JUDGMENT Misra and Raghubar Dayal, JJ. - This is an appeal against the dismissal of the Appellants' suit for a declaration that the property in dispute was waqf property of which the Plaintiffs were entitled to act as mutwallis Admittedly Mst. Sikaudar Begam was the owner of half portion of kothi No. 20, Clyde Road, Lucknow. She executed the will, EK. 1, on 21st March 1929. She left for Haj on 23rd March 1929, ul drel at Mecca on 13th April 1929. Ismail Khan was the brother of Mst. Sikandar Begam. Mst. Zubeda Begam, Defendant, was the widow. She died during the pendency of the appeal. Qamqam Ali Shah and others have been substituted in her place. The Plaintiffs are Imtiaz Ahmad and his daughter Mst. Khurshed Jahan Begam. Imtiaz Ahmad is the grandson of Nawab Begam, sister of Luqmanuddin, husband of Sikandar Begam. The case of the Plaintiffs is that Mst. Sikandar Begam created a waqf of this kothi under the will, Ext 1, and that Ismail Khan treated it as such and carried out the objections of the waqf during his life-time. He died on 21st November, 1936. The Plaintiffs allege that Imtiaz Ahmad took possession of the kothi as mutwalli on behalf of his minor daughter, Khursehd Jahan plaintiff No. 1, and managed it. Imtiaz Ahmad filed an application, Ex. 3, on 28th January, 1937, before the District Judge, Lucknow, under the Musalman Waqf Act, 42 of 1923, alleging that Mst. Zubeda Begam was in possession of all the accounts of the waqf property but had ceased to take any interest in the waqf and praying that she be called upon to produce the copy of the will and the full account kept by her husband and also the account kept by her after her husband's death, This application was rejected. 2. It appears that Imtiaz Ahmad obtained possession over the property subsequently and this gave rise to proceedings u/s 145, Code of Criminal Procedure. The proceedings ended with the order, Ex. A-2 of this Court, dated 9th December, 1940. The order dismissed Imtiaz Ahmad's revision against the order for the delivery of possession to Mst. Zubeda Begam. The present suit was instituted subsequently on the 5th May, 1941. The plaint did not make reference to the proceedings u/s 145, Code of Criminal Procedure. and alleged that Mst. A-2 of this Court, dated 9th December, 1940. The order dismissed Imtiaz Ahmad's revision against the order for the delivery of possession to Mst. Zubeda Begam. The present suit was instituted subsequently on the 5th May, 1941. The plaint did not make reference to the proceedings u/s 145, Code of Criminal Procedure. and alleged that Mst. Zubeda Begam was not: a fit person to be appointed mutwalli while the Plaintiffs were fit persons to be appointed mutwallis. 3. Mst. Zubeda Begam contested the suit on various grounds which gave rise to fifteen issues. We are not concerned with most of the contentions. The main contentions of the Defendant were that Ismail Khan was the absolute owner of the property in dispute and that the will, Ex. 1, was invalid, it being with respect to more than a third of Mst. Sikandar Begam's share and that Sikandar Begam did not create a valid waqf under the will, Ex. 1. The other contentions which have been urged in appeal on behalf of the Respondents are about the suit being barred in view of Section 92, Code of Civil Procedure. and Section 42 of the Specific Relief Act. 4. The main point in dispute depends on the interpretation of the will, Ex. 1. It is reproduced below: I am Mst. Sikandar Begam, widow of Luqmanuddin, at present residing at Marhi Madarpur, thana Hazratganj, city Lucknow. Whereas this would is a transient and transitory one, so it is necessary for every person to make such arrangement in his lifetime in respect of his movable and immovable property so that no dispute may arise after his or her death. Whereas I, the executants possess immoveable property mentioned below as well as movable property such as household effect, utensils, ornaments of gold and silver, cash and clothes etc. and I am in proprietary possession and occupation of the same without the co-premiership of any one else, and it is free from all sorts of transfers etc., therefore while in the enjoyment of perfect health and sound intellect, while in possession of my senses, without any undue influence and out of my own consent and free-will, I execute this will in favor of (1) Ismail Khan, my brother, son of Shubrati Khan, (2) Mst. Khurshed Jahan daughter of Imtiaz Ahmad, (3) Aqbal Ahmad, son of Imtiaz Ahmad, residents of Marhi Madarpur, City Lucknow. Khurshed