a waqf is the continuance in perpetuity of a benefaction in the service of the deity, and it is an act of worship. The express word by which it may be created is waqf to, i.e., I have dedicated Amir Alis Mahomedan Law, vol. i. p. 390. "It is contended for the respondents, with reference to the case of Agha Ali Khan v. Altaf Husain Khan (Ind. L. R. 14 Allah. 429.), that the use of formal technical expressions is an essential condition, and without it waqf is not established. In that case the Jami-ul-shattat is cited as authority for this proposition. It is apparently based upon the Sharaya-ul-Islam. But the opinion expressed in the Sharaya is explained in Jawahir-ul-Kalam. According to that work, which is an authoritative commentary on the Sharaya, there is nothing in the law to debar the creation of a waqf by the use of any other expression besides waqf to—that is to say, when the intention of the grantor is clearly to create a waqf, whatever expression he may have used, the dedication will take effect, but where the term waqf itself is used, the dedication will take effect as such without questions Amir Alis Mahomedan Law, vol. i. pp. 390, 394-395. "The intention of Haji Begam was clearly to set apart the notes for pious purposes. If a man were to say, " I have tied up this property and given its profits in the way of God, it would be a waqf Amir Alis Mahomedan Law, vol. i. p. 390. This is what Haji Begam has done as to the notes. She has disposed of them, according to her own words, in the way of God for ever/ and appropriated them for ever for the expenses of the Imambara. It seems to me that there was a valid dedication of the property. " I am of opinion that the deed is not a wasiat or will, but a waqf-bil-wasiat, and that it is therefore invalid." De Gruyther, for the appellants, contended that both the Courts below wrongly construed the document of 1890 to be a waqf-bil-wasiat, and also erred in law in holding that a waqf cannot be directly created by will under the Shiah law. There is no foundation for the distinction drawn in this respect between the Sunni law and the Shiah law. Sunnis admittedly can create a waqj by will see Wasiq Uli Khan v. Government. (( 1836) 6 S. D. A. 130.) The main authority for the distinction is the judgment of Mahmood J. in Agha Ali Khan v. Altaf Hasan Khan. (Ind. L. R. 14 Allah. 429.) But see Baillies Imameea, pp. 229, 233. On p. 217 he states the lawful purposes for which under Shiah law a waqf can be created see also Ameer Alis Mahomedan Law, pp. 483, 534, 566. Mahmood J. says that under Shiah law a waqf is by definition a contract involving offer and acceptance and other conditions applicable to gifts inter vivos; but see Baillies Imameea, p. 211, where waqf is defined as a contract, and p. 231, where a bequest is also defined as a contract see also pp. 217, 220. Then as to the various conditions said to be required by Mahomedan law for the validity of a waqf, a summary of them is given by Mr. Baillie in his Imameea, p. 213, and four conditions of its creation stated on p. 214. Precisely the same conditions are given in his Hanifi law on p. 560 as applicable to Sunnis see also Muhammad Azizuddin Ahmad Khan v. Legal Remembrancer to Government (( 1893) Ind. L. R. 15 Allah. 321.), Baillies Imameea, p. 212, and Hanifi, pp. 559, 565, 568, and 601; Ameer Ali, pp. 395,407, 408; Macnaghtens Mahomedan Law, pp. 416,417 ; Wilsons Mahomedan Law, p. 269, para. 319, and the case in 14 Allah. 229. It was also contended that the evidence did not prove that the respondents are the legitimate issue of Zaka-ud-daulah. The main evidence relied upon consisted of certain documents purporting to bear the seal of Haji Begam. These were not proved to have emanated from her as her declarations. Many of them were not admissible in evidence see Indian Evidence Act, s. 32, clause 5. Moreover, in dealing with those statements, it must not be assumed that in referring to issue she necessarily meant legitimate issue. There was no evidence that the mothers of the respondents were ever treated as legitimate by Haji Begam and other members of the family, or were even acknowledged as his legitimate children by their alleged father. Moreover, in dealing with those statements, it must not be assumed that in referring to issue she necessarily meant legitimate issue. There was no evidence that the mothers of the respondents were ever treated as legitimate by Haji Begam and other members of the family, or were even acknowledged as his legitimate children by their alleged father. Mayne, for the respondents, contended that the Courts below were right in holding that under Shiah law a waqf cannot be directly created by will, and that the deed of July 10, 1890, was invalid. He relied upon the reasoning contained in Mahmood J.s judgment in 14 Allah. 