D. A. DESAI, J. B. MEHTA, J. ( 1 ) THESE two Letters Patent Appeals raise a substantial question as to whether the principle of res judicata could apply to the statutory inquiry held by the Dy. Charity Commissioner under sec. 190 of the Bombay Public Trusts Act 1950 hereinafter referred to as the Act in view of the previous decision under sec. 92 of the Code of Civil Procedure on a finding that there was a private Wakf. The two appeals have come up before us because against the order of the District Court under sec. 72 of the Act both the Charity Commissioner as well as respondents 1 and 2 had filed two separate appeals which were disposed of by the learned Single Judge. As both these appeals involve the same questions they are disposed of by this common order. ( 2 ) THE Wakf in question has been the subject matter of various litigations. The well known Edroos family claims to be the descendants of Hazarat Imam Ali who was the son-in-law and cousin of Prophet Mahomed. One of the descendants of Hazarat came over to India in 1542 and founded his Gadi at Ahmedabad Broach and Surat. The Edroos family persons are Sajjadanashin or Mutavallis of this Wakf. Three Rozas and the villages, which were granted for the maintenance of these Rojas as well as for the benefit of the Waquifs family, constitute this Wakf. The holder had been buried in the house and his Dargah is situate in this place. There is also a place for reciting prayers which according to the appellants is a mosque while according to the respondents Idadatgha. In the first litigation in Sayad Abdul Edrus v. Sayad Zain Sayad Hasan Edrus I. L. R. 13 Bombay 555 by the Division Bench consisting of Sir Charles Sergeant C. J. and Parsons J. the entire history has been given of this Wakf. A question had arisen at that time whether in the case of this religious endowment inheritance to the office of the Sajjadanashin or Mutavalli would go by the rule of primogeniture had been considered. A question had arisen at that time whether in the case of this religious endowment inheritance to the office of the Sajjadanashin or Mutavalli would go by the rule of primogeniture had been considered. The Division Bench held that the general Mohammedan Law was strongly against attaching any such right of inheritance to such endowment and there was no custom established for invoking the rule of primogeniture and therefore the appointment to this office could not be challenged by the eldest son in that litigation by invoking the rule of primogeniture. In the next litigation which had also reached the High Court in Saiyad Jaffar El Edroos v. Saiyad Mahomed El Edroos 39 Bom. L. R. 277 by the Division Bench consisting of Broomfield and Wassodew JJ. the nature and character of the royal grants in question regarding this Wakf had been interpreted in the context of what was to happen to the surplus left after discharging the primary obligation to apply the income for the purposes of this Wakf endowment. Both the learned Judges had in terms held that the relevant grants relating to villages Umrao and Orma were primarily for the Rozas and Durgahs and they clearly constitute Wakf. Sajjadanishin or Mutavalli had however right to the surplus income. He had full power of disposition of the surplus income. In the exercise of that power he could provide for the needs of the indigent members of the family. That however was the pious or moral obligation. But legally the disposition of the money was in the hands of the Sajjadanishin or Mutavalli subject only to the terms of the grant under which the property was held and the custom of the institution. Therefore the plaintiffs in that case who claimed to be indigent members of Edroos family were held not entitled to make a legal claim of maintenance and to sue for even arrears of maintenance from the endowment. Therefore this 1928 litigation is material for our purpose as res judicata plea has been founded on the same which gave rise to the Regular Civil Suit No. 201 of 1928. The plaint Ex. 72 on record discloses that the suit was filed by three members who alleged themselves to be the members of the Edroos family. Therefore this 1928 litigation is material for our purpose as res judicata plea has been founded on the same which gave rise to the Regular Civil Suit No. 201 of 1928. The plaint Ex. 72 on record discloses that the suit was filed by three members who alleged themselves to be the members of the Edroos family. In para 11 of the plaint they had specifically stated that they were the members of the Edroos family and were interested in the welfare and management of the Wakf properties. Their relations were buried in the graveyards attached to the Shrines. They had a right to visit the graveyards and the Shrines to recite Fathias there and also to offer their prayers in the mosques mentioned therein and on that basis the plaintiffs had stated that they had a right to file this suit. The cause of action which was alleged in this plaint was that these Wakf properties which were held to be of the Wakf as per the binding decision in I. L. R. 13 Bom. 555 were mismanaged by the father of the present appellant. It was the case of the plaintiffs that the father of the present appellant was not a legally appointed Sajjadanishin or Mutavalli and as he was mismanaging the Wakf properties and had incurred debts out of the trust estate the plaintiffs claimed a declaration that the father of the present appellant was not Sajjadanishin and Mutavalli of the Edroos Shrine at the three places Surat Broach and Ahmedabad of the Wakf property in question and for a permanent injunction restraining him from acting as such. The plaintiffs also prayed for framing a scheme and appointing a board of trustees to manage the properties shown in the Schedule A. In that suit the plaint bore an endorsement of the Collector dated February 22 1928 that as he was satisfied that there were sufficient grounds for institution of the suit he was giving his consent under sec. 92 of the Civil Procedure Code. The trial Court dismissed the suit as the plaintiffs had not made out their allegation of the alleged breach of trust for filing this suit on the aforesaid cause of action. The trial Court had also given a finding that this was a public Wakf negativing the plea of the appellants father that this was a private Wakf. The trial Court dismissed the suit as the plaintiffs had not made out their allegation of the alleged breach of trust for filing this suit on the aforesaid cause of action. The trial Court had also given a finding that this was a public Wakf negativing the plea of the appellants father that this was a private Wakf. That is why when appeal was filed by those plaintiffs before the District Court the appellants father who was respondent in that suit had filed cross objections. The appeal and the cross objections came up before the District Judge who disposed them of by the judgment Ex. 74 dated November 21 1938 The appeal against this decision before the High Court was withdrawn. Therefore all the parties are agreed that the plea of res judicata is founded on the aforesaid decision of the District Judge as per Ex. 74 in this litigation viz. Civil Suit No. 201 of 1928 The learned District Judge had in his judgment given a finding on 8 points. As regards the first question as to whether Sayad Alis appointment as Sajjadanishin and Mutavalli was valid or not the learned Judge held that the decision in I. L. R. 13 Bom. 555 did not exhaust all the method of the appointment of Mutavalli and any appointment which was in a recognised manner even otherwise would not be invalid. In this context the learned Judge pointed out that as per the settled law it was in eases of endowments of public nature like Juma Masjid and similar institutions in which the public at large or the general public are interested that the appointment of Sajjadanishin or Mutavalli could not be validly made by the congregation of certain people. The learned Judge however held that the Rozas in question were not of that public importance as the Juma Masjid because the family of Edroos was more intimately connected in the Rozas than any other member of the Musalman public generally. It was this feature that the Edroos family had interest in this Wakf and had exclusive governance of this walf in their family which distinguished the case from the other authorities. Thereafter the learned Judge pointed out that the decision in 39 Bom. L. R. 277 had interpreted the Royal Farman as to the character of the grant in case of this Wakf. Thereafter the learned Judge pointed out that the decision in 39 Bom. L. R. 277 had interpreted the Royal Farman as to the character of the grant in case of this Wakf. The learned Judge held that the grant in question was both for the Rozas and for the maintenance presumably of Sajjadanishin and his family members. Therefore from the old documents on record the learned Judge held that it was clear that the idea of maintenance of the Sajjadanishin was not altogether absent from the minds of the Moghul Emperors who granted villages of Orma and Umrao