Judgement Appeal (No. 54 of 1922) from a decree of the Court of the Judicial Commissioner (January 10, 1920) reversing a decree of the Additional District Judge of Nagpur (December 18, 1918). The suit was brought by the appellant against the respondents claiming by his plaint a decree under s. 83 of the Central Provinces Land Revenue Act to cancel entries in the record of rights showing the respondents as co-sharers with him in three villages, and to substitute his name as the full 16 annas mokasdar and mutawalli thereof. The facts appear from the judgment of the Judicial Committee. The District Judge held that the grant created a religious charitable trust for the imambara, that the wakf had been recognized by the British Government, and that the nature of the grant could not be altered by the Settlement Orders of 1867, whereby both sons of the grantee had been recorded as owners. He found further that Bunyad Hussain had appointed the appellant, his son, mutawalli, and that he as mutawalli had authority to do so. He accordingly made a decree as prayed. On appeal the decision was reversed and the suit dismissed. The learned judges were of opinion that no wakf was created and that the grant was a personal grant with a condition attached. They did not think it probable that a Hindu ruler would create a wakf in the sense of Mahomedan law, and were of opinion that the evidence showed that the grant had not been regarded or treated as having created one. They therefore held that the plaintiff could not maintain his claim as mutawalli. 1923. Nov. 20. De Gruyther K.C. and Abdul Majid for the appellant. The grant being for the perpetual support of an object recognized in Mussulman law as a religious object is a valid wakf ; it is not material that the word " wakf " is not expressly used Piran v. Abdool Karim (( 1891) I. L. R. 19 C. 201, 216.); Jewan Doss Sahu v. Kubeer-ood-deen (( 1840) 2 Moo. I. A. 396, 421.), followed in Muhammad Hamid v. Mian Mahmud (( 1923) L. R. 50 I. A. 92.) ; Ameer Alis Mahommedan Law, 4th ed., vol. i., pp. 194, 216; Wilsons Anglo-Muhammadan Law, 3rd ed., paras. 317, 322. I. A. 396, 421.), followed in Muhammad Hamid v. Mian Mahmud (( 1923) L. R. 50 I. A. 92.) ; Ameer Alis Mahommedan Law, 4th ed., vol. i., pp. 194, 216; Wilsons Anglo-Muhammadan Law, 3rd ed., paras. 317, 322. The property has been treated as a wakf, in that the income has been applied to the mainten ance of the imambara. The religious creed of the donor is not material in considering the validity of the wakf Sarkar Sastris Hindu Law, 4th ed., p. 480. It is true that Mad. Act VI. of 1913 refers to gifts made by "persons of the Mahomedan faith," but that does not affect the question; the Act is merely an enabling Act for Mahomedans. There is nothing to prevent the property being administered according to Mahomedan law. The appellant was mutawalli, having been duly appointed by his father. When the founder of a wakf does not provide for the succession of mutawallis, each mutawalli can nominate his successor. The respondents did not appear. 1924. Jan. 28. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. This is an appeal from a decree of the Court of the Judicial Commissioner of the Central Provinces dated January 10, 1920, reversing a decree of the Court of the Additional District Judge of Nagpur dated December 18, 1918. The case was argued before the Board ex parte. The point of the appeal as presented was whether in the year 1840 Raja Raghoji Bhonsla, a Hindu ruler, created a wakf of three villages—namely, Gorewara, Sonkham and Nankapar, to Hakim Yadgar Hussain, the royal physician. The document so said to create a wakf is as follows " From Raghoji Bhonsle, Sena Saheb Subha. The village of Mauza Gorewara in this pergana is given as mokasa in the Arabic year 1241/ 1840 (Fasli year 1250) to Hakim Yadgar Hussain for the imambara of Pir Hussain, with all income of land revenue, pandhari extra income, kalali and mango groves, for ever from the commencement of the current year. It is assessed to a rental of Rs. 401-12-0. You may therefore continue the mokasa from year to year and generation to generation. Dont expect a fresh sanad every year. Keep a copy of this sanad and return the original to the grantee dated 16th Jamadilawal. It is assessed to a rental of Rs. 401-12-0. You may therefore continue the mokasa from year to year and generation to generation. Dont expect a fresh sanad every year. Keep a copy of this sanad and return the original to the grantee dated 16th Jamadilawal. July 16th, 1840." There was a similar document as to each of the villages Sonkham and Nankapar. The argument is that this grant constituted a wakf for the imambara of Pir Hussain. It was maintained that the use of the words " for ever "—manifestly applicable to the income of land revenue, etc.