JUDGMENT R.N. Gurtu, J. - The plaintiffs, who are (1) the Sunni Central Board of Waqfs, U. P., Lucknow, (2) Kazi Bashir Uddin Ahmad and (3) Ahmad Ashraf, filed the suit giving rise to this appeal against (1) Kazi Muniruddin Ahmad and (2) Bibi Mahmuda Begum for recovery of possession over property detailed in the plaint and for mesne profits. 2. The plaintiff's case was as follows:- Late Professor Moinuddin Ahmad, father of defendant no. 1 and 2 owned considerable property in the district of Meerut. He was employed as a Professor in the Wilson College, Bombay and died on the 8th of September, 1932. Prior to his death, on the 17th of May, 1928, Professor Moinuddin Ahmad created a waqf of a charitable and public nature of his property for the purpose, inter alia, of giving education in the art of painting to Muslim students and encouraging higher education among females by awarding scholarships and helping Muslim poor orphans desirous of learning handicraft industries and he constituted himself as the first mutwalli under the deed of waqf. In pursuance of the said deed, the Professor applied to the revenue court for substitution of the name of Almighty God in place of his own and got mutation effected accordingly in the Khewats, having his own name entered therein as the 1st mutawalli under the waqf- deed. After the creation of the said waqf, till his death in 1932, Professor Moinuddin Ahmad remained in possession of the property covered by the waqf-deed as mutawalli and administered it as such. Upon his death, the defendants, who are the son and daughter of the late Professor, Moinuddin Ahmad, applied for the mutation of their names to the revenue court as proprietors and concealed the existence of the waqf-nama and facts relating thereto. 1n this way, their names were mutated in the revenue papers as proprietors by an ex-parte order dated the 28th of August, 1933. The said Professor Moinuddin Ahmad was a Sunni by religion and, under the provisions of the U. P. Muslim Waqfs Act, (Act XIII of 1936) after a preliminary survey by the Chief Commissioner of Waqfs appointed under the said Act, the Sunni Central Board of Waqfs notified the said Waqf created by Professor Moinuddin Ahmad as a Sunni Waqf. That Notification was published in the U. P. Government Gazette dated the 26th of February, 1944. That Notification was published in the U. P. Government Gazette dated the 26th of February, 1944. Under the terms of the said deed of waqf, the Collector of Meerut was requested to function as mutawalli but he refused to so so. In consequence, the mutawalliship fell vacant and the Sunni Central Board of Waqfs, U. P. appointed plaintiffs nos. 2 and 3, namely, Kazi Bashiruddin Ahmad and Ahmad Ashraf as temporary mutawallis. They have joined the suit as such. 3. The defendants were called upon to discontinue their unlawful possession of the property covered by the deed of waqf and to hand over the same to plaintiffs 2 and 3 but the former refrained from doing so and they also refused to hand over the mesne profits. The possession of the defendants, therefore, being that of a trespasser, the suit was being filed. The cause of action in the suit was alleged in the plaint to have arisen on the 8th of September, 1932 i. e. on the date of the death of Professor Moinuddin Ahmad and thereafter on the refusal of the defendants to hand over possession of the disputed property. 4. Upon the above allegations, the suit giving rise to this appeal was filed on the 4th of September, 1944. 5. Full court-fees were not paid on the petition of plaint and the deficiency was subsequently made good and accepted by the court. It may be noted that the deficiency was only to the tune of Rs. 194|6|-. Out of the total court-fee of Rs. 2,094|-the sum of Rs. 1,890|- was already paid on the plaint when filed. Two day's time was granted to make good the said deficiency and it was made good within the period where after the plaint was registered as a suit on the 9th of October, 1944. 6. Defendants nos. 1 and 2 entered defence and filed their written statement. They denied that any waqf was created or that Professor Moinuddin Ahmad divested himself of his interest and administered the alleged waqf property as a mutawalli. They also alleged that the income was always utilised by the Professor for his own personal purposes. It was admitted that after the death of Professor Moinuddin Ahmad, the defendants got their names entered in the Khewats as proprietors. It was, however, denied that plaintiffs nos. They also alleged that the income was always utilised by the Professor for his own personal purposes. It was admitted that after the death of Professor Moinuddin Ahmad, the defendants got their names entered in the Khewats as proprietors. It was, however, denied that plaintiffs