to these Rozas. The learned Judge also followed the aforesaid decision for his conclusion that as regards the surplus income the Sajjadanishin or the Mutavalli had complete power of disposition as the head of the religious institution because he was not in the position of an ordinary trustee. Therefore to the Royal Farmans the learned Judge held that the upkeep of the Durgahs the holding of the fairs and proper attention of the visitors to the Rozas were a primary charge on the revenue of these villages. But once that was done the sajjadanishin had full control over the surplus income and could utilise the same in any manner he liked. In view of this finding the learned District Judge answered all the earlier seven issues holding that the appointment of the Sajjadanishin in question was valid and the plaintiffs had not made out any case of the alleged breach of trust so as to entitle them to any relief in this suit under sec. 92 of the Code of Civil Procedure. Thereafter the learned District Judge considered the last point No. 8 which-was in the following termsis this a private Wakf as contended by the respondent No. 1 or a public Wakf ?the finding was that this was a private Wakf. In para 15 the learned District Judge has disposed of this question which arose because of the cross objections filed by respondent No. 1 in that suit viz. the father of the appellants. The learned Judge held that as per the aforesaid decision in 39 Bom. L. R. 277 the Sajjadanishin were entitled to the surplus income for their maintenance and for that of the members of their families and other dependents. the father of the appellants. The learned Judge held that as per the aforesaid decision in 39 Bom. L. R. 277 the Sajjadanishin were entitled to the surplus income for their maintenance and for that of the members of their families and other dependents. The governance of this property was right from the beginning of the endowment the exclusive affair of the Edroos family. The Sajjadanishin and Mutavalli without a single exception was from the same family and there was not a single instance where an outsider was in the management. This exclusive administration of these properties all these 200 years and more by this one family and the maintenance of the Sajjadanishins and their dependents who were members of this family all through this long period were only held to be consistent with the private nature of the Wakf and incompatible with its public nature. Therefore the learned Judge observed that the various documents which he had already referred to while construing the grant would be inconsistent with the public nature of this Wakf properties. He therefore held that he accordingly agreed with the respondent No. 1s counsel and disagreed with the view of the learned trial Judge holding this to be the private Wakf. Therefore he dismissed the appeal but he allowed the cross objections. It is this order of the learned District Judge especially this finding on point No. 8 which is sought to operate as res judicata in the present statutory inquiry under sec. 19 of the Act by the Dy. Charity Commissioner. ( 3 ) AFTER the present Act came into force respondents 1 and 2 made an application on September 25 1954 for the statutory inquiry under sec. 19 of the Act. The Dy. Charity Commissioner after the statutory inquiry by the order dated April 23 1950 held this Wakf to be a public trust and these properties in question were held to be properties of the said trust. The Dy. Charity Commissioner had negatived the contention of the present appellants that there was any bar of res judicata on this material question as to whether this Wakf is a public trust or not because of the aforesaid decision in Civil Suit No. 201 of 1928 by the judgment of the learned District Judge at Ex. 74. The Dy. Charity Commissioner had negatived the contention of the present appellants that there was any bar of res judicata on this material question as to whether this Wakf is a public trust or not because of the aforesaid decision in Civil Suit No. 201 of 1928 by the judgment of the learned District Judge at Ex. 74. The Charity Commissioner in appeal has confirmed this order on May 29 1957 Thereafter the appellants made an application under sec. 72 of the Act before the District Court. The District Court invoked the bar of res judicata in view of the aforesaid order of the learned District Judge at Ex. 74. Therefore the two appeals were filed by the Charity Commissioner and by respondents 1 and 2 which were disposed of by the learned Single Judge. The learned Single Judge reversed the finding on the question of res judicata. The learned Single Judge held that this finding of the learned District Judge could not be said to be a collateral finding as it was necessary for disposing of the proceeding before him. The learned Single Judge also held that the suit was of a representative character. The whole judgment of the learned Single Judge rests on the ground that after the present Act there was a substantial change in law in the definition of the public trust and such a Wakf by user having been covered under the scope of the new definition the proceeding in the earlier suit could not operate as res judicata as it could not be said even between the same parties and due to the changed circumstances. As both the appeals were accordingly allowed and the matter was remanded to the learned District Judge for further disposal in accordance with law the present appellants have filed these two Letters Patent Appeals. ( 4 ) BEFORE taking up this important question of res judicata it would be proper to consider at the outset the relevant provisions of the present Act. As the very preamble indicates the Act is to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Bombay. ( 4 ) BEFORE taking up this important question of res judicata it would be proper to consider at the outset the relevant provisions of the present Act. As the very preamble indicates the Act is to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Bombay. Sec. 2 (13) defines a public trust to mean an express or constructive trust for either a public religious or charitable purpose or both and includes a temple a math a Wakf a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act 1960 Sec. 2 (19) defines a Wakf to mean a permanent dedication by a person professing Islam of any moveable or immoveable property for any purpose recognised by the Islamic Law as pious religious or charitable and includes a Wakf by user but does not include a Wakf such as is described in sec. 3 of the Mussalman Wakf Validating Act 1913 under which any benefit is for the time being claimable for himself by the person by whom the Wakf was created or by any member of his family or descendants. Under sec. 2 (20) the words and expressions used but not defined in this Act and defined in the Indian Trusts Act 1882 shall have the meaning assigned them in that Act. Sec. 9 for the purposes of the Act includes in the definition of charitable purpose (1) relief of poverty or distress; (2) education (3) medical relief and (4) the advancement of any other object of general public utility but does not include a purpose which relates (a) exclusively to sports or (b) exclusively to religious teaching or worship. Thereafter sec. 10 to 13 enact special provisions for the validity of certain public trusts. Sec. 10 enacts that notwithstanding any law custom or usage a public trust shall not be void only on the ground that the persons or objects for the benefit of whom for which it is created are unascertained or unascertainable. The explanation in terms states that a public trust created for such objects as dharmada dharma or punyakarya punyadan shall not be deemed to be void only on the ground that the objects for which it is created are unascertained or unascertainable. The explanation in terms states that a public trust created for such objects as dharmada dharma or punyakarya punyadan shall not be deemed to be void only on the ground that the objects for which it is created are unascertained or unascertainable. Sec. 11 provides that a public trust created for purposes some of which are charitable or religious and some are not shall not be deemed to be void in respect to the charitable or religious purpose only on the ground that it is void with respect to the non-charitable or non-religious purpose. Sec. 12 which is material provides that any disposition of property for a religious or charitable purpose shall not be deemed to be void as a public trust only on the ground that no obligation is annexed with such disposition requiring the person in whose favour it is made to hold it for the benefit of a religious or charitable object. Under sec. 31 if any public trust is created for a specific object of a charitable or religious nature or for the benefit of a society or institution constituted for a charitable or religious purpose such trust shall not be deemed to be void only on the grounds provided thereunder. We shall presently consider the scope of the definitions in the light of these validating provisions. Sec. 