JUDGMENT Khundkar, J. - Two important questions arise on this Originating Summons. The short facts needed for an appreciation of these questions are as follows: The Plaintiff's grandfather, Hafiz Gholam Nabi, executed a deed of wakfnama on February 4, 1902, by which he dedicated some immovable property in Harrison Road, Calcutta, and a house in Gazipur City for the up-keep of a mosque which he had built in Calcutta, and for the support of himself and his descendants. A portion of the language of the translation of the wakfnama which has been supplied to the Court has to be set out: After my death, the line of, (or, succession to) the 'Tawliat ' (superintendency of the affairs of the mosques, churches or other religious (foundations) will devolve on my son, Syed Mohammed Shafi, and his male children. And it shall be incumbent upon the future Mutwali to spend, out of the income of the said endowed property, which is now only Rs. 30 per month, the sum of Rs. 100 annually on the said mosque, and the surplus on Ms own self. And when the income from the said endowed houses increases he may (or, should) make an increment, for the purpose of the expenses of the mosque, should ho consider it to be necessary, by any amount that he deems proper. And, out of the income left in hand after meeting the expenses of the mosque, he shall, ever and always, give a half to has own self and his sons and daughters, and, out of the remaining half, two-thirds, at his own discretion, to my son, Syed Mohammed Sami, and my son Syed Mohammed Rafi, and his male children. And the Mutwalli for the time being shall keep on spending the remaining one-third for the requirements and maintenance of my other son and needy daughters to the extent deemed proper. Two facts emerge very clearly from the quotation set out above. The first is that the office of mutwali is strictly limited to the descendants of the wakif, and the second is that the entire income of the wakf, save and except the sum of Rs. 100 per year which is set aside for the up-keep of the mosque, is to be appropriated by the wakif's family and descendants. 2. The first is that the office of mutwali is strictly limited to the descendants of the wakif, and the second is that the entire income of the wakf, save and except the sum of Rs. 100 per year which is set aside for the up-keep of the mosque, is to be appropriated by the wakif's family and descendants. 2. It has been stated, and not denied, that during his life-time, the wakif himself acted as Muezzin and Imam of the mosque. It is also not disputed that the wakf deed contains no reference whatsoever to the payment of any salary or other remuneration to a Muezzin or an Imam. The Plaintiff in the present case, Sahebzada Hafiz Syed Mohammed Hashmi, who is the grandson of the wakif, is now the mutwali and has been discharging the functions of the Muezzin and the Imam. It is his case that he is performing these duties gratis, and certainly there is no record of any kind to suggest that he is taking any portion of the income of this endowment as a remuneration for performing these duties. 3. The Bengal Wakf Act was passed in the year 1934. Under sec. 44 of that Act, all wakfs existing at, or created after, the commencement of the Act have to be enrolled at the office of the Commissioner who has to maintain a register of wakfs under sec. 45. Under the latter section, the class to which the wakf belongs has to be stated. 4. In 1935, the present wakf was enrolled and registered as a wakf-al-al-aulad. it should here be noted that under sec. 59 of the Act, the mutwali of every wakf has to pay a certain contribution annually to the Board set up by the Provincial Government under sec. 7 of the Act. Under the proviso to sub-sec. (I) of sec. 59, the contribution in the case of a wakf-al-al-aulad shall not exceed one-half of the rate payable by other wakfs. 5. On August 12, 1943, the classification of this particular wakf was altered by the Wakfs Commissioner, who caused it to be registered as a wakf other than a wakf-al-al-aulad, and the mutwali, accordingly, became liable to pay a higher contribution under sec. 59. 6. 5. On August 12, 1943, the classification of this particular wakf was altered by the Wakfs Commissioner, who caused it to be registered as a wakf other than a wakf-al-al-aulad, and the mutwali, accordingly, became liable to pay a higher contribution under sec. 59. 6. The Plaintiff, who is the mutwali, has taken out the present summons for a determination of the following questions: (a) Whether the wakf created by the said Hafiz Syed Gholam Nabi, deceased, is a wakf-al-al-aulad and whether it was rightly construed and enrolled as such by the then Commissioner of Wakfs. (b)Whether the Defendant, the present Commissioner of wakfs, is justified in altering the character of the wakf from a wakf-al-al-aulad to a public wakf. (c) Whether the said order of the Defendant dated 12th August, 1943, is legal and proper. (d) Whether the Defendant has jurisdiction to set aside, revise, or alter the order passed by his predecessor-in-office on 29th September, 1935. 