Jahan daughter of Imtiaz Ahmad, (3) Aqbal Ahmad, son of Imtiaz Ahmad, residents of Marhi Madarpur, City Lucknow. I covenant that so long as I am alive I shall remain the proprietor in possession of the entire movable and immovable property, that after my death the legatee No. 1 will be the proprietor in possession of the entire property bequeathed, and after the death of Ismail Khan, legatee No. 1 the legatees Nos. 2 and 3 will be the proprietors in possession of one house, Pacca and Kacha, without Nazul land, situate at Clyde Road, thana Hazratganj, City Lucknow, which is bounded as given below and they shall have power of making all sorts of transfers, such as mortgage etc. and out of the property willed out, in respect of half share in one Kothi, No. 20, with land, situate at Clyde Road, thana Hazratganj, City Lucknow the will is this that after my death whatever income be derived from the said share of the Kothi, the legatee No. 1 shall pay rupees eight per month to Mst. Imtiaz Begam, mother of the legatee No. 1, for her lifetime and out of the remaining income the legatee No. 1 shall pay house tax, and shall make repairs in the said share of the Kothi and after paying the house tax etc. whatever surplus is left, it shall be spent in my name in Giarahwin Sharif, Moharram and Malud, and if Mst. Imtiaz Begam, mother of the legatee No. 1, dies, then that sum also which has been awarded for her maimenance shall be spent by the legatee No. 1 on that account i.e., Giarawin Sharif, Moharram and Maulud. And if alter my death any person files a suit in respect of the property willed out, then it shall be deemed to be false. Wherefore I executed this will so that it may serve as authority and be of use Details of the property willed out are mentioned below: one house Pacca and Kacha, without Nazul land, situate at Clyde Road, thana Hazratganj, City Lucknow-the proprietor whereof will be the legatee No. 1 after my death But he shall have no right of transfer, and after the death of the legatee No. 1 the legatees Nos. 2 and 3 will be the proprietors thereof and they shall have power of mortgage etc East-Kothi of Baqar Husain. West-Land of Mustaq Ahmad. 2 and 3 will be the proprietors thereof and they shall have power of mortgage etc East-Kothi of Baqar Husain. West-Land of Mustaq Ahmad. South-Land of Dermty Wajid Husain. North-Land and Kothi of Subhani Begam. One Pacca Kothi of douhle storey No. 21, with land, situate at Clyde Road, Thana Hazratganj, City Lucknow, of which the proprietor in possession will be the legatee No 1 after my death, and he shall have power of milking all sorts of transfers such as mortgage etc East-Government Road. West-Kothi Nm. 20 aforesaid. South-Pacca Road. (Sic.) Land of Deputy Wajid Husain. Half share of one Pacca Kothi, with land, bearing No. 20 situate at Ciyde Road, Thana Hazratganj, City Lucknow the proprietor whereof will be the legatee No. 1, i.e, Ismail Khan after my death; and the income thereof whatever it may be shall be spent by him over Moharram etc. But he shall have no power of transfer. East-Kothi No. 21. West-Kuthi of Jagannath Bakhsh Singh. South-Government Road, North-Land of Deputy Wajid Husain. Dated the 21st March, 1939. 5. The learned Additional Civil Judge has held that under this will Ismail Khan was given absolute proprietary rights in the property in suit and that the condition about his not possessing the power of, transfer was void. This conclusion was arrived at by interpreting the word "malik" (proprietor) as full owner in all the places it was used in view of the fact that this word when used for the first time meant absolute proprietor. This simple way of interpreting the document is not justified. It was observed at page 547 in Mst. Reghurai v. Bindra Prasad 1938 O.W.N. 547: 1938 O.A. 447. No doubt the ordinary rule is that the same I words used in one and the same document should be given the same meaning but this in my opinion cannot be an invariable rule and if there are reasons for attaching a different meaning I do not see why it should not be taken in that sense. 6. The learned Additional Civil Judge has not considered the possibility of the | same word having different meaning in different context of the same document. Before interpreting the document, Ex. 1, the general principles to be applied may be mentioned. The document should be interpreted as a whole. 