429. Shiah and Sunni laws on the subject of creation of waqf by will are not identical. The authorities cited on the other side shew that they are different. The Mahomedan texts cited by Mahmood J. lay down the essentials of a waqf under Shiah law. He referred especially to pp. 446, 462, 463, and 468 of that judgment. The Shiah law is much more strict than Sunni law as to creation of waqfs. There are four essentials to its validity first, possession must be at once given to the donee; second, there must be an absolute transfer to take effect at once by the donor; third, the gift must be unconditional ; fourth, there must be no reservation of interest by the donor see Baillies Imameea, pp. 212, 213, 218; Ameer Ali, pp. 409, 410. He referred to paragraph 10 of the document in this case as violating those conditions, or some of them. Then, upon the question of legitimacy of the respondents mothers, it was contended that the Judicial Commissioners were right in regarding the documents containing Haji Begams statements as to her heirs as trustworthy and as conclusive coming from a person who had the best means of knowledge, and made not merely ante litem motam, but before any controversy had arisen in the family on this question. They shewed that she intended them to be her heirs see Fazeelun Beebee v. Omda Beebee. (( 1868) 10 Suth. W. R 469.) With regard to the criticism that issue where used in those documents does not necessarily mean legitimate issue see Fazeelun Beebee v. Omda Beebee. (( 1868) 10 Suth. W. R 469.) De Gruyther replied. March 4. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. (( 1868) 10 Suth. W. R 469.) With regard to the criticism that issue where used in those documents does not necessarily mean legitimate issue see Fazeelun Beebee v. Omda Beebee. (( 1868) 10 Suth. W. R 469.) De Gruyther replied. March 4. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. The suit out of which these consolidated appeals arise relates to the devolution of a part of the property of Haji Begam, a Mahomedan lady who died at a very advanced age on January 19, 1894. She was a daughter of a former King of Oudh, and the family to which she belonged are Shiahs and governed by the Shiah law. Haji Begam was married to Ikhtidar-ud-daulah, who died in 1883, and the issue of that marriage was a son, Zaka-ud-daulah, who died about forty years ago, leaving issue by three different mothers, Farzana, Haidri, and Jafri. By Farzana he left a son, Fazl Ali, who is dead without issue, and a daughter, Najmunnissa, who died leaving a son Baker Ali, the first appellant. By Haidri, Zaka-ud-daulah left a daughter, Shazada, since deceased, whose daughter is the first respondent. By Jafri he had a daughter, Wilayeti, who died leaving a son, the second respondent. On July 10, 1890, Haji Begam executed a document, the legal effect of which is in controversy, under which it is contended by the appellants that certain portions of Haji Begams estate have become waqf devoted to religious purposes. Under this document Sadik Ali the second and Baker Ali the first appellant were to be executors and mutawallis ; and on January 21, 1895, Sadik Ali alone obtained probate of the document as a will, Baker Ali being a minor. On June 8, 1895, the now respondents filed the present suit against the appellants in the Court of the Additional Civil Judge of Lucknow. They alleged that they were entitled as heirs of Haji Begam to two-thirds of the property which should pass to her heirs, while they admitted that the other third passed to the first appellant, Baker Ali, as their co-heir. And they claimed to have it established that the alleged will of July 10, 1890, was invalid as against them as heirs, and to recover two-thirds of the property affected by it. And they claimed to have it established that the alleged will of July 10, 1890, was invalid as against them as heirs, and to recover two-thirds of the property affected by it. The Additional Civil Judge who heard the case held that the plaintiffs, the now respondents, had failed to prove that they were heirs of Haji Begam. As to the second question, he held that the will was not valid against heirs ; but as he had found that the respondents were not heirs, he dismissed their suit with costs. Against this decision an appeal was brought to the Court of the Judicial Commissioner of Oudh. The two Additional Judicial Commissioners who heard the appeal differed from the first Court on the first question, and held that the now respondents were heirs of Haji Begam, while they agreed with the first Court as to the effect of the