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. 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 Agha Ali Khan was to be the mutwalli for life and after him, the defendant, Syed Mustafa, and after him any person who may be learned for the time being and be just, pious, temperate and honest, and who may be formally appointed by Syed Mustafa in his life-time. The document also provided that if a son should be born to Agha Ali Khan and should attain majority and should observe prayer and fasting, then he, after attaining majority, should co-operate with the mutwalli of the waqf and should be entitled to get half of fee fixed for a mutwalli as provided in the deed. Then follows a recital which is wrongly translated in the paper book. Accurately translated it runs as follows: “After carrying out the formula of waqf, I, having taken the appropriated property, noted above, and bounded as below, out of my proprietary possession with the object of altering my position as proprietor, have taken it into my possession as mutwalli and have also formally got mutation of names effected in my favour as mutwalli instead of as proprietor,” etc. Then follow some directions in regard to the duties and powers of the mutwalli and a provision is inserted empowering the wife of Agha Ali Khan to live in the upper story of the endowed house, and a direction follows that “the meetings in connection with Ashra Muharram, Ashra Arbian and monthly meetings and ‘taziadari’ shall be held in that house and not in any other house.” Then in a schedule to the deed the endowed villages are mentioned as also the gross rental, Government revenue, etc., and also the net profits for the year 1300 Fasli, which are stated as amounting in that year to Rs. 2,190-0-7. Then follow these words, “out of this item, Rs. 2,190-0-7, about Rs. 400 is the zar-i-suls, (i.e., canal water rate) per mensem; Rs. 300 is on account of pay of the employes in connection with the villages, per annum; the village expenses and other expenses in connection with the villages amount to Rs. 460-0-7. The amount in all comes to Rs. 1,160-0-7, Now there remains Rs. 1,030. 2,190-0-7, about Rs. 400 is the zar-i-suls, (i.e., canal water rate) per mensem; Rs. 300 is on account of pay of the employes in connection with the villages, per annum; the village expenses and other expenses in connection with the villages amount to Rs. 460-0-7. The amount in all comes to Rs. 1,160-0-7, Now there remains Rs. 1,030. This amount of net profits is for the purpose of waqf as detailed below “(the italics are mine), and then follows lengthy and minute particulars of the expenditure of specified amount of net profits. After the details of expenses follow a number of instructions to the mutwalli in reference to the management of the waqf properly and the distribution of the funds and other matters. At the head of the waqf there is an endorsement which bears the signature and seal of the defendant Syed Mustafa in the following terms:— ”The correct formula of waqf having been recited by the waqif before this humble person, this humble person has accepted the duties imposed upon him.” The translation of this endorsement given in the paper book is quite inaccurate. 5. It has been found by the learned Subordinate Judge that Agha Ali Khan was at the date of the execution of the waqfnama, and had been for many years previously, on bad terms with his sister, the plaintiff, and that the waqfnama was executed by him in order to exclude the plaintiff from the succession to his property and was illusory, The contention urged on behalf of the respondent is that Agha Ali Khan, in view of the decision in Agha Ali Khan v. Altaf Husain Khan, believing that a testamentary waqf would not be valid, in consultation with others had the instrument in question prepared and executed with a view to his retaining the unfettered control and proprietorship of the property during his life, but so that after his death it should be dealt with as endowed property. From the particulars given in the document, it will be seen that the gross rental of the property for the year 1300 Fasli amounted to the sum of Rs. 5,234-5-1, and that the Government revenue, including cesses, subscription, dispensary and patwaris' pay, amounted to Rs. 3,044-4-6, thus leaving net profits amounting to Rs. 2,190-0-7. From the particulars given in the document, it will be seen that the gross rental of the property for the year 1300 Fasli amounted to the sum of Rs. 5,234-5-1, and that the Government revenue, including cesses, subscription, dispensary and patwaris' pay, amounted to Rs. 3,044-4-6, thus leaving net profits amounting to Rs. 2,190-0-7. From this item is deducted in respect of canal water rate, pay of employes and village expenses, sums amounting in the aggregate to Rs. 1,160-0-7 per annum which, being deducted from the 2,190-0-7, leaves a balance of Rs. 1,030-0-0. This amount of net profits' is expressly stated in the document to be the amount to be applied for the purposes of the waqf the details of the expenditure of which are subsequently given. Having regard to the amount of the gross profits of the property, namely, Rs. 5,234-5-0, the estimated amount of the net profits seems to be surprisingly small. The” declaration with which the document opens whereby Agha Ali Khan purported to make a perpetual and ever lasting waqf of his 8-anna zemindari share * * * for the performance of charitable deeds,” etc, points, it may be said, to an absolute dedication of the property for charitable purposes, but this declaration is, as it seems to me, qualified by the subsequent words, namely, “the charitable deeds detailed below” (i, e., the deeds subsequently enumerated in the schedule). The words “as detailed below” define the purposes and objects of the dedication and supply the meaning intended to be given to the words “charitable deeds.” This view is supported by the passage occurring later on in the instrument in which the estimate of the profits are stated to be Rs. 1,030, namely,” this amount of net profits is for the purposes of waqf. as detailed below.” There is no provision for the expenditure in any year of any sum over and above the sums mentioned in the details of expenditure, except as provided in paragraphs 8 and 11 of the instructions. In paragraph 8 it is stated that the maximum fixed for zar-isuls and village expenses, namely, Rs. 400 and Rs. as detailed below.” There is no provision for the expenditure in any year of any sum over and above the sums mentioned in the details of expenditure, except as provided in paragraphs 8 and 11 of the instructions. In paragraph 8 it is stated that the maximum fixed for zar-isuls and village expenses, namely, Rs. 400 and Rs. 460-07, respectively, cannot be determined for every year, but is variable and this is followed by a direction that the surplus occurring under either of these two heads in any year should be spent by the mutwalli for the time being on charitable objects, such as “burial and shroud expenses of poor Saadat-i-muminins” This is clearly a good charitable gift. Paragraph II provides for the application of profits arising from the enhance-ment of the rents payable by tenants. It directs the mutwalli to spend the amount of any such increase on the paraphernalia for marriage of the virgin daughters of Saadat-i-muminins. This last mentioned provision of the document I shall refer to later on. Such being the main provisions of the document, we have to look at the details of the expenditure directed to be defrayed before we can determine whether or not there has been a substantial dedication of the property for such objects as are regarded according the Muhammadan Law of the Shia sect as religious or charitable. 1 turn to the clear and specific directions given in regard to the expenditure of the profits expressed to be appropriated. Considerable sums are directed to be expended on the purchase of sugar, sweets, tobacco and food to be distributed at various meetings; also for the expenses of illuminations at meetings. Various sums of money are also directed to be distributed to Saadat-i-mnminins, (i.e., Shia Syeds). The sums so directed to be applied, roughly estimated, amount to Rs. 250. In addition to this there is a direction that Rs. 230 should be distributed annually to Shia Syeds, Rs. 50 to be distributed by the defendant, and Rs. 180 by Agha Ali Khan, also annuities of Rs. 60, Rs. 120, Rs. 24 and Rs. 24 respectively, are provided for four persons mention-ed in the document, namely, Mir Waris Ali, Lala Mata Pershad, Khuda Baksh and Imdad Husain. There is nothing to indicate that the food and drink and cash directed to be distributed was intended to be distributed amongst poor Shia Syeds. 60, Rs. 120, Rs. 24 and Rs. 24 respectively, are provided for four persons mention-ed in the document, namely, Mir Waris Ali, Lala Mata Pershad, Khuda Baksh and Imdad Husain. There is nothing to indicate that the food and drink and cash directed to be distributed was intended to be distributed amongst poor Shia Syeds. In fact, the idea of poverty does not appear to have been in the mind of the executant in connection with this expenditure. We find no reference whatever to poverty or the poor. In the direction contained in a later part of the document to which I have already referred in which the executant had the poor in contemplation, he inserted the word “poor.” I refer to the direction that if the water rate and village expenses do not reach the amounts mentioned in the document, the surplus should be spent on charitable objects “such as burial and shroud expenses of poor Saattati-mumi-nins.” This is an indication that when the executant had the poor in contemplation, he did not omit the word “poor”. 6. On behalf of the appellants it is contended that the poverty of the recipients is not a necessary element so as to render a gift of food or money a charitable gift, and for this proposition the following passage (at page 379) out of the Zakhiratul-maad by Shaikh Zain-ul-abdin of Mazindran was relied on: Question.—Which (of the two acts) is more virtuous, whether” to distribute eatable tilings among the poor and Mumins (Muham-madans) at the meetings held for mourning for Imam Husain (may peace be upon him) as is usually done, or simply to give alms to the poor, indigent persons and Mumins. Answer.—It is a more virtuous act to spend on the poor and mumins at the meetings held for mourning.” 7. This passage is relied on as an authority for the proposition that the distribution of shnrbat, sweets and tobacco, directed by the document now under consideration to be made amongst Muham-madans generally without regard to the consideration of poverty is a good charitable gift. I am not sure that the words “the poor pnd the mumins” in this passage do not mean “the poor who sure mumins” that is, poor Muhammadans, and that the objects of the gift were really the poor. I am not sure that the words “the poor pnd the mumins” in this passage do not mean “the poor who sure mumins” that is, poor Muhammadans, and that the objects of the gift were really the poor. The question was as to the relative merit of giving at the meetings held for mourning or giving generally and the poor were certainly in the contemplation of the writer. In the case of Raleloola Sahib v. Nusseei-ud-deen Sahib, [1894] I.L.R., 18 Mad., 201 it was held that an endowment of property for the daily, monthly and annual expenses of a private mausoleum, such as lighting, frankincense, flowers and the salaries of Hafizes (repeaters of Koran) and Daroodies (readers of benedictions, etc.) as well as for the annual Fatiha ceremonies of the deceased, were not either religious or charitable purposes, and that, too, notwithstanding that it was found that a traveller's inn was erected by the endower of the property as an appurtenance to the tomb and that the performance of the ceremonies necessarily involved the distribution of charity and that the lights in the tomb were of use to passers-by. In that case, reversing the decision of DAVIES, J., COLLINS, C.J., and PARKER, J. observed.that the result of an investigation of the authorities seems to be that endowments purely for purposes like the present seem to be against the principles of Muhammadan Law, and that in such cases when waqjnamas for such purposes have been upheld, the dedication has had relation to the tombs of saints only and has been intermixed with charitable purposes either for the poor or for the settlor's own kindred.” The meetings in the case before us at which the distribution was directed to be made, were not, it will be remembered, at any mosque but at the house of Agha Ali Khan which he purported to dedicate for the holding of the meetings. A passage in Mr. Ameer Ali's Work on Muhammadan Law, Edn. 3, pp. 405 and 406, seems to me to supply a key to the answer of the question what constitute the objects of a valid waqf. The learned author writes, “A waqf for Masalih or works of general utility or for pious or charitable purposes of a general character is valid. Ameer Ali's Work on Muhammadan Law, Edn. 3, pp. 405 and 406, seems to me to supply a key to the answer of the question what constitute the objects of