JUDGMENT V. Khalid, J. 1. The first defendant in a suit for partition is the appellant. He and plaintiff are the children of one P. P. Ahammed Sahib and Biyyathukutty Umma. They had two other children, a daughter by name Pathavu Umma and a son by name Kunhammad. Father died on 21st December 1958, mother in 1936, Pathavu Umma on 30th September 1955 and Kunhahammad on 28th January 1972. The 2nd defendant is the widow of Kunhahammad and defendants 3 to 5 are the children of Pathavu Umma. The parents of the plaintiff and the first defendant had movable and immovable properties. After their death, the plaintiff, 1st defendant and Kunhammed entered into a partition deed Ext. A1 dated 18th November 1961. As per that partition deed, 'A' schedule properties were set apart to Kunhahammed, B schedule properties to the first defendant and C schedule to the plaintiff. Kunhahammad did not join that document. He filed O. S. No. 45 of 1962 on the file of the Ottapalam Sub Court for partition of all the properties left by his parents ignoring Ext. A1. The matter appears to have been compromised and the first defendant herein who was the first defendant there also filed I. A. No. 915 of 1963 for recording a compromise between him and deceased Kunhahammad. The compromise was recorded and suit was dismissed on 3rd August 1965 as per judgment Ext. A4. Kunhahammad filed A. S. No. 429 of 1965 in this Court against that decision. It was subsequently dismissed for want of prosecution. The plaintiff was not a party to Ext. A4 compromise. The properties set apart to Kunhahammed under Ext. A1 are items 8 to 17. According to the plaintiff, the first defendant trespassed upon these properties and after that they are in his possession. The contention that items 1 to 7 were dedicated by his father in Wakf and therefore not available for partition is denied. Her case is that they are not Wakf properties, that the document of Wakf put forward is not valid, that it was not acted upon, that the father was in possession of these properties till his death and that he dealt with them as his own. Item 18 belonged to the mother. The plaintiff claimed 3/10 shares in items 1 to 7 and 1/4th shares in items 8 to 18. 2. Item 18 belonged to the mother. The plaintiff claimed 3/10 shares in items 1 to 7 and 1/4th shares in items 8 to 18. 2. The contention of the first defendant in his written statement is that the suit is not maintainable as it is barred on account of the decision in O.S. No. 45 of 1952, that items 1 to 7 are Wakf properties and hence not partible, that he is in possession of these items only as the Muthavally, that item (8) belonged to the plaintiff and that he is not in possession of items 8 to 17 and that he is not liable for mesne profits. 3. The Court below repelled the contention that items 1 to 7 were Wakf properties. It was held that all the items were available for partition. A preliminary decree was passed in favour of the plaintiff as prayed for. The first defendant was made liable for mesne profits also. This appeal is therefore filed against the decree and judgment of the Court below. 4. When this appeal came up for hearing, the appellant's counsel represented to us that he had filed an application for reception of additional documents to establish his case that items 1 to 7 were Wakf properties and that items 8 to 17 had been assigned away by Kunhahammed to strangers. The only reason given in the affidavit field along with C.M.P. No. 20054 of 1977 for non-producion of the documents in the Court below is that it was not intentional and that they could not be produced despite due diligence and care. We not satisfy that the reasons given in the affidavate are either convincing or satisfactory. However, since the first defedant has put forward a case that items 1 to 7 are Wakf properties, Wakf having been created by a documents of 1934, which document was not produced before the trial Court and a consideration of which document will be extremely necessary for an adjudication of the rights in items 1 to 7, We think it necessary to admit this document. It is admitted in evidence and is marked as Ext. C-1. The application for reception of the documents is otherwise dismissed. 5. It is admitted in evidence and is marked as Ext. C-1. The application for reception of the documents is otherwise dismissed. 5. An affidavit was field by the appellant in the Court stating that he was wiiling to withdraw the case regarding items 1 to 7, Provided items 8 to 17 are declared not partible and he exonerated from liability for profits. This was not acceptable to the plaintiff. Hence the offer was not pursued. 