Judgement Appeal (No. 120 of 1936) from a decree of the High Court (January 14/ 1935), reversing a decree of the Senior Subordinate Judge, Amritsar (January 2, 1929). The suit out of which this appeal arose was brought by the respondents Nos. 1 to 5, who alleged that they were representatives of the Asna Ashri community of Amritsar, with the sanction of the Collector under ss. 92 and 93 of the Code of Civil Procedure, against Mussammat Ali Begam (since deceased) and others for (inter alia) a declaration that certain properties at Amritsar were created wakf by the will, dated March 3, 1887, of Agha Kalb Abid Khan, a Shia Mussulman, and the grandfather of Mussammat Ali Begam. The plaint, treating Mussammat Ali Begam as de facto mutawalli, asked that she should be removed from that office and be made to account for the wakf property and for the proceeds of various sales and of a lease, and also asked that a scheme should be framed for the wakf. Mussammat Ali Begam denied that the properties in question were wakf, and alleged that she had been in possession of them as owner. The facts and the relevant provisions of the will appear from the judgment of the Judicial Committee. The Senior Subordinate Judge dismissed the suit, holding that there had been no valid dedication of the properties by the will. On appeal by four of the five plaintiffs to the High Court (Jai Lal and Skemp JJ.) it was held that a valid wakf was created by the will. The appeal is reported at ( 1935) I. L. R. 16 Lah. 782. The principal questions for determination in this appeal were, first, whether, the appeal to the High Court having been by four only of the five plaintiffs to whom consent to institute the suit was given by the Advocate-General, it was a competent appeal; and secondly, whether according to Shia Mohamedan law a wakf of the plaint properties was created in fact, and if so, whether the wakf was valid in law. By s. 92, sub-s. 1, of the Code of Civil Procedure " In the case of any alleged breach of any express or constructive "trust created for public purposes of a charitable or religious "nature....two or more persons having an interest in the "trust and having obtained the consent in writing of the "Advocate-General, may institute a suit ....to obtain a "decree" [granting the various remedies specified under (a) to (h)]. By s. 93 of the Code of Civil Procedure the powers conferred by s. 92 on the Advocate-General may, outside the Presidency-towns, be exercised also by the Collector. Law. Rep. 65 Ind. App. 198 ( 1937- 1938) Musammat Ali Begam V. Badr-Ul-Islam Ali Khan 39 1938. March 11, 14, 15. Dunne K.C. and J. M. Parikh for the appellants. The question is whether on the construction of the will a valid wakf is created of certain properties in Amritsar. The testator is dealing with the whole property as property covered by his will and over which he has absolute power of disposal. He appointed a manager to carry it on according to the manner in which he (the testator) had carried it on, and the manager has the power of disposal over the whole of it like an owner himself. The testators male descendants from generation to generation shall have the power of management; and never in the will does he refer to the idea of somebody taking the place of a mutawalli holding the property dedicated under the Mahomedan law as wakf. He is really dealing with it as if it were a sort of private benefaction of his own to his family. The alleged wakf is not in accordance with Shia Mussulman law because the testator never divested himself of the whole of the property —he reserved a residential right in his descendants, including females, for all time in the sarai. Further, he is imposing on the property he is supposed to have made wakf the payment of his debts, and is giving power of disposal. The Wakf Validating Act has nothing to do with this case because there is nothing illusory. The High Court said that there was a clear appropriation of the sarai to a wakf, and that that being so it became a wakf. The Wakf Validating Act has nothing to do with this case because there is nothing illusory. The High Court said that there was a clear appropriation of the sarai to a wakf, and that that being so it became a wakf. Reliance is placed on the opening words of the will—that he is dealing with the whole of this property as his own; there can be gathered from it not a dedication of the property according to Shia Mahomedan law, but the creation of a sort of private trust with the