a valid waqf. The learned author writes, “A waqf for Masalih or works of general utility or for pious or charitable purposes of a general character is valid. For example, a waqf for constructing or maintaining bridges and masjids, providing shrouds for the dead and like purposes, is a settlement on all mankind. Though a limited number may participate at that time in its advantages, and though no specific individuals may be mentioned as the people for whose benefit such waqf is created, it would be valid because all God's creatures can derive benefit therefrom. Consequently a waqf, the object of which is to confer a general benefit on the public, for example, a waqf to a Madarsa or the waqf of books to a library and such like, is valid.” A’ page 408, he quotes a passage from the Sharah-i-Luma as follows:— “If one makes an appropriation in the way of God, it will be applied to every pur-pose by which an approach is made to God, because from the ‘way’ is meant the path of God, that is, the path of reward (in future life) and the reward and pleasure of God; this will include, therefore, helping the needy, building mosques, and repairing roads, supplying shrouds to the dead, whatever brings blessings 5 some say, it includes holy warfare, other's that it includes Hajj and Umrah (lesser pilgrimage). But the first view is correct. In the same way if one makes an appropriation in the way of charity or in the way of sawab (reward), it means the same thing, and the meaning will not be split into three parts. But the first view is correct. In the same way if one makes an appropriation in the way of charity or in the way of sawab (reward), it means the same thing, and the meaning will not be split into three parts. Some (jurists) have said that ‘the way of reward’ means the poor and indigent and commencement should be made with his poor relations and from the ‘way of charity’ is meant the poor and indigent and travellers and debtors who have become indebted in pious acts and the ransoming of slaves, but the intention of the Waqf should be regarded.” I am not aware of any case in which it has been held that the distribution of sweets, sharbat and tobacco and also money to Muhammadans generally without regard to poverty is a charitable and religious act, and in the absence of any such authority I find it impossible to hold that such an application of the profits of immoveable property comes within any of the purposes for which such property can be dedicated for all time as waqf. However meritorious such acts may be, it seems to me that they cannot be regarded either as charitable or religious. It is a hospitable act to give refreshments to friends and co-religionists who attend meetings such as those referred to in the document before us, but it seems to me that unless the distribution is directed to be made in view of the poverty, of the recipients, the act cannot be regarded as charitable, I am also disposed to think that the expenses of illuminations do not come within the category of charitable or teligious purposes. The learned Advocate for the appellant referred us to a number of passages taken from the works of Commentators on Muhammadau Law as authority for the proposition that every thing which was regarded as lawful according to Muhammadan Law, might be the proper object of waqf, or in other words a charitable or religious act. Mr. Karamat Husain, who is a well-read Muhammadan lawyer, asked us to reject the writings of those commentators as unauthoritative. I am not prepared to hold that the extravagant views which are _ expressed in the comments of some of them truly represent the established and recognized law of the Muhammadan community. 8. Mr. Karamat Husain, who is a well-read Muhammadan lawyer, asked us to reject the writings of those commentators as unauthoritative. I am not prepared to hold that the extravagant views which are _ expressed in the comments of some of them truly represent the established and recognized law of the Muhammadan community. 8. To return to the waqfnama, if the distribution of food and money had been directed to be made amongst the poor, other considerations would arise, but in no place in the details Of the expenses are the poor mentioned “in connection with the distribution of food or money. One item of expenditure, as the words have been translated, does point to a distribution amongst poor Shia Syeds. The words as translated in the paper book run as follows:— ” Alms in cash to be distributed to Saadat-i-muminins annually, Rs. 230.” The word “alms” imports charity, it means gifts for the relief of the poor; but alms is not a correct translation of the word in the original. The word used in the original is “tabarrat” which means nothing more than a gift or giving. It is defined as giving gratis in Richardson's English, Persian and Arabic Dictionary. In paragraph 12 of the instructions appended to the deed the same word is wrongly translated in the paper book “items of charity.” The word should be translated “items of gifts.” In an, early passage of the document a word is also used which imports the idea of charity. It is translated in the paper book ‘charitable deeds.’ But Aglia Ali Khan has put his own meaning on the word by giving the details of the good deeds to which he refers. The good deeds are the deeds detailed as below, that is, detailed afterwards in the instrument, and those in the main are not in my opinion charitable. I may point out that in regard to Rs. 50, portion of the sum which is directed to be distributed by Mir Agha, there is a provision in the later part of the document, whereby Mir Agha is empowered to appropriate this sum to his own use if any occasion for doing so arises. I fail to see where charity comes in here. There is also a provision in regard to the balance of Rs. I fail to see where charity comes in here. There is also a provision in regard to the balance of Rs. 180, that that sum after the death of the executant is to be enjoyed by every subsequent mutwalli as a reward for his services. The annual payments directed to be made to Mir Waris Alt, Lala Mata Prasad, Khuda Baklish and Mir Irndad Husain, appear to have been made in respect of services to be rendered by them in connection with the endowment. Mir Waris Ali was appointed to distribute sharbat, food and sweets at the meetings, whilst Mir Imdad Husain and Khuda Bakhsh were appointed to spread carpets, make illuminations, fill smoking pipes and give drinks and water to those present at the meetings. Lala Mata Prashad was appointed to keep the accounts of the endowed villages. The documents empowered the mutwalli for the time being to dismiss any of these persons and appoint others in their place, If the distribution of food and sharbat to Moslems generally cannot, as it seems to me it cannot, be regarded as religious or charitable, the salaries of persons appointed to make the distribution cannot be regarded as proper expenses in connection with waqf. The same may be said of the expenses of illuminations. As regards the sum set apart for the salary of Lala Mata Parshad, it is not to be overlooked that already no less a sum than Rs. 760-0-7 was set apart by the instrument to meet the expenses of the employes in connection with the villages and other village expenses. This is by no means an illiberal allowance for expenses connected with the management of property yielding after payment of Government revenue; cesses, subscription, dispensary and patwaris pay, a net income of only Rs. 2,190-0-7. I may, moreover, point out that the evidence is that the canal water rate was paid by the tenants, Vilayat Ali, who was a Karinda and general attorney of Agha Ali Khan, says in his deposition that in six of the endowed villages which were under his management, the suls item (i.e., water rate) besides the rent” used to be realized from tenants, but in some years it was so realized and in others not.” He also says that at the time of the execution of the waqf the salaries of the employes of these six villages was only Rs. 19 or 20 per month. The learned Counsel for the respondent argued from this, and with force, that the expenses in connection with the endowed property is inflated in the document in order to minimise, as far as possible, the net profits of the property, if we exclude the items of expenditure, to which I have referred and which to me do not appear to be the proper objects of waqf, the remaining items of expenditure which may be properly referable to religious and charitable objects amount according to my calculation to a sum of a little over Rs. 300 a year. As regards the application of profits resulting from the enhancement of tenants' rents to which I have referred above, I am not aware that the purchase of the paraphernalia for the marriages of virgin daughters of Shia Syeds has ever been regarded as a religious or charitable object according to the law of the Shia sect. The word which is translated paraphernalia is “saman” and doubtless was intended to mean the usual presents which are made to a bride on her marriage. I fail to see how these can be regarded as charitable gifts. It might be different if they were directed to be given to poor virgins. If I am right in the view which I take, there has been no substantial endowment of the property to religious or charitable purposes. Te instrument is in fact a colourable deed of waqf which, while it purports to dedicate the net profits to religious or charitable purposes, in reality left the control and disbursement of the profits in the hands of Agha Ali Khan. It is highly probable, as it seems to me that his intention was to create a waqf which should be binding, after his death, but to reserve to himself uncontrolled discretion to deal with the property as lie pleased during his life. As the law was then understood, he could not create a waqf by will and knowing this he determined to effect his object by the instrument under consideration. 9. This brings me to the consideration of some letters which if they be genuine seem to me to establish beyond any doubt that this was his object. As the law was then understood, he could not create a waqf by will and knowing this he determined to effect his object by the instrument under consideration. 9. This brings me to the consideration of some letters which if they be genuine seem to me to establish beyond any doubt that this was his object. I have examined these letters carefully and compared the signatures of Agha Ali Khan attached to them with other admittedly genuine signatures and the conclusion at which I have arrived is that the letters are genuine. Two of these letters were written prior to the execution of the deed of waqf. The third was written some time after. The first is a letter of the 9th of December, 1892, and is addressed by Agha Ali Khan to Mir Waris Ali, who was at that time in Agha Ali Khan's service, and who used to look after cases in Court for him. In it he refers to the deed of endowment and directs him to have the draft deed corrected and submit it to some pleaders of the High Court for their approval, so that there might be no legal defect found in it. The letter then runs as follows:— “When you have brought the said draft here, I shall show it to Mir Agha Sahib and Maulvi Abu Sahib, so that there may not remain any defect under the Muhammadan law. At all events it must be corrected according to both the Muhammadan law and statutory enactments. The letter then runs as follows:— “When you have brought the said draft here, I shall show it to Mir Agha Sahib and Maulvi Abu Sahib, so that there may not remain any defect under the Muhammadan law. At all events it must be corrected according to both the Muhammadan law and statutory enactments. You must, however, bear in mind my real object which I expressed to you at the time of your departure; that is to say the deed of endowment executed should provide that during my lifetime I may apparently be in possession and enjoyment of my property as a mutwalli, but I may as before be able to spend the income from these villages in the meetings, the mourning ceremonies during the ten days of Mohurrum and on the occasion of Chehlum in the sacred month of Ramzan and on other Id days as well as in my personal expenses and may in no way be restricted as regards the defraying of expenses; and the person whom I may appoint mutwalli of this property after me, should of course be bound by the terms of the deed of endowment and should defray expenses exactly according to those entered therein, so that my relations may get nothing out of my property and remain deprived thereof, because my ulterior aim and object in executing this deed of endowment is that during my life time I may remain in possession and enjoyment as usual and spend the income in any way I like. That the person who may be appointed mutwalli after me should of course observe the terms of the deed of endowment and be in possession and enjoyment, and that the right of inheritance of my heirs in respect of this property may be altogether extinguished according to the Muhammadan law and the statutorv enactment; other-wise there is no good in executing such a document. I shall tell you other particulars