JUDGMENT Randhir Singh, J. - This is a Defendant's appeal arising out of a suit brought by the Plaintiffs-Respondents against the Shia Central Board of Waqfs, for a declaration that the waqf dated the 15th August, 1936, executed by Nawab Afrozunnisa Begum in respect of properties detailed in the plaint was not subject to the provisions of the U.P. Muslim Waqfs Act (XIII of 1936) and for the removal of the Defendant from the management of the waqf. The Plaintiffs also claimed a refund of Rs. 282/12/ - realised by the Defendant as contribution. 2. It appears that a waqf-deed was executed by Nawab Afrozunnisa Begum on the 15th August, 1936, in respect of certain properties. The main item of property which was the subject-matter of the waqf was an allowance of Rs. 278/9/9 1/3 per mensem which was received by Afrozunnisa Begum from one Dharam Chand Lal. The waqf property also comprised of certain houses and an Imambara. Afrozunnissa Begum has in the waqf-deed mentioned the details of the expenses to be incurred, and the annuities to be paid to the waqif and her descendants and to other charities. 3. After this waqf had been created, the Muslim Waqfs Act, 1936, came into force sometime in 1937. u/s 4 of this Act, a survey of the waqfs then existing was to be made by a certain agency prescribed in the Act and the Waqfs which were not excluded by the provisions of Section 2, Muslim Waqfs Act were to be controlled and supervised by the Waqf Boards. Those which relate to Shia Muslims were to be supervised and controlled by the Shia Central Board of Waqfs. The waqf created by Afrozunnissa Begum was found by the Waqf Commissioner to be a waqf which was subject to the Muslim Waqfs Act of 1936. By notifications made in September 1945 the Board assumed direct management of the waqf in suit and contributions payable u/s 54, Muslim Waqfs Act were also realised out of the income of the waqf by the Defendant. 4. The Plaintiffs then brought the suit which has given rise to this appeal for a declaration that the action taken by the Defendant in treating the waqf as one governed by the Muslim Waqfs Act was invalid and that the Act did not apply to such a waqf. 5. The Defendant contested the suit. 4. The Plaintiffs then brought the suit which has given rise to this appeal for a declaration that the action taken by the Defendant in treating the waqf as one governed by the Muslim Waqfs Act was invalid and that the Act did not apply to such a waqf. 5. The Defendant contested the suit. It was contended that the waqf was not exempted u/s 2 of the Muslim Waqfs Act inasmuch as 75 per cent or more of the income from the waqf did not so for the benefit of the waqif or her descendants or any member of her family. The dispute in fact was in respect of certain items of the income and expenditure, which according to the contention of he Defendant was for the benefit of the Waqif and her descendants. 6. A number of issues were framed by the learned Civil Judge but it will not be necessary to refer to all those issues in view of the points raised in this appeal. The lower Court found that out of the income of the waqf, an amount, which exceeded the minimum limit prescribed u/s 2(2), went for the benefit of the Waqif and her descendants and as such the Act did not apply to the waqf. The suit in respect of the reliefs claimed was ultimately decreed by the trial Court. The Defendant has now come up in appeal. 7. The facts of this case are not very much in dispute. It is admitted that one Raja Syed Dilawar Raza, husband of Afrozunnissa, was the owner of considerable property in the province of Bengal. He made a mortgage of some property in favour of one Dharam Chand Lal and it was agreed that out of the usufruct of the property, a sum of Rs. 2000/ - per mensem would be payable to Raja Syed Dilawar Raza. This was more or less analogous to malikana and this right to receive Rs. 2000/ - was both transferable and heritable. The property which had taken the shape of rent charge or malikana and owned by Raja Dilawar Raza was disposed of in various ways to various persons but those transactions are not material for the purposes of this appeal. The right to receive Rs. 2000/ - was both transferable and heritable. The property which had taken the shape of rent charge or malikana and owned by Raja Dilawar Raza was disposed of in various ways to various persons but those transactions are not material for the purposes of this appeal. The right to receive Rs. 523/9/9 1/3 per mensem ultimately vested in Afrozunnisa and she was the owner of this property on the 15th August, 1936, when the waqf deed was executed. On this date besides executing the deed of waqf Afrozunnisa also executed a deed of gift giving away rent charge to the extent of Rs. 245/- to certain relations of hers. Of the remaining right in respect of the rent charge of Rs. 2/8/9/9 1/3. Afrozunnissa made a waqf. some house property and an Imambara were also included in the waqf deed. The entire income of the property was to be spent in a certain manner which is detailed in the waqf deed. The items which are relevant for the decision of this appeal are: 8. An item of Rs. 150/ to be spent for the expenses of majlis for mourning ceremonies in moharram and Arbain and Zakiri; 9. Rs. 50/ - to be spent for desa majlis of the waqif Syed Mohsin Raza, Ahsan Raza and Hasan Bandi Begum; 10. Rs. 10/ - to be spent for majlis in the ramzan nights; 11. Rs. 12/ - for lights on the graves of the waqifs, Syed Mohsin Raza, Syed Ahsan Raza and Hasan Bandi Begum. 