religious purposes which he indicates. If the question of construction is decided adversely to the appellants, then the question is whether the reservation of residence to his brother and his heirs makes the wakf invalid. Under the Mahomedan law there must be a complete divesting of his own interests from the dedicated property. The point in this case is not whether something could be reserved out of the income of the trust property, but whether the testator has divested himself of what benefit he had in the property Muhammad Ahsan v. Umardaraz. (( 1906) I. L. R. 28 A. 633.) If there was a dedication, it was invalid, because the testator has not within the meaning of the rule of Shia law divested himself of all his interest in the property by reason of the residential clause. A man who retains an interest in the sense that he gives to his descendants the rights of residence comes within the principle that he has not divested himself within the meaning of the Shia law. It is also submitted that the position in regard to the debts and the powers of disposal cuts at the root of this being a valid dedication Abadi Begum v. Kaniz Zainab. (( 1926) L. R. 54 I. A. 33, 36 et seq) In the case of the two properties subject to life estates, which were not to come in as a dedication in praesenti, it is clear from the text-books that none of that property could constitute dedicated property within the Shia law. Where property has been so given, and not in praesenti, it could not constitute a valid wakf, because it does not create a wakf immediately of the property Baillies Digest of Moohummudan Law, vol. ii., p. 218; Syed Ameer Alis Mahommedan Law, 4th ed., vol. Where property has been so given, and not in praesenti, it could not constitute a valid wakf, because it does not create a wakf immediately of the property Baillies Digest of Moohummudan Law, vol. ii., p. 218; Syed Ameer Alis Mahommedan Law, 4th ed., vol. i., p. 515; Banarsi Prasad v. Kashi Krishna Narain.(( 1900) I. L. R. 23 A. 227, 232.) The appeal to the High Court, not having been filed by all the original plaintiffs, was not competent Maddala Bagavannarayana v. Vadapalli Perumallacharyulu (( 1915) 29 Mad. L. J. 231.); Vishondas v. Damomal (A. I. R. ( 1925) Sind, 1.); Muhammad Ishaq v. Muhammad Hussain Khan (A. I. R. ( 1927) Lah. 382.); and Pitchayya v. Venkatakrishnamacharlu.(( 1929) I. L. R. 53 M. 223.) Pugh K.C. and Abdul Majid for respondents Nos.1 to 5. With regard to the preliminary point—that the appeal to the High Court was not competent—the cases cited for the appellant overlook the point that this is a representative suit. Once such a suit is instituted, it goes on; it does not abate by one or other of the parties dropping ot. The rights of the whole body are to be considered, and it is for the Court to hold an inquiry as to what steps should be taken; the Courts have differed in their views as to what can be done Anand Rao v. Ramdas Daduram (( 1920) L. R. 48 I. A. 12.); Venkatanarayana Pillai v. Subbammal (( 1915) L. R. 42 I. A. 125.); Watson v. Cave (No. 1) (( 1881) 17 Ch. D. 19.); Danes Haji Mohamad Sidik v. Jainudin (( 1906) I. L. R. 30 B. 603.); and Abdur Rahim v. Mahomed Barkat Ali.(( 1927) L. R. 55 I. A. 96.) Law. Rep. 65 Ind. App. 198 ( 1937- 1938) Musammat Ali Begam V. Badr-Ul-Islam Ali Khan 40 The main point is, was there by the will a substantial dedication of the property in question to the purposes of a sarai? It is submitted that that is what the testator intended to do. The next question is whether the position is altered because he provided that his brothers descendants should have the right to live in the sarai. It is submitted that that provision makes no difference. It is submitted that that is what the testator intended to do. The next question is whether the position is altered because he provided that his brothers descendants should have the right to live in the sarai. It is submitted that that provision makes no difference. Under Mahomedan law the testator cannot reserve any benefit for himself, but he can undoubtedly make a charitable bequest which benefits his descendants, and can incorporate in a deed of dedication certain provisions which result in a situation where certain persons may "eat out of the wakf "—get the benefit of it, although they have no right there. Once that is established, it follows that this residential provision is nothing more than a provision giving benefit to some members of his family. [Reference was made to Syed Ameer Alis Mahommedan