when I shall see you.” It will be remembered that Mil Waris Ali is one of the persons for whom an annuity is provided in the deed. He was examined and in course of his evidence states that he was in the service of Agha Ali Khan for about 30 or 32 years and looked after cases filed by him at Cawnpore or Allahabad. He was examined and in course of his evidence states that he was in the service of Agha Ali Khan for about 30 or 32 years and looked after cases filed by him at Cawnpore or Allahabad. He says that Agha Ali Khan reposed confidence in him and used to consult him in confidential matters, and that there was disunion and disputes between Agha Ali Khan and his sister, Amina Begarn. He produced the letter of the 9th of December, 1892, and also a subsequent letter of the 7th of September, 1896, which were addressed to him by Agha Ali Khan. He says the body of the letters is in the handwriting of Kalka Pershad, who was a clerk in the service of Agha Ali Khan. He identified the signature of Agha Ali Khan to both the letters and deposed to the signature of Agha Ali Khan on a letter of the 16th of May, 1894, which was written by the witness at his instance and addressed to Syed Mustafa Shah. Kalka Parshad, the writer of the two letters which were produced by Waris Ali, was also examined, and he deposed that these letters were in his handwriting and bore the signature of Agha-Ali Khan. He says that he wrote the letters at the instance of Agha Ali Khan and that Agha Ali Khan affixed his signature to them in his presence. In the letter of the 9th of December, 1892, Agha. Ali Khan expresses in the clear-est terms his object in executing the deed of waqf, namely, that although nominally mutwalli, he may remain in possession and enjoyment of the property as before and apply the income as he thought fit, but that after his death the right of inheritance of his heirs should be extinguished. This letter throws a flood of light upon the whole transaction and seems to me to show the unreality of the dedication as an immediate and binding dedication, The next letter is the one of the 16th of May, 1894, which is addressed to Maulvi Syed Mustafa Shah who appears to have prepared the “draft of the waqfnama. The writer acknowledges the receipt of the draft and then comments upon it. The writer acknowledges the receipt of the draft and then comments upon it. He writes as follows:— The draft of the deed of endowment together with all its conditions is certainly very good, but it is not conversant with my real object that is to say, 1 mean that apparently it may be looked upon and deemed a waqf, but during my life-time I may have full power over the income and may be able to bring it to my use in any way I like, and after my death the waqf should of course be given effect to and enforced according to the Muham-madan Law, and it may be binding upon the person who may after my death be appointed mutwalli thereof, so that he may not be able to encroach upon or deviate from it nor should my heirs be able to get anything out of the endowed property as such heirs.” The writer then states that he is returning the draft and hopes that Sayed Mustafa Shah will soon prepare a draft in accordance with the object expressed in the letter. In the third letter which is addressed by Agha Ali Khan to Mir Waris Ali, instructions are given in regard to the supplementary deed of waqf, and in it the object of the writer in executing the deed of waqf is stated as follows:— ” You should, however, note that I want to remain mutwalli during my life-time under this supplement to the deed of endowment also. My real and principal object in executing these deeds of endowment is that in the face of them no body may be able to say that they are colourable and invalid, and that 1 may as before remain in proprietary possession during my life-time.” ‘The writer then refers to a will which he had in contemplation relating to the village of Rampur and says that if his life is spared and he comes back from a journey to Karballa, he will make some such provision in respect of the villages of Rampur, etc., also by making a will so as to deprive his heirs entirely of his property. Now, as regards these letter's, as I have said, I have come to the conclusion that they are genuine. Waris Ali and Kalka Prasad were examined as witnesses and were subjected to a long and searching examination and cross-examination. Now, as regards these letter's, as I have said, I have come to the conclusion that they are genuine. Waris Ali and Kalka Prasad were examined as witnesses and were subjected to a long and searching examination and cross-examination. The learned Subordinate Judge had full opportunity of judging of their demeanour and ascertaining what sort of men they were. He came to the conclusion that they were truth-telling witnesses and that the letters in question were genuine. I have examined the signatures very carefully and compared them with admittedly genuine signatures, I cannot profess to be an expert in handwriting, but I may say that I found in the signatures nothing to create in my mind any suspicion as to their genuineness. The signatures seem to me to resemble those of admittedly genuine signatures of Agha Ali Khan, and I could find nothing in them which raised any serious suspicion of their genuineness. In the case of the signatures to the letter of the 17th of September, 1896, the paper is smudged in one place with what appears to be pencil marks. This may have occurred long after the signature was written. It seems to me that possibly some person pointing out the signature with a lead pencil carelessly allowed the pencil to touch the surface. The smudge is at a little distance from the letters and does hot to my mind indicate in any way that it formed part of a tracing in pencil of the signature. I find nothing in the signatures or in the letters themselves to lead me to suppose that Kalka Prasad and Waris Ali are guilty respectively of forgery and abetment of forgery, and I find myself unable to agree in the view which my learned colleague has formed as to these letters. From these letters, I gather what the true intention of Agha Ali Khan was in executing the deed of waqf. It was that while he should retain the proprietary enjoyment of the property during his life, his heirs should be cut off from the succession to it. The amount of profits which were; directed to be applied towards the legiti-mate objects of wagf was if I am right in the view which I have expressed, unsubstantial. It was that while he should retain the proprietary enjoyment of the property during his life, his heirs should be cut off from the succession to it. The amount of profits which were; directed to be applied towards the legiti-mate objects of wagf was if I am right in the view which I have expressed, unsubstantial. The learned advocate for the appellant presented his client's case in a forcible argument and in it he characterised the letters to which I have referred as in all probability forgeries, It is not likely, he contended, that Agha Ali Khan would take into his confidence and open his mind in such clear terms to men in the position of Kalka Prasad and Waris Ali. It has to be borne in mind, however, that Waris Ali was an old and trusted servant, who had been in his employ for upwards of 30 years, and Kalka Prasad was also for a great number of years in his service. It is not at all unreasonable to suppose that it never occurred to Agha Ali Khan that the deed of waqf would be impeached, or that if it were, the letters written by him on the subject would-be forthcoming, Waris Ali, moreover, takes an annuity under the deed, and therefore is interested in supporting it. Another fact which has been deposed to by Kalka Prasad, which appears to be uncontroverted, is, that though Agha Ali Khan, after the execution of the deed of waqf, directed his servants to keep a separate account of the endowed villages and also of the other villages, no regular separate accounts were ever kept, A number of letters addressed by Agha Ali Khan to Mata Prashad and Vilayat Ali were relied upon by the appellant as showing how desirous Agha Ali Khan was that the provisions of the deed of waqf should be faithfully carried out. It was said by the learned advocate for the appellant that there was a ring of truth in these letters. It may be said in answer to this that Agha Ali Khan knowing the object with which the document was executed and desirous that after his death it should not be impeached, expressly enjoined upon his servants the duty of observing the provisions of the waqf, so that it might not thereafter be said that it was not acted on. It may be said in answer to this that Agha Ali Khan knowing the object with which the document was executed and desirous that after his death it should not be impeached, expressly enjoined upon his servants the duty of observing the provisions of the waqf, so that it might not thereafter be said that it was not acted on. The fact that he had copies of the waqf printed and distributed, may also have been part of the same design. Again, the fact is relied on that profits of the property were as a matter of fact, to a large extent applied by Agha Ali Khan in his life-time in the way directed by the document, but no great weight can, I think, be attached to this in view of the fact that Agha Ali Khan had all along expended money in this way. Waris Ali in his evidence stated that “after the execution of the deed of endowment there was no change in his (i. e., Agha Ali Khan's) expenses at the meetings—Chehlum, Muharram and Ramzam—and he continued to spend as before.” Later on he says: “Before as well as after the waqf he (i.e., Agha All Khan) used to distribute sums in charity to the poor and Syeds,”and in another place he says, “the waqf expenses were not entered in the ‘drafts I showed to the said pleaders. The property was specified therein. Agha Ali Khan himself gave a detail of the expenses. He fixed the same expenses as were always defrayed by him.” 10. Upon the whole, then, I am unable to see my way to dissent from the view arrived at by the learned Subordinate Judge that the deed of waqf is illusory and invalid. I would, therefore, dismiss the appeal with costs. Upon the other points dealt with in the argument I agree in the view expressed by my learned colleague in his elaborate judgment. BANERJI, J. The suit out of which this appeal arises was brought by the respondent for recovery of possession of certain property which originally belonged to one Agha Ali Khan, a Muhammadan of the Shiah sect, who died on the 4th of November, 1900. The plaintiff-respondent is his sister and sole heiress to the estate left by him and claims the property in suit as such heiress. 11. The plaintiff-respondent is his sister and sole heiress to the estate left by him and claims the property in suit as such heiress. 11. On the 29th of June, 1894, Agha Ali Khan executed a deed of waqf by which he purported to make an endowment of the property in suit for religious and charitable purposes, By a deed, dated the 26th of November, 1896, he purported to make a Similar endowment of certain moveable property. He appointed himself the first trustee and directed that the defendant, Saiyed Mustafa alias Mir Agha Sahib, who is the mujtahid-ul-asar, that is, the expounder of law and religion among Shiah Muhammadans, should be the trustee (mutwalli) of the endowment after him After the execution of these deeds he caused mutation of names to be effected in the revenue records and his name to be entered as mutwalli. Upon his death, the name of the defendant was entered as mutwalli and he took possession. 12. The plaintiff states in her plaint that the deeds of endowment mentioned above are fictitious and were executed with a view to deprive her of the property; that, during his life-time, Agha Ali Khan remained in proprietary possession and enjoyment of the property; and that the endowment was not constituted in accordance with the provisions of the Muhammadan Law. These contentions have found favour with the Court below which has decreed the claim. 13. The defendant has preferred this appeal and the main questions to be determined in it are: first, whether the waqf was created in accordance with the rules of Muhammadan Law; second, whether it is fictitious and Colourable and was never carried into effect; and third, whether the purposes for which the waqf was made or some of them are such as are not sanctioned by Muhammad an Law. 14. As regards the first question, it is contended on behalf of the plaintiff that it is essential for the creation of a valid waqf that the requisite formula should be recited orally, that a deed of waqf without an oral recital of the formula is not sufficient, and that there must be an acceptance of the waqf. 14. As regards the first question, it is contended on behalf of the plaintiff that it is essential for the creation of a valid waqf that the requisite formula should be recited orally, that a deed of waqf without an oral recital of the formula is not sufficient, and that there must be an acceptance of the waqf. I do not deem it necessary to decide whether an oral recital of the formula and acceptance of the waqf are essential, because assuming that they are requisite, there is in my opinion, ample evidence on the record to prove that the formula was orally recited and the waqf was accepted. Both the deeds of waqf contain specific mention of the fact of recital and acceptance. The deed of the 29th of June, 1894, after setting forth that Agha Alt Khan had “made a perpetual and ever-lasting waqf” “for the performance of charitable deeds,” contains the following statements: (1) “In the, text of the formula of waqf I—the appropriator—have appointed myself mutwalli, and I have declared the mujtahid-ul-asar (for the time being, Saiyid Mustafa Ali alias Mir Agha Sahib) to be mutwalli after me”. (2) “After carrying out the formula of waqf, I, having taken the appropriated property noted above and bounded below, out of my proprietary possession and having altered my position as proprietor, taken it in my possession as mutwalli, & c.”