7. I may say at once that, questions (b), (c) and (d) bear the appearance of questions which might be appropriate to an appeal from the order passed by the Wakf Commissioner on the 12th August, 1943. The Act allows no appeal, but be that as it may, in my opinion, these questions do not properly fall within the scope of Ch. XIII of the Original Side Rules of this Court. 8. It remains, however, to consider whether question (a) is a question which can be raised for the decision of the Court under the procedure contained in this chapter. This is the first of the important questions which the present Summons raises. The second important question relates to the merits of this application, and I shall deal with it hereafter. 9. The Wakf Commissioner, who is a Defendant in this Summons, has appeared through an Advocate, and it has been argued on his behalf that the question whether the wakf is a wakf-al-al-aulad or not is not one which this Court can decide under the procedure contained in Ch. XIII. 10. Paragraph 1 of Ch. 9. The Wakf Commissioner, who is a Defendant in this Summons, has appeared through an Advocate, and it has been argued on his behalf that the question whether the wakf is a wakf-al-al-aulad or not is not one which this Court can decide under the procedure contained in Ch. XIII. 10. Paragraph 1 of Ch. XIII has to be considered in this connection, and I would set out so much of the words of that paragraph as seems to me to be relevant to this question: The executors or administrators of a deceased person, or any of them, and the trustees under any instrument or any of them, and any person claiming to be interested in the reliefs sought as creditor, legatee, heir, or legal representative, or as beneficiary under the trusts of any instrument.... may take out, as of course, an Originating Summons, returnable before the Judge sitting in chambers for such relief of the nature or kind following, as may by the Summons be specified, and the circumstances of the case may require, that is to say, the determination without an administration of the estate or trust of any of the following questions or matters: (a) Any question affecting the rights or interests of the person claiming to be creditor, legatee, heir or legal representative or beneficiary. 11. The Plaintiff in the present matter is claiming as a beneficiary under the deed of wakf, and the question which he raises does affect his interest inasmuch as he would have to pay a lesser contribution to the Board of wakfs if the Court answered question (a) by saying that the wakf was a wakf-al-al-aulad, but he would have to pay a larger contribution were he to be bound by the decision of the Commissioner which was that this wakf was not a wakf-al-al-aulad. 12. On behalf of the Defendant, Mr. Asir has based his objection on two grounds. He has contended, in the first instance, that a wakf is not a trust, and further that Ch. XIII of the Original Side Rules contemplates only secular trusts. The language of paragraph 1 is, however, very wide. It says that relief under this chapter will be available to any person claiming to be interested in the relief sought as beneficiary under the trusts of any instrument. XIII of the Original Side Rules contemplates only secular trusts. The language of paragraph 1 is, however, very wide. It says that relief under this chapter will be available to any person claiming to be interested in the relief sought as beneficiary under the trusts of any instrument. The trusts of an instrument mean, generally speaking, the objects, to promote which the instrument in question was executed, and the words are " any instrument." Even assuming that these words are to be read as meaning " any instrument of trust," they are, in the context of paragraph 1 of Chapter XIII, wide enough to embrace a wakfnama. The analogy between a trust property so called and a wakf has been repeatedly recognised and the following cases may be seen:-Muhammad Esuf v. Maulvi Abdul Sathur I. L. R. (1918) Mad. 161., Syed Ali Hussain v. Bibi Akhtari I. L. R. (1931) Pat 506, Syed Shah Muhammad Kazim v. Syed Abi Saghir ILR (1932) Pat 288 at 337-341 Muhammad Rustom Ali v. Mushtaq Hussain L. R. 47 I. A. 224 at 232: (1920) 26 C. W. N. 122 and Vidya Varuti Thirtha v. Balusami Ayyar L. R. 48 I. A. 302: (1921) 6 C. W. N. 537. That the application of the chapter is not confined to trusts properly so called, is clear also from the language of paragraph 9: " Any person claiming to be interested under a Will, or other written instrument, may apply in chambers by Originating Summons, for the determination of any question of construction arising under the instrument and for a declaration of the rights of the person interested." 13. In the present case we are, indeed, in a way concerned with a question of construction because the language of the wakfnama has to be examined in order to ascertain what proportion of the total income of the dedicated properties may be appropriated by the descendants of the wakif for themselves. It is only after this fact is ascertained that the Court would be in a position to say whether this wakf is a wakf-al-al-aulad within the meaning of the Act. 14. The second ground upon which Mr. Asir based his objection has reference to the language of sec. 46A of the Bengal Wakf Act. It is only after this fact is ascertained that the Court would be in a position to say whether this wakf is a wakf-al-al-aulad within the meaning of the Act. 14. The second ground upon which Mr. Asir based his objection has reference to the language of sec. 46A of the Bengal Wakf Act. The relevant portion of that section is in these terms: Any question whether a particular property is Waqf property or not or whether a Waqf is a Waqf Al-Al-Aulad or not shall be decided by the Commissioner whose decision, unless revoked or modified by a competent Court, shall be final. 