Judgment:- The plaintiff, who is the appellant in this Second Appeal, filed a suit for a declaration that the institution Hazarat Sha Rahmatulla Saheb Takia of Pakkiri Thaikkal and the suit properties in the plaintiff’s management do not constitute a wakf under the Muslim Wakfs Act. In 1626 A.D. Rajashri Malaharji Godreo Saheb, the then Maharaja of Tanjore, made a sarvamanyam grant of the suit properties to an ancestor of the plaintiff by name Syed Sha Rahmatulla. The successors of Rahmatulla were in possession of the properties for nearly 300 years. In 1921 there were some disputes regarding the management of the properties, and O.S. No. 95 of 1921 was filed in the Subordinate Judge’s Court of Mayuram for removing Gulam Jailani and Mahomed Ghouse from the management of the properties and for framing a scheme. A scheme was framed and on appeal the High Court confirmed the findings of the trial Court but modified the scheme in some respects. The High Court recognised the hereditary nature of the office of the trustee, and appointed the present plaintiff, though a minor, as trustee of the institution. After the passing of the Muslims Wakfs Act 1954, the Wakf Board called upon the plaintiff to register the institution as a wakf under the Act. The plaintiff contended that the suit Takia was not a wakf and that the properties were not wakf properties and that the original grant was by a Hindu Raja and therefore the institution would not be wakf under the Muslim Wakfs Act, 1954. He further contended that the subsequent amending Act passed by the Madras Legislature in 1961, which came into force on 20th April, 1961, after the disposal of the suit by the trial Court on 21st July, 1961, cannot have retrospective operation and is not applicable to this case. It was submitted that the Madras Act is ultra vires in that it is repugnant to the Muslim Wakfs Act passed by the Central Legislature and as the President’s assent was not obtained, the Madras Act could not have any effect. Even if the Madras Act is held to be applicable to the facts of the case, as the grant was given to a Takia, it being not for the support of one of the institutions mentioned in section 2 of Madras Act XIX of 1961, it was argued that the property is not wakf. Even if the Madras Act is held to be applicable to the facts of the case, as the grant was given to a Takia, it being not for the support of one of the institutions mentioned in section 2 of Madras Act XIX of 1961, it was argued that the property is not wakf. Pending Second Appeal, Act XXXIV of 1964, the Wakf (Amendment) Act, 1964 was passed by the Parliament. Section 66-C was inserted by the Amending Act, which is in the following terms: Notwithstand anything contained in this Act where any movable or immovable property has been given or donated by any person not professing Islam for the support of a wakf being - (a) mosque, idgah, imambara, dargah, khangah or a maqbars; (b) a Muslim graveyard; (c) choultry or a musafarkhana, then such property shall be deemed to be comprised in that wakf and be dealt with in the same manner as the wakf in which it is so comprised. Coming into force of this amendment makes it unnecessary to consider the question whether the Madras Act XIX of 1961 is repugnant to Muslim Wakfs Act (Central Act) 1954 and as President’s assent was not received the Madras Act is void under Article 254 of the Constitution. According to Act XXXIV of 1964, even when a person not professing Islam, donates immovable property for one of the purposes mentioned in the section, that property is wakf. If this amendment is applicable to the present case, the contention put forward by the appellant in the Courts below that the original grant being by a Hindu Maharaja the Wakf Act is not applicable, has to tail. The suit is by the plaintiff for a declaration that the institution and the suit properties do not constitute a wakf and this declaration obviously cannot be given after the coming into force of the Central Act XXXIV of 1964. The contention that the rights of parties should be declared as on the date of suit cannot be upheld. The suit is by the plaintiff for a declaration that the institution and the suit properties do not constitute a wakf and this declaration obviously cannot be given after the coming into force of the Central Act XXXIV of 1964. The contention that the rights of parties should be declared as on the date of suit cannot be upheld. In Lachmeshwar v. Keshwar Lal1 it was held that the appellate Court was entitled to take into account even facts and events which have come into existence after the decree appealed against and that consequently the appellate Court was competent to take into account legislative changes since the decision in appeal was given and its powers were not confined only to see whether the lower Court’s decision was correct according to the law as it stood at the time when its decision was given The decision is cited with approval by the Supreme Court in Kotturuswami v. Veerava2Pending the appeal to the Supreme Court section 14 of the Hindu Succession Act, 1956 came into force. It was contended that according to the provisions of section 14of the Act the widow became the full owner of her husband’s estate and was not a limited owner thereof. The Supreme Court observed that it is well settled that an appellate Court is entitled to take into consideration any change in the law. The coming into force of Act XXXIV of 1964 pending Second Appeal, therefore, will have to be taken into account, and the donation of an immvoable property, even though by a person not professing Islam