(3) “The correct formula having been recited by the waqif before this humble person, this hum-ble person has accepted the duties imposed on him. Written by Saiyad Mustafa alias Mir Agha, my he be pardoned. The above are correct and literal translations of the passages which appear in the original document and the translation which is printed on pp. 31 and 41 of the appellant's paper book is admittedly inaccurate. There are similar passages in the deed of 26th November, 1896. It is clear from these extracts that the formula was orally recited and that the waqf was duly accepted. The witnesses, Haidar Husain and Fazl Ali, who are attesting witnesses to the documents of 29th June, 1894, and 26th November, 1896, respectively, have shown that the formula was actually recited by Agha Ali Khan. Haidar Husain, after stating that Agha Ali Khan had the draft of the former deed copied fair and took it to Mir Agha (the defendant), says: “I accompanied him. Haidar Husain, after stating that Agha Ali Khan had the draft of the former deed copied fair and took it to Mir Agha (the defendant), says: “I accompanied him. Agha Ali Khan recited the sigha (formula), at Mir Agha's house. Mir Agha told him the words. The sigha was recited in Arabic, but Agha Sahib had uttered’ Us abstract translation in Urdu, and for this season I remember it. When the sigha was over, Mir Agha himself wrote the verification at the top of the waqf-nama and himself signed and sealed it. This passage is in accordance with fact.” By the verification the witness means the third extract set forth above, which is written in the margin at the top of the deed. Fazl Ali has given similar evidence in regard to the other document. He says, “Agha Ali Khan himself took me to Mir Agha. Agha Ali Khan recited the sigha (formula) and Mir Agha made ijab (acceptance) and then Agha Ali Khan affixed his signature,” There is no reason to disbelieve the statements of these witnesses which are also in accordance with probabilities, It appears that in a previous litigation between Agha Ali Khan and the present plaintiff, the validity of another deed of waqf was impeached on the ground that it did not comply with the requirements of Muhammadan Law and was held to be invalid. That is the case of Agha Ali Khan v. Altaf Husain Khan, [1891] I.L.R., 14 All, 429. It is, therefore, in the highest degree probable that when Agha Ali Khan executed the deeds of waqf now in question, he took every possible precaution against their validity being questioned on the ground of non-compliance with the formalities required by Muhammadan” Law. It appears from the statements of the plaintiff's own witnesses that he consulted lawyers in Allahabad and other persons well versed in Muhammadan Law and took care that no legal flaw should vitiate the deed. And it is very likely that he did so, if his object in making waqf was, as is alleged, to prevent the plaintiff inheriting the property after his death. The fact that it is mentioned in the deeds that the formula was gone through and recited, in itself raises the inference that this was done; otherwise there was no object in inserting in the deeds the passages which I have quoted above. The fact that it is mentioned in the deeds that the formula was gone through and recited, in itself raises the inference that this was done; otherwise there was no object in inserting in the deeds the passages which I have quoted above. I am, therefore, unable to agree with the Court below in rejecting the testimony of the defen-dant's witnesses on the point. 15. Another circumstance on which the plaintiff relies and which has carried weight with the Court below is that in the plaint in a suit which the defendant instituted in the Court of the Subordinate Judge of Lucknow against the plaintiff in respect of some of the property comprised in the two deeds of waqf he did not state that the formula of waqf had been orally recited and that the waqf had been duly accepted. From this omission the learned Subordinate Judge infers that the formula was not orally recited. In my judgment it was not at all necessary for the defendant to make any such statement in his plaint in the Lucknow suit, referred to by the Court below. He alleged the waqf to be a valid waqf, and that is all that was required for the purposes of the suit. The omission of a definite statement as to oral recital and acceptance is of no importance and does not negative the direct evidence adduced on the point. In my judgment it has been satisfactorily established that not only did Agha Ali Khan execute the two written documents by which the waqf was created, but made the waqf orally also, and that all other conditions which are alleged to be requisite for the creation of a valid waqf were duly fulfilled. I accordingly hold that the endowment in question cannot be impeached on the ground that there were any formal defects in making it. 16. In regard to the next question, namely, whether the waqf is colourable and fictitious, the plaintiff's case is that no real waqf was made by Agha Ali Khan, and that he executed the two deeds of waqf with a view to deprive her of the property, but himself continued to be the owner of it and to exercise proprietary right, so long as he was alive. As has been already stated, there was litigation between her and Agha Ali Khan in regard to another waqf, and although that case was subsequently compromised and Agha Ali Khan made a gift of a portion of his property to her son and occasionally paid formal visits to her, it may be assumed that the relations between them were somewhat strained. It may also be assumed that one of the objects of Agha Ali Khan in making the waqf was to prevent a part of his property devolving upon the plaintiff after his death. But that object could be better attained by making a true and valid waqf than one which was colourable and fictitious. There can be no doubt that if the waqf is genuine and legally valid; the property to which it relates can never go to his hefts. Therefor it seems to me that the probabilities are in favour of his having made a real, rather than an illusory, waqf, that is to say, a waqf of such a character as would under no circumstances afford to his possible heir, the plaintiff, any chance of succeeding to the property. It appears from the evidence adduced by both the parties that Agha Ali Khan was a charitable and religious person. Waris Ah, a witness for the plaintiff herself, who is by no means well-disposed towards the defendant, tells us that Agha Ali Khan was always inclined to religious affairs and one-third or one-fourth of his income was spent on religious and charitable purposes, and that before as well as after the waqf, he Used to distribute sums in charity to the poor and to Saiyads. To the same effect is the evidence of the defendant's witnesses, Muhammad Husain and Vilayat Ali. It appears that he reserved to himself property of the value of about Us. 40,000, which the plaintiff has, as a matter of fact, inherited from him, and that the property comprised in the waqf is, according to the valuation of it given in the plaint, worth about Rs. 20,000. So that the waqf relates to one-third only of his estate. 40,000, which the plaintiff has, as a matter of fact, inherited from him, and that the property comprised in the waqf is, according to the valuation of it given in the plaint, worth about Rs. 20,000. So that the waqf relates to one-third only of his estate. If, as the evidence shows, he used to devote one-third of his income to the purposes for which he made the waqf, before it was created, it is highly probable that he appropriated one-third of his estate to a real waqf in order that the expenditure which he used to incur on those purposes might be permanently continued even after his death. And he apparently had no object in making an illusory and nominal wakf and in committing what would in effect amount to a fraud. Even if he did not, at the time when he made the waqf, intend that it should be a real waqf, I am of opinion that this intention would be immaterial, if he carried out the objects of the waqf and gave full and complete effect to it. In my judgment the evidence adduced by the plaintiff herself fully proves, that Agha Ali Khan scrupulously carried out the objects of the waqf. 17. The deed of the 29th June, 1894, contains a detail of the charitable deads for the performance of which the waqf was made. It provides that the maker of the waqf is appointed the first mutwalli and mutation of names in the revenue records is to be made in his favour as such mutwalli. Accounts of the expenses of the wafare to be kept separately, from those of the appro-priator's private expenses. Directions are next given as to the duties of the mutwalli and his powers as to the disposal of the surplus of canal rates and savings of expenses, as to the duties of reciters of the Quran and of the other persons employed for carrying out the objects of the waf, as to the keeping and checking of accounts by the mutwalli, and as to the distribution of alms; and the document concludes with the provision that should any mutwalli for the time being contravene the provisions of this deed of waqf, every Shiah Mumin, specially the friends of me, the appropriator, should compel mutawlli for the time being to act in accordance with the directions of this deed of waf” 18. It is an admitted fact that mutation of names took place, that Agha Ali Khan's name was removed from the revenue registers as proprietor of the villages and was re-entered as mutwalli. This was done in October, 1894. We find him on the 29th November, 1894, writing as follows to Mata Prasad and Vilayat Ali, who used to make collections of rent in his estate on his behalf. “Now this year, i.e., 1302 Fasli, you should separate the account and profits of the villages Gopalpur and Akbarnagar (not comprised in the waqf) you should remit separately the profits of both the villages stating them in detail. Do not send the profits along with those of the waqf villages. Also do not include the village account in that of Amrodha & c, (the waqf villages). Bear this in mind without fail.” (P. 43, appellant's book) Kalka Prasad, who was in the service of Agha Ali Khan for many years and is now in the employ of the plaintiff, is one of her witnesses, and he has proved that accounts of the waqf were separately kept by him and posted every month into books which he had verified. He says that “Mata Prasad and Vilayat Ali came every year to the deohri of Agha Sahib and rendered an account of the endowed property;” that “the income of the waqf property remained with Khuda Baksh and Agha Sahib himself expended it, and in his absence Haidar Husain did so;” “that Haidar Husain managed the waqf property in the absence of Agha Ali Khan;” “that of the employes in connection with the waqf, Khuda Baksh was the cashier, Imdad Husain, a Sipahi, Mata Prasad, two Quran reciters Mir Murtaza Husain and Mir Abid Husain and I was correspondence clerk.” These persons, it may be observed, are mentioned in paragraph 16 of the deed of waqf, and the duties to be performed by them are laid down in that paragraph. The witness, Kalka Prasad, further states that Khuda Baksh, the cashier, got him to write the accounts of the waqf; that “the objects of the waqf were carried out through Darogha Haidar Husain;” that “Agha Ali was particular about the carrying out of the directions of the waqf “that Agha Ali Khan was particular in this respect that no income of the waqf property should be spent extravagantly;” “that ordinarily all expenses in connection with the waqf were defrayed economically;” “that Agha Sahib himself distributed quilts” and “made distributions to Fakirs (reciters of elegy);” that separate registers were kept of the salaries paid to the persons employed in connection with the waqf, and that receipts were taken from them of the payments made to them. The witness, no doubt, states that the endowment fund was not kept separate, but this statement is contradicted by two letters written by himself in January, 1897, (pp. 63 and 64, appellant's book) in which he distinctly, referred to the existence for an endowment fund which he said was at the time quite empty. This witness, who, as I have said, is “a