15. Mr. Asir's contention is that, as no appeal lies from a decision of the Commissioner of wakfs, such a decision can be revoked or modified only by a decree of this Court passed in a regular suit. Such decree would have to direct the Commissioner to alter his record, and such direction could only be made in a suit in which the Plaintiff had asked, not merely for a declaratory decree, but also for consequential relief in the form of a direction to the Commissioner to make the necessary alterations. 16. In my judgment, the use of the words " revoked or modified does not necessarily lead to such a result. The words of the section show that the decision of the Commissioner is nothing more or less than formation of an opinion by him regarding any question whether a particular property is wakf property or not, or whether a wakf is a wakf-al-al-aulad or not. The section enacts that such an opinion once formed by the Commissioner shall have final effect unless revoked or modified by a competent Court. The real question, therefore, is whether this Court answering the same question under Ch. XIII of its Original Side Rules, is a competent Court. As I have already indicated, the question whether this wakf is a wakf-al-al-aulad, is a question which falls within the scope of paragraph 1 of Ch. XIII and, therefore, this Court is competent to decide that question. The opinion of this Court upon that question will, therefore, have the effect of revoking or modifying the opinion of the Commissioner. Under paragraph 20, this Court has to pronounce a judgment, and any order made in that judgment has to be drawn up by the Registrar as a decree of Court. The opinion of this Court upon that question will, therefore, have the effect of revoking or modifying the opinion of the Commissioner. Under paragraph 20, this Court has to pronounce a judgment, and any order made in that judgment has to be drawn up by the Registrar as a decree of Court. The Commissioner would be a party to that decree and would be bound by it. Even if the decree could contain no direction to the Commissioner to do anything, the mere fact that it contained a declaration that this wakf is a wakf-al-al-aulad would be a sufficient revocation or modification of the Commissioner's decision within the meaning of sec. 46A of the Bengal Wakfs Act, as the opinion of the Court on that question would override the opinion of the Commissioner on the same question. 17. The answer to the first important question raised in this Summons should, there-fore, in my judgment, be that this Court is competent under Ch. XIII of its Original Side Rules to consider and decide question (a) of the Summons. 18. The second important question raised by this Summons is question (a) itself, and that, as already stated, relates to the merits of the case. Wakf-al-al-aulad is defined in sec. 6, sub-sec. (12) in these words: A Waqf Al-Al-Aulad means a Waqf under winch not less than 75 per cent of the not available income is for the time being payable to the Wakif for himself or any member of his family or his descendants. 19. The first thing to be noted is the time with reference to which the question has to be answered. " Time being" in this case must mean the time at which the Commissioner arrived at his decision, that is to say, August 12, 1943. This decision was arrived at upon the basis of certain figures of the year 1942 and to these reference will presently be made. " Net available income" has been defined in sec. 6, sub-sec. (7) as being the income as determined from time to time in the manner prescribed by the Provincial Government. The Provincial Government has prescribed the manner in which the net available income is to be ascertained, and this is to be found in certain rules under sec. 84 (2) (b) of the Bengal Wakf Act, 1934. The relevant portion of those rules are as follows: 1. The Provincial Government has prescribed the manner in which the net available income is to be ascertained, and this is to be found in certain rules under sec. 84 (2) (b) of the Bengal Wakf Act, 1934. The relevant portion of those rules are as follows: 1. "In determining the not available income of a Waqf as defined in sub-sec. (7) of sec. 6 of the Bengal Waqf Act, 1934, of any year, it shall be necessary to ascertain the gross annual (estimated) income of the Wakf for that year. 2. The gross annual (estimated) income for that year shall be ascertained by adding together the following items, namely "...... There follow here a number of items which between thorn seem to cover all possible sources of income. 