Law, vol. i., p. 309.] In the law as laid down by this Board in Sheik Mahomed Ahsanulla Chowdhryv. Amarchand Kundu (( 1889) L. R. 17 I. A. 28.); Abdul Gafur v. Nizamudin (( 1892) L. R. 19 I. A. 170.); and Abul Fata Mahomed Ishak v. Russomoy Dhur Chowdhry (( 1894) L. R. 22 I. A. 76.), it is definitely recognized that there may be a perfectly good wakf and included in it a provision for the family; that if a wakf is only a cloak to cover a private settlement for the family then it is bad; but that if the substance of the matter is the intention to make a dedication, it is good, and none the less so because certain of the testators family are to have some benefit. Other authorities dealing with the matter are Mujibunnissa v. Abdul Rahim (( 1900) L. R. 28 I. A. 15.); Maulvi Saiyid Muhammad Munawwar Ali v. Razia Bibi (( 1903) L. R. 32 I. A. 86.); Mutu Ramanadan Chettiar v. Vava Levvai Marakayar (( 1916) L. R. 44 I. A. 21.); Khajeh Solehman Quadir v. Sir Salimullah Bahadur (( 1922) L. R. 49 I. A. 153.); Abadi Begum v. Kaniz Zainab (( 1926) L. R. 54 I. A. 33.); and Tahiruddin Ahmad v. Masihuddin Ahmad.(( 1933) I. L. R. 60 C. 901.) A wakf can be created by will Baker Ali Khan v. Anjuman Ara Begam (( 1903) L.R.30 I. A. 94.) it must not be construed too strictly against validity Balla Mal v. Ata Ullah Khan (( 1927) L. R. 54 I.A. 372.) there must be a substantial dedication. The principles should be applied with considerable caution, and it should not be assumed that the provisions as to gifts inter vivos necessarily apply to the case of a Shia making a wakf by will. [Reference was made to Ameer Alis Mahommedan Law, vol. i., pp. 309, 345.] There can be a series of what are equivalent to life interests; and there is no doubt that a wakf can be made of property which is mortgaged, so that even if there is a charge for debts it would not make any difference. On the question of the appointment of a mutawalli, there is in this case an implied appointment Baillies Digest of Moohummudan Law, vol. ii., p. 218. Abdul Majid followed. Dunne K.C. replied. March 29. The judgment of their Lordships was delivered by SIR GEORGE RANKIN. On May 25, 1887, Agha Kalb Abid Khan, a Shia Mussulman, of Persian origin, died at Amritsar, leaving as his heirs a brother, Kalb Ali Khan, and a sister, Mussammat Hussaini Khanum. On March 3, 1887, he had made a will, the true construction and effect where of is the subject of this appeal. He was possessed of a half share in certain immovable property in the district of Farrukhabad, which he had inherited from his father, and of which the income was expended on an Imambara and other religious purposes at Fatehgarh. In addition thereto he was possessed of immovable property at Amritsar and Lahore, valued by him in his will at Rs.1,73,000, and thereby described, valued and disposed of in detail. In addition thereto he was possessed of immovable property at Amritsar and Lahore, valued by him in his will at Rs.1,73,000, and thereby described, valued and disposed of in detail. Of his properties at Lahore, valued by him at about Rs.60,000, three, of a total value of Rs.36,200, were given by the will to his brother, Kalb Ali, and one, valued at Rs. 18,000, to his sister, Hussaini Khanum. There remained two parcels of land at or near Lahore—one measuring 45 bighas, and valued at Rs.4000, the other measuring 16 bighas, and valued at Rs.2000. By his will the testator gave the former to a lady called Mussammat Buti and her son Ismail Hussain for their lives, and the latter to one Musaffar Ali for his life. The interests in remainder he disposed of by directions Law. Rep. 65 Ind. App. 198 ( 1937- 1938) Musammat Ali Begam V. Badr-Ul-Islam Ali Khan 41 that they should be "attached" to the sarai hereinafter mentioned the validity and effect of these directions need not now be considered, as it is not in the events that have happened possible on this appeal to pronounce any binding decision thereon, or to give relief in respect thereof. The properties at Amritsar, to which the dispute in the present suit is now confined, are valued in the will at Rs.1, 13,000. This figure includes two properties in Amritsar Cantonment —one called the Mess Kothi (valued at Rs.2000), and the other called the Small Kothi (valued at Rs.1000). The income from the former was given by the will to Mussammat Buti and her son Ismail Hussain for their lives upon certain conditions. The income of the latter was given to Musaffar Ali for his life upon certain other conditions. A