servant of the plaintiff and did not profess to be well-disposed towards the defendant, has fully proved that the objects of the waqf were carried out to the letter by Agha Ali Khan. That fact is also established by the evidence given by Waris Ali, another witness for the plaintiff, to whom I have already referred. He began, it is true, by saying that Agha Ali Khan had no intention to do any charitable act, but he admitted that after the execution of the deed of endowment, there was no change in bis expenses of the meetings, Chehlum, Muharram and Ramzan, and he continued to spend as before. He further admitted that the deed of waqf was not fraudulent, that the objects mentioned in the deed were the same as those on which he incurred expenses before the waqf; that meetings on the anniversary days held before the waqf were all along held even after the waqf; that before as well as after the waqf he used to distribute sums in charity to the poor and: Saiyads, and that his object was that he might do all these charitable acts during his life-time even after the waqf, and after his death the mutwalli should do the same. He, like Kalka Prasad, also proves that servants were employed for the purposes mentioned in the deed of waqf; that registers were kept of the salaries disbursed to them and that Khuda Baksh was the cashier of the waqf fund and used to get the accounts written by Kalka Prasad. Neither of these witnesses has stated that Agha Ali Khan used to appropriate and spend for his own private purposes any portion of the income derived from the waqf property, and there is no evidence whatever that he did so. The learned Counsel for the plaintiff-respondent relied upon certain circumstances as indicating that Agha Ali Khan did hot devote the whole of the income derived from the waqf property to the purposes of the waqf, but himself appropriated a part of it. These are, first, that certain items are debited to him in the accounts as being moneys advanced by him as loans; second, that the income is entered in the deed of waqf at a much lower figure than the actual income; and third, that leases of the waqf property were granted on low rent. As for the first point, the evidence of the plaintiff's witnesses Kalka Prasad and Waris Ali, shows that moneys were actually advanced by Agha Ali Khan from his separate funds for carrying out the objects of the waqf. The former deposed that Agha Ali Khan spent money from his own pocket in addition to the income from the waqf property, and that such moneys were entered in the accounts as “tahvil khas “or ‘“jeb khas.” Waris Ali also says that “for the waqf expenses, he (Agha Ali Khan), sometimes gave money from his own pocket.” The note appended to the accounts for 1306 Fasli (p, 141, appellant's book) shows that in the previous years there was a deficiency in the profits owing to bad harvests, and that the payment of revenue had been suspended by Government; some of these were years of famine, and consequently as the income fell, expenses were met by incurring loans, some of which were granted by Agha Ali Khan himself. It appears from the letter printed on page 69 of the appellant's book that a parol debt of Rs. 200 had been incurred through Mata Prasad and Vilayat Ali. It appears from the letter printed on page 69 of the appellant's book that a parol debt of Rs. 200 had been incurred through Mata Prasad and Vilayat Ali. It is thus manifest that loans were actually given and that the amounts debited to Agha Ali Khan in the accounts were not fictitious but represented sums actually advanced by him from his own pocket. The first contention has, therefore, no force. In regard to the second contention it is pointed out by the learned Counsel that whereas the profits from the villages in respect of which the endowment was made are stated in the deed of waqf to be Rs. 2,190-0-7 per annum according to the rent roll, the net profits are shown in the document as being Rs. 1,030 only, and it is said that of the amounts which have been deducted from the gross income, some are fictitious and others have been exaggerated. The 7th paragraph of the deed of endowment, dated 29th June, 1894, is as follows:— ”Out of the item of Rs. 2,190-0-7, about Rs. 400 is the zar-i-suls (Government canal water rate) per annum; Rs. 300 is on account of pay of the employees in connection with villages per annum; the village expenses and other expenses in connection with villages amount to Rs. 460-0-7; the amount in all comes to Rs. 1,160-0-7. Now there remains Rs. 1,030. This amount of net profits is for the purposes of waqf as detailed below.” Two arguments have been founded on the above paragraph; first, that the waqf, if made at all, was only of Rs. 1,030 out of the income from the villages and not of the whole income, and second, that the bulk of the income was appropriated by Agha Ali Khan to his own purposes. The first argument I will consider later in connection with the third question which we have to decide in this case as to the validity of the waqf. As for the second, there is nothing to show that during the years following that of the waqf the whole amount of rents entered in the rent-roll was ever collected and that the actual income ever exceeded the amount spent for the purposes of the waqf. As for the second, there is nothing to show that during the years following that of the waqf the whole amount of rents entered in the rent-roll was ever collected and that the actual income ever exceeded the amount spent for the purposes of the waqf. On 2nd October, 1899, a lease of a part of the waqf property was granted to Vilayat Ali, and on 30th March, 1900, another lease was granted to “Ajudhya Prasad, both leases to take effect from 1307 Fasli (1900), We have, therefore, to consider what the income was during the five years following the date of the waqf, during which Agha Ali himself made collections, It is common knowledge that the full amount of the rent-roll is rarely collected in any village. The accounts produced in this case, which have been duly proved, show what was the amount actually collected in each year. 19. The amounts were as follows:— Fasli Rs. a. p. In 1895 (1302) ..... ..... ..... 633 4 9 In 1896 (1303) ..... ..... ..... 1,073 0 0 In 1897 (1304) ..... ..... ..... 835 10 7 In 1898 (1305) ..... ..... ..... 626 9 11 In 1899 (1306) ..... ..... ..... 1,065 12 6 20. Vilayat Ali, who was one of the persons employed in making collections, has sworn that he used to remit between Rs. 500 and Rs. 700 every year. Some of these years were years of famine and the Government revenue was suspended. This appears from the entry at the foot of the account for 1306 Fasli, printed on p. 141 of appellant's book. It is also stated in that entry that “owing to the badness of the harvest year by year the profits decreased.” This statement is not contradicted by any evidence, and there is nothing whatever to show that Agha Ali Khan actually received from the villages a single pie in excess of the amounts entered in the accounts.’ On the contrary, the letters written by him and the witness Kalka Prasad to the Karindas in the villages, which have been, produced by the defendant and duly proved, show there was difficulty about money for meeting the expenses of the waqf, and pressing requisitions were sent to the Karindas for remitting money. These letters further prove that the objects of the waqf were carried out, and that Agha Ali Khan betrayed great anxiety lest any of those objects should remain unfulfilled. On 25th May, 1896, he wrote to Mata Prasad” and Vilayat Ali, “As to the money order sent by you, the whole of the money has been remitted to Kibla Mir Agha Sahib on account of charities as entered in the deed of waqf by reason of the end of the year, I have up to this day defrayed all the expenses entered in the waqf together with the pay of the servants of the waqf by any means possible. However, money will be required for meeting the expenses of the meetings and mourning during the ten days of the Muharram, 1314 Hijri, Take measures to remit money for the above expenses up to the end of the month of Zilhijja. Unless you send money to meet the expenses, the meetings and mournings will be much interrupted,” (p. 53A). On 19th November, 1896, he wrote to the same persons that there were pressing demands by persons who had supplied articles for, the celebration of the Muharram and others to whom money was, due and then continued; “Consequently being helpless and oppressed by pressing demands, although I know the circumstances of the villages and the cultivators, I send Kalka Prasad to you to describe in detail the inconveniences in meeting the waqf expenses, and you are asked to send at once Rs. 100, raising it by a loan in any way possible, through Kalka-Prasad, as without. Rs. 100 all the waqf expenses are stopped,” He added:” If the waqf expenses be stopped, what an amount of disgrace and, shame it will bring.” “The people will reproach that the waqf could not be carried on even two or four years” (p. 54A). On 29th December, he wrote to them as follows; “In the month of Ramzan money will certainly be required to meet the expenses of the food to be distributed daily among Mumin (Shiah) Saiyads, and the expenses of the meetings, & c. 1 therefore write to you to remit without fail by money order to the address of Kalka Prasad Rs. 50 or Rs. 60 for the said expenses by any means possible,” (p. 62A). 50 or Rs. 60 for the said expenses by any means possible,” (p. 62A). On 15th January, 1897, Kalka Prasad wrote to them for money for the expenses of the waqf and said that there was not a farthing the wakf tahvil (wakf fund),” (p. 63). Again, on 31st January, 1897, Kalka Prasad wrote, “with reference to a suggestion made to him by Mata Prasad and Vilayat Ali that he should meet the expenses of Ramzan by borrowing money, that no loan could be had, that there was only 2 annas 3 pies in the waqf tahvil (waqf fund) and that unless money were sent for the expenses there would’ be difficulty in-meeting them.” These letters were written by Kalka Prasad during Agha Ali Khan's absence in Arabia. He wrote again on 6th February, 1897, asking for money to meet the expenses of distributing food and the Quran in the month of Ramzan; of purchasing dates for distribution at the meetings to be held in that month; and of lighting up the tombs; also for the remuneration of readers of the Quran, and for payment of salaries of servants of the waqf, that is, for carrying out the provisions of the waqfnama, (p. 64). On his return from Arabia, Agha Ali Khan himself wrote to his two agents on the 27th May, 1897, as follows:— ”This property is endowed and unnecessary expenses cannot he met from it. If this be done, it will be quite in contravention of the conditions of waqf,” He added, “Earthly or heavenly calamity is a different thing. In that case helplessness can be pleaded before God and the dispensers of Muhammadan Law. The expenses mentioned in the waqfnama cannot be stopped in any case without any legal plea,” (p. 65). On 3rd June, 1897, he again wrote for money so that there might be, “no obstacle in meeting; the said expenses” and said that “in case of an obstacle a serious flaw will be created in the, waqf,” (p. 67). It is needless to multiply instances and to quote from other letters in which demands of money were made for making quilts for distribution among Shiah Saiyads and for other charities. It is needless to multiply instances and to quote from other letters in which demands of money were made for making quilts for distribution among Shiah Saiyads and for other charities. It is manifest from the letters to which I have referred that not only was the income of the waqf property during the five years following the date of the waqf insufficient to meet all the expenses of the waqf, but that all the provisions of the deed of waqf were curried out to the letter, and that the intention of Agha Ali Khan was that the waqf should be a true and genuine waqf for the purpose of carrying out the religious and charitable objects mentioned in the waqfnama out of the income of the waqf property. As Mr. Sundar Lal observed in the course of his able argument, there is in these letters a ring of genuineness, and the great anxiety which Agha Ali Khan betrayed in all of them for the due performance of all “the conditions of the waqf is, in my my opinion, wholly inconsistent with the theory that the waqf was only a sham and a blind. I am unable to accept the suggestion that the letters were written as a device for giving the appearance of reality to a colourable transaction. As I have already pointed out, the plaintiff's own witness, Waris Ali, has proved that in the deed of waqf the same expenses were entered as used to be defrayed by Agha Ali Khan before the waqf, and that the same expenses were continued after the waqf. So that there is no foundation for the suggestion that he appropriated to his own use’ any part of the income of the property comprised in the waqfnama. 