6. The learned Additional Civil Judge has not considered the possibility of the | same word having different meaning in different context of the same document. Before interpreting the document, Ex. 1, the general principles to be applied may be mentioned. The document should be interpreted as a whole. The surrounding circumstances may be considered to interpret the words in the document and to ascertain the intentions of the executants if the different portions of a document are not capable of being reconciled the latter provisions should be preferred to the earlier ones. 7. It was observed at page 282, column 2, in Pufnananth rchi v. T.S. Gopalaswami Odayar AIR 1936 P.C. 981: 1936 A.W.R. 1089. This clause would undoubtedly be repugnant to CI. 1, if the latter clause was intended at once to create, a severance of the joint status. It is therefore necessary to ascertain the intention of the parties. The ordinal rule of interpretation for deeds as well as for other instruments is to gather the intention from the words of the document, and for that purpose the language of the entire deed should be taken into consideration. The interpretation to the adopted should be one which gives effect, if possible, to all the parts, and does not reject any of them. 8. It was observed in Sansar Chand Vs. Mt. Durga Dasi, AIR 1934 All 93 . It is not permissible to single out one clause and to hold on the strength of it and without reference to other clauses, that the i interest conferred upon the legatee was that of an absolute owner, and then reject other clauses, which follow and which materially quality the earlier clause, on the ground that they are repugnant to full ownership conferred by the earlier clause. The cumulative effect of all the clauses should be considered to ascertain the intention of the testator. 9. Incidentally it may be mentioned that so dealt with the interpretation of the word "malik". 10. It was held in AIR 1935 187 (Privy Council) that where it was not possible to reconcile all the parts of the will the latter must prevail and that the meaning to be attached to words may, however, be effected by surrounding circumstances and when this was the case those circumstances should be taken into consideration. 11. 10. It was held in AIR 1935 187 (Privy Council) that where it was not possible to reconcile all the parts of the will the latter must prevail and that the meaning to be attached to words may, however, be effected by surrounding circumstances and when this was the case those circumstances should be taken into consideration. 11. It was observed in AIR 1930 242 (Privy Council) : In England as also in India, even where a document is executed in vernacular, the fundamental rule of construction is the same. The duty of the Court is to ascertain the intention from the words used in the document. The Court is entitled and bound to hear in mind surrounding circumstances, but the Court does that only to ascertain the real intention of the executants from the words used by him. The surroundings of an Indian, his manners, his outlook proceeding from different religion and social customs, are often different from those of an Englishman. Ordinarily documents executed by an Indian in his own language, particularly without any professional aid, are often expressed in loose and inaccurate language. All these consideration have to be borne in mind, sometimes by reason of these aforesaid circumstances a more extended or restricted meaning may have to be given to particular words than their exact literal meaning permits, provided always that the context justifies it. 12. Similar observations were made by their Lordships of the Privy Council in the case reported in Lalta Bakhsh Singh v. Phool Chand 1915 O.A. 26 : A.W.R. (P.C.) 26 : O.W.N. 47. 13. A perusal of the will, Ex. 1, is sufficient to indicate that the Words "malik and Qabiz' (proprietor in possession) do not mean absolute proprietor when referred to Ismail Khan. The powers of Ismail Khan have been differently described with respect to the three properties much were bequeathed. He was not given right of transfer with respect to the first item pacca and kacha house. This house was to go to the other two legatees, Mst. Kburshed Jahan, Plaintiff No. 1 and her brother Iqbal Ahmad. They ware given the power of mortgage etc. Ismail Khan was made absolute proprietor of Kothi No. 21 situate at Clyde Road He was given power of making alt sores of transfer such as mortgage etc. This house was to go to the other two legatees, Mst. Kburshed Jahan, Plaintiff No. 1 and her brother Iqbal Ahmad. They ware given the power of mortgage etc. Ismail Khan was made absolute