question arises as to the validity of the testators directions as regards the interests in remainder, which question their Lordships will deal with in due course. In addition to these two small properties the will includes as an item of the testators property at Amritsar, "promissory" notes value Rs.36, 000, income Rs.1490." These promissory notes are included in the figure of Rs.1, 10,000 hereinafter mentioned; the two small properties are not. In addition to these two small properties the will includes as an item of the testators property at Amritsar, "promissory" notes value Rs.36, 000, income Rs.1490." These promissory notes are included in the figure of Rs.1, 10,000 hereinafter mentioned; the two small properties are not. The main disposition made by the testator in his will is that whereby five properties at Amritsar (in addition to the promissory notes already mentioned)—total value Rs.1,10,000 —are characterized as " pertaining to the sarai," " built and "attached to the sarai," "built in connection with the new "sarai." These are (1.) a house in the Civil Lines occupying, with garden, etc., 25 bighas—Rs.15,000; (2.) cultivated land nearby—Rs.5000; (3.) plots near the church and dak bungalow —Rs.1000; (4.) Begum Sahibas land and garden—Rs.3000; (5.) M the Sarai under construction "—Rs.50,000. The main question upon this appeal is whether the true construction and effect of the will is to make these properties wakf for the purposes of a sarai. Soon after the death of the testator his brother Kalb Ali was entered in the revenue records as owner of the lands at Amritsar. On May 12, 1892, mutation of the Amritsar property was effected in favour of the sarai. In 1895 Kalb Ali died, leaving a widow, Mussammut Bismillah Khanum, a son, Kalb Haidar, and a daughter, Mussammut Ali Begum (defendant No. 1). On May 14, 1896, mutation of the Amritsar property was effected in the name of the sarai under the management of Kalb Haidar. On May 13, 1907, for Rs.15,500, Kalb Haidar sold to one Sundar Singh five plots of the Amritsar property above set forth (in all 39 kanals 3 marlas), reciting that he bad been in possession thereof as proprietor under his uncles will of March 3, 1887. He died in 1909, and on September 11 of that year the Amritsar land was recorded in the name of the sarai under the management of Mussammat Bismillah. In 1921 Mussammat Bismillah leased 12 kanals of the lands at Amritsar to one Piara Singh (original defendant No. 3) for 50 years at an annual rent of Rs.200. Mussammat Bismillah died in 1922, and her daughter, Mussammat Ali Begum, took possession of the Amritsar property as her heiress. Mussammat Ali Begum has at all times claimed to hold it as absolute owner, and has not at any time acknowledged any wakf or dedication. Mussammat Bismillah died in 1922, and her daughter, Mussammat Ali Begum, took possession of the Amritsar property as her heiress. Mussammat Ali Begum has at all times claimed to hold it as absolute owner, and has not at any time acknowledged any wakf or dedication. On April 7, 1926, she sold to Nizam-ud-din (defendant No. 2) 12 kanals 4 marlas of the land at Amritsar. On June 30, 1906, the present respondents Nos. 1 to 5, with the sanction of the Collector under ss. 92-93 of the Code of Civil Procedure, brought in the Court of the Senior Subordinate Judge at Amritsar the suit out of which this appeal arises. The plaint, treating Mussammat Ali Begum as de facto mutawalli, asked that she be removed from that office and made to account for the wakf property, and for the proceeds of the various sales and of the lease to Piara Singh; and also that a scheme be framed for the wakf. The trial judge dismissed the suit (January 2, 1929), holding that though Kalb Abid had dedicated the suit lands for the purposes of a sarai in his lifetime the dedication was invalid as he had retained possession; that he had not made a dedication thereof by his will; that if his will did purport to effect a dedication, that also was invalid having regard to certain provisions in the will as to the testators heirs. Four of the five plaintiffs appealed to the High Court at Lahore, making Law. Rep. 65 Ind. App. 198 ( 1937- 1938) Musammat Ali Begam V. Badr-Ul-Islam Ali Khan 42 the remaining plaintiff a respondent to the appeal. The High Court, having at the hearing made this plaintiff an appellant instead of a respondent, held that a valid wakf of the sarai was created by the will of Kalb Abid, set aside the decree of the Subordinate