would be a wakf, if the other condi-tions are fulfilled. It was contended by Mr. Sankara Iyer, learned Counsel for the appellant that the original grant was by a Hindu Raja for the benefit of Rahmatulla’s Takia in sarvamanyam and therefore the grant was personal and not for the benefit of a Muslim religious institution. He submitted that a grant to Takia will not be a wakf. Apart from a copy of the English translation made by the Court of the original grant in 1906, no other document is available. It is not clear from the translation whether Rahmatulla was living at the time of the grant or whether at the time of the grant there was a Takia in existence by name Rahmatulla’s Takia. Apart from a copy of the English translation made by the Court of the original grant in 1906, no other document is available. It is not clear from the translation whether Rahmatulla was living at the time of the grant or whether at the time of the grant there was a Takia in existence by name Rahmatulla’s Takia. I am inclined to construe the grant as one in favour of Rahmatulla, who was living at that time The recital that the affairs be conducted from descendants to descendants, from son to grandson in perpetuity would probabilise that the grant was made in favour of Rahmatulla. The word Takia is translated as meaning mendicant’s rest house, monastery. Mulla on Principles of Mohamedan Law at page 200 states that Takia means literally a resting place and hence a burial ground is sometimes called a Takia, that the fact that a place is called Takia does not prove that it is wakf property and that a Takia may be only a place of assembly in a village and devoid of any religious significance. Takia would mean the abode of a religious Muslim before his pious life and teachings attract public notice and before disciples gather round him, and a place is constructed for their lodgment. Fyzee on Outlines of Muhammadan Law, at page 315, states as follows: " Not every Takia is necessarily a wakf, but some may become so by long user or by endowment.‘, The word Takia sometimes would also include the tomb of a saint or a Muslim graveyard in general. The donation to a tomb of a Muslim saint (darga) or to a Muslim graveyard will be wakf under the definition. But a donation to a Takia, which is only as an abode of a religious Muslim, may not be a wakf. The original grant of 1626 by the Hindu Raja does not indicate that it was for the benefit of a darga or a Muslim graveyard. From the tenor of the document and from the probabilities it is most likely that the donation by the Hindu Raja was to Rahmat-ulla, a religious Muslim, for the upkeep of his abode. If so construed, the grant by itself will not be a wakf. Mr. From the tenor of the document and from the probabilities it is most likely that the donation by the Hindu Raja was to Rahmat-ulla, a religious Muslim, for the upkeep of his abode. If so construed, the grant by itself will not be a wakf. Mr. Mohammed Ismail, learned Counsel for the respondent, submits that, even if it is found that the original grant would not be a wakf, the subsequent user would bring the institution and the properties under the Wakf Act. Under the Muslim Wakfs Act, 1954, wakf includes a wakf by user also. It is submitted by the respondent that from the scheme framed by the Madras High Court in A.S. No. 419 of 1924 in which the present plaintiff was appointed as the trustee, it would be very clear that subsequent to the original grant this institution and the properties became wakf by user. This contention of the learned Counsel will have to be upheld, for in the scheme framed for the administration of the trust, it is provided that the properties. "shall be held by the trustee for the time being of the Takia, the mosque, the darga, the Muzafar-kana and the wells and tanks and the trees in the Takia described in the plaint ‘A’ schedule." The object of the Trust is stated to be the celebration of the Kandiri of Hazarath Syed Sha Gulam Mohideen Shuttari who is entombed in the darga, the Fathias of Muhamad the Prophet, and Syed Sha Rahmatulla, the founder of the institution and Moharam, feeding and giving Sadavarth, to all Fakirs halting in the Muzafarkana every day, keeping the mosque, darga, Muzafarkana and the tank in the Takia in a state of good repair and good condition etc. From the terms of the scheme it is clear that, by the time the scheme was framed, by long user the property comprised of a darga, a mosque, a muzafarkana and other religious institutions of Muslims. The entire income from the property is devoted to the religious purposes of Muslims. Mr. Sankara Ayyar submitted that the surplus left out of the income is directed to be utilised by the descendants of Rahmatulla. A reading of the scheme does not bear out this contention. The surplus is directed to be awarded as scholarships to suitable applicants from among the descendants of Hazarath Sha Rahmatulla Saheb. Mr. Sankara Ayyar submitted that the surplus left out of the income is directed to be utilised by the descendants of Rahmatulla. A reading of the scheme does not bear out this contention. The surplus is directed to be awarded as scholarships to suitable applicants from among the descendants of Hazarath Sha Rahmatulla Saheb. From the fact that some preference is shown to the descendants of the founder, it cannot be said that the endowment ceases to be a wakf. The scheme by which the plaintiff was appointed as the trustee of the institution establishes that the institution is a wakf, and on this ground the appeal will have to be dismissed with costs. V.S. ----- Appeal dismissed.