proprietor of Kothi No. 21 situate at Clyde Road He was given power of making alt sores of transfer such as mortgage etc. He was just described as 'malik' of the kotai in suit after the death of Mst. Sikandar Begam and it was further provided in the details of the property wiled out that the income of this property whatever it might be, would be spent by Ismail Khan over Moharram etc. and that he would have no power of transfer. It follows that the words which have been translated as "proprietor in possession" were just loosely used. The real rights given to Ismail Khan and to other legatees were precisely described partly in the third paragraph of the will and partly in the details of the property willed out The portion relating to the house in suit in para 3 of the will is, and out of the property willed out in respect of halt share in one kothi No. 20, with land, situate at Clyde Road, Thana Hazratganj, City Luknow, the will is this that after my death whatever income be derived from the said share of the kothi, the legatee No. 1 shall pay rupees eight per month to Mst. Imtiazi Begam, mother of the legatee No 1 for her life time and out of the remaining income the legatee No. 1 shall pay house-tax. and shall make repairs in the said share of the kothi and after paying the house tax etc. whatever surplus if left, it shall be spent in my name in Giarahwin Shariff, Moharram and Malud, and if Mst. Imtiazi Begam, mother of the legatee No, 8 dies, then that sum also which has been awarded for her maintenance shall be spent by the legatee No. 1 on that account i.e., Giarahwin Sharif, Moharrnm and Malnd. 14. The words "the will is this" in the above quoted provision of the will Ex. 1 clearly indicate that the other portions of the will do not apply to this kothi No. 20. This provision with regard to kothi No. 20 in para 3 of the will makes no mention of the rights of Ismail Khan. 14. The words "the will is this" in the above quoted provision of the will Ex. 1 clearly indicate that the other portions of the will do not apply to this kothi No. 20. This provision with regard to kothi No. 20 in para 3 of the will makes no mention of the rights of Ismail Khan. It just refers to him as legatee No. 1 in view of Mst. Sikandar Begam expressing in the second paragraph of the will that she was executing the will in favor of (1) Ismail Khan, (2) Mst. Khurshed Jahan and (3) Iqbal Ahmad. She does not state in the details of the property willed out what rights Ismail Khan would have in the property in suit. She just provides that he would be the proprietor of the property after her death and that the income, whatever it be, would be spent over Moharram etc., and that he will have no power of transfer. 15. We are, therefore, of opinion that Ismail Khan was not given any proprietary right, absolute or limited, in the property in suit. We are further of opinion that Ismail Khan was really given the right of managing the property in suit and was directed to apply all its income ultimately to charitable purposes mentioned in the will and was just to pay Rs. 8 out of the income to Mst. Imtiazi Begam, mother of Mst. Sikanadar Begam. It was observed in the case reported in Bhaidas Shivdas v. Bai Gulab (1922) 49 I.A. 1 by their Lordships of the Judicial Committee referring to the use of the word "malik" It is not that the word is a "term of art", it does not necessarily define the quality of the estate taken but the ownership of whatever that estate may be. 16. In view of the considerations that Ismail Khan was not given any right to the appropriation of the income of the property in suit and that the entire income was to be applied to charitable and religious purposes it is obvious that the provision that Ismail Khan would be the proprietor (malik) of the property in suit after the death of Mst. Sikandar Begam must mean mat he would be in charge of its management. Sikandar Begam must mean mat he would be in charge of its management. It is not only in this document that the words, "proprietor in possession" have been so loosely used It appears from the case reported in "saliqun Vissa v. Mati Ahmad (1903) 25 All. 418, that a document of 1894 referring to the mutually used the words, after me Mati Ahmad and his legal representatives shall be the maliks (owners) and managers according to the aforesaid will. 17. The case reported in Mohammad Wazir Khan v. Mohammad Husain AIR 1926 Oudh 65, shows that the judgment of the Settlement Court dated 17th May, 1870, in passing a decree in favor of the mutwallis used the words, "digri milkiat arazi 50 bighas kham bahaq muddaidi jawae". It was observed in the case that the word "milkiat" appears to have been used only in contradistinction to subordinate rights to indicate the nature of interest granted in the land. 18. Mutwalli or manager of the property sometimes 1 solely described as owner because in effect he exercise all the rights of the owner. 