Judge, and remanded the case to him in order that he might decide whether Mussammat Ali Begum should be mutawalli, prepare a scheme, take accounts and give other directions as necessary. From this decree (January 14, 1935), Mussammat Ali Begum appealed to His Majesty, and on her death her representatives have been duly substituted as appellants. In view of the observations made by the learned judges in the High Court, Mr. From this decree (January 14, 1935), Mussammat Ali Begum appealed to His Majesty, and on her death her representatives have been duly substituted as appellants. In view of the observations made by the learned judges in the High Court, Mr. Dunne, for the appellants, has very properly raised before their Lordships the question whether the appeal as brought to the High Court was competent, and if not, whether the defect was cured by making the respondent plaintiff an appellant. As it appears that the appeal was brought with this plaintiffs concurrence, and that he was made a respondent only because he had gone on business to another province, it is difficult to discern any substance in the preliminary objection. Where the consent in writing of the Advocate-General or Collector has been given to a suit by three persons as plaintiffs the suit cannot validly be instituted by two only. The suit as instituted must conform to the consent. On the other hand, if the three persons join as plaintiffs and two of them die pending suit, the suit does not become defecive or incompetent Anand Rao v. Ramdas Daduram.(( 1920) L. R. 48 I. A. 12.) There is no provision whatever in the Code for recourse being had to the Advocate-General or Collector during the course of a suit or of any proceedings in appeal. As sub-s.2 of s. 92 sufficiently shows, the consent in writing is a condition of the valid institution of a suit and has no reference to any other stage. When once validly instituted it is a representative suit subject to all the incidents affecting suits in general and representative suits in particular. Their Lordships cannot accept the doctrine of Jai Lal J. in the present case that the persons who have instituted the suit with the leave of the Collector are to be deemed to be one plaintiff, nor do they see any reason why one of several plaintiffs in such a suit should not appeal on the same terms and conditions as are applicable to suits in general. In the present case the appeal was, in their Lordships view, competent and regular as originally brought; the amendment, though unobjectionable, was not necessary. In the present case the appeal was, in their Lordships view, competent and regular as originally brought; the amendment, though unobjectionable, was not necessary. On the main question their Lordships, in agreement with the High Court, consider that upon the true construction of the will of Kalb Abid the five Amritsar properties above-mentioned were made wakf for the purposes of a sarai and for the specified purposes subsidiary thereto. They are further of opinion that the dedication thereof is valid and in accordance with Shia law. The properties are described as “pertaining to the sarai" in the same sense as the properties given by the will to the testators brother and. sister are described as "pertaining to my brother” and "pertaining to my sister.” It is not in doubt that the testator had obtained a plot of land from Major Warburton for the very purpose of being used for a sarai. There are repeated references to this sarai throughout the will, and one of the five plots of land now in question (value about Rs.50,000) is thus described "The sarai under construction which is about to be completed. The building operations are going on. It was built with the intention of waqf for the benefit of the general public and for performance of religious ceremonies, such as Ashura, prayers on both the Ids, Muharram and Nauroz, etc., and for the comfort of every man, without charging any rent, etc., and is excluded from the rights of relations, etc. But my brother Kalb Ali Khan and his heirs who are his descendants have the right of private residence in it." The will concludes as follows "It is to be noted that I have given Mirza Kalb Ali Khan, my real brother, the powers for the management of the entire property left by "me, and the power of disposal as owner of every kind like myself. He should use all these powers in obedience to the directions given in this will. He should continue the maintenance allowance of the persons to whom I