3 enacts that the Charity Commissioner shall subject to the general or special order of the State Government superintend the administration of public trusts and carry out the provisions of the Act throughout the State. Under sec. 18 (1) duty is cast on trustee of the public trust to which the Act has been applied to make an application for the registration of the public trust. Under sec. 19 on the receipt of an application under sec. 18 or upon an application made by any person having interest in a public trust or on his own motion the Deputy or Assistant Charity Commissioner shall make an inquiry in the prescribed form particularly for the purpose of ascertaining (i) whether a trust exists and whether it is a public trust and (ii) whether any property is the property of such trust. It is provided in section that on completion of the inquiry provided for under sec. It is provided in section that on completion of the inquiry provided for under sec. 19 the Deputy or Assistant Charity Commissioner shall record his findings with the reasons therefore as to the matters mentioned in the said section and in accordance with the said findings the entries are thereafter to be made in the register under sec. 21. Sec. 28 (1) however provides that all public trusts registered under the provisions of any of the enactments specified in Schedule A and Schedule AA shall be deemed to have been registered under the Act from the date on which a public trust had been registered and the Act may be applied. An appeal is provided to the Charity Commissioner under sec. 70 from the findings under sec. 20 or 28 from the order of the Deputy or Assistant Charity Commissioner. Under sec. 70a (1) the Charity Commissioner is conferred power to make further inquiry or take additional evidence as he may think necessary. Sec. 72 (1) thereafter provides that any person aggrieved by the decision of the Charity Commissioner under sec. 70 or 70 on the questions whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may within sixty days from the date of the decision apply to the Court to set aside the said decision. The Court in the present case under sec. 2 (4) was the District Court. Under sec. 72 (1a) no party to such application shall be entitled to produce additional evidence before the Court unless the Deputy or Assistant Charity Commissioner or the Charity Commissioner has refused to admit evidence which ought to have been admitted or the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause to Court thinks it necessary to allow such additional evidence. From the decision of the Court an appeal lies to the High Court under sec. 74. Sec. 79 (1) provides that any question whether or not a trust exists and such trust is a public trust or particular property is the property of such trust shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by the Act. Under sec. 74. Sec. 79 (1) provides that any question whether or not a trust exists and such trust is a public trust or particular property is the property of such trust shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by the Act. Under sec. 79 (2) the decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as the case may be shall unless set aside by the decision of the Court on application or of the High Court in appeal be final and conclusive That is why sec. 80 in terms provides that save as expressly provided in the Act no Civil Court shall have jurisdiction to decide or deal with any question which by or under this Act to be decided or dealt with by any officer or authority under this Act or in respect of which the decision or order or such officer or authority has been made final and conclusive. Sec. 85 is a repealing provision under which the Religious Endowments Act 1863 and the other Acts mentioned in Schedule A are repealed. ( 5 ) FROM the aforesaid scheme of the Act it is clear that this Act regulates and makes better provisions for the administration of religious and charitable trust in the State. The Charity Commissioner is appointed as a sole administrator and he is also conferred certain quasi judicial powers under the Act. Under sec. 28 (1) all public trusts which were registered under the provisions of any enactment in the Schedule A and Schedule AA are automatically deemed to have been registered under the Act where only entries are to be made in the necessary register by the Deputy or Assistant Charity Commissioner after the decision in accordance with the entries in the registers already made under the said enactments. The Deputy or the Assistant Charity Commissioner is constituted as a statutory authority to make statutory inquiry for registration under sec. 19. For this statutory inquiry he may be approached either by the trustee of the public trust on whom duty is imposed to make application for registration of the public trust under sec. 18 (1) or by any person having any interest in the public trust or on his own motion. 19. For this statutory inquiry he may be approached either by the trustee of the public trust on whom duty is imposed to make application for registration of the public trust under sec. 18 (1) or by any person having any interest in the public trust or on his own motion. Whatever may be the method in which he is moved whether on an application of the trustee or a person interested or of his own motion this officer is to make statutory inquiry for ascertaining the various questions mentioned in sec. 19 of which two material questions in clauses (i) and (ii) are as to whether a trust exists and whether such trust is a public trust and whether any property is the property of such trust. The inquiry is to be held in the prescribed manner and the finding with reasons are to be recorded under sec. 20 in accordance with which the necessary entries in the register are to be made under sec. 21. Appeal against this order in the statutory inquiry under sec. 19 or sec. 28 is provided in sec. 70 before the Charity Commissioner. The Charity Commissioner even at the appellate stage is conferred a power under sec. 70a to take additional evidence or to make further inquiry as he may think necessary. Against this order of this statutory authority under the Act on these two material questions as to whether or not a trust exists and whether such a trust is a public trust and a particular property is the property of such trust sec. 72 provides a remedy for challenging this decision in the District Court by an application under clause (1) of that section. At that stage there is no right to lead additional evidence unless the Deputy or Assistant Charity Commissioner or the Charity Commissioner had refused to the additional evidence which ought to have been admitted or the Court requires such additional evidence to enable it to pronounce the judgment or for any other substantial cause. Appeal under sec. 72 (4) is provided to the High Court. That is why sec. Appeal under sec. 72 (4) is provided to the High Court. That is why sec. 79 (2) makes the decision of the Deputy or the Assistant Charity Commissioner or the Charity Commissioner in appeal as the case may be final and conclusive unless it is set aside by the decision of the District Court on an application or of the High Court in appeal under sec. 72. That is why sec. 80 creates a bar to the jurisdiction of the Civil Court to decide or to deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under the Act or in respect of which the decision or the order of the authority is made final and conclusive. This scheme makes this statutory officer subject to the appeal to the commissioner and the remedy of the aggrieved party to make an application to the District Court with a further right of appeal to the High Court an exclusive authority for decision of these important questions and the civil Courts jurisdiction is barred. The inquiry which is made by this statutory officer under sec. 19 (1) is therefore statutory inquiry which is mandatory on this statutory officer irrespective of the fact as to how he is moved for making that inquiry. It is incumbent on this statutory officer to hold this mandatory inquiry for ascertaining these material questions under sec. 19 (1) in the prescribed manner. The perspective in which he is to make inquiry is also laid down by the statute because the statutory officer has to function within four corners of this Act. He is therefore bound to apply definition of the public trust as laid down by this Act in sec. 2 (13 ). It would be therefore material at this stage to consider the wide scope of the definition of the public trust in this Act. ( 6 ) SEC. 2 (13) defines public trust as an express or constructive trust for either a public religious or charitable purpose. Thereafter there is an inclusion of certain endowment like temple math Wakf or dharmada or any other religious or charitable endowment. Wakf is also specially defined in sec. ( 6 ) SEC. 2 (13) defines public trust as an express or constructive trust for either a public religious or charitable purpose. Thereafter there is an inclusion of certain endowment like temple math Wakf or