19. As noted before the income of kothi No. 20, the property in suit, was to be applied to religious and charitable purposes as mentioned in this will Ex. 1 These purposes are of a permanent nature. The words, "in my name" in the provision of the will, specially directed towards the property in suit, indicate that Mst. Sikandar Begam intended the expenditure on such purposes to be for the benefit of her soul. 20. We are, therefore, of opinion that Mst. Sikandar Begam created a waqf of the property in suit for these purposes. 21. The word waqf is not used in the will. It is Dot necessary for the creation of a valid waqf that this particular word should be used. It is mentioned at page 217 of the Mohammedan Law by Syed Ameer Ali, fourth edition But when the intention to make a waqf is apparent, or can be inferred from the general tenor of the deed, or from the conduct of the donor or from the nature of the object in favor of which the grant is made, or from surrounding circumstances at large, it will constitute a valid and binding waqf, though the word waqf might not have been used. 20. 20. The cases reported in Shah Mohammad Nairn Ata v. Mohammad Shamshuddin (1927) 4 O.W.N. 116, Mohammad Qasim v. Mohammad Mehdi 1937 O.W.N. 856 and Haidar Husain v. L Sudama Prasad (1940) 16 Luck. 30, bold that the use of the "word" is not necessary. Discussing the case reported in Piran v. Abdool Karim (1892) 19 Cal. 203, it was observed at page 126 in 4 Oudh Weekly Notes, 116 by their Lordships that it was clear upon the authorities that in order to constitute a waqf, it was not necessary to use the word 'wakf So long as it appeared that the intention of the donor was to set apart specific property or the proceeds thereof for the maintenance or support in perpetuity of a specific object or a series of objects recognized as pious by the Musalman Law, it amounted to a valid and binding dedication. 22. Mst. Sikandar Begam was old lady whose only daughter, Mst. Ashraf Legam, had died before She was religious minded. She was undertaking a pilgrimage to Mecca She did leave after the execution of the will and as it happened died at Mecca about a fortnight after the execution of the will. It is, therefore, reasonable to infer that her object in executing the will Ex. 1 would have been to benefit her near relations and to do something for the benefit of her soul. She did her best for the objects. She gave one property absolutely to Ismail Khan, her brother. She gave another property to her two other relations, Mst Khurshed Jahan and Iqbal Ahmad, They were, however, to get the property after the death of Ismail Khan. The third property sue dedicated for the expenses of Moharram etc., religious and charitable objects. 23. She took care to mention in the will that expenses of these items would be in her Dame. 24. We are of opinion that the terms of the will Ex. 1 are sufficient to establish that Mst. Sikandar Begam created a wakf of the property in suit and that even if some doubt be entertained on account of the vague expressions used in the will Ex 1 the circumstances in which she executed the will indicate that she must have intended to create a wakf of the property in suit and in view of such an intention the words used in will Ex. 1 must be interpreted without any violence to the language to mean that she did dedicate the property for these purposes. 25. The contentions for the Respondents against interpreting the will as creating a wakf of the property in suit are that some sort of the proprietary right was vested in Ismail Khan and therefore there was no vesting of the property in God and consequently there was no dedication of the property in suit, that there was no perpetual transfer of property for these charitable and religious purposes and that the word 'wakf was not used ; while, on the other hand, Mst. Sikandar Begam mentioned in the will that she was executing it in order to avoid any dispute arising after her death. 