nos. 2 and 3 were validly appointed mutawallis and it was pleaded that they were not entitled to act as such. In the additional pleas, it was pleaded that Professor Moinuddin had lost the balance of his mind and had become of weak intellect and remained under the undue influence of his brother and had thus no capacity to execute any waqf deed of his own accord and even if there was a deed of waqf, it could not operate in law. It was further pleaded that inasmuch as one of the objects of the said waqf-deed was to further the art of painting, the deed was in conflict with Muhammedan law and was, therefore, invalid. It was then pleaded that the said deed of waqf was invalid under the Muhammedan law because it would lead to free associations of persons of both sexes who would receive education. Lastly a plea of limitation was also taken in defence. 7. Oral and documentary evidence was led before the court below which, after reviewing the same, came to the conclusion that Professor Moinuddin Ahmad had executed a deed of waqf of his property in suit voluntarily and with free consent and that it was not executed under the undue influence of his brother. It was further held that the objects of the deed of waqf were not forbidden by the Muhammedan law. It was also held that formalities for the creation of a waqf were performed by the Professor in respect of its creation. It was further found that the Professor's possession over the property in suit was in his capacity as a mutawalli and not in his personal capacity and also that the defendants had not established adverse possession for over 12 years against the person entitled to the waqf property and that the suit was within time because it was filed within 12 years of the death of Professor Moinuddin Ahmad. It was lastly held that plaintiffs Nos. 2 and 3 were temporary mutawallis under the Muslim Waqfs Act and as such they were also entitled to join plaintiff no. It was lastly held that plaintiffs Nos. 2 and 3 were temporary mutawallis under the Muslim Waqfs Act and as such they were also entitled to join plaintiff no. 1 in filing the suit and that they had a right of suit. The plaintiffs were further held entitled to mesne profits for the past three years reckoned at the rate of Rs. 500/- per year and also to future mesne profits at the said rate. It was further held that the defendants were entitled to raise the plea that the property in suit was not waqf property and that such a defence was not barred under Sec. 5 of the Muslim Waqfs Act, but it was held that a duly constituted waqf was created in this case. 8. The defendants have come up in appeal to this Court. They have raised several points. It is argued firstly that the waqf of Moinuddin Ahmad was contrary to the provisions of the Mohammedan law and was invalid. It was also argued that the plaintiffs 2 and 3 were not competent to bring the suit and that they were not duly appointed mutawallis. It was then argued that the suit was barred by limitation. Finally, the finding of the court below that the question of the validity of the waqf could be gone into in this suit was supported and it was also argued that the waqf was not, in any case, a waqf which was subject to the operation of the U. P. Muslim Waqf Act, 1936 and, as such, the Sunni Central Board or the other two plaintiffs could not file this suit. The other grounds which are taken in the grounds of appeal were not pressed before us. 9. In order to appreciate the contentions raised with respect to the first point that we have stated above, it is necessary for us to set out the relevant parts of the deed of waqf created on 9|10 May 1928 by Moinuddin Ahmad on which parts the argument in this case were founded. * * * 10. After setting out the relevant parts of the deed of waqf. His Lordship proceeded : 11. The contention advanced is that this deed of waqf was contrary to the provisions of the Muhammedan law inasmuch as one of its objects was the furtherance of the art of painting. * * * 10. After setting out the relevant parts of the deed of waqf. His Lordship proceeded : 11. The contention advanced is that this deed of waqf was contrary to the provisions of the Muhammedan law inasmuch as one of its objects was the furtherance of the art of painting. It was contended that painting was an anathema to Muslims and, in this connection, our attention was invited to Alhadis, Book I, by Fazlul Karim at pages 647 to 654. No doubt, the matters contained in these pagesi would lead to the conclusion that painting was not viewed with favour by Muhammedans at the time of those whose views stand incorporated in those pages. Undoubtedly idolatry is prohibited to Muhammedans and life pictures and the like which might be capable of being used for idolatrous purposes were viewed