21. As for the leases granted to Vilayat Ali and Ajudhiya Prasad, I cannot agree with the learned Counsel for the plaintiff' that the rent reserved by them was low or inadequate. The rent payable by the former was Rs. 1,125 and by the latter, Rs. 275, making a total of Rs. 1,500 per annum. They had to pay canal rates and defray all the expenses of collection. Assuming, therefore, that the income, according to the rent-roll, after payment of revenue and cesses, was Rs. 2,190 there was hardly any margin left. The rent payable by the former was Rs. 1,125 and by the latter, Rs. 275, making a total of Rs. 1,500 per annum. They had to pay canal rates and defray all the expenses of collection. Assuming, therefore, that the income, according to the rent-roll, after payment of revenue and cesses, was Rs. 2,190 there was hardly any margin left. There were the risks of bad harvests, of tenants absconding from the villages leaving their rents unpaid, and other risks incidental to such transactions which the lessees had to undergo. Therefore, taking all circumstances into consideration, it cannot be said that the leases were granted on inadequate rents. The onerous terms imposed on the lessees show that the leases were genuine transactions, and I fail to see that the granting of these leases in any way indicates that the waqf was nominal and fictitious. 22. The main reliance of the plaintiff is on three letters which Agha Ali Khan is said to have written. Two of these are addressed to Waris Ali and bear date respectively the 9th of December 1892, and the 7th of September, 1896. The third is addressed to one Saiyed Mustafa Shah, and is dated 16th May, 1894. These letters are printed on pp. 18, 19 and 20 of the respondent's book of evidence. In the first letter, Waris Ali is directed to get a draft of deed of endowment prepared by certain barristers and pleaders practising in this Court named therein, and then appears the following clause on which the plaintiff relies, “You must, however, bear in mind my real object which I expressed to you at the time of your departure, that is to say, the deed of endowment executed should provide that during my life-time I may apparently be in possession and enjoyment of my property as a mutwalli, but I may, as before, be able to spend the income from these villages in the meetings, mourning ceremonies, as well as my personal expenses, and may in no way be restricted as regards the defraying of expenses, and the person whom I may appoint mutwalli of this property after me should, of course, be bound by the terms of the deed of endowment, so that my relations may get: nothing out of my property and remain deprived thereof.” 23. The next letter in order of dates refers to a draft waqfnama prepared by the addressee and says: “It (the draft) is not conversant with my real object, that is to say, I mean that apparent-ly it may be looked upon and deemed a wakf but during my life-time I may have full power over the income and may be able to bring it to my use in any way I like, and after my death the wakf should of course be given effect to and enforced according to the Muhammadan Law, and it may be binding upon the person who may after my death be appointed mutwalli so that he may not be able to encroach upon or deviate from it, nor should my heirs be able to get anything out of the endowed property as such heirs.” 24. The third letter contains this statement: “My real and principal object in executing these deeds of endowment is, that no body might call them invalid and colourable, and that 1 may as before remain in proprietary possession during my life-time.” 25. The genuineness of these letters is denied on behalf of the defendant. I have very carefully examined the original letters on the record and I must say that, as a result of that examination I cannot resist the conclusion that they are spurious. Two of the three letters were produced by Waris Ali, who was a servant of Agha Ali Khan, but has now gone over to the plaintiff. The third was produced under circumstances which I cannot but regard as suspicious. All the three letters are in the hand-writing of Kalka Prasad who is now in the employ of the plaintiff, and cannot be regarded as a satisfactory and truthful witness in all respects. The signature of Agha Ali Khan on each of the three letters appears at first sight to be like his genuine signature, but a careful comparison of the signatures on the three letters with his admitted signatures, with the help of a fairly powerful magnifying glass, can leave no doubt in the mind of a person conversant with the vernacular that all the signatures were not written by the same person. The three signatures on the three letters in question are exactly alike, but are in many respects;—such as the shape and formation of the letters, the downward strokes, and the whole style of writing,—different from the admitted-genuine signatures of Agha Ali Khan on several of the documents on the record. These latter signatures have the appearance of natural signatures made by a man who signs his own name, but the signatures on the letters in question look like the writing of a person who has copied and tried to imitate another man's writing. They are written with a hesitating hand. I have closely scrutinized them with a magnifying glass, It seems to me that one at least of the signatures was first traced on the paper and then inked over. The other two also appear to have been slowly written and the ink was then thickened at different places. I have also compared the different letters of the Persian alphabet in the signatures in question with the same letters appearing in the body of the documents, and it seems to me that the signatures were written by the same person who wrote the body of the document.’ Another very suspicious circumstance is the close similarity which the three disputed signatures bear to each other, whereas the admitted signatures have such points of difference as must ordinarily appear in genuine signatures, It seems to me that these letters were fabricated by Kalka Prasad and put into envelopes used for genuine letters and then filed in this case. The probabilities also are against the genuineness of these letters. If Agha Ali Khan sent Waris Ali to Allahabad to get a draft deed prepared by counsel and pleaders, he must have given him necessary directions for that purpose, Why would he have written him a letter repeating the same directions, unless it was to leave in his hands written evidence which might be used afterwards to defeat the waqf? What again was the necessity for writing the second letter which Waris Ali has produced, namely, the letter of the 7th September, 1896? Waris Ali was fully cognizant of his intentions, and there was no occasion to remind him of them. What again was the necessity for writing the second letter which Waris Ali has produced, namely, the letter of the 7th September, 1896? Waris Ali was fully cognizant of his intentions, and there was no occasion to remind him of them. As for the letter to Mustafa Shah there is nothing to show that he was as friend of Agha Ali Khan, that he was a man well versed in Muhammadan Law, that Agha Ali Khan carried on correspondence with him and that he was a man whom Agha Ali Khan was likely to consult about the waqfnama and ask to prepare a draft waqfnama. If Waris Ali has spoken the truth, Agha Ali Khan had been consulting lawyers in Allahabad and Lucknow and other persons who were regarded as authorities on questions of Muhammadan Law, for about two years before the execution of the deed of waqf of the 29th June, 1894. His draft must have been ready for some time, and it is in the highest degree improbable that on the 16th of May, 1894, he wrote to this man, of whose antecedents we know nothing, to prepare a draft, There is one circumstance, however, which to my mind shows beyond doubt that this letter of the 16th May, 1894, is not genuine. An embossed postage envelope bearing the post mark of that date has been produced, as the one in which this letter was enclosed. There is nothing to show that this envelope was despatched by Agha Ali Khan. It does not bear his name, as does every other envelope which enclosed genuine letters written by him or on his behalf. We have on the record a large number of such envelopes, and on every one of them it is endorsed that it had been despatched by Agha Ali Khah. The fact that on this single envelope a similar endorsement was not made, raises the irresistible inference that it was not despatched by Agha Ali Khan and that the envelope produced is one in which some other letter written to Mustafa Shah by some one else was enclosed. This inference is further strengthened by the fact that the writing on a part of the envelope above the name of Mustafa Shah has been obliterated by rubbing ink over it. This inference is further strengthened by the fact that the writing on a part of the envelope above the name of Mustafa Shah has been obliterated by rubbing ink over it. It has been said that there is no direct evidence that the three letters are spurious, but it is needless to remark that such evidence can hardly be produced in any case, specially in a case like this. I am clearly of opinion, upon careful examination of the record and of the original letters, that they are not genuine and have been fabricated for the purposes of this suit. It seems to me the learned Subordinate Judge did not examine these letters carefully and simply relied on the formal evidence adduced to prove them. 26. Even if it be assumed that these letters were written by Agha Ali Khan, I am of opinion that that circumstance alone does not establish that the waqf was only nominal. The object undoubtedly was to prevent the property passing to his heirs but that is the object with which every genuine and valid waqf is made. A waqf by its very definition, is a contract by which the corpus of an estate is tied up, So that, both the object and the effect of a valid waqf is that the estate should cease to be the property of the appropriator and should not be the subject of inheritance after his death. Now, the first letter bears a date shortly following that of the decision of the suit between the present plaintiff and Agha Ali Khan, reported in I.L.R., 14 Allahabad, 429. It is probable that at that time Agha Ali Khan was desirous of making a nominal waqf, himself continuing to be the owner of the property. The actual waqf, however, was not made until eighteen months after, and if the waqf then made is one valid in law, his original object, conceived eighteen months before, is wholly immaterial. Further, what he says in the letter is this, that the deed of waqf should be so drawn up that during his life-time he might remain in possession and enjoyment of the property and appropriate the income to his personal expenses also. The deed, as drawn, however, does not allow him to enjoy the usufruct for purposes other than those mentioned in it. The deed, as drawn, however, does not allow him to enjoy the usufruct for purposes other than those mentioned in it. He has certainly in his character of mutwalli a control over the income and the expenses, but he has no power to bring the income to his personal use. If he misappropriated the income, he could be restrained by any two Shia Muhammadahs and even removed from the office of mutwalli. Moreover, as we have already seen, the whole of the income was devoted to the purposes of the waqf. Whatever, therefore, his object might have been before he created the waqf, if the waqf is a legally valid waqf, that object is wholly immaterial. The letters, consequently, are in my judgment of no avail to the plaintiff. 27. The only other circumstance to which Mr. Karamat Husain referred on behalf of the plaintiff is that in certain accounts the income derived from the waqf villages was credited along with the income from other villages. The accounts, however, only show the personal expenditure of Agha Ali Khan and do not include the expenses of the waqf, and there is nothing to prove that the income from the waqf villages was spent on personal objects. The evidence shows that the accounts used to be separated afterwards. 28. For the reasons stated above I have come to the conclusion that the waqf was not nominal and fictitious. 