dharmada or any other religious or charitable endowment. Wakf is also specially defined in sec. 2 (19) as a permanent dedication by a person professing Islam of any movable or immovable property for any person recognised by the Islamic Law as pious religious or charitable. It should be noted that the definition in sec. 2 (19) while defining Wakf in terms covers such permanent dedication by a person professing Islam not only for the purposes which the Islamic Law considers as religious or charitable but also purposes which are considered as pious under the Islamic Law. There could be no dispute as per the settled legal position and even from the precepts of the Prophet that Sadka or gifts made to family members irrespective of the fact whether they are in stringent financial circumstances or not are regarded as pious Godly under the Islamic Law. That is why Wakf under the Mohammedan Law could be both for religious or charitable purpose recognised by the Islamic Law as well as for this particular pious purpose by way of provision for the settlers family and his descendants irrespective of the fact whether those settlers family members were poor or in indigent circumstances. Therefore even though the notion of charity to the poor and the needy may not be fulfilled When one of the mixed purposes of a Wakf which is both for religious and charitable purposes as well as pious purpose is to make provision for the settlers family or the descendants such a Wakf is in terms covered under the definition in sec. 2 (19 ). Sec. 2 (19) further includes a Wakf by user. . The only exclusion which is made is of those wakfs which were regarded as invalid because of their illusory benefit by reason of the provision to the charity being illusory or being indefinitely postponed and which had been validated under sec. 3 of the Mussalaman Wakf Validating Act 1913 Except for such wakfs which were originally held to be invalid and which were this validated all other wakfs are covered under sec. 2 (19) including Wakf by user. Once the definition of Wakf under sec. 3 of the Mussalaman Wakf Validating Act 1913 Except for such wakfs which were originally held to be invalid and which were this validated all other wakfs are covered under sec. 2 (19) including Wakf by user. Once the definition of Wakf under sec. 2 (19) is satisfied it is obvious that the definition of public trust in sec. 2 (13) which in its substantive definition takes in only trusts for public religious or charitable purposes would be satisfied because of the extension which is given by the inclusive clause which includes certain religious or charitable endowments like Wakf Therefore even a Wakf for such a mixed purpose viz. pious purpose of provision for the settlers family members irrespective of the fact whether they were needy and poor and which would not fall in the ordinary notion of charity and even Wakf by user are in terms covered within the definition of the public trust under this Act. It should also be kept in mind that sec. 9 for the purposes of this Act gives the inclusive definition of the term charitable purpose. It not only covers the first three heads of Lord Macnaghtens judgment in Commissioners for Special Purposes of Income-tax v. Pemsel 1891 A. C. 531 (583) but also the fourth head viz. trust for other purposes beneficial to the community which has been slightly widened by substituting clause (iv) by the following words :-Advancement of any other object of general public utility. The exclusion in clauses (a) and (b) in sec. 9 is only where the purpose relates exclusively to sports or exclusively to religious teaching or worship. It is true that in the decision in Fazlul Bibi v. State of West Bengal A. I. R. 1965 S. C. 1722 at page 1726 in the context of a similar definition in sec. 2 (c) of the West Bengal Estates Acquisition Act 1953 the term charitable purpose in sec. 2 (c) was interpreted. It was held that even this wide definition would not comprehend a disposition for the family of the Wakf if or for himself by taking it even in the fourth clause of object of general public utility. 2 (c) of the West Bengal Estates Acquisition Act 1953 the term charitable purpose in sec. 2 (c) was interpreted. It was held that even this wide definition would not comprehend a disposition for the family of the Wakf if or for himself by taking it even in the fourth clause of object of general public utility. At page 1727 their Lordships pointed out that even the validating Act which had to be passed because of the protest which had been raised by the Mohammedan community after the Privy Council decision in Abdul Fata v. Kasamaya Dhur 22 I. A. 76 did not intend to give new meaning to the word charity which in common parlance denotes a giving to someone in necessitous circumstances and in law giving for public good. A private gift to ones own self or kith and kin may be meritorious and pious but is not a charity in the legal sense and the Courts in India have never regarded such gifts as for religious or charitable purposes even under the Mohammedan Law. The Validating Act only validates those wakfs where the benefits to the charity or religious purposes were either illusory or postponed indefinitely while the property so dedicated was being enjoyed from generation to generation by the family of the wakif. That is why their Lordships pointed out that the Mussalaman Wakf Validating Act 1913 which was passed deemed Wakf in wider terms so as to give 4 wider meaning of a permanent dedication by a person professing the Mussalaman faith of any property for any purpose recognised by the Mussalaman Law as religious pious or charitable. This gave a wider meaning to the word Wakf but only for the purpose of taking out of the invalidity which would have otherwise existed because of the benefit to charity or religious purposes being illusory or being postponed indefinitely. Therefore this sec. 9 also would not have covered such wakfs for the pious purpose of provision to the family members of the settler or wakif which were not charity in the generally accepted legal term. That purpose was achieved not by merely widening definition of sec. 9 by indicating exclusion in this Act but by the wider definition of the term Wakf as was adopted in the Mussalaman Wakf Validating Act so as to cover the Wakf for pious purposes. That purpose was achieved not by merely widening definition of sec. 9 by indicating exclusion in this Act but by the wider definition of the term Wakf as was adopted in the Mussalaman Wakf Validating Act so as to cover the Wakf for pious purposes. The present Act also further clarified its scheme by validating provisions under sec. 10 to 13. Sec. 10 in terms provides that the public trust was not to be void on the ground of uncertainty because it was created for such objects as Dharam or Dharmada. Therefore such objects of Dharam or pious Godly purposes do not invalidate a public trust. Sec. 11 also provides that where a public trust is for mixed purposes merely because the non-charitable or non-religious purpose would have been void it would not invalidate a public trust. That is why sec. 12 also clarifies that even where there is no specific obligation created in the disposition that the trustee shall hold property for a religious or charitable object the trust would not be void. Therefore even where any such Wakf is for a mixed purpose including the pious purpose where provision for the settlers family is also included it would now be specifically covered not only in the definition of Wakf but that public trust would not become invalid because of this non-charitable provision or because there is no specific legal obligation to spend for this pious purpose. It could never be argued after these provisions that the Wakf is not a public trust on the ground that the entire surplus goes to the Sajjadanishin or Mutavalli or because the obligation was a pious obligation and not a legal obligation so that he could dispose of surplus in any manner he liked. This aspect cannot in any manner alter the character of the public trust. Even if there might be no specific obligation that the entire charity income was to be utilised only for religious or charitable objects and even though the obligation was a pious obligation such trust would now come within the definition of public trust under this Act and that is why such a Wakf would be clearly covered under the Act unless it is the case of an invalid Wakf which had to be validated by sec. 3 of the Mussalaman Wakf Validating Act 1930 where different considerations may prevail because that case is in terms excluded from the definition of Wakf in sec. 2 (19 ). Therefore merely because the religious or charitable Wakf combines with it a provision for the settlers family and descendants that by itself would not make a public trust invalid under the Act by invoking the notion of the ordinary charity h its accepted legal sense as a charity for the purpose of poor and needy persons. Besides the inclusion of Wakf by user from times immemorial in such cases where the Rozas were so used has been in