with disfavour but, as the learned Judge has pointed out, during the Mughal period the art of painting flourished widely and it seems that the attitude towards painting may have undergone a change by custom but, in this case, we are not really called upon to decide whether a bequest directed towards the promotion of painting is or is not invalid under the Muhammedan law because in this deed of waqf that is not the only bequest. As a matter of fact, it is only one of several and bears a small proportion to the total number of bequests. Even if this particular bequest be invalid under the Muhammedan law, that would not have the result of invalidating the waqf as a whole. The waqf could still be upheld though this particular benefaction might be struck out. This particular bequest is clearly severable from the other bequests. It is in respect of a fixed sum of money. In this connection, we may refer to a Privy Council case, namely, Kayastha Pathshala Allahabad v. Bhagwati Devi, 1937 A.L.J. R. 379 That no doubt is a case relating to a Hindu endowment but, in our view, the principle that the invalidity of certain gifts or benefaction would involve a destruction of the endowment as a whole would also apply to the case of Muslim wapfs. Nothing has been shown to us to suggest otherwise. 12. Apart from the benefaction for the furtherance of painting, the deed of waqf also provides for the grant of scholarships to students. Nothing has been shown to us to suggest otherwise. 12. Apart from the benefaction for the furtherance of painting, the deed of waqf also provides for the grant of scholarships to students. One Scholarship is to be granted to a B. A. student, two scholarships. to students of Intermediate classes, eight Scholarships to students of Matric or equivalent classes and four scholarships for the students of mid-wifery at Tebbiya College, Delhi. Under all these heads a total sum of Rs. 2,940/- was allocated. The amount to be spent over scholarships for the study of painting is only Rs. 300/-. Inasmuch as the other scholarships are for the purpose of encouraging higher education amongst females, it cannot be disputed that those scholarships would be for charitable purposes recognised even by the Muhammedan law. There is then an alternative bequest that if students of Matric or equivalent classes are not available, then the amount covered by the scholarships provided for them would go to poor orphans and destitutes eager to learn any of the handicraft industries. The number and value of the scholarships meant for such orphans and destitutes was to be decided by the committee, as is provided for in clause 4 of the waqf-deed. Then by clause 7 of this deed, it is provided that the scholarships referred to hereinbefore would be distributed in the following order i. e. firstly to the members of the waqif's family, failing that, to his relatives and then to any deserving Sunni Musalman, merit and want being the guiding principle. 13. The contention advanced on behalf of the appellant is that inasmuch as this deed of waqf provides for the maintenance and support of the waqif's family, this waqf has to satisfy the test of the Musalman Waqf Validating Act, 1913 and it is argued that inasmuch as the ultimate benefit under the deed of waqf, which is confined to deserving Sunni Muslims, is postponed to a remote period, this waqf cannot be held to have satisfied the test required under the Mussalman Waqf. Validating Act, 1913. It was further contended that not only had the members of the waqif's family to become extinct but also the members of the family of the waqif's relatives had to become extinct before the ultimate benefit could accrue to any deserving Sunni Mussalman under clause 7 of the deed. Validating Act, 1913. It was further contended that not only had the members of the waqif's family to become extinct but also the members of the family of the waqif's relatives had to become extinct before the ultimate benefit could accrue to any deserving Sunni Mussalman under clause 7 of the deed. It was argued that this would have the effect of postponing the ultimate benefit to a very remote time. On this very point a further argument was advanced that `relatives' do not come under the class "family, children or descendants" as contemplated by Sec. 3, sub-sec. (a) of the aforesaid Act and, therefore, it was argued that in-between the ultimate interest reserved for the Sunni Mussalmans and the interest created in the members of the waqf's family there interposed a benefaction to relatives and, therefore, the ultimate benefit was not conferred immediately after the family on the deserving Sunni Muslims and that, therefore, the waqf was bad as not fulfilling the requirements of Sec. 3 of the aforesaid Act. 14. In our view, the language of