COMMISSIONER OF WAKFS, WEST BENGAL v. SAKINA KHATUN — 1974 DIGILAW 84 (CAL)

BANERJEE, J. ( 1 ) THIS appeal is at the instance of the Commissioner of Wakfs, West Bengal (defendant No. 7a) arising out of a suit for declaration that the property in question, being No. 4. Suharwardy Avenue, is the secular property and not a wakf property and the deed of wakf dated 1st October, 1928 is not a valid and operative document. The subject-matter of the present appeal is 3 cottahs 7 chattaks 9 Sq. ft. of land with a four-storeyed building thereon, being premises No. 4, Suharwardy Avenue, P. S. Beniapukur, District 24-Parganas. On 1st October, 1928 the plaintiff executed a Bengali Deed purporting to be a wakf deed by which the purported to dedicate a sum of Rs. 5000/- for creating a wakf estate. The Deed, inter alia, provides therein that out of the said sum, he would deposit Rs. 2345/- with the Chairman, Improvement Trust, for purchase of some land from the said Trust and that he had a sum of Rs. 2097-4 annas I his current account in the Luxmi Industrial Bank Limited and Rs. 55-12-0 in cash in his hands, which form part of the said Rs. 5000/-, The said Rs. 5000/- would be considered as capital of the wakf estate and would be utilized for the purpose of acquisition of some land and in constructing a building there or would be invested in some lucrative business. It is further stated that out of the income of the property thus acquired or the business thus carried on, he would get 10%, 20% would be utilized for improving the property or the business, 7. 5% would be utilized towards the education of the boys of his relatives or of his community, 30% would be utilized for the education of his children or their descendants advancing the sum by way of loan, and 2. 5% would be spent for some acts conductive to the welfare of society and the balance 30% would be divided amongst his heirs in accordance with the Muslim Rules of Succession. It is further provided that the plaintiff would be the first Mutwalli of the alleged wakf, then his wife and thereafter the eldest amongst his sons, and thereafter the eldest amongst his descendants. It is further provided that the future Mutwalli would be able to incur debts to the extent of Rs. It is further provided that the plaintiff would be the first Mutwalli of the alleged wakf, then his wife and thereafter the eldest amongst his sons, and thereafter the eldest amongst his descendants. It is further provided that the future Mutwalli would be able to incur debts to the extent of Rs. 25,000/- at an interest of not more than 12% p. a. with sanction of 5 of the members of the committee and in case of consent of al the members of the committee a debt of Rs. 50,000/- at an interest not exceeding 12% p. a. the plaintiff's case is that the alleged wakf did not make any ultimate provision in case of extinction of the descendants of the plaintiff, for any charitable or religious purpose as ordained in the Hanafi School of Muslim Law, by which the plaintiff is governed nor was there any dedication of the property described in the Schedule A of the plaint as is compulsory under the Muslim Law, nor did it in law create any wakf-al-aulad for the benefit of the descendants of the plaintiff the alleged wakf, that the alleged object of the wakf was purely illusory. On 16th May, 1929 the plaintiff purchased the land for a sum of Rs. 4690/- but it is alleged that he paid the same from his own pocket but not withdrawing from any earmarked current account of his in the Luxmi Industrial Bank and the cost of the Stamp as well as the registration of the document was made by the plaintiff with his own fund. The plaintiff thereafter created a four-storyed building on the said land thus purchased at a huge cost of about Rs. 50,000/ -. The sum thus spent being his own funds and not from any fund of the alleged wakf estate and since the construction of the building, the plaintiff is residing in a portion thereof and is in possession of the rest by letting out to monthly tenants-at-will. The plaintiff, in spite of the alleged deed of wakf, is all along residing in the same in his personal capacity and is realizing the rent of the Bharatiyas also, and is utilizing the same for his personal expenses; and that not a single pice of the income was ever spent for any religious or charitable purpose. The plaintiff, in spite of the alleged deed of wakf, is all along residing in the same in his personal capacity and is realizing the rent of the Bharatiyas also, and is utilizing the same for his personal expenses; and that not a single pice of the income was ever spent for any religious or charitable purpose. It may be further mentioned that in the alleged deed of wakf there appears a provision for the appointment of a committee consisting of 11 members; the plaintiff begs to state that the consent of those persons named in the deed as members was not taken nor their approval ever obtained before inserting their names in the deed and as such the wakf deed has not been acted upon. It is alleged that the plaintiff being desirous of raising some loan on account of his personal need wanted to mortgage the property in suit but that intending money-lenders are not agreeable to advance loans on the property on account of the so-called deed of wakf and its so-called enrolment. In December 1959, the plaintiff wanted to mortgage the property