will; and they accordingly reversed the decree of the first Cort, and made a decree in favour of the now respondents on Ali points. Against that decree the present appeals have been brought. With regard to the question whether the respondents are heirs of Haji Begam, their case is that their mothers Shazada and Wilayeti were the legitimate children of Zaka-ud-daulah, inasmuch as the respective mothers of those ladies, Haidri and Jafri, were his wives, married to him in the mutai or temporary form, which is accepted as valid by the Shiah law. On the other side it was alleged that Haidri and Jafri were both sisters of Farzana, the first wife of Zaka-ud-daulah, and that Farzana was living at the time of the supposed marriages with Haidri and Jafri, so that there could have been no lawful marriages with them. Both Courts in India have found that the facts necessary to support this contention are not proved; and their Lordships were not asked to review these findings. It was also urged in India as matter of law that a child of a mutai marriage is not legitimate without proof of acknowledgment by the father; but this contention was abandoned before their Lordships. The case that remains on behalf of the appellants is that neither Haidri nor Jafri was married to Zaka-ud-daulah, that they were mere slave girls, and that their children by Zaka-ud-daulah were the fruit of illicit intercourse with him. The case that remains on behalf of the appellants is that neither Haidri nor Jafri was married to Zaka-ud-daulah, that they were mere slave girls, and that their children by Zaka-ud-daulah were the fruit of illicit intercourse with him. The issuo thus raised, which is one purely of fact, is the one upon which the Courts in India have differed. There is no direct evidence of either marriage—a point upon which the Courts in India have not Laid much stress, and under the circumstances their Lordships think rightly. There is no evidence of acknowledgment of the children by their father—a point which is of less importance than it might otherwise have been by reason of the fact that, when he died, the two children whose status might have been affected were very young. But marriage and legitimacy may of course be proved in such cases by other means. In the present case the most important evidence in favour of legitimacy consists of a series of statements made by Haji Begam herself which were admitted as evidence by the Courts in India, and their Lordships think rightly. It appears that Haji Begam was in receipt of a pension from Government known as a " wasika" ; and according to the practice in force such pensioners were from time to time called upon to make statements to the Wasika Office, a department under Government, as to who were their heirs. A series of such statements by Haji Begam extending from 1860 to 1890 is in evidence. It also appears that from time to time Haji Begam was asked by the wasika officers to furnish explanations of the statements submitted by her, and several letters in reply to such inquiries have been produced. In these documents, beginning with that of 1860 down to and including that of 1885, Haji Begam speaks of the line of Haidri and that of Jafri as heirs in exactly the same terms as of the line of Farzana, whose legitimacy is not questioned ; she speaks of Shazada and Wilayeti as her granddaughters, and as daughters of Zaka-ud-daulah; she speaks of Shazada, at a time before Wilayeti was born, as daughter of a mutai wife, coupling her as such with Najmunnissa; and she speaks of Jafri as a mutai wife still alive. In her statement of 1890, it is true, she omitted the respondents from her list of heirs. In her letter of explanation she gave her reasons for this, which do not seem to be inconsistent with her previous statements of fact, but which were not accepted as satisfactory. Their Lordships think that the Appellate Court was right in giving great weight to these documents. They come from a public office and bear indorsements which exclude Ali doubt of their genuineness ; they contain the statements of one who had the best means of knowledge, made at times when no such controversy as the present can well have been in contempla tion ; and the statements are such that, if true, they seem to conclude this part of the case. Ikhtidar-ud-daulah, Haji Begams husband, who died in 1883, also appears to have been in receipt of a wasika, and when he died a question arose as to who should succeed to it. A petition was presented jointly by Fazl Ali, Shazada, and Wilayeti describing the deceased as their grandfather, and asking that his pension should be allotted to them. This petition their Lordships think has been duly proved, and it seems to be