clause 7 of the waqf-deed leads one to conclude that when a reference is made to relatives in that clause, it is not intended to indicate that those relatives should be distant or remote collaterals. All that is intended to be conveyed is that they may be members of the family other than the closer members of the family. We may refer on this point to the case of Rahmanul Hasan v. Zahurul Hasan, A.I.R. 1947 Allahabad 281. The learned Judges observed in the said case as follows : "The word "family" has not been defined in the Act. It is no doubt true that the word "family" has a very wide sense, but it cannot be said that it would include any and every relation by blood of marriage howsoever remote and that all their descendants should be included in that term. Though the rule against perpetuities may be inapplicable in the case of lineal descendants of the wakif, it cannot be said that the section was intended to give the same exemption to the descendants or members of his family, generation after generation, and yet unborn". 15. Though the rule against perpetuities may be inapplicable in the case of lineal descendants of the wakif, it cannot be said that the section was intended to give the same exemption to the descendants or members of his family, generation after generation, and yet unborn". 15. It seems to us that the word 'family' has been used by the waqif to convey a restricted meaning in the first instance and by using the word 'family' the waqif intended to indicate only those members of his family who happened to be most closely related to him at the time when the benefits would come into operation. Likewise by the word 'relative', in our view, nothing more is indicated than that the members of the family outside this closer group would also be entitled to receive the benefit. 16. We may point out that the word 'family' has not been defined in the Mussalman Wakf Validating Act, 1913. In this connection, we may refer to Note I on page 183 of paragraph 197 of Mulla's Principles of Muhammedan Law (14th ed.), 1955 and the cases mentioned at the bottom of that note. It will appear from note 1 that many persons have been recognised as coming within the definition of 'family'. We do not think that it is necessary for us to cite all the cases that are referred to in that note because the matter is dealt with compendiously by Mulla in that note. The word 'family' used by the Waqif should in our view be construed as over lapping the word 'relative.' 17. In the Allahabad case referred to above i. e. in Rahmanul Hasan v. Zahurul Hasan, A.I.R. 1947 Allahabad 281 it was recognised, as will be clear from the portion quoted above, that the word 'family' had not been defined in the Act. It was indicated that the word 'family' has a very wide sense but it cannot be said that it could include any and every relation of every body. It was pointed out in that case that though the rule against perpetuity was applicable in the case of lineal descendants of the waqifs, it could not be said that the Act gave exemptions to the descendants or members of his family generation after generation and yet unborn. 18. It was pointed out in that case that though the rule against perpetuity was applicable in the case of lineal descendants of the waqifs, it could not be said that the Act gave exemptions to the descendants or members of his family generation after generation and yet unborn. 18. We are not called upon, at this stage, to define the exact limits at which the benefaction to the family which on our interpretation include the word relatives would cease. It is not evident from the language of clause 7 that the benefaction was intended to extend to the extent of the remotest members of the family and also to the members of the family still unborn. It is obvious to us that the waqif must have intended that the benefits should be available within a reasonable length of time and that the ultimate benefit to the Sunnis should take effect within a reasonable period. Inasmuch as the word 'family' has not been defined, it is not possible to put an arbitrary limit on that word. All that seems to be indicated is that it is clearly the intention of the waqif that the ultimate benefit should accrue to the Sunni Musalmans in the not too remote future. 