in suit but failed to have the same for the reasons stated above and hence the suit. The suit was filed originally against the members of the committee of the wakf and others. The Commissioner of wakfs was not made a party but the Commissioner of wakfs was added as a party on his own application under Section 71 f the Bengal Wakf Act and he alone contested the suit. In the written statement, it is stated that the deed of wakf is a valid and legal deed and it is binding on the plaintiff. It is not true that the alleged wakf deed did not make any ultimate reversion in case of extinction of the descendants of the plaintiff for any religious and charitable purpose. The said wakf property was enrolled and registered in the office of the Commissioner of wakfs by the plaintiff himself under Section 71 of the Bengal Wakfs Act and that the plaintiff filed an application before the Commissioner of wakfs on or about 10th June, 1935 under section 44 of the Bengal Wakfs Act, 1934 for the enrolment of the said wakf. It appears that after receiving the application the Commissioner of wakfs after observing all the formalities enrolled the said wakf estate as E. C. No. 974 in the year 1935 and since that date the plaintiff is treating and using the wakf estate and thereafter the ?a? schedule property as a wakf property and as such the plaintiff is at present estopped from denying the wakf character of the ?a? schedule property. It is not true that the plaintiff is all along residing in the suit property in his personal capacity and that he is realizing the rents of the suit property as his personal property. It appears that the plaintiff was recorded as Mutwalli in the Calcutta Municipal Register. The plaintiff is realizing the rents from the tenants of the wakf property in his capacity as a Mutwalli and he is also using the said income in his capacity as a Mutwalli. In the circumstances the Commissioner of wakfs prayed for that the suit to be dismissed. At the hearing of the suit one plaintiff deposed to prove the plaintiff's case and on behalf of the Commissioner of wakfs a clerk deposed. The learned Subordinate Judge decreed the suit and hence the present appeal at the instance of the Commissioner of wakfs. ( 2 ) MR. B. C. Mitter on behalf of the Commissioner Wakfs contended that the property is a wakf property as is found from the deed itself. The plaintiff in the Corporation Assessment Register has mutated his name as Mutwalli. It also appears from the deed that the plaintiff has realized the rents from the tenant in respect of the premises as Mutwalli. ( 3 ) DR. S. Das on behalf of the respondents, who is alleged to have got the property as such from the descendants of the plaintiff, the plaintiff having died in the meantime and was added, supported the judgment of the learned Subordinate Judge on the ground that the wakf is not a wakf because there was no ultimate benefit to the poor. In paragraph 2 of the wakf deed it appears that everything is being given to the Mutwalli and his family and nothing was left for the poor and there was no ultimate benefit to the poor. In that view of the matter the deed of wakf on the fact of it cannot be said to be a valid wakfnama. In paragraph 2 of the wakf deed it appears that everything is being given to the Mutwalli and his family and nothing was left for the poor and there was no ultimate benefit to the poor. In that view of the matter the deed of wakf on the fact of it cannot be said to be a valid wakfnama. The plaintiff himself was examined. It is stated that the plaintiff was a Deputy Executive Officer of the Calcutta Corporation and he executed the deed of wakf of the property for his family for ever. It is alleged that he purchased the property with his own money and did not withdraw any money from the Luxmi Industrial Bank for this purpose. It is also stated that he spent Rs. 45,000/- to construct the 4 storied building on the suit land out of his own money and he had no intention of dedicating the suit land or the suit house to God. In his cross-examination it is stated by him that the enrolled the suit property as wakf property under the advice of his friend Khan Bahadur Abdul Momin, 1st Wakf Commissioner of Bengal. He further stated that he ever spent any money for wakf purchase and the statement in the petition of enrolment to the contrary is not correct and in his cross-examination it is stated that the enrolment petition (Ext. A) was signed by him and the same is correct except the spending of Rs. 120/- per year for charity. It is also stated that he paid contribution to the Commissioner of Wakfs and the Commissioner of Wakfs issued letters to him for this contribution. From 1928 to 1959 he did not inform the Commissioner of Wakfs that the wakf deed (Ext. 1) was not correct because during this period he had no necessity of borrowing money. The plaintiff himself was a member of the wakf Board and he did not place before the Board that his wakf deed was not valid because that question did not arise. He resigned his membership of the Wakf Board after he filed the suit. It is admitted that he got the tax bills of the disputed house. In these papers the suit property has been described as wakf property and in the Corporation Register his name was recorded as Mutwalli of the wakf estate. He resigned his membership of the Wakf Board after he filed the suit. It is admitted