29. The question which now remains to be determined is whether the objects of the waqf are valid according to Muhammadan Law. It is essential for the creation of a valid waqf that there must be a clear intention to devote the income of the endowed property to religious or charitable purposes and, as their Lord ships of the Privy Council held in the well-known case of Mahomed Ahsanullah Chowdhry v. Amarchand Kundu, [1889] I.L.R., 17 Cal., 498 “there must be a substantial dedication of the property to charitable or religious uses at sometime or other.” The same rule was affirmed by their Lordships in Abul Fata v. Rasamaya Dhar, [1894] I.L.R., 22 Cal., 619. It is now settled law that if the dedication of the property is absolute and unconditional, and if there is an ultimate trust for pious or charitable purposes, the waqf is valid according to Muhammadan Law. It is now settled law that if the dedication of the property is absolute and unconditional, and if there is an ultimate trust for pious or charitable purposes, the waqf is valid according to Muhammadan Law. We have, therefore, to consider whether the purposes for which the waqf in this case was made We religious or charitable purposes. It is clear that unlike the cases of Mahomed Ahsanullah Chowdhry v. Amar Chand Kundu, [1889] I.L.R., 17 Cal., 498 and Abul Fata v. Rasamaya Dhar, [1894] I.L.R., 22 Cal., 619 referred to above, the waqf in this case was not made for the aggrandisement of the family of the appropriator, and the ultimate charities are not so insignificant or remote as to be wholly illusory. The purposes for which the waqf was made are set forth in the waqifnama and “are the celebration of the Muharram, including meetings for the Seoum and Chehlum, and of the birth and death anniversaries of the Prophet and his descendants; the meeting held on the anniversary of the death of some of the ancestors;’ meetings during the month of Ramzan, i. e., the month of fasting; celebration of the Id festival; recitation of the Quran and, the making of presents and offerings, That these are religious objects cannot admit of any doubt and is indeed not denied by Mr. Karamat Husain, the learned Counsel for the plaintiff respondent. It is in regard to the different descriptions of expenditure which the waqfmma directs to be incurred for the purposes mentioned above that he contends that many of them are such as the Muhammadan law as interpreted by the Courts, does not recognise as legitimate and proper. The objects of expenditure may be arranged under the follwing heads:— (1) Sugar, sweets and sharbat given to persons attending meetings. (2) Cooked food distributed among (a) people generally, and (b) Shia Muhammadans. (3) Tobacco for smoking, coal and drinking water. (4) Mahdi offerings. (5) Making and burial of Tazias. (6) Printing slips containing prayers. (7) Distribution of the Quran. (8) Distribution of quilts and blankets. (9) Expenses of the celebration of Id. (10) Hire of furniture for meetings. (11) Cost of whitewashing the house for placing tazias in it. (12) Illumination expenses. (13) Alms in cash to Saadat Mumins, (14) Wages of reciters of elegy and mourners. (15) Wages of servants; 30. (7) Distribution of the Quran. (8) Distribution of quilts and blankets. (9) Expenses of the celebration of Id. (10) Hire of furniture for meetings. (11) Cost of whitewashing the house for placing tazias in it. (12) Illumination expenses. (13) Alms in cash to Saadat Mumins, (14) Wages of reciters of elegy and mourners. (15) Wages of servants; 30. It is not denied that items under heads (5) to (11) are legitimate objects of expenditure for which a waqf may be validly and properly made, and there can be no doubt whatever on the point. In my judgment the other heads of expenditure are equally legitimate both upon authority and according to the generally practice of Shiah Muhamadans. 31. The distribution of sugar and sweets and sharbat like the distribution of other food on the occasions of the celebrations mentioned in the waqfnama, is, upon the authorities of Muhammadan law, a meritorious act and cannot but be regard as an act of charity. The learned Vakil for the appellant has placed before us original authorities of Muhammadan law, which fully support his contention. In the Ashrazush-shahadat we find a passage on p. 67 which is thus translated:— The Moses said, “God, what is Ashura?” God said,. “To weep and lament for the dughter's son of Muhammad (may the blessing of God be upon him and his descendants) and to recite elegies and observe morning ceremony on his account. O Moses, if any of my servants at that time weeps, laments and mourns for the daughter's son of the Prophet he will be entitled to enter paradise. And if any one spends his property, i.e., distributes ood, & c, and dirham, dinar, out of love for the daughter's, son of the Prophet, I will increase his property in this world.” Again on p. 73 of the same work occurs the following passage: “Be it known that those who attend the majiis (mourning meetings) on account of the descendants of the Prophet, are supplied with food and drink, and are in like manner made to drink rosewater and coffee — and to’ smoke tobacco, & c. The distribution of these things is made by way of fulfilment of a nazar or expenses thereof are defrayed out of the income of waaf property; and these things are distributed among all the persons, whether rich or poor, who have attended the mourning meeting. In such a case it is certainly lawful for the rich persons also to partake of these things.” 32. The above extracts establish (1) that it is a meritorious act to hold meetings for mourning the death of the grandsons of the Prophet; (2) that at these meeting elegies should be recited and mourning made; (3) that it is meritorious on such occasions to distribute food and money;(4) that all persons attending meetings, whether rich or poor, are supplied with food and drink, such as rosewater and coffee, & c, and tobacco for smoking: (5) that it is customary to do this and (6) that expenses for these purposes may legitimately be defrayed out of the income of waqf property. That these acts are both meritorious and customary, appear also from the following extract from page 369 of the Zakhirat-ul-maad by Shaikh Zainulabdin, another work of high authority. “Question:—Which of the two acts is more virtuous, whether to distribute eatable things among the poor and Mumins at the meetings held for mourning for Imam Husain (may peace be upon him) as is usually done, or simply to;give alms to the poor, indigent persons and to Mumins? Answer:— “It is a more virtuous act to spend on the poor and Mumins at the meetings held for mourning (for Imam Husain).” 33. In Ameer Ali on Muhammadan Law, Vol. I. p. 411, 3rd Edition, the learned author, referring to the rule that one of the essential requisites of a legal waqf under the Imamia Law is that it must be perpetual, observes: “A charitable purpose is also perpetual in its nature, for there are always poor in existence. In fact any continuing object of birr and ihsan is sufficient for a perpetual waqf; for example, a waqf to supply water or sharbat to the congregation in the mosques or imambatas, to light the lamps in place of worship.” 34. In Muzhurool Haq v. Puhraj Ditarey Mohapattar, [1870] 13 W.R., 235 a waqf for the lighting of a mosque and the giving of food to travellers was upheld as a valid waqf. The making of what are called Mahdi offerings by women is also authorised by a passage in one of the original authorities I have already referred to as being a meritorious, act on the part of females on the occasion of mourning annually for the death of the Prophet's grandsons. The making of what are called Mahdi offerings by women is also authorised by a passage in one of the original authorities I have already referred to as being a meritorious, act on the part of females on the occasion of mourning annually for the death of the Prophet's grandsons. There is thus ample authority for holding that the items under heads (1), (2), (3), (4), (12) and (14) specified above are legitimate objects of expenditure for the purposes of a valid waqf, and no text or other authority has been brought to our notice in which a contrary rule has been laid down, That these expenses are customary is further proved by the evidence of the plaintiff's own witness War-is Ali, to whom I have referred in an earlier part of this judgment. An endowment in perpetuity for the distribution of sweets and sharbat requiring an expenditure of about Rs. 200 a year, may offend against western ideas, but to quote the words of DAVIES, J. in Kaleloola Sahib v. Nuseeruddin Sahib, [1894] I.L.R., 18 Mad, 201 “it would unsettle the minds of the whole of the Muhammadan;’ community in India, if such a well-established practice were now declared to be illegal and no Court of Justice in India, where the approved customs of any race are recognised and accepted as law, would be justified in making such a declaration,”-(p, 206). I am of opinion that as regards the heads of expenditure mentioned above, the objects are both religious and charitable and that the waqf is valid. 35. As for item No. 13, namely amounts to be distributed in cash among Saadat-i-muminin i.e., Shiah followers of the true faith which amount annually to about Rs. 250, it is urged that it is not lawful, first, because it it not a legitimate object, and second ly, because the payments are not confined to the poor only. These contentions have, in my judgment,’ no force. A waqf lor mumins generally is a valid waqf under the Imamia law. In Mr. Ameer Ali's Muhammadan Law, (Vol. 250, it is urged that it is not lawful, first, because it it not a legitimate object, and second ly, because the payments are not confined to the poor only. These contentions have, in my judgment,’ no force. A waqf lor mumins generally is a valid waqf under the Imamia law. In Mr. Ameer Ali's Muhammadan Law, (Vol. I, p. 407) it is laid down; “a waqf in favour of mumins generally will be applied to such purposes as would be beneficient to them.” To the same effect is the following passage in Baillie's Muhammadan law, Imamiyab, p, 215; “An appropriation in favour of Moslims is to be applied for the benefit of all those who pray towards the Kiblah. But one in favour of the muminin, or true believers is to be applied only for the benefit of the followers of the twelve Imams. “The same passage is repeated in the Tagore Law Lectures for 1874, by Shama Churun Sircar, p, 469, on the authority of the Sharaya-ul-Islam, pp. 235 and 236, and the learned author adds, “If the waqf is made in favour of the Shiahs, it is to be applied to the Imamyahs and Jarudiyahs.” It is thus manifest that a waqf is lawful if made in favour of mumins generally and it is certainly lawful if made in favour of Saadat-i-muminin i.e., true believers of the Shiah sect. That it is not essential that such a waqf must be in favour of the poor appears from the following passage in the same book, p. 469:— ” If a Mussulman should make a waqf in favour of the poor, it is to be applied for the benefit of the poor Muslims only, to the exclusion of all others.” The words “to the exclusion of all others” clearly show that a waqf my be made not only in favour of poor Muslims only, but also in favour of all other Muslims. The fact, therefore, that in the deed of waqf before us provision is made for the distribution of money in cash among Saadat-i-muminin generally does not vitiate the waqf. Further, I am of opinion that the intention of the appropriator was that money should be given to poor muminins only. The word in the original is (tabarat which is used as meaning “alms or charity”). The primary meaning of the word is a good act done gratuitously. Further, I am of opinion that the intention of the appropriator was that money should be given to poor muminins only. The word in the original is (tabarat which is used as meaning “alms or charity”). The primary meaning of the word is a good act done gratuitously. The word is not generally used in Urdu, but whenever it is, it is used as meaning a charitable act. The Court translator has, I think, rightly translated it as “alms or charity,” both of which words imply relief to the poor. The word “alms” is “defined in Ogilvie's imperial Dictionary of the English Language as “anything given gratuitously to relieve the poor, as money, food or clothing, a charitable dole.” And “charity” according to the same Dictionary, is “whatever is bestowed gratuitously on the poor for their relief.” We have also the evidence of the witness Waris Ali to the effect that Agha Ali Khan, both before and after the waqf used to “distribute sums in charity to the poor.” Doles of cooked food, drinks and money are given on the occasions of the celebrations mentioned in the deed of waqf to the poor and not to the rich. They are generally received by the former only and not by the latter’. So that when Agha Ali Khan provided for the distribution of money, food and drink, he evidently meant to provide for the poor who were in practice the principal objects of his bounty. I think it would be placing a forced construction on the waqfnama to hold that he did not contemplate the poor. As for the provision about making money payments to saadat-i muminin, I am of opinion that from whatever point of view the provision may be looked at whether as payments to those mumins generally or only to such of them as are poor, it is lawful being one for charitable purposes. 36. Mr. As for the provision about making money payments to saadat-i muminin, I am of opinion that from whatever point of view the provision may be looked at whether as payments to those mumins generally or only to such of them as are poor, it is lawful being one for charitable purposes. 