6. Now we will consider the claim of the appellant that items 1 to 7 are Wakf properties. The statement in affidavit now filed by the appellant that he is willing to given up the case that items 1 to 7 are Wakf properties gives a lie direct to his case that they Wakf properties. Wakf properties cannot be bartered away at a man's sweet wills. Therefore, we have to examine these case independend of what the appellant has stated now. The Court below held in favour of the plaintiff on the ground that Ext. B-2 dated 4th Nov, 1946 which was put forward by the first defendand as the second Wakf deed did not in fact creat a Wakf, without the advantage of looking in to the previous Wakf deed of 1934 which we have now marked as Ext. C-1. The Court below however considered its effect with reference to the recitals about it in Ext. B-2 and found that the said document did not take effect, that the said document did not take effect, that the Wakf did not divest himself of his rights in the properties and that the successive Muthavallis appointed by that document did noty assume management. Against Ext.B-2 also, the Court below held that it was not acted up on, that the first defendang did not functon its Muthavally, that no accounts or vouchers by a produced and that no mutation was effected in favour of Muthavally. 7. We shall now examine the to documents and their terms. Ext.C-1 is dated 11th Sep, 1934. The documents as . The said document is executed by the father Ahammed in favour of his wife, Biyyathukutty Umma. the shedule contains three items and other movablea. The rectale in the document is to the effect that he has dedicated the properties in Wakf for his salvation of his parents and of his descendants. The documents as . The said document is executed by the father Ahammed in favour of his wife, Biyyathukutty Umma. the shedule contains three items and other movablea. The rectale in the document is to the effect that he has dedicated the properties in Wakf for his salvation of his parents and of his descendants. The recital Constituting the words of dedication is as follows: xxx xxx xxx This recital indicates that Ahammad had divested himself of all his rights but they are vested not in the almighty God as is necessary for a Wakf to be valid but in his wife. It is recited that the wife is to take the income, attend to the upkeep and repair of the properties, maintain themselves and from the balance recite one part of the quran every day, whole of quran in one month, recite Yaseen daily, to feed one Musaliar and to feed another Musaliar three times a day and to spend Rs. 10 for the annual ceremonies of the parents and to use the balance income for the children of the wife and their descendants in the tavazhi line. It is further provided that the directions in the deed are to carried out by the wife till her death, by the sons in the order od seniorityafter the wifes death and thereafter by the seniormost male son of his children. Provision is also made regarding the female children and their residence in the main house. It is also provided as to what should be done if any of his descendants acted contrary to the sipulation in the document. There is a further recital in the document constitutiing the propertis as common asset of the tarward of his wife. 8. On a careful reading of the document it becomes clear that what was intended was not an ultimate dedication of the properties in Wakf but an arrangement savouring of a gift deed by which properties are to be enjoyed as a tavazhi. Though there is a divestiture of his rights, there is no vesting of the rights in the almighty God. The inconsequential directions to spend a minute fraction of the income for some purposes which may remotely be referred to as religious though not Charitable cannot invest the document with the characteristics of a wakf deed; nor impress the properties covered by it with the character of wakf properties. The inconsequential directions to spend a minute fraction of the income for some purposes which may remotely be referred to as religious though not Charitable cannot invest the document with the characteristics of a wakf deed; nor impress the properties covered by it with the character of wakf properties. We have no hesitation therefore to hold that there is no Wakf created by this document. An additional reason to reject the case of Wakf as per Ext. C-1 is the execution of Ext. B-2 which includes properties in Ext. C-1. Once properties were dedicated in Wakf, the Wakif ceases to have any right to deal with them. We therefore, hold that Ext. C-1 did not create a valid wakf. 9. Now we will consider Ext. B2. This document also is styled as a .This document takes in seven items. Items 5 to 7 are the properties covered by Ext. C1. This document is executed by father Ahammed, son deceased Kunhahammed and the first defendant. In the preamble, mention is made of Ext. C1 and the reason for the execution of the document is stated to be the incapacity of Kunhahammed