26. We have already mentioned that Ismail Khan was not given any rights in the property except the right of management and which right he was given as a mutwalli when the property was dedicated. The mere provision in the details of the property that he would be the proprietor after her death, does not suffice to hold that he was given any proprietary right in this property. There is nothing in the will, Ex. 1, about the property devolving on Ismail Khan's heirs after his death. of course, there is no mention as to who would be the manager or mutwalli of the property after his death. In view of the facts that Ismail Khan was not given any power to transfer the property and that the entire income was to be appropriated towards the expenses of Moharram etc. it was more necessary to state that the property would be heritable, if Mst. Sikandar Begam intended the income to be applied to these purposes in the lifetime of Ismail Khan only as suggested for the Respondents It was not necessary to mention as to who would be the future mutwalli. Ismail Khan could appoint a mutwalli. Courts can appoint mutwallis. 27. We are therefore of opinion that no proprietary right vested in Ismail Khan under the terms of the will and that the property in suit was dedicated to God though no specific mention of dedication is mentioned in the will. Ismail Khan could appoint a mutwalli. Courts can appoint mutwallis. 27. We are therefore of opinion that no proprietary right vested in Ismail Khan under the terms of the will and that the property in suit was dedicated to God though no specific mention of dedication is mentioned in the will. We are further of opinion that the property was permanently transferred to God as a result of the dedication and that the terms of the will do not support the contention for the Respondents that the income was to be applied towards these purposes during the lifetime of Ismail Khan only. There is no point in limiting such expenses to an uncertain period of the life-time of a person. It was observed in Shah Mohammad Naim Ata v. Mohammad Shamshuddin (1927) 4 O.W.N. 116: (4 O.W.N.116) at page 122. It was argued on behalf of the Plaintiff Respondent that the villages having been expressly nonferrous upon Shah Husain Ata under the terms of the sanad, they could not be deemed to have been dedicated to God Almighty. We are rot prepared to accept this contention. As observed by their Lordships of the Privy Council in the above referred case when the gift is directly to an idol or to a temple (or to a khanqah), the seisin to complete the gift is necessarily affected by human agency. Called by whatever name, he is only the manager and custodian of the idol or the institution. When, therefore the property was given to the Sajjadanashin of khankah, Salon, and when his name was used in the endowment, it could not by any means be said that the property was given to him and not to the institution. 28. It was contended on behalf of the Respondents and the learned Judge of the Court below has also said in his judgment that in the will Ex. 1 there is no express dedication of the property to the ownership of God, but that too is not, in our opinion, an essential condition of a wakf. This view is supported by the decision of a Bench of the Patna High Court in Muhammad Kazim v. Abi Saghir AIR 1932 Pat 33 in which it was held that the dedicator need not use the word "waki" at all or may not formally transfer the properties to the ownership of God 29. This view is supported by the decision of a Bench of the Patna High Court in Muhammad Kazim v. Abi Saghir AIR 1932 Pat 33 in which it was held that the dedicator need not use the word "waki" at all or may not formally transfer the properties to the ownership of God 29. We have already held that it was not. necessary to mention the word "wakf" in the will in order to create a wakf and that the objects of the wakf are of a permanent nature. We also hold that the property was permanently dedicated and that the terms of the will do not indicate that the property was to devolve to the heirs of Ismail Khan, after his death with full rights of proprietorship and without any condition to spend money on the purposes specified in the will. 30. We, therefore, hold that the will Ext. 1 created a wakf of the property, in suit. 31. The learned Additional Civil Judge has held that there was no proof that the will was with respect to more than one third of the property possessed by Mst. Sikandar Begam and that Ismail Khan's conduct showed that he consenred to the terms of the will. We see no reason to differ from his findings. There is nothing on the record to indicate the value of gold and silver ornaments and cash left