that he got the tax bills of the disputed house. In these papers the suit property has been described as wakf property and in the Corporation Register his name was recorded as Mutwalli of the wakf estate. It is also admitted that he realized the rent from the tenants and in those papers the suit property was described as wakf property. On behalf of the defendant No. 7a one clerk was examined and it is stated that the disputed property is a wakf property and that the plaintiff is paying contribution. ( 4 ) THE main question, therefore, is that whether the deed (Ext. A) is a wakf deed. It will appear from the deed itself which is dated 1st October, 1928 that the plaintiff was making a wakf of Rs. 5000/- on the terms mentioned herein. In the deed itself it is stated that Rs. 5000/- would be treated as capital and out of the profits of the said capital the Mutwalli will get 10% of the income of the property or business under wakf; 20% shall be spent for improvement and increase in income of the property or business loan for the benefit of the person concerned as per rules laid down in paragraphs 15 and 16 shall be paid to the extent of 7 ?% for imparting religious training and knowledge in worldly affairs to the children of his kinsmen and other co-religionists and to the extent of 30% for imparting religious training and knowledge in worldly affairs to the sons and daughters born of his lions and the children of their descendants; and 2 ?% shall be spent for other works of social welfare and the remaining 30% shall be received by his heirs in accordance with the provisions of Sariyat (Muslim Seriptures ). But so long as he will be alive, the aforesaid remaining 30% shall be utilized for adding to the income of the property. At the time of his death, if his debt remains payable by the wakf estate then his heirs shall get only 15% till the debt is cleared off. But so long as he will be alive, the aforesaid remaining 30% shall be utilized for adding to the income of the property. At the time of his death, if his debt remains payable by the wakf estate then his heirs shall get only 15% till the debt is cleared off. In order to calculate the net income, the balance sum of money which remains after deducting all expenses relating to the estate and the interest payable for the debt of the estate if any, from all kinds of income of the estate, is to be taken as the net income of the estate. In computing the income from business the income excluding the depreciation in vogue relating to the business would be taken as such. The plaintiff himself was a Mutwalli of the wakf estate and thereafter he made a provision for future Mutwalli. There are further provisions for granting Karz-e-Hassans (loan for the benefits of grantees ). With regard to the applicant for Karz-e-Hassans who will get religious training and knowledge in worldly affairs if the committee grants him Karz-e-Hassans then he and his guardian shall have to sign a bond agreeing that whenever they be able by grace of God they willtry their best to repay their Karz-e-Hassans and to effect improvement of the Committee a person does not repay the Karz-e-Hassans even though he is able to do so then the committee, if it so desires, may not grant any Karz-e-Hassans to any of his children so long as that person is alive. If the Karz-e-Hassans be repaid then 2/3 of it shall be spent for the income of the estate and 1/3 for social work. If any person helps with excess sum of money, then it shall be spent for the purpose for which the help is offered. If no purpose be mentioned and if the helper happens to be any of his descendants in succession then the said help will be spent under the provisions of the aforesaid paragraph 23 otherwise it will be spent only for social welfare work. Mr. Mitter argued that the wakfnama is a valid wakf where Dr. S. Das argued that it cannot be a valid wakf at all. Mr. Mitter argued that the wakfnama is a valid wakf where Dr. S. Das argued that it cannot be a valid wakf at all. The Court below held that as there was no ultimate gift to the poor and as the property was all along being used as personal property, as all that has been made wakf property is only a sum of Rs. 5000/-, this property cannot be wakf property and held that the deed of wakf is invalid. From reading the wakfnama it appears to us that it is not correct to say that the deed of wakf is invalid. It is true that the major portion of the wakf deed provides for the benefit to the wakif or his family under the Muslim Law. It is possible for a Mohammadan to make a wakf for the benefit of his family. It has been specifically provided in the Mussalman Wakf Validating Act 1913 that ?it shall be lawful for any professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Mussalman Law for the maintenance and support wholly or partially of his family, children or descendants and where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his life time or for the payment of his debts out of the rents and profits of the property dedicated. Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman Law as a religious, pious or charitable purpose of a permanent character. ( 5 ) WHILE Mr. Mitter contended that there was an ultimate benefit to the poor, Dr. Das contended that there was no ultimate benefit at all. Karz-e-Hassans, it is argued by Dr. Das cannot be any benefit to the poor but only a commercial loan to be repaid by the borrower. ?karz-e-Hassans means according to the Persian Arabic and English Dictionary by Richardson, money advanced without interest and repaid at the pleasure of the borrower. Mr. Mitter, therefore, contended that the Karz-e-Hassans is beneficial and it means that the ultimate gift is to the poor. ?karz-e-Hassans means according to the Persian Arabic and English Dictionary by Richardson, money advanced without interest and repaid at the pleasure of the borrower. Mr. Mitter, therefore, contended that the Karz-e-Hassans is beneficial and it means that the ultimate gift is to the poor. It is further clear that the Karz-e-Hassans is beneficial to God according to the Mussalman Law and therefore, there is a gift to God in the wakfnama and the Court below was wrong in holding that there was no provision for gift to God at all. Therefore, in my opinion, this cannot be a commercial loan as sought to be argued by Dr. Das. It will appear that from the very creation of the wakf the plaintiff purchased the property with the wakf money. It is stated by the plaintiff that no part of the wakf money was spent for the purchase of the property. It is the admitted case that there was a sum of Rs. 557-12-0 cash in his hands and Rs. 2345/- was with the chairman of the Calcutta improvement Trust. It will appear from the evidence that the plaintiff himself declared the same as wakf property in the application for the enrolment of the wakf property under the Bengal Wakf Act and along with the application, the copy of the wakf deed was furnished. The property was recorded in the Corporation f Calcutta as wakf property and the plaintiff was the Mutwalli. It was further stated that the rent was being realized from the tenants as Mutwalli and the property was described as wakf property in the schedule ?a'. ( 6 ) IN the circumstances, as aforesaid, it cannot be said that the property is not a wakf property. ( 7 ) IN the result, the appeal is allowed. The suit is dismissed. In the facts and circumstances of the case, there will be nor order as to costs. Bhattacharyya, J. I agree with my learned brother as to his findings. The appeal must be allowed with costs. The judgment and the decree of the trial court are to be set aside and the original suit shall stand dismissed. ( 8 ) THE plaintiff was Hazi Abdur Rashid Khan. In short, his case appearing in the plaint is that on 1. 10. The appeal must be allowed with costs. The judgment and the decree of the trial court are to be set aside and the original suit shall stand dismissed. ( 8 ) THE plaintiff was Hazi Abdur Rashid Khan. In short, his case appearing in the plaint is that on 1. 10. 28 corresponding to the 15th Aswin 1335 B. S. he executed a Bengali deed of wakf purporting to dedicate a sum of Rs. 5,000/- for creating a wakf estate. That amount would be taken as capital and with it some land would be purchased and a building was to be constructed thereon. It was stated in the deed that out of the income of the property thus acquired, certain stated portion would be utilized for improving the property, some portion for the education of the boys of his relatives and community, some portion for the education of his children and other descendants by advancing sums as loans viz. Karji Hasana, some amount of income of the estate would be spent for the welfare of the society, the donor would take some portion and the balance of 30% of the income would be divided amongst his heirs according to Muslim rules of succession. Amongst other clauses, it was stated that the plaintiff would be the Mutwalli during the lifetime and there was provision for raising loan for the good of the estate. It is stated that the plaintiff purchased the land and constructed the building at the suit premises No. 4, Surawardy Avenue, P. S. Beniapukur, 24 Parganas with his own personal money and not with any part of the sun of Rs. 5,000/- mentioned in the deed. The plaintiff's case is that the wakf deed is purely illusory having no intention on the part of the plaintiff to divest himself of the property but it was an effort to tie up indefinite property (then not acquired) or some business (then not stated) in amongst the members of the family for an indefinite to avoid the law against perpetuity. It has been alleged in the plaint that the plaintiff had been enjoying the property as his personal property without spending any of its income for religious or charitable purpose. There was no dedication of the property for purposes of wakf. The plaintiff wanted to say in the plaint that the deed of wakf was fictitious and was never acted upon. There was no dedication of the property for purposes of wakf. The plaintiff wanted to say in the plaint that the deed of wakf was fictitious and was never acted upon. The plaintiff wanted to raise some loan by mortgaging the suit property but due to the existence of the deed, no loan could be available. Moreover as the defendants appearing as beneficiaries claimed the property as wakf, the plaintiff started the action. ( 9 ) THE Commissioner of Wakfs appeared in this case and contested the plaintiff's suit being added as defendant No. 7 (a) by filing a written statement. The gist of his case amongst other grounds is that the wakf deed was real and the plaintiff intentionally executed the same and acted upon it. The story of acquisition of the suit property by