—together with the further use of the words " you may therefore continue the mokasa from year to year and generation to generation," signifies the creation of a wakf, although a wakf was not stated by name, nor is there any nomination of the grantee as mutawalli. The case was supported in argument by various decisions, the leading one of which is Jewan Doss Sahoo v. Kubeer-ood-deen. (2 Moo. I A. 390.) It can hardly be denied that according to the Mahomedan law it [@ page LRIA 195] is not necessary in order to constitute a wakf that the term " wakf " be used, " if from the general nature of the grant itself that tenure can be inferred." This state of the law makes the present case one of difficulty on the facts and history elicited in these proceedings. In all such cases the acting’s or statements of the grantee or his successor may be relevantly taken into account as to their interpretation of the original grant; while the method in which the property has been treated on the administrative records may also throw light on the same problem. These things are not conclusive, but are circumstances worthy of consideration. The following narrative is accordingly given The grantee Yadgar Hussain continued in possession of the temple until 1850, when he died. The mokasa village was then resumed. On May 15, 1852, a grant was continued in name of his son Hakim Bunyad Hussain. In the view of the Board what happened in 1867 and the two preceding years, as after-mentioned, is important. It appears from the proceedings that on February 25 a revenue case was tried, and three orders, one applicable to each village, were signed by Mr. Ross, the Settlement Officer. In the view of the Board what happened in 1867 and the two preceding years, as after-mentioned, is important. It appears from the proceedings that on February 25 a revenue case was tried, and three orders, one applicable to each village, were signed by Mr. Ross, the Settlement Officer. The order as Mauza Sonkham was headed Claim to proprietary right in Mauza Sonkham, late Pargana Katol, Nagpur, and it was narrated " This village has been held in mokasa tenure since 1840 A.D. and the mokasdar has all along held it in his own management as appears from the entries in the old record as follows 1234 Fs. to 1236 Amrun Gond. 1237 „ 1241 Amrun Gond. 1242 „ Prubalad Poree. 1243 „ 1260 Hukeem Yadgar Hussain. 1261 „ 1263 Mokasa „ 1264 „ 1265 „ 1267 Mokasa Mir Hussain Emambara through Hukeemjee. 1268 „ 1270 Pir Hussain thro Bunyad Husain. 1271 „ 1271 Mir Bunyad Hussain. " Yadgar Hussain was the grantee and was succeeded by his son Bunyad Husain. The female members of the family have laid claim to share, but they have no title. Bunyad Husain has a younger brother named Thoofeyl Husain. " Proprietary right in Mauza Sonkham is hereby conferred on Bunyad Husain and Thoofeyl Husain." On May 4 of the same year, 1867, however, an order was passed by the Settlement Officer of Nagpur, Mr. Ross, in these terms " Claim by Bunyad Hussain to hold in mokasa the village of Sonkham. This village together with the villages of Gorewara, and Nonkapar were granted by takeed (issued in 1840 A.D.) to Yadgar Hussain Hakim (physician to the Royal Family) for expenses of the imambara of Pir Hussain (Husan and Hussain) at Nagpur. The grant was made in perpetuity and inclusive of abkaree, pandhree, sayer and demands of every other kind. The revised jama of these villages has been fixed respectively, at Rs.300, 500 and 120. Yadgar Hussain died in 1261 Fasli ( 1851 a.d.) and the grant was continued by a takeed dated 24th Rajab of that year to his son Bunyad Hussain. " The expenses of the imambara are defrayed by the holder during the Mohurram and Ramzan festivals. I recommend that the grant be continued while its object is maintained." While on May 19 the Chief Commissioner passed an order, the terms of which are of great importance. " The expenses of the imambara are defrayed by the holder during the Mohurram and Ramzan festivals. I recommend that the grant be continued while its object is maintained." While on May 19 the Chief Commissioner passed an order, the terms of which are of great importance. They are as follows " The mauza of Gorewara may remain revenue free as long as the imambara is in existence, on this condition that the income arising from the muafi is properly spent and a report submitted to Government for sanction." The three orders, one applicable to each village, are in the same terms. It appears to their Lordships difficult to predicate that these transactions of 1867 establish that a wakf with Yadgar Hussain as its mutawalli is established as having been instituted or continued as such. If a statement made by Hakim Bunyad Hussain in the Court of the Settlement Officer on October 27, 1865, be referred to, their difficulty grows greater. He is asked the question, “ Have you got a co-sharer ? " to which the answer is "There is no co-sharer. My real younger brother Syed Tufail Husain has got an equal share. We both live together.” And in a further stage in his evidence he declares "I myself and my brother are in possession." From a consideration of these documents and the evidence it appears to the Board to be fairly plain that Bunyad