The facts giving rise to this appeal are as follows: [2] The suit property belonged to two plain, tiffs and their third brother in equal shares. The two plaintiffs sold their 2/3rd share to the wakf estate of Haji Abdul Rahman Barlaskar through its mufcwalli Moulvi Ambar Ali on 18th January 1940, for a sum of Es. 2666/-. They then pur­chased the l/3rd share of their brother and sold it to the wakf estate on 12th February 1940 for Rs. 1334, 'The total consideration for the sale came to Rs. 4000. On the same day (viz, 12th February 1940) Ambar Ali executed an agree­ment in favour of the plaintiffs promising to recovery the land to the plaintiffs or their heirs by a registered Kabala if they from their own funds paid Rs. 4000/- plus Rs. 300/- as compen­sation within 5 years from the date of the agree­ment. [3] Plaintiffs' case is that it was agreed bet­ween the parties at the time of the first sale on 18th January 1940 that plaintiffs shall purchase the remaining l/3rd share from their co. sharer and convey it to the wakf estate and the mutwalli will then execute an agreement under-taking to recovery the whole of the property to them on the conditions stated in the agreement. They alleged further that in pursuance of the terms of the agreement promising reconveyance of the property to them they offered to pay the sum of BS. 4000/-together with compensation to the mutwalli through a pleader but he declined to accept the money and convey back the pro­perty to them. They, therefore, were driven to institute the suit, out of which this appeal arises, for specific performance of the agreement dated 12th February 1940. [4] The suit was resisted by the mutwalli of the wakf estate. The defence with which we are concerned at this stage was that he as mut­walli was not competent to transfer the wakf estate and therefore the agreement could not be enforced. The trial Court dismissed the suit. On appeal the learned District Judge, Cachar, modified the decree of the Court below and granted plaintiffs a decree for specific perfor­mance of the agreement to the extent of l/3rd share on their depositing Bs. 1434/- on or before the date specified in the order. Two appeals have been preferred from the order of the Dist­rict Judge. On appeal the learned District Judge, Cachar, modified the decree of the Court below and granted plaintiffs a decree for specific perfor­mance of the agreement to the extent of l/3rd share on their depositing Bs. 1434/- on or before the date specified in the order. Two appeals have been preferred from the order of the Dist­rict Judge. Plaintiffs by their appeal claim a decree for the entire property. Defendant's appeal aims at obtaining dismissal of the suit. This order will dispose of both the appeals. [5] So far as plaintiffs' appeal is concerned, the finding of fact arrived at by the trial Court was that 2/3rd share out of the property belonging to the plaintiffs was sold to the wakf estate on 18th January 1940. At that time there was no agreement to recovery the 2/3rd share or the entire property. The sale, according to the find­ing of the trial Court, was absolute and unquali­fied. The learned District Judge has agreed with this finding though with some reluctance. He remarked that the finding of the trial Court could not be reversed as plaintiff 1 admitted in cross-examination that at the time of the first sale on 18th January 1940 there was no talk about re-conveyance, even though he had a feeling that this statement was made in confusion. He however could not be persuaded to ignore it and agreed with the trial Court in holding that the first sale was not subject to any agreement as to re-conveyance. The finding is on a ques­tion of fact and is not open to question in second appeal. No error of law or procedure has been committed in arriving at it. The learned District Judge could certainly take into consideration the admission made by plaintiff 1 himself. The trial Court was of the view that the oral evidence adduced by the plaintiff did not establish that there was any agreement to recovery, made at. the time of the first sale. This finding, therefore, is unassailable at this stage. [6] If the first sale was not subject to any agreement in favour of the plaintiffs, the pro­perty would be inalienable in the hands of the mutwalli. The deed of wakf expressly prohibit the mutwalli from transferring or mortgaging, the wakf estate or any part thereof. In the face of this prohibition, the mutwalli could only transfer the property with permission of the Court. The deed of wakf expressly prohibit the mutwalli from transferring or mortgaging, the wakf estate or any part thereof. In the face of this prohibition, the mutwalli could only transfer the property with permission of the Court. No such permission was obtained. The agreement to recovery the 2/3rd share of the property, therefore, is obviously in excess of the mutwalli's power and he is unable to convey it to the plaintiffs even though he promised to do so. At the time the agreement to reconvey was executed, the mutwalli purchased the remain­ing l/3rd share of the property. He might have purchased that portion subject to certain condi­tions. But he had no right then, about a month after the first gale, to agree to a re-conveyance of the property which had been purchased uncon­ditionally in January and therefore vested in the wakf from the moment the transaction was complete. The learned counsel for the plaintiffs realising the difficulty tried to get over it by making a distinction between the wakf pro­perty and the subsequent accretions. He pointed out that the prohibition contained in the deed of wakf applied only to the property which was then in existence and not to property which was subsequently acquired by the mutwalli even though with the aid of the wakf funds. This in­terpretation of the relevant clause of the deed