the plaintiff with his personal money is not true. The wakf deed was properly dedicated and valid. The plaintiff never treated or enjoyed the property as his. He acted as Mutwali of the wakf estate and held the property as such. He enrolled the estate in the office of the Commissioner of wakfs. He also paid the contribution under sec. 59 of the Bengal Wakf Act 1934 from time to time. It has also been alleged that the plaintiff's other relatives reside in Pakistan and by selling the property he has the intention to join his relations in East Pakistan. It is also pleaded that the suit is bad for non-joinder of necessary parties and barred by the principles of estoppel. ( 10 ) THE learned Subordinate Judge who tried the suit held on the sole oral evidence of the plaintiff that the latter with his own money acquired the suit property and that no income of the property was spent for charitable and religious purposes. The learned Subordinate Judge held that the suit property was not wakf property. It was further held that the wakf deed in question was void in law as the social work referred to in the deed was vague and uncertain. The learned Judge, it appears, was of the view that the disputed Wafk Deed was a camouflage. The suit was decreed with costs against the contesting defendant No. 7 (a) and exparte against other without costs. Against the decision of the trial court, the Commissioner of Wakfs, West Bengal, has preferred the present appeal. The learned Judge, it appears, was of the view that the disputed Wafk Deed was a camouflage. The suit was decreed with costs against the contesting defendant No. 7 (a) and exparte against other without costs. Against the decision of the trial court, the Commissioner of Wakfs, West Bengal, has preferred the present appeal. ( 11 ) THE first attack by Mr. B. C. Mitter, the learned counsel on behalf of the appellant has been directed against the finding of the trial court that the deed of wakf was void and invalid. His contention is that the deed fulfils all the conditions of a valid wakf, that there is no vagueness and uncertainty in any of the clauses or purposes of the deed, that charitable purposes are indicated in the deed and that there has been proper dedication as required. Dr. S. Das, the learned counsel for the contesting respondents has, on the other hand, submitted that the deed is bad as there is no dedication in the deed in favour of God, the purposes mentioned in the document are neither religious nor charitable and the purposes of social work are vague and not for the interest of the Muslim community. ( 12 ) WHATEVER might have been the character of wakf estate, the Introduction of the Mussalman Wakf Validating Act, 1913, has settled the condition of ?wakf?. In the said Act we get in sec. 2 (1) - ?wakf? means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable. In the said Act we get in sec. 2 (1) - ?wakf? means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable. ( 13 ) SECTION 3 of the said Act says: it shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Mussalman law, for the following among other purposes: (a) for the maintenance and support wholly or partially of his family, children or descendents and (b) where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his life time or for the payment of his debts out of the rents and profits of the property dedicated: provided that the ultimate benefit is in such case expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character. ( 14 ) IT is therefore clear that a Mahammadan can create wakf for the maintenance and support of his family or descendants as indicated above. According to the plaint, the plaintiff was governed by the Hanafi School of the Muslim Law. In Syed Ameer Ali's Treatise on Mahammadan Law, Vol 1, Ed. 1885 at page 183, there is a lecture on the Constitution of Wakf where we find: it may, at the very outset of this enquiry, be stated that there is no essential formality or the use of any express phrases requisite for the Constitution of a Wakf. and at page 186 is quoted a dictum as follows: ?wakf or appropriation is effected by the expression of the word wakf (detention or appropriation) combined with that of Sadkah or charity or the expression of the word wakf alone is sufficient for the purpose?. At page 189 of the same book we get ?the word Wakf alone or in combination with hubs establishes a wakf according to the approved opinion which is that of Abu Yusuf?. Further at page 20 Ammer Ali goes on to sayif one should say, 'my land is Sadakh (charity) for God or ?appropriated to almighty God', it would become wakf. Further at page 20 Ammer Ali goes on to sayif one should say, 'my land is Sadakh (charity) for God or ?appropriated to almighty God', it would become wakf. So also if he were to say, 'my land is appropriated in the way of Almighty God' or 'to seek the regard of Almighty God? or if he were to say 'my land is appropriated for a good purpose, it would be as lawful as if he had said a Sadkah (charity) appropriated. ( 15 ) NEITHER the statute nor Mahammadan Jurisprudence enjoins that in the deed of wakf there should be express dedication to the Almighty God. If the wakf is created for the purposes already stated, then it shall be taken that the dedication is to be Almighty and the same cannot be revoked. ( 16 ) IN the case before us Dr. Das does not dispute that the clauses