by necessary inference a statement by Fazl An, and a statement against his own interest, that the title of his two cousins was as good as his own, And so far it confirms the far more important statements of their grandmother. On the same occasion inquiry was made from the Wasika Office of a number of persons as to the heirs of the deceased man; and the answers then obtained from them with the evidence of the same persons at the trial have been received. This evidence, however, is of very inferior value to that previously referred to, for it consists at best of hearsay reports of statements said to have been made by members of the family. The learned judges who heard the appeal in India do not appear to have attributed much importance to it, and their Lordships do not rely upon it for the conclusions at which they have arrived. In support of the respondents case reliance was further placed upon the treatment of Haidri, Jafri, and the descendants of each in Haji Begams family, which, it was argued, was inconsistent with illegitimacy. In support of the respondents case reliance was further placed upon the treatment of Haidri, Jafri, and the descendants of each in Haji Begams family, which, it was argued, was inconsistent with illegitimacy. In dealing with this branch of evidence their Lordships will only notice those matters as to which there is no controversy of fact. Haidri and Jafri and their children and grandchildren were always treated as members of Haji Begams family. Haji Begam made an allowance to each of those ladies for the maintenance of herself and her children. Haji Begam provided for the marriages of the children, and such marriages took place with members of the family; thus the second respondent, Wasi Ali, is married to the daughter of the second appellant, Sadik Ali, who is himself a sisters son of Haji Begam. Lastly, in the will of Haji Begam, the effect of which will have to be considered in another connection, when making provision for the anniversary religious ceremonies in commemoration of the deaths of certain ladies, the testatrix places Shazada in the same list, not only with Najmunnissa, but with the testatrix herself and her mother, and provides alike for all. To meet the case of the respondents, reliance has been placed upon two lines of defence. First, the learned counsel for the appellants has sought to impugn each piece of evidence in detail, and in particular has examined and criticized every document relied upon, with the object of shaking its credit and minimising its effect. Their Lordships have given full weight to these criticisms, but they have failed to create any doubt in their Lordships minds as to the trustworthiness or as to the meaning and effect of the documents to which, as already indicated, they attach importance. The appellants relied secondly upon evidence given at the trial, by witnesses of each side, the effect of which is said to have been to shew that in the family to which Haji Begam belonged very lax views as to sexual relations prevailed, and that, for social purposes at least, legitimate and illegitimate children were treated alike. This evidence seems to have had great weight with the Court of first instance. This evidence seems to have had great weight with the Court of first instance. It is unnecessary to consider what effect ought to have been given to this evidence if the case of the respondents had rested only on evidence of treatment in the family, for this is not the case. The statements and letters of Haji Begam and the petition to which Fazl Ali was a party related, not to social status or family recognition, but to rights of inheritance. And the evidence in question can have no bearing upon statements on that subject. Certainly, too, it can have no tendency to neutralize the express assertions of Haji Begam that Shazada was the daughter of a mutai wife, and that Jafri was a mutai wife. For these reasons their Lordships are of opinion that the Additional Judicial Commissioners were right in holding that the respondents are co-heirs with Baker Ali of Haji Begam, and are as such entitled to two-thirds of the property descending to her heirs. The second inquiry involved in these appeals is as to the validity and effect of the alleged will of July 10, 1890. That document commences with the usual invocation and reference to the uncertainty of life, and proceeds— " I deem it proper to dispose of by will a third part of my movable and immovable property and that of cash in the way of God for ever, in order to improve my condition in the next world, and to make arrangements thereof in my lifetime that there may arise no quarrel and dispute after my demise, I .... do hereby set apart