have assigned some maintenance, subject to the conditions and for the period mentioned in this will, provided they do Law. Rep. 65 Ind. App. 198 ( 1937- 1938) Musammat Ali Begam V. Badr-Ul-Islam Ali Khan 43 their work faithfully, earnestly, honestly, eagerly, and obediently with good conduct and keep him pleased. Rep. 65 Ind. App. 198 ( 1937- 1938) Musammat Ali Begam V. Badr-Ul-Islam Ali Khan 43 their work faithfully, earnestly, honestly, eagerly, and obediently with good conduct and keep him pleased. In case of default of the above conditions or displeasure of my aforesaid brother, or in case of any embezzlement, misappropriation or dishonesty, he has full authority to dismiss them and to stop and confiscate the maintenance fixed. "All these powers will be exercised by the male descendants of my brother Kalb Ali Khan, after his death, and will thus continue generation after generation. But if the "said brother does not care to take this trouble, or refuses "to manage the above property, it should be made over "to the Government and the Deputy Commissioner for management. The Deputy Commissioner alone, or by appointing a committee and an advisory board of some Mohammadan gentlemen belonging to the Asna Ashari community, should then manage the waqf property. The same action should be taken in case the male heirs of the said brother should happen to be inefficient and should be guilty of breach of the conditions and misappropriation. "If, after my death or during the severe attack of disease or unconsciousness, any one of my dependants is guilty of dishonesty or embezzlement or misappropriation, etc., in respect of my property and goods, or if my brother suspects "the said dependant of these things, then my brother will "have the power to dismiss him or to deprive him of the "gift." From these passages it sufficiently appears that the testators intention was to dedicate the five items of property for a public charitable purpose well known and highly esteemed as pious by the Mussulman law. He not only used the word "wakf," but expressed his intention to benefit the general public, and directed that the property should be "excluded "from the rights of relations," thus giving ample evidence that he knew what was meant by "wakf" and fully intended to effect a wakf. It is true that after the words "excluded from the rights of relations" come words which say that Kalb Ali and his heirs who are his descendants shall have the right of private residence in the sarai. This would include female heirs, who would not necessarily be managers of the wakf. It is true that after the words "excluded from the rights of relations" come words which say that Kalb Ali and his heirs who are his descendants shall have the right of private residence in the sarai. This would include female heirs, who would not necessarily be managers of the wakf. But, in their Lordships view, this provision does not show that the testator did not intend to make wakf of the properties, nor does it render the dedication illusory or make it invalid either on the ground that the property was not substantially dedicated to charity or on the ground that the wakif had retained a benefit for himself. It is not necessary in this case to pray in aid the provisions of the Mussalman Wakf Validating Act, 1913. There is no ground for holding that the right of residence was intended, or was likely, to exhaust the accommodation of the sarai, or could in law be insisted on to the exclusion of the charity. Nor is the right given to the testators heirs obnoxious to the rule of Shia law which requires a wakif to divest himself of all interest in the property and in its usufruct cf. Abadi Begum v. Kaniz Zainab.(( 1926) L. R. 54. I. A. 33) Again, it is true that the testator having set forth in detail each of his properties and his disposition thereof adds thereto a list headed "Details of Expenses." Having entered expenses on account of my burial at Rs.500, and expenses on account of fast and prayers and the taking of his body to Karbala, etc., at Rs.1500, and the marriage expenses of two girls at Rs.500, the testator concluded with an entry for payment of debt—about Rs. 10,000, or the amount remaining due from me after my death." There is no evidence as to the amount owing by him at his death, nor as to the funds from which his debts, if any, were discharged. The will contains no direction for the payment of debts out of any particular asset, nor does it charge any property with his debts. The will