in the wakf executed by the plaintiff are for the benefit of the plaintiff's children, descendants and other men but his grievance is that there is the object of his wakf of lend money to persons which implies that the object is not charitable or religious but commercial, in order to gain interest as business. In this connection our attention has been drawn to several clauses which refer to giving 'karza' hasana' i. e. , loan for interest, as Dr. Das suggests, to persons who require it. ( 17 ) THE word 'karz-e-hasan' appears in the Holy Kuran. Our attention has been invited to the word occurring in verse 245 of Sura-Baour. There is reference to offer 'karz-e-hasan' to the Almighty who, it is stated there, will multiply the same, Several translations of 'kuran' were placed before us. In the Bengal translation 'al Kuran' published by Islami Academy, Dacca (3rd Reprint in Falgun 1379 B. S.) page 64, we fid a verse 245 that 'karze Hasana' has been translated as 'uttam Rin'. In the commentary at the footnote it is stated that the loan which is given selflessly and without interest and not demanded for repayment of the borrower is unable to pay back, is known as 'karj Hasana'. In ?the Holy Quran?, Text, Translation and Commentary, by Abdulla Yusuf Ali, Ed. In the commentary at the footnote it is stated that the loan which is given selflessly and without interest and not demanded for repayment of the borrower is unable to pay back, is known as 'karj Hasana'. In ?the Holy Quran?, Text, Translation and Commentary, by Abdulla Yusuf Ali, Ed. 1938 at pages 97, 'karje Hasana' has been translated as 'beautiful loan' and the commentary explains by saying that spending in the cause of God is called metaphorically ?a beautiful loan?. In the ?holy Quran? edited by Maulvi Muhammad Ali in 1920 the word has been spoken of as 'goodly gift' and in the commentary in verse 245 of Sura II Bakara, 'karji Hasana' has been referred to as ?a good action or gift?. This word has a special signification. It cannot mean an ordinary loan for gain or business purpose. 'karji Hasana' implies benevolent advancement of money free to be repaid at the pleasure of the borrower and without expectation of any material gain or interest out of it. ( 18 ) IN the present case, the wakf deed executed by the plaintiff contains provisions for giving 'karje Hasana' to applicants in connection with the learning of 'dini and Duniavi Elem'. There is no direction in the deed for paying interest for such 'karje Hasana'. In our view, therefore, Karje Hasana provided for in the wakf deed, is for charitable and religious purposes. Charitable loan which is helpful to people is permissible. In the book of Ameer Ali already referred to the subject matter of wakf is dealt with. At page 217, it is stated, ?it has been held that wakf of warm clothing to the poor which would be used in winter and then returned is lawful?. ( 19 ) NEXT it has been argued by Dr. Das that the clause for spending 2. 5% of the income of the estate for other social works is bad for it is vague and does not conduce to the interest of the members of the Muslim community. The second clause of the wakfnama Ext. 1 discloses, in short, the purposes of the wakf and how the income of the estate would be spent. From the reading of the clause itself, it will appear that the wakf was intended to benefit the donor's children and descendants, his relations and other persons professing the donor's muslim religion. The second clause of the wakfnama Ext. 1 discloses, in short, the purposes of the wakf and how the income of the estate would be spent. From the reading of the clause itself, it will appear that the wakf was intended to benefit the donor's children and descendants, his relations and other persons professing the donor's muslim religion. The income of the estate is stipulated to be spent as follows: -10% for mutwalli. 20% for the increase and improvement of the estate and its income. 7. 5% towards karje Hasana for the teaching of the donor's relatives and other persons of his religion 'dini and Deeniavi Elemm'. 30% towards Karje Hasana for such teaching relating to donor's own children and descendants, 2. 5% for other words beneficial to the society. 30% for the heirs after the death of the donor but so long as he would be alive as mutwalli, this amount would be spent for the income of the estate. ( 20 ) IN order to ascertain the intention of the donor, the entire document has got to be read and considered as a whole. From the reading of the wakf deed Ext. 1, we have no doubt that the purposes of the document was to benefit not only the heirs and kinsmen of the donor but also the members of the muslim community. Works beneficial to the society meant charitable service to the muslim community of the donor. Apart from this aspect there is another fact to be considered. It is provided that a small fraction of the income of the wakf estate shall be spent for the good of the society. Now this society means the society in which the donor lived. It cannot imply society of different people not connected with him. Admittedly the law is that the wakf would be for the 'purposes recognized by the Mussalman law as a religions, pious or charitable purpose of permanent character'. The purpose of rendering any good service for the benefit of the society of the donor professing muslim faith must undoubtedly be a charitable