terms provided. Even though there might be no dedication proved Wakf by immemorial user could be established even in such cases where the purpose of the Wakf is not only religious or charitable but also a pious purpose for the provision of the wakif or settlers family and his descendants. Therefore the perspective which is to be kept in mind is this wider perspective in case of such Wakf and it is in the light of this statutory perspective that this statutory inquiry will have to be held. It is in the light of this background that we have now to dispose of the question of res judicata which has been urged before us. ( 7 ) MR. Vakil rightly conceded that this was not a case where res judicata was pleaded under sec. 11 of the Code of Civil Procedure. Res judicata which is to be considered in the present proceeding is on the basis of the general principles of res judicata which are explained in Raj Laxmi Dasi v. Banmali Sen A. I. R. 1953 S. C. 33. The doctrine of public policy requires invoking this doctrine of res judicata on two material considerations that there must be a finality in the litigation and nobody should be vexed twice. At page 40 their Lordships pointed out that the condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by sec. At page 40 their Lordships pointed out that the condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by sec. 11 of the Code and has application to suits alone when a plea of res judicata is founded on general principles of law all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction like Revenue Courts Land Acquisition Courts Administration Courts etc. Further proceeding their Lordships considered the decision of the House of Lords in New Brunswick Rly. Co. v. British and French Trust Corporation 1939 A. C. 1. In that case the House of Lords had pointed out that in the case of a judgment in default of appearance a defendant is only estopped from setting up in a subsequent action a defence which was necessarily and with complete precision decided by the previous judgment and it was said that if a writ is issued for a small claim the defendant may well think it is better to let judgment go by default rather than in cure the trouble and expense of contesting it and that in such cases the default judgment on one bond cannot be used as governing the construction of 992 other bonds even if identical in tenor as it would involve a great hardship were the defendant precluded from contesting the later case. Their Lordships distinguished this decision on the ground that in the case before Their Lordships the case was not one of default but of a full contest and therefore the decision on the title question which was already adjudicated in the Land Acquisition proceedings must operate as res judicata in the subsequent litigation between the same parties. Therefore except the requirement as to the competence of the former Court to try the later suit the other requirements for invoking this doctrine of res judicata remain almost the same. Of course as pointed out in the New Brunswick Rly. Co. Therefore except the requirement as to the competence of the former Court to try the later suit the other requirements for invoking this doctrine of res judicata remain almost the same. Of course as pointed out in the New Brunswick Rly. Co. s case the doctrine being invoked on the ground of public policy for estopping a person the doctrine must be applied in cases where it worked justice and not where it worked injustice or where it seeks to create a new law for the parties in question in super session of the ordinary law. Except that this is not to result in such gross injustice this principle would require the same normal conditions. That is why in Carl Zeiss Stiftung v. Rayner and Keeler Ltd. 1967 A. C. 853 the House of Lords have again emphasised this question while invoking this estoppel on general principles of res judicata. At page 909 Lord Reid pointed out that for application of general principles of res judicata the earlier judgment relied on must be a final judgment and there must be identity of parties and of subject matter in the former and subsequent litigation. At page 913 Lord Reid discussed this second requirement for res judicata viz. the identity of the subject matter and distinction between the cause of action estoppel and issue estoppel was pointed out and it was held that even under the law of England the doctrine of res judicata had wider coverage not only on cause of action estoppel but also on issue estoppel. At page 914 it was pointed out that irrespective of the fact whether it was a Court of concurrent jurisdiction or exclusive jurisdiction the judgment would not be evidence on any matter which came collaterally in question though within their jurisdiction; nor of any matter incidentally cognisable nor of any matter to be inferred by argument from the judgment. The issue must he ratio of or fundamental to the decision. At page 935 Lord Cuest pointed out that the term final judgment was used in the sense that it was finally conclusive on the merits of the cause. In other words the cause of action must be extinguished and the judgment must put an end to and absolutely conclude the particular action. At page 935 Lord Cuest pointed out that the term final judgment was used in the sense that it was finally conclusive on the merits of the cause. In other words the cause of action must be extinguished and the judgment must put an end to and absolutely conclude the particular action. At pages 946 and 947 Lord Upjohn in his speech pointed out these two branches of res judicata:- (1) the cause of action estoppel that is where the cause of action in the second case has already been determined in the first and (2) issue estoppel. At page 947 it was emphasised after relying on the aforesaid New Brunswick case that all estoppels are not odious but must be applied so as to work justice and not injustice and the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind it was pointed out that the principle of res judicata is part of the law of evidence. If therefore the matter was only collaterally or incidentally in issue it would not be subject of issue of estoppel doctrine. It is this important consideration of working out justice which has been borne in mind while applying this doctrine of estoppel on ground of public policy in the recent decision of the Supreme Court in Mathura Prasad Bajoo Jaiswal v. Dossibai B. Jeejeebhoy 1970 S. C. C. 613. In the earlier proceeding application for fixation of standard rent was dismissed on the ground that the Act did not apply to the open land let for constructing building etc. That finding was not held to be res judicata when a subsequent application was made even between the same parties for fixation of standard rent on the ground that meanwhile the entire legal position was settled in Dossibais case by the decision of the Supreme Court on December 21 1966 At page 617 their Lordships pointed out that the High Court had wrongly invoked the bar of res judicata by proceeding on the assumption that the decision relating to the jurisdiction of the Court to entertain proceeding as binding and conclusive between the parties in respect of the same question in a later proceeding. Their Lordships pointed out that the doctrine of res judicata belonged to the domain of procedure. Their Lordships pointed out that the doctrine of res judicata belonged to the domain of procedure. It could not be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment effecting jurisdiction of a Court finally between them even though no question of fact or a mixed question of law and fact relating to the right in dispute between the parties has been determined thereby. Their Lordships held that a decision on an issue of law would be res judicata in a subsequent proceeding between the same parties if the cause of action of the subsequent proceeding be the same as in the previous proceeding but not when the cause of action is different nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding nor when the earlier proceeding declares valid a transaction which is prohibited by law. Further proceeding at page 619 their Lordships pointed out that a question relating to the jurisdiction of a Court could not be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court held that it had no jurisdiction the question would not operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it did not possess under the statute the question could not operate as res judicata between the same parties whether the cause of action in the subsequent litigation is the same or otherwise. Their Lordships further pointed out that where however the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which was illegal by resort to the rule of res judicata a party affected by the decision would not be precluded from challenging the validity of that order under the rule Or res judicata for a rule of procedure could not supersede the law of the land. It is in the light of these settled legal principles that we would have to dispose of the present question. ( 