to look after the properties as Muthavally according to the directions in the earlier document and authorising the father to look alter the same. The object of the document is to keep the properties in perpetuity for the welfare of the family. The pious or religious objects mentioned in the document are as follows: Recitation of Quran daily by a Musaliar; observation of the death anniversary of the settler spending not less than Rs. 25; feeding a Musaliar three times a day; feeding of poor relatives; recitation of the Quran at the tomb of the settler and celebrating the Prophet's birthday by reciting moulood spending rot less than Rs. 25 and the balance income to be appropriated by the Muthavally. The Court below examined these provisions of Ext. B2 and held that it was only a 'fraud in the name of God and a shield to appropriate the income.' As in the case of Ext. C1, so in the case of Ext. B2, there is no ultimate or permanent dedication for any religious, pious or charitable purpose. Wakf means 'a permanent dedication by a Muslim for any purpose recognised by Muslim law as religious, pious or charitable'. The dedication must be permanent. C1, so in the case of Ext. B2, there is no ultimate or permanent dedication for any religious, pious or charitable purpose. Wakf means 'a permanent dedication by a Muslim for any purpose recognised by Muslim law as religious, pious or charitable'. The dedication must be permanent. Here the permanency is attached not to the religious or charitable purposes but to the succession to the property with the family of the settler. Except for a minor part of the income, the bulk of the income is to be enjoyed by the Muthavally as his remuneration. The evidence of P.W. 1 and D.W. 1 clearly shows that the income from the property is substantial. There is no permanent dedication of this income for any charitable purpose. The purposes described in the document are not of a permanent character either. 10. Reading of Quran in the private house or at the settler's tomb is a pious object. But it cannot be said that it constitutes a charitable purpose. Similarly, celebrating Prophet's birthday and recitation of moulood is religious. But there need not necessarily be a charitable purpose in it. The expenses earmarked for this is an amount not less than Rs. 25 per year. Though there is no evidence in this case, it is common knowledge that in reciting moulood, a few persons assemble, who need not necessarily be poor and filed themselves. This cannot be held to be charitable. A dedication in favour of one's kith and kin may be meritorious and perhaps pious but will not be charitable in the 1 gal sense or religious sense under the Muslim law. The courts are now veering round to the view that though Wakf-alal-aulad may be meritorious, they are not necessarily religious or charitable. What is more, the provisions in a Wakf deed giving properties to the members of the family to be enjoyed from generation to generation is outside the ambit of the Wakf Act, 1954 since under S.3 of the said Act, such a Wakf is valid only to the extent properties are dedicated 10 religious or charitable purposes. 11. To make our discussion complete, we shall refer to a few cases: In Kunhamutty v. Amad Musaliar AIR 1935 Mad. 11. To make our discussion complete, we shall refer to a few cases: In Kunhamutty v. Amad Musaliar AIR 1935 Mad. 29 a Division Bench of the Madras High Court held that the purpose of reciting the Quran over the tomb of a private person does not create a valid Wakf, for, there must be a charitable object, in addition to a pious and religious purpose. After reading S.3 of the Mussalman Wakf Validating Act, 1913, the Court repelled the contention that the Wakf will be valid if it is religious and pious only and that it need not be charitable as well. The Court relied upon another Division Bench ruling reported in Kale Poola Sahib v. Kuseeruddeen Sahib ILR (18) Mad. 201. The Court appeared to lay down the rule that recitation of Koran in a private place will not constitute a valid Wakf. 12. In Satter Ismail v. Hamid Sait AIR 1944 Mad. 504 another Division Bench had occasion to pronounce upon this aspect of the case. At page 510, it is observed: "The reading of the Koran in public and private places can only be regarded as religious and pious and it seems to us that it must also be regarded as charitable, for, the reading is for the benefit of all Mussalmans. The fact that money may be expended on the reading of the Koran in private places as well as in public places does not detract from the religious, pious and charitable character of the object." 