out of my entire property a third part as detailed below, valuing this date Rs.54,100 Queens coin, for the expenses of Imambara, &c, and having appointed two executors and mutawallis (superintendents) named Nawab Sadik Ali Khan and Nawab Baker Ali Khan, make my will with the following provisos — " (1.) That having placed one pucca Imambara owned and possessed solely by me and free from Ali transfers with two pucca Mahal Sarais, compound and pucca shops, situate in Mohallah Pir Bokhara and Lohia Bazar in the Lucknow city, and bounded as under, together with Ali furniture and articles intended for mourning purposes in the month of Moharram and belonging to the said Imambara, the detail whereof is given below, under the charge of the aforesaid mutawallis (superintendents) I set apart for the perpetual expenses of Imambara four promissory notes amounting to Rs.54,100, numbered as follows [The numbers are given, as are the boundaries of the Imambara, and a list of furniture and other articles]." Para.2 " That the monthly and annual expenses of the Imambara mentioned above shall ordinarily be as detailed below, and the said executors shall have no power at any time to decrease or increase expenses." [The expenditure is here prescribed.] Para.3 provided for the minority of Baker Ali. "(5.) That Nawab Sadik Ali Khan and Nawab Baker Ali Khan will continue to act as superintendents and managers during their lifetime, and after their demise their descendant’s generation after generation will hold the same office. If (God forbid) any of their descendants may turn out of bad conduct and prove incompetent for the office, the British Government and Mujtahid ul-asr (religious leader for the time) conjointly shall appoint two fit persons to act as superintendents for the Imambara, and they shall be invested with the aforementioned powers. Any of the superintendents desiring to renounce his office can do so after appointing a new man of his own choice. "(7.) The income arising from the shops and houses shall be kept with the superintendents, and after defraying miscellaneous expenses of the Imambara, the surplus shall be distributed among Saiyeds. Any of the superintendents desiring to renounce his office can do so after appointing a new man of his own choice. "(7.) The income arising from the shops and houses shall be kept with the superintendents, and after defraying miscellaneous expenses of the Imambara, the surplus shall be distributed among Saiyeds. "(8.) If, perchance, both the executors or their descendants commit embezzlement and misappopriation, subvert the arrangements stated above,, or raise any dispute or quarrel about the same, the magistrate of the district shall, in that case, institute an inquiry, and shall have power to appoint other two persons in their place and act as directed above. "(9.) The executors shall have no power to make any sort of transfer by mortgage or sale, in respect of the above detailed promissory notes, at any time. "(10.) That the said executors shall have power to indorse the notes after my demise in execution of the will, and during my lifetime I shall receive the interest and defray the expenses of the Imambara; nay, so long as I live, Ali sorts of property in respect whereof the will has been made shall remain in my absolute proprietorship. The expenses incurred after my death in obtaining a certificate, in conducting suits in the event of dispute arising between heirs or in seeking any other relief, shall be met from the interest arising from the promissory notes, but in case of insufficiency the additional expenses shall be paid by the superintendents by deducting from such items as they think proper, so that they may sustain no personal loss. The superintendents are further empowered to make a proportionate deduction in Ali the items of annual expenses, if by chance any diminution be made by Government in the present rate of interest. "(12.) In the said Imambara corpses will be interred with the consent of the above-named superintendents. "(13.) If after the execution of this will, which has taken place with my free will and consent, I execute another will or a codicil revoking this will and disposing of the property detailed above, the latter one should be regarded by the Court as null and void." In paragraph 14 it is said "I have written these few lines as a will and have got it registered. Their Lordships think it clear that this document is a will, and that its expressed intention is to convey the property with which its deals, on the death of the testatrix, to the mutawallis, the appellants, as waqf for the purposes specified; and effect must of course be given to that intention if the law admits of it. It was held, however, by both the Courts in India that under the Shiah law, unlike the Sunni law, a waqf cannot be created by will. And though it is not so stated, there can be little doubt that the Courts in so holding acted out of deference to the decision of a Full Bench of the High Court of the North-Western Provinces in 1892 in the case of Agha Ali Khan v. Altaf Hasan Khan (Ind. L. R. 14 Allah. 