8 ) RES judicata is invoked in the present case as a bar against this statutory authority who is bound to hold a statutory inquiry under sec. It is in the light of these settled legal principles that we would have to dispose of the present question. ( 8 ) RES judicata is invoked in the present case as a bar against this statutory authority who is bound to hold a statutory inquiry under sec. 19 (1) as per the perspective laid down by the statute and whose decision is given a finality and conclusiveness subject to it being challenged on these two material questions before the District Court under sec. 72 with a right of appeal to this Court under sec. 72 (4 ). The jurisdiction is exclusive of this statutory officer irrespective of the question how he is moved by an application of the trustees under sec. 18 or of the persons interested or suo motu. The inquiry is a mandatory inquiry for registering a public trust falling under sec. 2 (13) of the Act. If there has been previous Registration under the repealed enactment the registration would have to be done as a deemed public trust under sec. 28 (1 ). In older cases he must hold this statutory inquiry. By no stretch of imagination such statutory officer could ever be precluded from performing his statutory duties by invoking a rule of estoppel as the result would be manifestly unjust if the statutory inquiry as per the norms laid down in the statute is to be stultified by the truncated nature of materials to be examined by this officer for determining these questions for which exclusive jurisdiction is created in this officer. If this officer or the Charity Commissioner in appeal acted on any particular evidence after giving opportunity to the parties to meet the same a party has no right of tendering additional evidence before the District Court when the order is challenged under sec. 72 (1a ). The case for additional evidence will have to be made out on the ground that the Court requires it for pronouncing judgment or for other substantial cause. Therefore the nature of this inquiry by this expert officer is left to his discretion as per the procedure prescribed. That is why even at the stage of appeal under sec. 70a the Charity Commissioner can make further inquiry and can take additional evidence. Therefore the nature of this inquiry by this expert officer is left to his discretion as per the procedure prescribed. That is why even at the stage of appeal under sec. 70a the Charity Commissioner can make further inquiry and can take additional evidence. This is not an adversary type of inquiry of any lis between the parties as this is a statutory inquiry to be completed by this officer as per the perspective laid down in the statute so that the public trusts are duly registered under the Act. The norms to be applied for determining this question as to what is a public trust are already settled by the Act and the officer is precluded from applying any other norms. The wider definition of the public trust and of the Wakf in this Act has already been considered. It is this statutory test which has to be followed. Therefore such a statutory authority could never be precluded from taking fresh evidence on the ground that there is an estoppel as regards this particular issue because of some earlier inquiry which could never be as per the norms laid down under this Act. The doctrine of issue estoppel which is sought to be invoked in the present case as the cause of action was totally different and the cause of action of estoppel could never apply merely precludes a party from registered that issue. That would be a part of law of evidence or the procedural law. If the authority is to hold the statutory inquiry its statutory jurisdiction could never be stultified by invoking any such rule of estoppel so as to restrict the scope of his inquiry. To adopt such a course by invoking such a doctrine of issue estoppel in the present case would be to supersede this statutory enactment by invoking the rule of procedure and to lay down a rule for this particular Wakf which is different from one which would be applicable to all other Wakf. Besides the bar applies to the parties for one of the important requirements of this rule is that it must be a judgment between the same parties. Therefore it precludes parties by estoppel but there could be no estoppel against a statutory authority himself Mr. Vakil vehemently argued that in a Letters Patent Appeal such new point could never be raised. The authority which Mr. Therefore it precludes parties by estoppel but there could be no estoppel against a statutory authority himself Mr. Vakil vehemently argued that in a Letters Patent Appeal such new point could never be raised. The authority which Mr. Vakil relied on where a new point of facts was sought to be raised could hardly apply to the facts of this case. There is no bar so far as the Court is concerned for going into this question going to the root of the whole matter. This is only one of the facets of the same point as to whether the doctrine of res Judicata could at all apply in this case. If this aspect has not been properly gone into it is open to the parties to urge this question which goes to the root of the whole matter. The only grievance that one could make would be that he is taken by surprise which Mr. Vakil rightly did not make. He has properly met the point after elaborately arguing this question. His only contention is that this statutory officer was performing a quasi judicial function and had duty to act judicially and therefore the principles of res judicata applies. Mr. Vakil ignores the fact that this estoppel is so far as the parties are concerned which could never estop the statutory authority from making the statutory inquiry as prescribed under the law. No procedural provision could ever alter substantive law especially as to do so would result in gross injustice as this public trust would be left out of the scope of the Act by such a truncated inquiry. Mr. Vakil argued that in any event when the matter went before the District Court the plea was rightly negatived on merits. It should be noted that the District Court under sec. 72a ordinarily would not permit fresh evidence. Therefore the question remains the same whether this statutory officers inquiry could be restricted by invoking this doctrine of estoppel which applies to parties alone. Mr. Vakil next argued in this connection that the Charity Commissioner now represents all the charities in the State. 72a ordinarily would not permit fresh evidence. Therefore the question remains the same whether this statutory officers inquiry could be restricted by invoking this doctrine of estoppel which applies to parties alone. Mr. Vakil next argued in this connection that the Charity Commissioner now represents all the charities in the State. In Chinnappa Chettiar v. Karuppan Chettiar A. I. R. 1968 S. C. 916 at p. 919 their Lordships have pointed out that the Crown is the constitutional protector of all infants and as the deity occupies in law the position of an infant the she baits who represent the deity are entitled to seek the assistance of the Court in case of mismanagement fraud or mal administration on the part of the she bait and to have a proper scheme of management framed for the administration of the private trust. Even on that consideration Mr. Vakil could never urge that the question arises between the same parties. In any event the Crown or the Government was not a party to the earlier 1928 suit under sec. 92. Merely because the Collector had given sanction for filing of this suit the Crown or the Government did not become a party to the suit. This inquiry is before the statutory officer and therefore there could be no question of the application of the principle of res judicata especially when the statutory inquiry has to be performed as per norms laid down by this statute in accordance with the wider definition of the public trust as envisaged herein. Therefore there is no substance in the point of res judicata in so far as it has been sought to be invoked so as to restrict the jurisdiction of the statutory officer holding the statutory inquiry under sec. 19 (1) for registering a public trust. ( 9 ) EVEN proceeding on the assumption that Mr. Vakil might invoke this doctrine of res judicata as the estoppel is not the cause of action estoppel but an issue estoppel alone. Mr. Vakil can only succeed by showing that all the four necessary conditions were fulfilled in this case as follows. (1) That in the former litigation the question whether this Wakf was a public trust or not was directly and substantially in issue and there. Mr. Vakil can only succeed by showing that all the four necessary conditions were fulfilled in this case as follows. (1) That in the former litigation the question whether this Wakf was a public trust or not was directly and substantially in issue and there. fore not collaterally or incidentally or on an assumption in issue; (2) That the said dispute had arisen between the same parties; (3) That in the former decision the same matter in