13. In Syed Ahamed v. Julaina Bivi AIR 1947 Mad. 176 a Division Bench was considering a deed which directed the recital of Moulood Sheriff in the name of Prophet in a Mosque and distribution of food on the birthday of the prophet. In that case, the deed specified the following charities in Schedule D: "One Hattam in the name of Nabinayakam, one Hattam in the name of Shagul Hameed Andavar, one Hattam in the name of Meera Ahamed Shakatheri Avl., and one Hattam in my name after my death shall be recited on the full moon day of every month i.e., on the 14th day of the lunar month, at a cost of Rs. 5. On the 10th day of Rabi-lavil of each year Mavuluth shall be recited in the name of Nabinayakam in the Kattubapalli at Vijayapuram and food distributed, at a cost of Rs. 100". 5. On the 10th day of Rabi-lavil of each year Mavuluth shall be recited in the name of Nabinayakam in the Kattubapalli at Vijayapuram and food distributed, at a cost of Rs. 100". It was held that the objects specified in Schedule D were religious and charitable and especially recitation of Moulood at a public Mosque and distribution of food to the poor was certainly one that was charitable even under the English law. It was also held that it was clearly the settler's intention that usufructs should ultimately go to the charities, Iyengar, J., had occasion to refer to these cases in Koyamutty v. Muhammad 1957 KLT 874 and it was held that the reading of the Quran in public places or in a private place can be an object of Wakf. 14. In Mariyumma v. Andunhi 1979 KLT 231 a Division Bench of this Court overruled the decision in 1957 KLT 874 and held that reading of Moulood and recital of Koran in the private residence of the family cannot by themselves be regarded as objects for which a Wakf can be validly created. In that case, the Division Bench was dealing with a document which stipulated that the property shall remain as the joint property of the executants to be held from generation to generation subject to the restriction that they shall not be alienated to strangers and encumbered and that from out of the income there shall be recitation of Koran and Moulood in the family house of the settler. The court held that the basic requisite of a permanent dedication of the property for religious and charitable purposes being absent, the document could not create a valid Wakf. We are in respectful agreement with the dictum laid down there. We understand the dictum to mean that mere recitation of Quran or Moulood at a private residence will not constitute an acceptable object of Wakf. To constitute a Wakf not only should the object be religious, it should be charitable as well. Unless a permanent dedication to charity is ascertainable from a document, it should not be proper to declare it as a Wakf. 15. We will profitably refer to two Supreme Court decisions to highlight the view taken by the Supreme Court on Wakf-alal-aulad. In Mohd. Unless a permanent dedication to charity is ascertainable from a document, it should not be proper to declare it as a Wakf. 15. We will profitably refer to two Supreme Court decisions to highlight the view taken by the Supreme Court on Wakf-alal-aulad. In Mohd. Ismail v. Sabir Ali AIR 1962 SC 1722 the Court was dealing with the validity of a Wakf vis a vis the Oudh Estates Act. In the Wakf deed of that case an insignificant portion of the income from the properties was dedicated for certain religious purposes and the bulk of the income to the Wakif's family, from generation to generation, with the further direction that the whole of the income was to be utilised for charitable or religious purposes when the lire of succession of the Wakif was completely extinguished. Strong reliance was placed on the dissenting judgment of Ameer Ali J., in Bikani Mia v. Shuklal Poddar ILR 20 Cal. 116 (FB) which had held that Wakf in favour of Wakif and his descendants would be charitable purposes under the Muslim law. This dissenting judgment did not find favour with the Supreme Court. It is useful to remember that it was this dissenting judgment that afforded the nucleus for the enactment of Mussalman Wakf Validating Act, 1913. The Supreme Court noted with approval the dictum of the privy Council in Abul Fata Mohammed Ishak v. Russamoy Dhur Choudry 22 Indian Appeals 75 which held that dedication of the bulk of the income for the descendants of the Wakif could nor be treated as one for charitable purposes even under the Muslim law. It is again useful to remember that it was this judgment that sparked off an agitation to validate Wakfs-alal-aulad which ultimately resulted in the enactment of Act VI of 1913. The Court held: "........... In these circumstances, it must be held that the Wakf in the present case, though in theory it vests the property ia God Almighty, is not for charitable or religious purposes. It must therefore be treated as a gift to Cod Almighty in which however for generations to come God Almighty would have no beneficial ownership. Nor do we think that