3. (1). All payments liable to be made on account of the following items shall be reduced from the gross annual (estimated) income as ascertained under r. 2 namely******** 4. (a) Taxes payable to the Union Board or Municipality or other statutory body, or any statutory fund. (b) Costs of collection and maintenance of the waqf property, as follows: (i) In the case of immovable properly, costs as actually incurred if approved by the Commissioner of Waqfs, subject to a maximum of 12 1/2 per cent, of the gross income. 20. I am not setting out the remainder of these rules because they do not arise in the present case. 21. With regard to the income of this wakf estate, the Wakf Commissioner accepted certain figures submitted to him by the present mutwali, and these figures have been filed before me on behalf of the Wakf Commissioner by his officer Meer Buksh who has sworn an affidavit. These figures show that in the year April, 1941 to March, 1942, the total realisation by way of rent from the properties of the wakf was Rs. 575-8. They also show that in that year the Plaintiff appropriated to himself Rs. 338-8. It has to be seen whether this latter figure amounts to 75 per cent of the net income. The net income in the present case for the period in question has to be ascertained under the rules by making certain deductions from the figure of the total realisations which was Rs. 575-8. 338-8. It has to be seen whether this latter figure amounts to 75 per cent of the net income. The net income in the present case for the period in question has to be ascertained under the rules by making certain deductions from the figure of the total realisations which was Rs. 575-8. The figures submitted and accepted by the Commissioner and which have now been filed before me, show that the municipal taxes for the period in question amounted to Rs. 61-6, the repairs to the endowed houses amounted to Rs. 31-8-6, and also that a sum of Rs. 66-10-3 was spent on repairing and whitewashing the mosque and repairing the fan. The maximum allowable by the rules to be deducted for costs of collection and maintenance is 12 1/2 per cent of the gross income which would come to about Rs. 71-8-0, the actual cost of maintenance being Rs. 98-2-9. If Rs. 71-8-0 is added to Rs. 61-6-0, the figure for municipal taxes, the total is Rs. 132-14-0. This sum subtracted from the gross income of Rs. 575-8-O leaves Rs. 442-10-0 as the net income, and 75 per cent, of this is Rs. 331-15-6. As the mutwali was appropriating for himself the sum of Rs. 333-8-3, he was taking a sum slightly in excess of 75 per cent. of the net available income. Therefore at the relevant time this wakf answered the statutory definition of a wakf-al-al-aulad. 22. Mr. Asir has tried to support the correctness of the Commissioner's decision by urging that the amount which the Plaintiff was appropriating to himself would have to be reduced by subtracting from it certain sums which must be regarded as salaries of the Imam and the Muezzin. The balance left after this deduction would be less than 75 per cent. of the net available income. This is in fact what the Commissioner did when he decided that the present zvakf was not a wakf-al-al-aulad. In my judgment, there is no warrant whatever for proceeding in this way. As stated before, there is no provision in the wakfnama for the payment of any salary to an Imam or a Muezzin. There is no record showing that anything was ever taken by the Plaintiff as salary for discharging these duties. The correct way of looking at the facts as they existed when the Commissioner made his decision is very different. There is no record showing that anything was ever taken by the Plaintiff as salary for discharging these duties. The correct way of looking at the facts as they existed when the Commissioner made his decision is very different. At that time the Plaintiff was seen to be drawing from the income of the wakf a sum which was quite obviously in excess of the 75 per cent. of the net available income. He was acting as the Muezzin and as the Imam, but he was discharging the duties of those offices gratis and could not be regarded as being in receipt of any salary. 23. It was next contended that because the Plaintiff refers to himself in his affidavit as the mutwali, it should be held that what he was receiving out of the income of the wakf was remuneration for acting as the mutwali. Here again, as stated before, it is more than reasonably clear from the wakfnama itself that the mutwaliship was to be confined in perpetuity to a descendant of the wakif. The present Plaintiff is a descendant of the wakif and his only title to the income of which he has been in receipt, is that fact. There is indeed no escape from the conclusion that the Plaintiff has been receiving, solely as a member of the wakif's family, an income which, in the period April, 1941, to March, 1942 was seen to be more than 75 per cent of the net available income of the wakf. I must accordingly answer question (a) of the Summons by saying that the wakf is a wakf-al-al-aulad if the figures to which I have referred above, and which were accepted by the Commissioner for the purposes of his decision on August 12, 1943, are correct. As stated before, questions (b), (c) and (d) are not, in my opinion, proper to an Originating Summons, and I do not propose to answer them.