purpose. Ameer Ali in his book at page 333 while discussing on wakf in favour of neighbours says, ?the neighbours, whether Muslim or infidel, male or female, free or makatib, minor or adult, are entitled and the produce is to be divided among them. Ameer Ali in his book at page 333 while discussing on wakf in favour of neighbours says, ?the neighbours, whether Muslim or infidel, male or female, free or makatib, minor or adult, are entitled and the produce is to be divided among them. ?at page 369 of the same book the following interesting passage appears:a Moslem cannot make a wakf in favour of an alien enemy, though he may be a blood-relation, but he can make it in favour of a non-Moslem subject (Zimmi) of the same sovereign, whether he be a stranger in no way related to him, for it is the conferring of kindness or charity on a human being, who may be inducted to take the right way. The validity of a wakf to zimmi is maintained on the ground that a sadkah or lama may be validly given to him. Kindness or charity even to a non-mulsim member of a society or neighbouring people of the same place of the country amongst whom the donor lives in amity is certainly not opposed in any way to the Muslim law. This kindness or charity accepted by all religions is but to spark of divine illumination which sanctifies the human heart and mind to render the human society an abode of peace and happiness. ( 21 ) THE next question is whether this item for doing social good is uncertain. Dr. Das wants us to declare the purpose to be uncertain or indefinite on the ground that it has not been stated specifically what particular act is to be done for the good of the society. I am afraid, this contention is untenable. The purpose as stated is quite clear and definite. Items of works to be done need not be stated. It is not practicable to do it. As and when occasions will arise, income will be spent for the charity or welfare of the needy people of the society as circumstances will demand. ( 22 ) THE next contention of Mr. Mitter is that on the evidence on record and the circumstances of the case, it should have been held that the wakf deed, Ext. 1 was a bonafide document validly executed and acted upon by the donor plaintiff and that the trial court was wrong to hold that the document was invalid. ( 22 ) THE next contention of Mr. Mitter is that on the evidence on record and the circumstances of the case, it should have been held that the wakf deed, Ext. 1 was a bonafide document validly executed and acted upon by the donor plaintiff and that the trial court was wrong to hold that the document was invalid. The plaintiff has alleged that the wakf deed executed by him was a paper transaction and that it was never acted upon as he did not mean to create any wakf. Syed Ameer Ali in his Tagore Law Lectures on Mahammadan Law published in 1895 already referred to at page 309 says. WHEN a person makes a dedication by a deed and afterwards says he does not know what is contained therein and that he did not intend to create an irrevocable wakf in such case, if it appears from the evidence of witnesses or otherwise, that the document was either read by, or explained to the person, and that he fully understood its purport, his denial would be of no avail. And this principle does not apply to wakf alone but to all transactions. In the present case, the plaintiff wants to say that he did not intend to create wakf and to act upon it. The onus is upon him to prove that the document was in fact not what it appeared to be. The plaintiff has examined himself alone. There is no other witness. He does not say that the contents of the document were not known to him. His case is that he did not act upon it. The evidence is that he excluded the deed with full knowledge of its contents. It was executed by the plaintiff of his own free will. He got it registered. He applied before the Commissioner of Wakfs. The application is Ext. A written by the plaintiff himself duly singed. He applied as mutwalli describing the suit premises as wakf property on the basis of Ext. 1, the wakf deed, a copy whereof was filed along with the application. In the application the plaintiff mentioned the income and expenditures per year. He described the wakf as 'aulad'. Along with different heads of expenditures, he stated that a sum of Rs. 700/- per year was paid towards interest, that a sum of Rs. 1, the wakf deed, a copy whereof was filed along with the application. In the application the plaintiff mentioned the income and expenditures per year. He described the wakf as 'aulad'. Along with different heads of expenditures, he stated that a sum of Rs. 700/- per year was paid towards interest, that a sum of Rs. 120/- was paid towards charities and balance of the expenditure was made towards debts, allowances and education expenses of descendants. Under the verification in the application, the plaintiff solemnly declared that the contents of the application were true and that he concealed nothing. The application for enrolment was received by the Office of the Commissioner of Wakfs on 10. 6. 