contains no direction for the payment of debts out of any particular asset, nor does it charge any property with his debts. The wide powers of disposal given to the testators brother, which would include a power of sale, are in their Lordships opinion to be read, so far as the wakf properties are concerned, as powers given to a manager to be exercised in the course of proper management; and this is indeed comprehended in the direction to use all these powers in obedience to the directions given in this will." No objection arises in the present case upon the fact that the property dedicated by the will exceeds the one-third share beyond which a Muslim cannot, without the consent of his heirs, dispose of his property by will; there are concurrent findings of the Courts in India that the testators heirs consented. Nor does any difficulty arise upon the concluding passages, which their Lordships have already cited from the will, by reason that the testator Law. Rep. 65 Ind. App. 198 ( 1937- 1938) Musammat Ali Begam V. Badr-Ul-Islam Ali Khan 44 does not use the word "mutawalli" when making provision for the management of the sarai and the property devoted thereto. Upon a proper construction of the will, their Lordships are of opinion that there was a valid and effective dedication of the five properties above mentioned for the purposes specified. There appears to be no evidence as to the amount or value of the promissory notes outstanding at the testators death, or as to what was done with them. It remains to consider the two properties in Amritsar Cantonment, hereinbefore described as the Mess Kothi and the Small Kothi, of which the income was given for life to Musammat Buti and her son and to Musaffar Ali respectively. The effect of the testators directions as to the interests in remainder is that on the death of the persons mentioned the property and the income should be attached to the sarai," and that if either property should be sold during the lifetime of the person entitled for life, he or she should get a specified sum out of the wakf, and the proceeds of the sale should be invested and attached to the sarai." This raises a question of some nicety in the application of the Shia law. If the will can be read as intending that on the death of the testator these two properties should become "wakf" it would be in no way unlawful that a life interest in the usufruct should be reserved for the beneficiaries above-named. On the other hand, a direction that the property should become wakf after the death of a person surviving the testator is contrary to the principles applied by the Shia law to dedications inter vivos. "If one should say I have appropriated when the beginning of the month has come....the appropriation would not be valid "(Shuraya-ool-Islam. Baillie, vol. ii., p. 218). Their Lordships recognize that the decision in Baker Ali Khan v. Anjuman Ara Begam (( 1903) L. R. 30 I. A. 94.), which permits a Shia to create a wakf by will, is itself a mitigation of the rigour of this principle, but they are not of opinion that the principle is abrogated for all purposes in the case of a testamentary disposition, nor do they think that it can be confined to cases where the passing of the property to the endowment is made to depend upon an event which is problematical as well as future. On these points they are not in agreement with the observations made in Muhammad Ahsan v. Umardaraz.(( 1906) I. L. R. 28 A. 633.) While not disposed to put a narrow or unduly technical construction on this will, upon a careful consideration of the language used by the testator and of the substance and effect of his dispositions, their Lordships find themselves unable to hold that he intended either of the two properties now in question to become wakf property until the tenant for life had died or there had been a sale under the powers conferred by the will. On this view they think that there is no valid dedication of either property, and to this extent the appeal succeeds. They will humbly advise His Majesty that it should be declared that the properties in Amritsar Cantonment described in the will of Agha Kalb Abid Khan as the Mess Kothi and the Small Kothi are not wakf; that subject thereto, and save as regards the Lahore properties upon which no decision can be given in this appeal, the decretal order of the High Court should stand, and this appeal should be dismissed. The appellants must pay to the plaintiffs-respondents one-half of their costs of this appeal.