19. Reliance, in this connection, was also placed on the case of Mohiuddin Ahmad v. Safia Khatoon, I.L.R. 1940 (Vol. II) Cal., 464 at p. 473 and it was argued on the strenght of that case that if an ultimate gift is very remote, for instance, if it is to take effect on the extinction of a very extended group of persons, as for instance the heirs of the waqif howsoever low, then the waqf will not be valid. The Act itself does not define the word 'family' but, on the contrary, it clearly indicates that gifts are not to be invalid by reason of the remoteness of the benefits to poor etc. until after the extinction of the family, children or descendants of the person creating the waqf. In the circumstances, it seems to us that the mere postponement, until the extinction of the children or descendants of the waqf, of the benefits to the poor etc. should not operate to make the waqf invalid. until after the extinction of the family, children or descendants of the person creating the waqf. In the circumstances, it seems to us that the mere postponement, until the extinction of the children or descendants of the waqf, of the benefits to the poor etc. should not operate to make the waqf invalid. Moreover, in the present case, we cannot say that the benefit to the descrying Sunni Musalmans, as provided by clause 7 of the deed of waqf, is too remote and, therefore, illusory. We may further point out that some guidance may be had in regard to the limits of the word 'family' from the definition given in the U. P. Muslims Waqf Act, 1936. The word 'family' has been defined in the interpretation clause as including (a) parents and grand-parents, (b) wife or husband, (c) persons related through any ancestor male or female and (d) persons who reside with, and are maintained by the waqif; whether related to him or not. We do not suggest that the interpretation clause contained in the said 1936 Act should be used as a binding interpretation clause in construing the text of the Mussalman Waqf Validating Act, 1913, but inasmuch as the word 'family' has not been defined there, some guidance though remote, may be available from the above definition given in the U. P. Muslim Waqfs Act of 1936. In our view, in the absence of a definition, a reasonable interpretation of the word 'family' is clearly required having regard to the aims and objects of the U. P. Muslim Waqfs Validating Act, 1913 and to the view taken in the reported cases referred to above in regard to what the word 'family' means. 20. We may also here point out that in granting the scholarships regard has to be had, in terms of clause 7 of the deed of waqf, to merit and want and in case there are no members of the family who can be described as meritorious or indigent, then the deserving Sunni Musalmans of merit and want would be entitled to the scholarships notwithstanding the fact that there were members of the family or relatives of the waqif. So the benefication to the Sunnis may not in some circumstances be even remote. So the benefication to the Sunnis may not in some circumstances be even remote. The next contention advanced was that the deed of waqf provided neither for maintenance, nor for support of the family, children or descendants of the waqf. The argument was that the grant of an entitlement to educational scholarships did not constitute maintenance and support. It was said that providing, where with all, for receiving education could not amount to maintenance because maintenance had a restricted meaning and really meant board, food and such support as would enable a person to maintain himself. It was also suggested that the word "support" had no such broad meaning as would include the grant of scholarships. We are of the view that the word "support" is sufficiently wide and ample to cover a case of support by means of scholarships for furtherance of study. A person to whom a scholarship is granted for carrying on studies can be said to be supported by the donor. A person who by financial assistance is enabled to acquire a trade or a calling or enabled to receive education in order that he may be able to maintain himself by his own efforts, he having been equipped by the education that he has received, can be said to be receiving "support" from the donor. 21. In Faqir Mohammad v. Mt. Abda Khatoon, A.I.R. 1952 Allahabad 127 Malik, C. J. held that:- "The word 'maintenance' is generally intended to mean lodging, boarding, clothing and other such necessaries of life. The word "support", however, appears to amplify the meaning of the word 'maintenance' and might include expenses not only for the necessaries of life but also for all conveniences." 