by Mst. Sikandar Begam. In the absence of any evidence about the total value of her assets it cannot be positively held that the property bequeathed exceeded one-third of her property. Ismail Khan's selling the kothi No. 21 may not by itself indicate that be consented to the terns of the will but such conduct together with other considerations does indicate his consent. He sold the kothi No. 21 over which the will give him the power of transfer. If he had transferred any of the other two properties his conduct would have shown clearly that he was not accepting the will. The written statement filed by Mst. Zubeda Begam mentioned in para. 20 that Ismail Khan was the sole heir of Mst. Sikandar Begam as her real brother and that after her death he became the pro-proprietor of the property in suit on the basis of the will. The written statement filed by Mst. Zubeda Begam mentioned in para. 20 that Ismail Khan was the sole heir of Mst. Sikandar Begam as her real brother and that after her death he became the pro-proprietor of the property in suit on the basis of the will. This shows that the will was not repudiated and that Ismail Khan did consider himself proprietor of the property in suit under the terms of the will. 32. The learned Additional Civil Judge held against the Respondents on their objection that the suit was not maintainable as no permission had been taken to institute the suit u/s Code of Civil Procedure. We agree with this view. It was held in AIR 1934 277 (Nagpur) , that where the Defendant denied the trust, he could not be held to be a trustee and must therefore be a trespasser or a third party, that a suit could be brought against him without sanction and that Section 92, Code of Criminal Procedure. would not apply. The present suit is not for the removal of any trustee nor is it for the appointment of a new trustee. It is true that it was alleged in the plaint that Mst. Zubeda Begam was not a fit person to be appointed as a mutwalli and that the Plaintiffs were fit persons for the post of mutwalli. No relief of appointment of a trustee or the removal of a trustee was prayed. A declaration that the Plaintiffs are entitled to act as mutwalli does not amount to the appointment of the Plaintiffs as mutwallis. 33. The Plaintiffs were not in possession of the property in suit in May 1941, as possession must have been delivered to Mst. Zubeda Begam in 1940 as a result of the order in. proceedings u/s 145, Code of Criminal Procedure. It is therefore argued that the Plaintiffs should have sought a relief for possession in this suit and that their not seeking such a relief bars the suit for a declaration. we do not agree with the contention. Zubeda Begam in 1940 as a result of the order in. proceedings u/s 145, Code of Criminal Procedure. It is therefore argued that the Plaintiffs should have sought a relief for possession in this suit and that their not seeking such a relief bars the suit for a declaration. we do not agree with the contention. When it is held against the Defendant that the property in suit is waqf the person entitled to act as a mutwalli can obtain possession for the Defendant and in case of any obstruction he can institute a suit for possession It was held' in Mirza Mohammad Jafar Husain Khan v. Mirza Mohammad Taqi Khan (1933) 10 O.W.N. 1163. that a suit by one of the heirs to obtain a declaration that he was the sole mutwalli without suing for possession over the waqf property was not barred under the provisions of Section 42, Specile Relief Act. 34. Mst. Zubeda Begam denied the wakf. Her heirs, present Respondents have taken the same position. This fact alone goes against them in their acting as mutwallis of the wakf. Imtiaz Ahmad has not been considered fit to act as a mutwalli by the learned Additional Civil Judge on account of his indebtedness and his not keeping accounts regularly. 35. Mst. Khurshed Jahen Begam was not considered fit as she was 18 years of age in 1942 and was supposed to be under the influence of her husband. She would be now 22 years of age. There is no reason to suppose that she is unable to exercise her own independent judgment. The mere fact that she is a pardanashin woman does not make her unfit to be a mutwalli. 36. In view of the above considerations we allow the appeal, set aside the decree of the Court below and decree the suit with costs throughout and declare that a half share of kothi No. 20 situate at Clyde Road, Lucknow, is wakf property of which Mst. Khurshed Jahan Begam is competent to act as a mutwalli.