429.), in which the law appears to have been so Laid down. Their Lordships have therefore to consider whether the High Court, whose reasons were most fully expressed by Mahmood J., were right in deciding, as they seem to have done, in that case that under Shiah law a waqf cannot be created by will, though the result can be secured indirectly by making a gift of property with a direction to the donee to create the waqf desired. In considering this question their Lordships must start with certain propositions as to which there is no doubt. A Shiah can make a gift. He can make a gift of the kind known as a waqf. He can make a will and can, speaking generally, give a gift by will. It would seem to follow as a logical inference that he can make a waqf by will, as can a Sunni. And in substance and effect it is admitted that he can indirectly do so. It is admitted that he can make a gift of property by will and require the donee to apply it as waqf; the contention is that the testator, though he can do this, cannot himself directly create the waqf by his will. The distinction which has been taken is thus one of form, not of substance; and it is one which has little to commend it unless their Lordships are constrained by authority to accept it. The distinction which has been taken is thus one of form, not of substance; and it is one which has little to commend it unless their Lordships are constrained by authority to accept it. The only judicial authority prior to 1892 on the present point cited in argument is the case, in 1836, of Wasiq Ali Khan v. Government (6 S. D. A. 110.), mentioned by Mahmood J. at p. 449 of his judgment, in which effect was given to a testamentary waqf of a Shiah. Mahmood J. suggests that the Sudder Court wrongly applied Sunni law to the case, and it may be so ; but it may equally well be that it was not then thought that there was any difference on this point between the two schools of Mahomedan law. The learned judge suggests also that until the case before this Committee in 1841, Rajah Deedar Hossein v. Ranee Zuhoor-oon-Nissa (( 1841) 2 Moores Ind. Ap. Ca. 441), Shiah law was not consistently applied to Shiah cases. And again he may be right though the language used in the case just cited (2 Moores Ind. Ap. Ca. at pp. 477, 478) hardly supports him in this view. The case before the Sudder Court is not a strong authority, but so far as it goes it lends support to the more liberal view upon the question under consideration. The case of Prince Suleman Kadr v. Darah Ali Khan (( 1881) L. R. 8 Ind. Ap. 117.), decided in 1881, shews at least that in the same family to which Haji Begam belonged a testamentary waqf was created and apparently went unquestioned. On the other hand, the only support for the doctrine that a Shiah cannot directly make a waqf by will is to be found, not in any positive statement by any of the recognised authorities on Shiah law, but in the reasoning of Mahmood J. upon a number of more or less ambiguous texts, which their Lordships have considered with Ali the respect due both to the opinion of so eminent a Mahomedan lawyer, and to the concurrence of his colleagues in the Full Bench in his views. In the earlier and more important part of his judgment the learned judge deals with texts, many of them of undoubted authority, which purport to lay down the essentials of a waqf under Shiah law, namely, that a waqf is by definition a contract involving offer and acceptance, that as essential conditions there must be delivery of seisin, that the gift must be unconditional, and that nothing must be reserved for the settlor. The last two conditions may, their Lordships think, be disregarded for the present purpose. If a waqf may be made by will speaking from the death, there is no condition and no reservation in such a case as the present. Mahmood J.s reasoning turns on the definition and the first condition; he thinks his conclusion necessarily follows from them, and this is the really important part of his reasoning on which the whole depends. The argument of the learned counsel for the respondents was the same he contended that if you accept the texts, as you must do, you are bound to accept their logical consequences. In Abul Fata v. Russomoy Dhur Chowdhry (( 1894) L. R. 22 Ind. Ap. at pp. 80, 87.), in the judgment of