22. The creation, therefore, of scholarships for education, in our view, also involves support within the meaning of the term 'support' as used in Sec. 3, sub-sec. (a) of the Mussalman Waqf Validating Act of 1913. We are, therefore, of the view that this deed of waqf created by Moinuddin Ahmad is a Valid waqf under the Mussalman Wakf Validating Act of 1913 referred to above. That being the position, the question to be considered is whether this waqf-deed attracts the operation of the U. P. Muslim Waqf Act (Act No. XIII) of 1936. We are, therefore, of the view that this deed of waqf created by Moinuddin Ahmad is a Valid waqf under the Mussalman Wakf Validating Act of 1913 referred to above. That being the position, the question to be considered is whether this waqf-deed attracts the operation of the U. P. Muslim Waqf Act (Act No. XIII) of 1936. We have already indicated that this waqf has been held to be subject to that Act and has been declared to be a Sunni waqf under that Act by the Commissioner of Waqfs appointed under the Act and by the Sunni Central Board of waqfs. It is in consequence of that declaration that this waqf is a Sunni waqf and in consequence of the appointment of plaintiffs nos. 2 and 3 as mutwallis of the waqf by the Sunni Central Board under the powers conferred by Sec. 56 of the said Act that plaintiffs nos. 2 and 3 had a locus standi to bring and have, in fact, brought this suit for recovery of property belonging to this waqf which was, on the date of the suit, in possession of the defendants. 23. Now it is apparent from the language of sec. 5 of the U. P. Muslim Waqfs Act of 1936 that subject to the final result of any suit, which is instituted under that section, the report of the Commissioner of Waqfs shall be final and conclusive. We have already indicated that, in this case, the Commissioner of Waqfs made a report after due enquiry that the Waqf was a Sunni waqf under the U. P. Muslim Waqfs Act, 1936. We find from the record that summonses were issued to Kazi Muniruddin Ahmad and Bibi Mahmuda Begum i.e. the defendants nos. 1 and 2 when the list was being prepared under the said 1936 Act. The defendants appeared before the Commissioner of Waqfs and filed certain objections in which, enter alia, it was stated that "from the legal point of view, the said waqf was altogether weak and defective" and it was indicated that "the deed of waqf was, in no way, fit to be acted upon." The Chief Commissioner of Waqfs under the U. P. Muslim Waqfs Act, 1936 then considered these objections and ultimately by his order dated the 12th of September, 1938 he declared the said waqf as being governed by the Act. The order of the Commissioner is Ex. 36 and it is in the original record. It was not printed apparently because the learned judge had not put his initials under the Exhibit numbers. In his judgment, however, the learned Judge has referred to this Exhibit in dealing with issue no. 5. We have directed that a copy of the order of the Chief Commissioner of Muslim Waqfs Act, U. P. should be caused to be typed and incorporated as a part of the printed paper book and we are initialling the said Ex. 36 ourselves in token of identification also. 24. From the said order of the Chief Commissioner it appears that his findings were that, the waqf in dispute was duly completed during the lifetime of late Professor Moinuddin Ahmad and that soon after the creation thereof every step was taken and that it cannot be said that the waqf was not completed or that possession of the property was not delivered to the mutwalli. After this declaration of the Commissioner, it was open to the present defendants to file a suit under the provisions of Sec. 5 (2) of the U. P. Muslim Waqfs Act, 1936 for a declaration that the waqf was not, in fact, a waqf to which the said U. P. Muslim Waqfs Act of 1936 applied. We may also point out that by a letter dated the 30th of March, 1944 sent by the Secretary, Sunni Central Board of Waqfs, U. P., Lucknow (Exhibit 13) the attention of the defendants was specifically drawn to the fact that if they were not satisfied with the decision of the Waqf's Commissioner, it was open to them to file a suit against that decision. Nonetheless, such a suit was not filed and, therefore, by virtue of the provisions of Sec. 5, sub-sec. (3), the decision of the Chief Commissioner of Waqfs became final and conclusive. It is, however, argued on behalf of the defendant appellants that it is open to them to treat the said decision of the Waqfs Commissioner as a nullity because the Commissioner has, in declaring this waqf to be a waqf to which the U. P. Muslim Waqfs Act, 1936 was applicable, acted beyond his jurisdiction. It is, however, argued on behalf of the defendant appellants that it is open to them to treat the said decision of the Waqfs Commissioner as a nullity because the Commissioner has, in declaring this waqf to be a waqf to which the U. P. Muslim Waqfs Act, 1936 was applicable, acted beyond his jurisdiction. It is said that it is open to the defendants to show that the U. P. Muslim Waqfs Act, 1936 could not be attracted to the waqf in question in this case and that the Commissioner's order is a nullity. It is also said that in making his declaration, the Commissioner of Waqfs overlooked the requirements of sec. 2, sub-sec. 2 (1) of the Act which lays down that:- "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 cases 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." 