12. It is contended on behalf of the Respondents that these four items constituted expenditure for the benefit of the waqif or her descendants and as such they should be deemed to be amounts payable for the benefit of the waqif or her descendants. Section 2(2)(1), Muslim Waqfs Act is as follows: ........................................ (2) This Act shall not apply to: (i) a waqf created by a deed, if any under the terms of which not less than 75 per cent of the total income after deduction of land revenue and cesses payable to the State Government of the property covered by the deed of waqf, if any, is for the time being payable for the benefit of the waqif or his descendants or any member of his family. 13. 13. A perusal of the above provision of the Muslim Waqfs Act shows that the Act will not apply to a waqf in which 75 per cent or more of the income is to be spent for the benefit of the waqif or his or her descendants. It has, therefore, to be seen if out of the total income of the waqf, the amount to be spent for the benefit of the waqif or her descendents was not less than the limit of 75 per cent prescribed u/s 2(2)(1). 14. The waqf property comprised the transferable and heritable right to the rent charge of Rs. 278/9/9 1/3 and some house property and in Imambara. It is admitted that the income from the house rent amounted to Rs. 372/ - and the income from the first item of property, viz., the right to receive Rs. 278/9/9 1/3 was Rs. 3343/5/4 per year. The case of the Defendant in the Court below as also in this Court was that the gross amount of the income ought to be taken into calculation and not the net amount and reliance has been placed on the wording of Sub-clause (1) of Sub-section (2) of Section 2 of the Act. It has been urged that the total income has to be calculated after the deduction of land revenue and cesses payable to the State Government. The Official Trustee who realizes the amount payable to Afrozunnissa Begum charges 3 per cent as his costs of realization and 1/4 per cent for audit expenses and this amount is deducted from the total income which was payable to Afrozuaunissa Begum. It has been contended on behalf of the Appellant that only land revenue and cesses payable to the State Government can be deducted from the total income and that any amount spent in realization or for the purpose of audit of the accounts could not be taken into consideration in finding to total income of the property. In the view which we propose to take it may not be necessary to give a finding on this point because it appears to us that even if the costs of realization and the charges for audit are deducted, the result would not be different in this appeal. 15. There is, however, one point which has been strenuously urged on behalf of the Respondents which merits consideration. 15. There is, however, one point which has been strenuously urged on behalf of the Respondents which merits consideration. The trial Court has deducted out of the income the costs of realization and audit charges not only in respect of the waqf property but also property which had been the subject of gift to some other persons. We have not been able to appreciate the reasoning of the learned Civil Judge. Afrozunnissa Begum was the owner of a monthly income of Rs. 523/9/9 1/3. It has been described as a rent charge. She, however actually received Rs. 497/11/11 from the Official Trustee of Bengal after deducting expenses. The gift deed in respect of Rs. 245/ - out of the gross income and the wakf in respect of the remaining rent charge namely, Rs. 278/9/9 1/3 were executed on the same date. The executent, Afrozunnissa Begum executed the two deeds in respect of the gross income received by her although she has made mention of the net income received by her also in the deeds. The learned Civil Judge has placed the burden of the cost of realization and the audit charges in respect of the rent charge of Rs. 245/ per mensem which was the subject of the gift on the income of the waqf for which we find no justification. It has been argued on behalf of the Respondents that the donees were entitled to a clear sum of Rs. 245/ - and were not liable to pay for the expenses of audit and realization. So were the beneficiaries of the waqf deed. In the waqf deed also the gross income has been made the subject of the waqf and not the net income. If, therefore, any charges on