Hussains own position was not that of an exclusive claim to the mutawalliship of this property and endowment as a wakf, but an allegation of joint ownership and possession with his brother, subject, it may be, to respecting the conditions of the grant. Hakim Bunyad Hussain died on April 3, 1913, and the recent settlement known as Mr. Dyers settlement was made. From the papers it appears that a careful examination of the history of the property and its ownership and possession was then made. The decision of the Settlement Officer was to enter the defendant No. ls name with other defendants 2 and 4 as co-sharers along with the plaintiff of the remaining 8 annas share. This administrative action was also of course quite inconsistent with the idea of a wakf having been constituted or there being any right in the deceased to have nominated his successor as mutawalli. This administrative action was also of course quite inconsistent with the idea of a wakf having been constituted or there being any right in the deceased to have nominated his successor as mutawalli. Their Lordships have carefully considered all the relevant documents and evidence in this case and they are of opinion that the judgment reached by the Judicial Commissioner is correct. There are one or two matters, however, which the Board wishes to make clear. In the first place, in their Lordships judgment the nature of the grant in this case, whether that term be applied to the document issuing from the Raja in 1840 or to the orders and records issuing from the Settlement Offices in 1867, was not a wakf but was a grant sub condition. That condition was two-fold. In the first place the expenses of the temple should be defrayed from the revenue. The grant was for that purpose expressly—namely, " that the income arising from the muafi is properly spent," and secondly that a report was to be submitted to the Government for sanction, or to use the language of the Chief Commissioners order of July 10, 1867, with regard to Sonkham " The village of Mauza Sonkham may remain revenue free for ever on this condition that the object for which it was given muafi should be properly maintained and the imambara be kept in good repairs and a report submitted to Government for sanction." In the next place the Board desires to make it clear that the interests of the imambara are paramount and that no administration by the persons claiming either under the title of grantee, or of mutawalli or of manager could be legally sanctioned which was in violation or betrayal of the interests of the imambara as safeguarded by the imposition of the condition which attached throughout to the grant. The rights which would emerge or the course of procedure which would have to be followed in the event of such malad ministration are not before the Board. The rights which would emerge or the course of procedure which would have to be followed in the event of such malad ministration are not before the Board. The sole question arising is that defined by the plaint itself and is to the following effect " That a decree be passed under s. 83 of the Central Provinces Land Revenue Act for setting aside the decisions of the Settlement Officer and cancelling the entries showing defendant No. ls name as an 8 annas co-sharer and those of defendants 2 to 4 as co-sharers along with plaintiff of the remaining 8 annas share in the record of rights and other papers relating to the new settlement of the mauzas 1. Gorewara More fully described in the schedule here with attached and by substituting the name of plaintiff alone, as the full 16 annas mokasdar and mutawalli of the said villages." 2. Sonkham The true point of the proceeding is that the plaintiff in the present case, Muhammad Raza, desires these entries to be deleted by substituting his name alone " as the full 16 annas mokasdar and mutawalli." His averment is that he, "in pursuance of the wishes of his father succeeded him in the office of mutawalli of the aforesaid imambara, and has since been managing the aforesaid wakf property exclusively in his own sole and exclusive right as such mutawalli and is in possession of the same in that capacity." His object of course cannot be accomplished unless he can establish his position as mutawalli, and that position cannot be established unless the grant sub condition as before described can be considered to be a wakf. An additional negative distinction must be made. The Board makes no pronouncement whatsoever on a question mooted—namely, whether a grant by a Hindu to a Mahomedan community was incompetent as the foundation of a wakf. The grant in the present instance has been dealt with on its own terms and conditions, and the issue has been settled against it being the constitution of a wakf. Further questions mooted only confuse that issue. Their Lordships will humbly advise His Majesty that the appeal be dismissed. The petition for further documents will also be dismissed. The appellant will pay to the first respondent such costs as he has incurred.