25. It is argued that in terms of the Act of 1936 there is no jurisdiction to apply the Act to any waqf in respect of which it cannot be held that the requirements of Sec. 2, sub-sec. 2 (i) of the Act have not been satisfied. 26. Then it is contended that at the time when the Commissioner made his order, he failed to satisfy himself whether or not this requirement was fulfilled or not. It is further contended that on the very face of the deed of waqf, it is apparent that so long as members of the family or relatives are alive, the entire benefit of the deed of waqf goes to them and, therefore, this waqf could not be considered to be a waqf to which the U. P. Muslim Waqfs Act, 1936 applied. It is said that the order of the Commissioner shows that he did not apply his mind at all to this matter and inasmuch as the question, whether the requirements of Sec. 2, sub-sec. It is said that the order of the Commissioner shows that he did not apply his mind at all to this matter and inasmuch as the question, whether the requirements of Sec. 2, sub-sec. 2 (i) of the aforesaid Act had or had not been fulfilled, went to the root of the Commissioner's jurisdiction to proceed further, the failure of the Commissioner to see whether Sec. 2, sub-sec. 2 (i) of the Act was attracted or not made the whole of his proceedings beyond jurisdiction and that the defendants could ignore the order of the Commissioner and Counsel invited this Court to hold that that order was without jurisdiction. 27. We may observe here that the plea of Sec. 2, sub-sec. 2 (i) was never raised before the Commissioner or in the Court of the Civil Judge. But it is contended that even though this plea was not taken, none the less it is a plea which goes to the root of the jurisdiction of the said Commissioner. It is further said that no evidence is necessary in order that the said plea may be determined and that the plea is capable of being determined on the very face of the deed itself. Now it is agreed that, in any case, it would have to be established by the defendants, in case they raised the question that this waqf was not governed by the U. P. Muslim Waqfs Act, 1936 because of the requirements of Sec. 2, sub-sec. 2 (i) not having been fulfilled that, 75 per cent. or more of the income, after making the necessary deductions, went to the waqif's family or his descendants. It is contended on behalf of the defendant appellants that for this purpose it was not necessary to adduce any oral evidence and it is submitted that the deed itself shows that the entire benefit at the time of the order of the learned Commissioner would go to the members of the waqif's family. Now we do not know as to how many members of the family were alive at the time of the said order of the Commissioner. The defendants are the only two members about whom we know that they were members of the waqif's family from the record. Now we do not know as to how many members of the family were alive at the time of the said order of the Commissioner. The defendants are the only two members about whom we know that they were members of the waqif's family from the record. It is not known whether either of these two members were indigent or meritorious; but even assuming that one or the other or both of them were so, it would still have to be shown to us that they could claim one or the other of the scholarships, for in order to support their claim for the scholarships, there would have to be evidence that they are either desirous of learning the art of painting or they would have to be Matriculate, or Intermediate passed or B.A., or, alternatively, desirous of taking a course in midwifery at Tebbiya College, Delhi. There is no evidence with regard to the defendants that they would be eligible for these scholarships. We have already pointed out that even in the presence of the members of the family, the benefit of the scholarships could go to deserving and meritorious Sunnis. Moreover the scholarships are many. In the circumstances, we are of the view that the defendants have failed to satisfy us that on the date of the order of the Commissioner of Waqfs, 75 per cent. or more of the net total income was payable for the benefit of the waqif's family or his descendants or any member of his family so as to exclude this waqf from the operation of the U. P. Muslim Waqfs Act, 1936. 