dispute was finally and conclusively decided by the final judgment. (4) That the law which had to be applied for resolving this dispute had not charged either by statutory change of law or by Judicial interpretation of the said law. ( 10 ) IN fact Mr. Vakil is unable to satisfy any of these conditions in the present case. ( 11 ) IN the earlier litigation we have already pointed out that the plaintiffs had filed a suit under sec. 92 of the Civil Procedure Code as the members of the Edroos family as in terms mentioned in para 11 of the plaint. The previous history was mentioned where this Wakf was held to be a Wakf in the aforesaid two decisions-I. L. R. 13 Bom. 555 and 39 Bom. L. R. 277. Further the learned District Judge whose decision is said to operate as res judicata because of his finding that this was a private Wakf and not a public Wakf had in terms followed these two decisions. He had interpreted the Royal Farmans and grants in the very same manner. He was bound to do so. That is why the learned District Judge in the earlier para had in terms held that the grants were directly for the Rozas and to be utilised for those religious purposes of this endowment. As regards surplus income he pointed out from the earlier decision in 39 Bom. L. R. 227 that this Sajjadanishin or Mutavalli had the wide discretion as regards the surplus and he had full disposition power over it if the prior purposes of this religious endowment were satisfied. it is from this conclusion when read with the right of Edroos family to govern and manage this endowment that the learned District Judge held this to be a private Wakf. it is from this conclusion when read with the right of Edroos family to govern and manage this endowment that the learned District Judge held this to be a private Wakf. That is why he in terms mentioned the illustration of Juma Masjid which was of general public importance and was exclusively for a religious purpose. Therefore in the context of this pious obligation which was known only to the Islamic Law and which was unknown to the general concept of charity as a charity to the poor or needy persons that the District Judge had to answer this question in that manner by holding that the family provision was inconsistent with the public character of the Wakf but was more consistent with the private character. That is not the perspective in which the present statutory authority is to decide this question. The present perspective is the definition of Wakf in sec. 2 (19) which covers even the Wakf for pious purposes and has limited application only to Wakf for religious or charitable purposes alone. Besides the validating provisions in terms made it clear especially sec. 12 that even if there might be no legal obligation on the concerned Sajjadanishin or Mutavalli to dispose of this surplus for a charitable purpose in the extended legal sense and the obligation is merely a pious obligation the present perspective requires such a Wakf to be treated as a public Wakf under sec. 2 (19) so as to fall within the extended intended definition of a public trust under sec. 2 (13) of the Act. That is why the other inclusive clause of Wakf by user in sec. 2 (19) would also be attracted in this case even though the user may be shown to be not only exclusively for religious or charitable purposes in the narrow sense of normal charity but in the wider sense of this pious purpose of family provision as per Islamic Law. Therefore the entire perspective having changed the District Judges conclusion in the earlier litigation when he accepts all the relevant facts as binding could never operate as res judicata on this new question which had arisen before the statutory authority who was bound to dispose of the question in the light of the personal definition of the public trust. Therefore the entire perspective having changed the District Judges conclusion in the earlier litigation when he accepts all the relevant facts as binding could never operate as res judicata on this new question which had arisen before the statutory authority who was bound to dispose of the question in the light of the personal definition of the public trust. The present issue was not the same as the issue which was answered by the learned District Judge as to the character of this Wakf being public or private in the context in which the controversy had arisen between the members of the Edroos family members. When the whole question is so differently approached from that angle of a family endowment those observations could never detract from the public character of the Wakf in so far as it is a public trust within the definition of this Act. In fact Mr. Vakils argument is based only on the inference that the learned District Judge had given a finding that it was a private trust as the finding given is only that the Wakf is a private Wakf. From such a finding in the context in which it was given and in the perspective that was adopted it is only an inferential argument of Mr. Vakil that the question whether the Wakf was a public trust or not under the present Act is already concluded by that decision. It is well-settled as earlier observed that a previous decision could never operate as res judicata on matters which are only collaterally or incidentally in issue or on an argument assumed to be in issue. ( 12 ) EVEN otherwise the legal position is well settled after the decision in Pragdasji v. Ishwarlal A. I. R. 1952 S. C. 143 that such a finding in a suit under sec. 92 of the C. P. Code is only obiter or collateral. In that case the High Court had held that the trust was a public trust and a declaration as to the existence of the public trust was given though the plaintiffs failed to make out a case of misconduct or breach of trust so as to get any relief in this special suit under sec. 92. In that context Their Lordships pointed out at page 144 that it was beyond the scope of a suit framed under sec. 92. In that context Their Lordships pointed out at page 144 that it was beyond the scope of a suit framed under sec. 92 C. P. Code which gave the plaintiffs declaration of this character and made it a part of the decree although the suit itself was dismissed. Their Lordships pointed out that a suit under sec. 92 is a suit of the special nature which presupposed existence of public trust of the religious or charitable character. Such a suit could only proceed on the allegation that there was breach of such trust or that the direction of the Court was necessary in the administration thereof and there must be prayer for one or the other of the reliefs specifically mentioned in the section. It is only when these conditions were fulfilled that the suit had got to be brought in conformity with sec. 92. Their Lordships referred to the observations of the Privy Council in Abdul Rahim v. Md. Barkat Ali 55 I. A. 96 (P. C.) where it was held in a suit for a declaration that certain property pertained to a religious trust might lie under the general law but was outside the scope of sec. 92 Civil P. C. Their Lordships also pointed out that if the plaintiffs failed on merits to show any cause of action for the suit instituted the finding of the High Court about the existence of the public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiffs. Their Lordships pointed out that the plaintiffs could get only these reliefs in the said suit under sec. 92 of the Civil P. C. which were specifically enumerated in different clauses of that section. Their Lordships observed that:-A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. Their Lordships pointed out that the plaintiffs could get only these reliefs in the said suit under sec. 92 of the Civil P. C. which were specifically enumerated in different clauses of that section. Their Lordships observed that:-A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the defendant denies the existence of a trust a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it; but when the case of the plaintiff fails for want of a cause of action there is no warrant for giving him a declaratory relief under the provisions of sec. 92 Civil Procedure Code. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum. THEIR Lordships confirmed the order of the High Court modifying the same by merely dismissing the plaintiffs suit without its being made subject to any declaration as to the character of the properties. The learned Single Judge with great respect was in error in not correctly appreciating the ratio of this decision. Their Lordships there proceeded on the settled legal position that this special suit under sec. 92 has to be confined to the reliefs specifically enumerated in the section and the suit for a declaration that certain properties pertain to religious trust would be wholly outside the scope of sec. 92. Therefore even when the finding has to be given because the defendant denied the existence of such public trust of a religious or charitable character no declaration of this character can be incorporated in the decree if the suit was ultimately dismissed. The plaintiff having no cause of action whatever such a finding as to the existence of the public trust would be wholly inconsequential and unconnected with the grounds on which the case was actually disposed of. In the present case the same thing has happened. The plaintiffs suit was dismissed on the ground that he had failed to establish the alleged cause of action of misconduct or breach of trust of the father of the present appellant who was respondent in that case. In the present case the same thing has happened. The plaintiffs suit was dismissed on the ground that he had failed to establish the alleged cause of action of misconduct or breach of trust of the father of the present appellant who was respondent in that case. Therefore the finding as to the Wakf being a public or private Wakf was wholly inconsequential and unconnected with the actual grounds of which this litigation was disposed of. Such a finding was clearly obiter dictum and could never constitute a final decision in the suit. It is true that the learned District Judge had gone to the extent of decreeing the cross objections. As their Lordships pointed out in this decision that part of the order would be an ultra vires order because such an inconsequential finding was not only outside the scope of sec. 92 but which could never be incorporated as a part of the decree. Therefore in any event this question was only a collaterally or incidentally in issue in the earlier proceeding and the doctrine of res judicata by way of issue estoppel could never apply in such a case. Mr. Vakil vehemently argued that their Lordships were not concerned with deciding the plea of res judicata. There is hardly any substance in this contention as their Lordships in terms held that the finding was obiter dictum as it was completely inconsequential and if it was incorporated in decree the decretal portion should be deleted. That completely settles the law of the land as to the collateral finding when the suit under sec. 92 is ultimately dismissed on the unconnected ground that the plaintiff failed to establish the alleged cause of action of misconduct or breach of trust on which alone the suit was founded. Mr. Vakil ingeniously tried to argue that this was a jurisdictional issue because unless the trust was a public trust of a religious or charitable character the special reliefs under sec. 92 could never be claimed. Once a finding on this issue was given by holding that this was a private Wakf the subsequent finding on merits was without jurisdiction. Mr. Vakil also argued that this was a necessary finding and it was necessary step for giving a finding on merits and therefore this issue was necessarily involved in the earlier decision. This contention of Mr. Once a finding on this issue was given by holding that this was a private Wakf the subsequent finding on merits was without jurisdiction. Mr. Vakil also argued that this was a necessary finding and it was necessary step for giving a finding on merits and therefore this issue was necessarily involved in the earlier decision. This contention of Mr. Vakil runs contrary to the entire reasoning of their Lordships. Their Lordships in terms held that a finding as to the character of this trust was wholly inconsequential and unconnected if the ultimate dismissal of the suit is on the ground that the plaintiff had no cause of action for the said reliefs. If the suit could not be for this particular relief the decision on this preliminary point would only be on a collateral or incidental question and that is why the finding was in terms held to be obiter in the case. Even the other distinction made out by Mr. Vakil that this is a case where the finding is in favour of the defendant would hardly be material. After this question as to the character of this property was found to be outside the scope of sec. 92 it is immaterial a nd whether it is incorporated as a part of the decree by allowing such appeal or cross objections. Therefore on this first question it must be held that in the earlier litigation this matter whether this Wakf was a public trust or not within the meaning of this Act was never directly and substantially in issue and that the earlier finding could never preclude the present inquiry by reason of the doctrine of res judicata. ( 13 ) EVEN as regards the parties Mr. Vakil is in the same difficulties. That is why he urged the same technical contention that this argument was not advanced before the learned Single Judge. When my learned brother drew the attention of Mr. Vakil to explain how the parties were same in the two litigations Mr. Vakil only dodged this pertinent question of my learned brother after he was confronted with the plaint in the earlier suit. In the earlier suit the plaintiffs had filed the suit in their capacity as members of Edroos family and they had in terms stated both in paras 1 and 11 the interest they had in the suit. Vakil only dodged this pertinent question of my learned brother after he was confronted with the plaint in the earlier suit. In the earlier suit the plaintiffs had filed the suit in their capacity as members of Edroos family and they had in terms stated both in paras 1 and 11 the interest they had in the suit. Both the plaintiffs and the respondent No. 1 had the same interest so far as this was a family endowment. Therefore the plaintiffs in the suit could never be deemed to represent the adverse interest in this Wakf which was of the general body of the Mussalaman community. What the plaintiffs represented was the interest of the Edroos family alone. Merely because they made general allegations of breach of trust on the part of the appellants father it could never be said that the suit was of such representative character so as to bind the entire Muslim community. In Ahmed Adam Sait v. M. E. Makhri A. I. R. 1964 S. C. 107 Their Lordships in terms held that where the plaintiffs in the suit under sec. 92 did not claim and in fact did not represent the interest of any community other than Kutchi Memon community the suit instituted on such narrow basis could not be regarded as a representative suit so far as the Muslims of the other communities Kutchis residing in Bangalore were concerned. That is why the plaintiffs in the earlier suit had never alleged anything as regards the public religious or charitable purpose behind this public trust. There the grievance was because those members were excluded from the benefits which as members of the Edroos family the plaintiffs thought they were entitled and that is why all the allegations were made against respondent No. 1 challenging even his appointment and his right to manage this Wakf. In any event the Charity Commissioner was not a party to the earlier litigation and when the whole question arises in the context of the present Act and it has to be decided in the present perspective it could never be said that there would be any bar of res judicata on the ground that the parties in the earlier litigation were the same. ( 14 ) EVEN on the third ground as already pointed out there was no final judgment. ( 14 ) EVEN on the third ground as already pointed out there was no final judgment. The order of the learned District Judge was only obiter and inconsequential. It is well established that it is only the final judgment which would operate as res judicata. It is only when the earlier decision illuminates the same matter in issue in the subsequent litigation between the same parties that the doctrine can be invoked. In the present case instead of illuminating the present aspect it obscures the same and the whole contention is raised to cloud this issue. The earlier cause of action was different. The present cause of action or the matter in issue which has to be decided under the present Act was never decided in the earlier litigation and therefore the earlier judgment could never conclude this question. Even though the earlier suit might have been dismissed the present question on merits was never concluded and it could never be concluded when the whole perspective has changed. Therefore even on the third ground of Mr. Vakil must fail. ( 15 ) FINALLY even as regards the true legal position we have already considered that the entire perspective had changed and therefore the doctrine of res judicata could never apply in the present case. The procedural law could never preclude an inquiry which has now been done by the statutory officer in accordance with the present statute where the entire tests to be applied have changed. Therefore on all the four grounds Mr. Vakil has failed to make out any case for invoking the doctrine of res judicata in the present case even if such a doctrine could be invoked against a statutory officer holding a statutory inquiry. Therefore no ground whatever has been made out which would justify any interference in the present appeal. Both the Letters Patent Appeals must therefore fail and must be dismissed with costs. As sufficient time has now elapsed in this matter this matter shall now be expeditiously disposed of when the matter goes back to the learned District Judge for disposal on merits. .