this Committee delivered by Lord Hobhouse, the danger was pointed out of relying upon ancient texts of the Mahomedan law, and even precepts of the Prophet himself, of taking them literally, and deducing from them new rules of law, especially when such proposed rules do not conduce to substantial justice. That danger is equally great whether reliance be placed upon fresh texts newly brought to light, or upon fresh logical inferences newly drawn from old and undisputed texts. Their Lordships think it would be extremely dangerous to accept as a general principle that new rules of law are to be introduced because they seem to lawyers of the present day to follow logically from ancient texts however authoritative, when the ancient doctors of the law have not themselves drawn those conclusions. There are, moreover, special difficulties in the way of accepting the inference drawn by Mahmood J. from the definition and conditions of a waqf as Laid down in the ancient Shiah texts. The more important of those texts have long been accessible to Ali lawyers. In none of them does the author himself draw the conclusion that the creation of a waqf by will is excluded. The more important of those texts have long been accessible to Ali lawyers. In none of them does the author himself draw the conclusion that the creation of a waqf by will is excluded. Nor has that conclusion been drawn by any modern writers who have collected and translated such texts, though in other respects the difference between the Shiah and the Sunni law of waqf has been pointed out. And beyond these negative indications their Lordships find an important guide for determining the light in which the definition and condition in question should be regarded, as bearing upon the testamentary creation of a waqf, in the closely analogous case of a gift. A gift like a waqf is defined as a contract requiring offer and acceptance, and delivery of seisin is a condition of the validity of a gift as of a waqf. Yet from the time of the earliest Shiah authorities until now it has always been clear that a Shiah can make a gift by will. The most authoritative work of that school (the one translated by Baillie) contains a chapter on wills. This Committee in Nawab Amin-ood-Dowlah v. Syud Roshun Ali Khan (( 1851) 5 Moores Ind. Ap. Ca. 199.) affirmed their validity. And the distinction drawn by Mahmood J. is itself based on the legal efficacy of a gift by will. Their Lordships think that, in applying the same definition and condition to the case of a waqf, it is safer to follow this analogy than to draw the logical conclusions which may seem to an acute modern dialectician to follow from the words of the old texts. Another part of the judgment of Mahmood J. deals with texts which seem to have little bearing upon the present question. They discuss the consequences of the death of a settlor before delivery of seisin, and they relate apparently, not to wills, but to cases in which a man has made a deed of waqf intended to operate inter vivos, but has died before he could complete the transaction by delivery. The last part of the judgment of the learned judge cites texts bearing somewhat more closely upon the present question. The last part of the judgment of the learned judge cites texts bearing somewhat more closely upon the present question. But there is no unanimity among them; the learned judge has to choose between texts which he thinks are of various degrees of authority, and it is to reconcile those which he accepts that be adopts his distinction between the direct and indirect creation of a waqf by will. Their Lordships doubt whether the learned judge would himself have relied upon such texts as sufficient to support his conclusion had he not already been satisfied of its correctness by the reasoning of the earlier part of his judgment, in which their Lordships are unable to concur. For the foregoing reasons their Lordships are of opinion that the rule of law Laid down by the Allahabad High Court, and followed by both the Courts in India in the present case, to the effect that a Shiah cannot create a waqf by will, is unsound. Their Lordships thus differ from the First Court upon both the broad issues raised in the case, while they agree with the Appellate Court upon the first and differ upon the second. But the result is that the suit of the plaintiffs, the present respondents, fails and was rightly dismissed by the First Court, though not upon the right grounds. Their Lordships will humbly advise His Majesty that the decree of the Judicial Commissioners Court should be set aside with costs, and that of the Additional Civil Judge of Lucknow affirmed. The respondents will pay the costs of these appeals.