account of audit or realisation have to be deducted they have to be deducted proportionately from both the items and the property comprised in the waqf cannot be made exclusively liable for the entire cost of realisation of the amounts comprised in both the deeds. The cost of realization including audit charges in respect of Rs. 278-9-9 1/3 would come to Rs. 108. Without coming to a definite finding as to whether such cost could be deducted from the total income or not, even if Rs. The cost of realization including audit charges in respect of Rs. 278-9-9 1/3 would come to Rs. 108. Without coming to a definite finding as to whether such cost could be deducted from the total income or not, even if Rs. 108, which would be the proportionate charge on account of realization and audit on the income of the waqf property is deducted from the income, the net amount of income of the waqf would come to Rs. 3607. 16. It has further been argued that the taxes payable on account of the houses should also be deducted from the rent of the houses. The language of Section 2(2)(1) is not very clear and it is not mentioned in Section 2(2)(i) that the taxes payable in respect of the houses shall also be deducted from the total income of the property for the purpose of calculating the minimum income prescribed in Section 2(2)(i) to make the Act inapplicable to certain waqfs. With the policy of the legislature or the wisdom thereof we are not concerned and we have to interpret the law as it stands. It would be difficult, therefore, to include taxes payable to local boards within the meaning of the words 'land revenue and cesses payable to the State Government'. As remarked above, however, this point also is not very material for the decision of this appeal because even if the taxes are deducted from the income derived from the house, the result of the appeal will not be affected. The total amount of taxes payable on account of the houses was Rs. 87-9. If this amount is also deducted from the income, the net amount of income received by the waqif on account of the entire waqf property would come to Rs. 3520 9. The wazeefa or annuities payable to the waqif and to her descendants amount to Rs. 2328. A sum of Rs. 180 has been earmarked as maraat and this sum it is also not disputed should be deemed to be a sum spent for the benefit of the waqif or her descendants. There is, however, a dispute in respect of four items of Rs. 150. Rs. 50, Rs. 10 and Rs. 12 mentioned above. 17. So far as the item of Rs. 50 and Rs. There is, however, a dispute in respect of four items of Rs. 150. Rs. 50, Rs. 10 and Rs. 12 mentioned above. 17. So far as the item of Rs. 50 and Rs. 12 are concerned, they may safely be taken to be spent for the benefit of the Waqif or her descendants, as spiritual benefit cannot be excluded from the purview of the word 'benefit' mentioned in Section 2(2)(i). There remains, therefore only two other items of Rs. 150 and Rs. 10. It has been urged on behalf of the Respondents that although there is no mention of the names of the Waqif or of her descendants with reference to the expenses in these two items, the waqif and her descendants would also he recipients of benefit to their souls out of these two items of charge. It appears to us that the interpretation put by the learned Counsel for the Respondents on the word 'benefit' is not correct. If it could be shown that these two items were to be spent exclusively for the benefit of the waqif or her descendants these items could also be taken to be items of expenditure for the benefit of the waqif or her descendants. If a person constructs a mosques for the public and endows property for its maintenance, he may in common with so many others be the recipient of benefit to his soul but that would not make the charity entirely for the benefit of the waqif or his descendants. The items of Rs. 150 and Rs. 10 cannot, therefore, be held to be items of expenditure for the benefit of the waqif or her descendants. It would, therefore, appear that the total amount which has to be spent for the benefit of the waqif and her descendants would come to Rs. 2,570 only. The total income from the waqf even after excluding costs of realization and audit charges and taxes payable for the houses on which we express no opinion comes to Rs. 3,520-9. The expenses for the benefit of the waqif and her descendants thus amounts to less than 75 percent of the total income and the Act would, therefore, apply to the waqf. 3,520-9. The expenses for the benefit of the waqif and her descendants thus amounts to less than 75 percent of the total income and the Act would, therefore, apply to the waqf. The view taken by the Lower Court that the waqf was excluded from the operation of the Act u/s 2(2)(i) of the Muslim waqfs Act does not therefore appear to us to be correct. 18. No other point has been pressed in arguments. 19. As a result the appeal is allowed and the suit is dismissed with costs in both Courts.