28. We may now consider the last objection, namely, that the plaintiffs nos. 2 and 3 could not be nominated as mutawallis under Sec. 56 of the said 1936 Act. Sec. 56 of that Act runs as follows:- "When there is a vacancy in the office of mutawalli of a waqf and there is no one competent to be appointed under the terms, of the deed of waqf, or where the right of any person to act as mutawalli is disputed, the Central Board may appoint any person to act as a mutawalli for such period and on such conditions as it may think fit." 29. We may point out that it is stated in para-graph 8 of the plaint that the aforesaid two plaintiffs nos. We may point out that it is stated in para-graph 8 of the plaint that the aforesaid two plaintiffs nos. 2 and 3 had been appointed temporary mutawallis by the Sunni Central Board of Waqfs. It is contended with respect to this point that there was no vacancy in the office of the mutawalli and, therefore, sec. 56 was not attracted. Further, it was argued that it was not shown that there was no one competent to be appointed under the terms of the deed. It becomes necessary, therefore, to look at the terms of the deed itself. It will be observed from a perusal of the waqf-deed that the waqif, Moinuddin Ahmad, appointed himself as the first mutawalli. Then, after his death, or earlier on his retirement for the said office, the Collector of Meerut was to be the mutawalli, and a power was given to the Collector, in case of necessity, to transfer the management of the waqf under the orders of the Government either to the Muslim University of Aligarh or to any other body considered sympathetic and trustworthy. It was also directed that the Collector was to appoint a committee of four persons to assist him. It will thus appear that after the first mutwalli, it was the Collector who was nominated as the second mutawalli and he was given the power to nominate a committee of four persons to assist him and also, if necessary, to divest himself and to transfer the management as already indicated. But, in this case, we find that the said Collector by his letter dated the 8th of May, 1944, Exhibit 20, intimated to the Secretary, Sunni Central Board of Waqfs, U. P., Lucknow that he had no objection if the Central Board of Waqfs made arrangement for the administration of the said waqf and that the waqf property had never come into his possession as mutawalli. It is obvious from this letter, Ex. 9, that the Collector disclaimed the mutawalliship and was not willing to act as such. In the circumstances, clearly there was a vacancy in the office of the mutawalli. It is obvious from this letter, Ex. 9, that the Collector disclaimed the mutawalliship and was not willing to act as such. In the circumstances, clearly there was a vacancy in the office of the mutawalli. The members of the committee, who had to assist him, had to be appointed by the Collector and until the Collector assumed mutawalliship, he could not appoint the said committee, nor could he even transfer the mutawalliship to another under the terms of the deed, unless he had himself once actually assumed mutawalliship. In the circumstances, we are of the view that there was a vacancy in the office of the mutawalli and that there was no one competent to be appointed as such under the terms of the waqf-deed. No provision was made, in case the Collector refused to 113 accept mutawalliship, for a substituted mutawalli. Therefore, in our view, once the Collector refused to act as a mutawalli, there was a vacancy in the office and inasmuch as there was no other competent person nominated under the deed, the Sunni Central Board of Waqfs was entitled to act under Sec. 56 of the Act and to appoint temporary mutawallis as it had done. This is not a case where any mutawalli has been dismissed or superseded and fresh mutawallis had been appointed. In our view, therefore, the plaintiffs nos. 2 and 3 had a locus standi to bring the suit and to join in the same as they have done. In regard to the further contention of learned counsel for the appellants that the suit was barred by limitation, we think that it was not as it was a suit for possession and it was filed within twelve years of the death of Professor Moinuddin Ahmad, the creator of the waqf. In our view, moreover by the mere fact that a small part of the court-fees was paid later than on the date of the filing of the suit, the suit was not barred. Time was allowed for paying up the balance of the court-fees. The balance was paid within the time allowed and it was by Sec. 149 of the C. P. Code and consequently the plaint must be taken to have been filed within limitation. 30. No other point, beyond the contentions dealt with above, was urged. 31. Time was allowed for paying up the balance of the court-fees. The balance was paid within the time allowed and it was by Sec. 149 of the C. P. Code and consequently the plaint must be taken to have been filed within limitation. 30. No other point, beyond the contentions dealt with above, was urged. 31. The points taken by learned counsel for the defendant appellants having been disposed of against his submissions, this appeal fails and is dismissed with costs.