of wakf does not stand scrutiny. Clause 5 of the Schedule attached to the deed of wakf provides that: "the mutwalli will not be entitled to make a gift or to sell or change its character or transfer or mortgage the wakf estate or any part thereof." The prohibition applies to the wakf estate. Any accretion made to the wakf estate with the aid of wakf funds becomes part of the estate and would be covered by the prohibition. The clause in terms is not limited to the property in existence at the time the wakf was created. The learned counsel could not point out from the document any other basis for making distinction between the original wakf estate and its subsequent accretions. But he tried to argue as a matter of law that the restrictions on the powers of disposition of the mutawalli should only apply to the original wakf estate and in support of his contention relied on Mt. Muji-bunnisa v. Abdul Bahim, 28 I. A. 15 : (23 ALL. 233 P. C.). But he tried to argue as a matter of law that the restrictions on the powers of disposition of the mutawalli should only apply to the original wakf estate and in support of his contention relied on Mt. Muji-bunnisa v. Abdul Bahim, 28 I. A. 15 : (23 ALL. 233 P. C.). This judgment of their Lordships of the Privy Council does not deal with the ques­tion raised by the learned counsel. It does not support his contention even remotely. It appears to us that the learned counsel has cited this authority under some misapprehension. He poin­ted out that he relied on the observations made by their Lordships of the Privy Council in the last six lines of para. 3 on page 26. We do not think there is anything in these remarks which bears . on the question now before us. It is clear, in these circumstances, that so far as the 2/3rd share of the property is concerned, the mutwalli had no power to agree to reconvey it to the plaintiffs. [7] The learned counsel for the plain tiff, appel­lants next contended that the defect in the agreement could be cured by retrospective confirmation of the agreement by the Court. He found support for this proposition from Maho­med, Shafiq v. Mahomed Mujtaba, A. I. R. (15) 1928 ALL. 660 (2) : (51 ALL. 30). In this Division Bench case of the Allahabad High Court, it was held that a sale of the wakf property by the mutwalli may be supported on the ground of necessity, although necessity cannot be proved for the whole of the purchase money. It was further held that sanction to the sale could be given retrospectively if necessity was proved. With this proposition there can be" no quarrel at all, but the plaintiffs can derive no assistance from it. It was not the plaintiffs' case in the Courts below that the agreement to reconvey the property to them was justified by any neces­sity of the wakf estate. It is a new position which the learned counsel is taking at this stage of the case. The record does not show that there was any necessity for re-conveying the property. No question of validating the agreement by re­trospective sanction thus arises in the case. [8] The result is that this appeal must fail; it is hereby dismissed. It is a new position which the learned counsel is taking at this stage of the case. The record does not show that there was any necessity for re-conveying the property. No question of validating the agreement by re­trospective sanction thus arises in the case. [8] The result is that this appeal must fail; it is hereby dismissed. [9] In the appeal on behalf of the wakf estate, the learned counsel has argued that a decree for specific performance of the agreement to the extent of l/3rd share in the property could not have been passed on payment of Rs. 1434 only. He pointed out that this was opposed to the provisions contained in 8.15, Specific Belief Act. The mutwalli who executed the agreement to re-convey the property was unable to perform the whole of it. He could not convey 2/3rd share. In these circumstances, if he had asked for speci­fic performance it would have been refused. The other side viz., the plaintiffs, may claim specific performance to the extent of l/3rd share only if they agree to pay the full consideration for l/3rd share of the property and also agree to forego all claims to further performance and all right to compensation either for deficiency or for the loss or damage sustained by them through the default of the defendant. This no doubt would be the result, the case being clearly cover­ed by 8. 15 as urged by the learned counsel for the defendant. Plaintiffs have not expressed their willingness to pay the whole of the consi­deration for l/3rd share of the property. They have also not waived all claims to further per­formance and all right to compensation, etc. Their learned counsel is not in a position, even at this stage, to state that he is prepared to have the specific performance of the agreement to the extent of l/3rd share on the conditions laid down in S. 15 of the Act. In these circumstances, a decree for l/3rd share of the property on pay­ment of BS. 1434 would clearly be hit by the provision of S. 15 not being in conformity with its requirements. [10] The result, though unfortunate, is that plaintiffs can get no relief. For the reason given above, the appeal of the defendant is allowed. The decree of the learned District Judge is revers­ed and plaintiffs' suit dismissed in its entirety. 1434 would clearly be hit by the provision of S. 15 not being in conformity with its requirements. [10] The result, though unfortunate, is that plaintiffs can get no relief. For the reason given above, the appeal of the defendant is allowed. The decree of the learned District Judge is revers­ed and plaintiffs' suit dismissed in its entirety. [11] In view of the fact that plaintiffs' claim has been disallowed on legal grounds, we order that parties shall bear their own costs through, out. Order accordingly,