JUDGMENT Jack, J. - This Rule was issued on the Opposite Party to show cause why this Court should not set aside the dismissal on a preliminary point of the Petitioners' application for an order on the Opposite Party to file accounts under sec. 3 of the Mussalman Wakf Act, XLII of 1923. The preliminary point raised was that Act XLII of 1923 is not applicable to this wakf inasmuch as it is a wakf of the nature described in sec. 3 of the Wakf Validating Act, VI of 1913, and is thus excluded from the operation of Act XLII of 1923, by sec. 2 (e) of the Act. Some of the terms of the wakf are as follows: (1) As long as the founders live, they shall appropriate one-third of the proceeds of the wakf properties themselves and apply two-thirds to other charities; (2) After their death two-thirds of the proceeds of the wakf properties shall be enjoyed by their children and the remaining one-third should go to meet the charities; and (3) In the event of nonexistence of any child begotten by the founder, such a person from among their relatives as may be most nearly related to them shall be appointed mutwulli and shall get Rs. 10 a month as a salary, shall live in their dwelling-house and shall appropriate the balance of the proceeds of the tanks and gardens left after defraying the expenses of persons attached to the Madrasha and Khankah. The question then is whether this is a wakf coming under Act VI of 1913 or under Act XLII of 1923. Act VI of 1913 only applies to a wakf in which the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character, [vide sec. 3 (b) of the Act]. It is quite clear, therefore, that in the present case Act VI of 1913 has no application because the ultimate benefit is not reserved for the poor or for other charitable purposes. The ultimate benefit goes to the relative of the founders who will be appointed mut-walli. In addition to Rs. 3 (b) of the Act]. It is quite clear, therefore, that in the present case Act VI of 1913 has no application because the ultimate benefit is not reserved for the poor or for other charitable purposes. The ultimate benefit goes to the relative of the founders who will be appointed mut-walli. In addition to Rs. 10 as his salary, he is to live in the dwelling-house and to appropriate the balance of the proceeds of the tanks and gardens left after defraying the expenses of persons attached to the Madrasha and Khankah. It is clear from this that certainly the whole of the ultimate benefit is mot reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character. 2. The learned Judge, therefore, in holding that the wakf is in the nature of a wakf described in sec. 3 of Act VI of 1913, is not correct. On the other hand the wakf clearly comes under the definition of a wakf contained in Act XLII of 1923. Therefore the learned Judge was not right in dismissing the application on this preliminary point. The Rule is made absolute and the case sent back to the District Judge for disposal in accordance with law on the other questions which arise. We make no order as to costs of this Rule. Mitter, J. 3. The question raised by this Rule turns on the construction of certain provisions of the Mussalman Wakf Act (Act No. XLII of 1923). It appears that the Petitioners and Opposite Parties Nos. 2 and 3 who are the Mussalman inhabitants of village Sahapur in the District of Murshida-bad and are interested in the wakf created by one Hussain Ally and his wife on the 19th of July, 1863, by a deed of wakfnama which concerned properties situate in Calcutta and in the Districts of Murshidabad, Burdwan and Birbhum, applied before the District Judge of Murshidabad for an order on the Opposite Party No. 1 to file a statement under sec. 3 of the Act. They alleged in the said application that the Opposite Party No. 1 was not managing the wakf estate according to the term of the wakfnama but was misappropriating the wakf fund. 3 of the Act. They alleged in the said application that the Opposite Party No. 1 was not managing the wakf estate according to the term of the wakfnama but was misappropriating the wakf fund. The learned District Judge has thrown out the said application on the ground that the wakf is of a mature described in sec. 3 of the Wakf Validating Act No. VI of 1913 and as such the wakf clearly comes within the purview of the excepted part of sec. 2, cl. (e) of Act XLII of 1923 and the Act does not apply to the present case. We have read the wakf-nama and it appears to us that one-third of the income of the wakf pro-pulies is devoted to the personal expenses of the founders of the wakf and the remaining two-third in paying the expenses of the students and teachers, in providing food to the travellers in the month of Ramzan and spending eirlain sums in the mosques in different places. Provision is also made for the succession of the mutwalliship, the first mutwallis being the founder and hi wife. Having regard to paragraphs 1 and 3 of the wakfnama, it appears to us that the wakf is partly a public wakf that is devoted entirely to the religious purposes and partly a private wakf. The wakf is really a mixed wakf and to such a wakf the provisions of the Mussalman Wakf Act are clearly applicable. This was the view taken by Wazir Hassain, Chief Justice of the Oudh Chief Court in the Full Bench decision of Shabbik Hossein v. Sheikh Ashik Hossain ILR 4 Luknow 429 at p. 448. The learned Judge is clearly in error in holding that the wakf in the present case is a wakf described in sec. 3 of the Mussalman Wakf Validating Act of 1913 and therefore comes within the exception of sec. 2 (e) of the Act of 1923. We are of opinion that sec. 3 of the Mussalman Wakf Validating Act applies to wakfs which are line the nature of family settlements, pure and simple, where the ultimate benefit is expressly, or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or a charitable purpose of a permanent character. 3 of the Mussalman Wakf Validating Act applies to wakfs which are line the nature of family settlements, pure and simple, where the ultimate benefit is expressly, or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or a charitable purpose of a permanent character. We are supported in this view by an unreported decision of this Court in Civil Rules Nos. 872 and 873 of 1931. The result is that the order of the learned District Judge must be set aside and he is directed to re-hear the application which he has thrown out on the preliminary ground. For the reasons given above I agree that this rule must be made absolute.