36. Mr. Karamat Husain, the learned Counsel for the plaintiff, who is himself a lawyer of great learning in Muhammadan law, whilst conceding that according to orthodox authorities on Muhammadan law, such a waqf would be valid, contends that according to the rulings of our Courts and specially those of their Lordships of the Privy Council, gifts to any but to the poor are not sufficient to constitute a valid waqf, I do not agree with him that such is the effect of the case-law on the subject. The leading case is that of Mahomed Ahsan-ullah Chowdhry v. Amar Chand Kundu, [1889] I.L.R., 17 Cal., 498 to which I have already referred. Their Lordships held that “although the making provision for the grantor's family out of property dedicated to religious or charitable purposes may be consistent with the property being constituted waqf, yet, in order to render it waqf the property must have been substantially, and not merely, colourable, dedicated to such purposes.” They observed: “They have not been referred to, nor can they find any authority showing that according to Muhammadan Law a gift is good as a waqf unless there is a substantial dedication of the property to charitable uses at some period of time or other.” According to their Lordships, therefore, an essential “condition for the validity of a waqf is the substantial dedication of the property to religious or charitable purposes.” The principle thus laid down was not departed from in the latter case of Abul Fata v. Rasamaya Dhar, [1894] I.L.R., 22 Cal., 619. In that case there was an ultimate gift to the poor, but their Lordships held that it was unsubstantial and illusory and that the poor had been but into the settlement merely to give it a colour of piety and so to legalize arrangements meant to serve for the aggrandisement of a family.” In Kaleloola Sahib v. Nuseerud-din Sahib, [1894] I.L.R., 18 Mad., 201 to which the learned Counsel referred, the Madras High Court held that “the appropriation must be for an ultimate charitable trust which will not fail, “and that a dedication for the performance of certain ceremonies at a private tomb is not valid, I must observe that having regard to the findings in the case, to the fact that a traveller's inn had been erected as an appurtenance to the tomb, that the performance of the ceremonies necessarily involved the distribution of charity, that the lights at the tomb were of use to passers-by, I am, with great deference, unable to agree with COLLINS, C.J., and PARKER, J., that the waqf was not for pious and charitable uses, and my opinion concides with that of DAVIES, J. No other case has been cited on the point, nor am I aware of any which supports Mr. Karamat Husain's contention. I am accordingly of opinion that the waqf in question, in so far as it provides for the distribution of money among Saadat-i-muminin, is a valid waqf. 37. I have already pointed out that it is a pious act to recite elegies and do mourning at the meetings held for the purposes mentioned in the waqfnama. The wages of persons employed for reciting elegies and of mourners is a legitimate object and the item under head No. 14 cannot be taken exception to. 38. As for the item No. 15, which is the last in the waqfnama that document directs that the following payment should be made annually to:— (a) Two Quran reciters ..... ..... 96 (b) Waris Ali ..... ..... 60 (c) Mata Prasad ..... ..... 120 (d) Khuda Baksh ..... ..... 24 (e) Imdad Husain ..... ..... 24 Total 324 39. It is manifest from the terms of the deed that these payments are to be made to the recipients of them not as their personal annuity, but as their wages for duties to be performed by them in connection with the wakf. ..... 120 (d) Khuda Baksh ..... ..... 24 (e) Imdad Husain ..... ..... 24 Total 324 39. It is manifest from the terms of the deed that these payments are to be made to the recipients of them not as their personal annuity, but as their wages for duties to be performed by them in connection with the wakf. Those duties are enumerated in paragraphs 15 and 16. The reciters of Quran are to get Rs. 4 a month each and read the Quran at certain places named; Waris Ali is to distribute sharbat food, sweets, & c, at meetings. Imdad Husain and Khuda Bakhsh are to spread carpet, make illumination, give smoke and drink to persons present at meetings. Mata Prasad is to write accounts relating to the wakf villages. The wakfnamd. further provides in paragraph 16 that “should any of these persons fail to discharge the legitimate duty allotted to them, or be found guilty of negligence, or should, absent himself, or do anything against the will of mutwalli for the time being, the mutwalli shall have power to dismiss him and appoint another person in his place.” After the death of these persons the mutwalli is empowered to appoint others to perform their duties. It is clear that they are not to get any payments after they cease to be the servants of the waqf, and there can be no doubt that what is provided for is only their wages as such servants; whether the amounts of the wages are proper or excessive is not a matter which has to be considered in determining whether the purposes of the waqf are lawful or not. Even if the amounts in question are to be deemed to be personal ‘annuities granted to these persons, the waqf if not for that reason invalid. A waqf may be made in favour of any one, even an infidel, provided that he is not an alien enemy (Tagore Law Lectures, 1874, p. 468 and Baillie's Muhammadan Law, Imamiyah, pp. 214 and 215.) In Zulfikar Ali Khan v. Shirin Begam, [1894] 14 A.W.N., 5 a direction in a waqfnama that the mutwalli should pay Rs. 60 a year to one Faqir Muhammad was sustained and the waqf was held by this Court to be valid. That was also the case of a waqf by a Muhammadan of the Shiah sect. 214 and 215.) In Zulfikar Ali Khan v. Shirin Begam, [1894] 14 A.W.N., 5 a direction in a waqfnama that the mutwalli should pay Rs. 60 a year to one Faqir Muhammad was sustained and the waqf was held by this Court to be valid. That was also the case of a waqf by a Muhammadan of the Shiah sect. Both, therefore, upon authority and upon the terms of the deed of waqf, the provision in it about the payment mentioned above is in my judgment a valid one. 40. Reference was made to the 18th paragraph of the deed which provides that Mir Agha Sahib (the defendant) may appropriate to himself at time of need, the Rs. 50 which he is directed to distribute among Shiah Saiyids, and which further provides that after the death of Agha Ali Khan the Rs. 180, which he is directed to distribute among persons of that class, should be taken by the mutwalli as his salary for the services to be rendered by him. It is said that these are not legitimate objects of a valid waqf. The authorities to which I have referred above, however, establish that there is no force in this contention, & waqf for the payment of Rs. 50 a year to Mir Agha Sahib is, as I have already shown in the case of the servants of the waqf, perfectly valid. He fulfils all the conditions requisite for a valid waqf that relate to the “mowkoof alehi” or the person on whom the settlement is made. He is a living person capable of owning property; he is distinctly indicated and lie is a person on whom it is not unlawful to make a waqf. (Baillie's Imamiyah, p. 214). As for the wages of the mutwalli the effect of the ruling of this Court in Zulfikar Ali v. Shirin Begam to which I have already referred, is to hold that such wages are lawful. For the above reasons I am of opinion that all the purposes for which the waqf was made, are pious and charitable purposes. 41. I proceed now to dispose of the only remaining argument advanced on behalf of the plaintiff, namely, that the waqf was made, if at all, in respect of Rs. 1,030 only out of the income and not of the whole income and of the property itself. 41. I proceed now to dispose of the only remaining argument advanced on behalf of the plaintiff, namely, that the waqf was made, if at all, in respect of Rs. 1,030 only out of the income and not of the whole income and of the property itself. The foundation for the argument is this. The profits of the villages with reference to the rent-roll are stated in the deed to be Rs. 2,190-07. It is further stated that of this sum about Rs. 400 has to be paid as canal rates to Government, Rs. 300 is the pay of the servants employed in the village, and the village expenses and other expenses amount to Rs. 460-0-7, making a total of Rs. 1,160-0-7. The surplus left is thus Rs. 1,030, of which the waqf was made. It is said that a part of the canal rates paid by the landlord is recovered from tenants under the provisions of the Canal and Drainage Act (No. VIII of 1873), that according to the defendant's own witness, Vilayat Ali, the village expenses do not exceed Rs. 100, and that, consequently, the total income exceeds Rs. 1,030-0-0, and the excess has not been disposed of. Assuming that the facts really are what they are alleged to be, the provisions of the wakfnama completely and clearly dispose of every part of the income and provide for the event of its exceeding or falling, short of Rs. 1030., The fourth paragraph of the deed first refers to the variable nature of the amount of the canal rates to be paid. In some years it is more than Rs. 400. In others it is less. This may happen both when the amount is reduced by Government and’ when by reason of the tenants' share of it being recovered from them, a smaller amount has to be paid by the landlord. The paragraph then directs that when the amount exceeds Rs. 400, the excess is to be paid by the mutwalli out of the income, and that when it is less, the surplus should be kept in deposit in the Post office Savings Bank, and when it amounts to, Rs. 500, Government securities should be purchased. The paragraph then directs that when the amount exceeds Rs. 400, the excess is to be paid by the mutwalli out of the income, and that when it is less, the surplus should be kept in deposit in the Post office Savings Bank, and when it amounts to, Rs. 500, Government securities should be purchased. Further directions are given as to what should be done with the Government securities, and it is provided that the interest obtained on such securities should be distributed among Saadut-i-muminin, Further provisions in regard to canal rates and village expenses are contained in paragraph 8. There it is said that the maximum amount of canal rates is Rs. 400, and that of village and other expenses is Rs. 460-0-7, but that these cannot be definitely fixed, and must vary every year. The mutwalli is directed to spend the surplus under either of the said two heads on “charitable objects, such as burial and shroud expenses of poor Saadat-i-muminin,” The 11th paragraph provides for the case of the canal rate being remitted by Government upon the expiration of the term of settlement. In that case “it will be valid to enhance the rent also of cultivators and then there will be an increase in the profits and the amount thus increased should be spent by the mutwalli for the time being on paraphernalia for marriage of the virgin daughters of Saadat-i-muminin.” The words which have been translated as “paraphernalia for marriage—” (saman shadi) —mean things requisite for the marriage and not marriage presents. 42. The 12th paragraph directs that should there be a diminution in the profits in any years, a proportionate reduction should be made in the expenses, “except in the pay of recipients of salary and the items of charity.” The provisions contained in the paragraphs to which I have referred, fully dispose of every part of the income of the entire property both when it exceeds Rs. 1,030 and when it falls below that amount. They must be read as supplementary to and controlling the 7th paragraph. It cannot, therefore, be said that the waqf is limited to that amount only. 1,030 and when it falls below that amount. They must be read as supplementary to and controlling the 7th paragraph. It cannot, therefore, be said that the waqf is limited to that amount only. I may mention that the genuineness of the waqf‘ is further shown by the fact that it is provided in the 18th paragrapli of the deed to which reference has been made above that after the death of the first mutwalli, the appropriator, the Rs. 180 distributed by him among Saadat-i-muminin in 11 is life-time, should be taken by the next mutwalli as his salary, and that in the event of a son being born to the appropriator, that son would get only a-half of the said sum. 43. In my judgment it has been fully established that the waqf made by Agha Ali Khan was made in strict compliance with the requirements of the Muhammadan Law, that it is a genuine waqf fully carried into effect in the life-time of Agha Ali Khan, that it is not nominal and fictitious, and that the objects of the waqf are lawful and proper. I hold that not only was a substantial dedication of the property in question made by him, but it was a complete dedication of the whole of that property for religious and charitable purposes, and that consequently Agha Ali Khan had ceased to be the owner of it, and his heir at his death was not entitled to succeed to it. The plaintiff's claim, therefore, failed, and the Court below, instead of decreeing it, should have dismissed it. I would allow the appeal and setting aside the decree of the Court below, dismiss the suit with costs in this Court and it) the Court below. BY THE COURT The order of the Court is that under the second paragraph of section 575 of the Code of Civil Procedure, the decree of the court below be affirmed and the appeal be dismissed. The appellants must pay the costs of this appeal, including fees on the higher scale.