35. the wakf deed was executed and registered in 1928. The order-sheet of the enrolment case No. 924 relating to the present wakf Ext. B shows that even in 1940, the plaintiff as mutwalli made payments on the basis of the present wakf. The suit was filed in Mach, 1960 after about 32 years from the date of the execution of the deed. ( 23 ) THE plaintiff was an educated man. He was the Deputy Executive Officer of Calcutta Corporation. He admitted that he was a pleader and was also a very responsible officer of the Corporation. On his own application his name was recorded in the Corporation Register as the Mutwalli of the wakf estate in respect of the suit property. He was also a member of the Wakf Board. He paid contribution to the Wakf Commissioner as directed from time to time for the suit property. The plaintiff admitted that the statement in Ext. A, the application for enrolment as correct except the statement regarding payment of Rs. 120/- for charity. He also realized rents from the tenants of the suit premises as mutwalli of the wakf estate and that in the rent receipts the property was described as wakf. The plaintiff admitted that he had not paper to show that he purchased admitted that the recitals of the deed of wakf. Ext. I are true. It is curious to note that the plaintiff said in his evidence that he came to know in 1959 that the wakf deed was not valid when he wanted to raise loan by mortgaging the suit property. Ext. I are true. It is curious to note that the plaintiff said in his evidence that he came to know in 1959 that the wakf deed was not valid when he wanted to raise loan by mortgaging the suit property. This statement along with the other ones already mentioned coupled with the facts and circumstances disproves the case that the plaintiff never intended to create wakf or that he knew from the very start that the deed was not meant to be a deed of wakf but a sham transaction. Moreover, no reasonable ground has been assigned by the plaintiff as to why he wanted to create such a bogus transaction as alleged. ( 24 ) ON the other hand, defence case appears to be reasonable. The plaintiff admits that all his children were in Pakistan and staying there. His relations are also there. The evidence and circumstances prove that upto 1959 the plaintiff had been treating the suit property as wakf on the basis of Ext 1 but in 1959 for the first time he wanted as he said, to raise loan by mortgaging the suit premises but he was unsuccessful. He, therefore, brought the present action for declaration that the wakf deed, Ext. 1 was void and that the property was his personal property. The plaintiff had all along been acting as the mutwalli of the suit property on the basis of Ext. 1. No paper or any reliable evidence has been produced to prove that the plaintiff purchased the land and constructed building with his money or that he treated the property as personal. In the deed there is mention of the sum with which the land was to be purchased. There is a clause in the deed that loans could be raised to the extent of over Rs. 50,000/- for the wakf estate. In the application for enrolment, Ext. A there is mention of payment of the Rs. 700/- as interest and also of payment of debt. They are admitted by the plaintiff to be correct statements. The plaintiff has not explained why there was debt. Interest indicates that a huge sum of money was borrowed on behalf of the estate. In the application for enrolment, Ext. A there is mention of payment of the Rs. 700/- as interest and also of payment of debt. They are admitted by the plaintiff to be correct statements. The plaintiff has not explained why there was debt. Interest indicates that a huge sum of money was borrowed on behalf of the estate. In the absence of any papers of purchase of land or construction of building and of any explanation by the plaintiff for non-production of these documents, it is not unreasonable to hold that the plaintiff as mutwalli purchased the land with the money mentioned in Ext. 1 and constructed building thereon by raising loans for which he paid interest as indicated in Ext. A. Even if any mutwalli adds his own personal money or property to the corpus of the wakf property and treats the same as wakf property without any personal claim, he cannot subsequently turn round and say that the property included in the wakf is his. However, that question does not arise here as there is no acceptable evidence that any part of the suit property was acquired by the plaintiff with his personal money as alleged. It is not unreasonable to suggest that as the sons and daughters and relatives of the plaintiff were in Pakistan, he wanted to sell the wakf property as his own and to go to East Pakistan to live there. The plaintiff sought permission of the Wakf Commissioner for mortgaging the suit property. The plaintiff lastly admitted that he filed the suit when he could not mortgage or sell the property because of the wakf deed. ( 25 ) THE learned trial court failed to read the entire evidence and the circumstances of the case. In view of the contradictory, uncorroborated, falsified and absurd evidence of the plaintiff, the finding of the Subordinate Judge below is perverse, unreasonable and wrong. We have no doubt to hold that the plaintiff's deed of wakf was legal and valid. It was also acted upon. The suit property was wakf property and not the personal property of the plaintiff. The plaintiff's case has rather been disproved. The suit was speculative and frivolous. It is liable to be dismissed. ( 26 ) AS the appellant succeeds on the grounds discussed above, other points raised by the appellant have not been dealt with. Appeal succeeds. .