the Wakf Validating Act of 1913 makes any difference to the section. That Act specifically provides by S.3 that a muslim ran lawfully create a Wakf-alal-aulad. It must therefore be treated as a gift to Cod Almighty in which however for generations to come God Almighty would have no beneficial ownership. Nor do we think that the Wakf Validating Act of 1913 makes any difference to the section. That Act specifically provides by S.3 that a muslim ran lawfully create a Wakf-alal-aulad. This, however, does not mean that the purpose of such a Wakf is a religious or charitable purpose. This is made clear by the proviso to S.3, which provides that the ultimate benefit in such a case must be for a religious or charitable purpose. The proviso would have been unnecessary if the purpose of a Wakf-alal-aulad was recognised as religious or charitable by this law. The same in our opinion will follow from the provision in S.4." Though the Court ultimately held that the document in that case offended the rule against perpetuities laid down in S.12 of the Oudh Estates Act, our purpose in extracting the above paragraph is to emphasise that the judicial opinion is veering round the view that Wakf-alal-aulad cannot invariably be treated as one for a religious and in any case charitable purpose. 16. In Fazlul Rabbi Pradhan v. State of West Bengal 1975 (3) SCR 307 : AIR 1976 SC 1722 the Supreme Court was considering a deed of Wakf in which the ultimate benefit to the charity was postponed till after the exhaustion of the Wakif's family and descendants or the income from the Wakf estate was applied for the maintenance of the family side by side with expenditure for charitable or religious purposes. The Supreme Court was concerned with S.3 of the West Bengal Estates Acquisition Act, 1953, which provided that all the rights of intermediaries shall vest in the State with certain exceptions. One of the exceptions recognised was that an intermediary was entitled to retain the land if it was held under a trust or endowment or other legal obligation exclusively for a purpose which is charitable or religious or both. Hidayatullah, J., as he then was, who spoke for the Bench, referred to the opinion of Ameer Ali expressed in Tagore Law Lectures and the Privy Council case referred above, namely, in 22 Indian Appeals and observed: "These cases led to agitation in India and the Mussalman Wakf Validating Act, 1913 (VI of 1913) was passed. Hidayatullah, J., as he then was, who spoke for the Bench, referred to the opinion of Ameer Ali expressed in Tagore Law Lectures and the Privy Council case referred above, namely, in 22 Indian Appeals and observed: "These cases led to agitation in India and the Mussalman Wakf Validating Act, 1913 (VI of 1913) was passed. It declared the rights of Mussalmans to make settlements of property by way of Wakf in favour of their families, children and descendants. For the purpose of the Validating Act, the term 'Wakf was defined to mean 'the permanent dedication by a person professing the mussalman faith of any property for any purpose recognised by the Mussalman Law as religious, pious or charitable'. This gave a wider meaning to the word 'wakf but only for the purpose of taking them out of the invalidity which would have otherwise existed and which was already authoritatively stated to have so existed. After the passage of these two Acts Wakfs in which the object was the aggrandisement of families of Wakifs without a pretence of charity in the ordinary sense became valid and operative. But the intention of the Validating Act was not to give a new meaning to the word 'charity' which in common parlance is a word denoting a giving to some one in necessitous circumstances and in law a giving for public good. A private gift to one's 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. It was ruled in Syed Mohiuddin Ahammad and another v. Sofia Khatun (44 CWR 974) that neither the Wakf Validating Act, 1913 nor the Shariat Act, 1937 had the effect of abrogating the Privy Council decisions on the meaning of "charitable purposes' as such". Thus, all that the Act did was to validate wakfs-alal-aulad and not to impose any definitional delimitation to the word 'charity'. Charity implies a 'giving for public good' or to "necessitous men". Illusory nature of dedication in wakf deeds to charity has always incensed judicial thought to view them with disapprobation. This progressive approach finds acceptance in the definition of the word 'wakf in the Wakf Act of 1954. We would, therefore, hold that Ext. Charity implies a 'giving for public good' or to "necessitous men". Illusory nature of dedication in wakf deeds to charity has always incensed judicial thought to view them with disapprobation. This progressive approach finds acceptance in the definition of the word 'wakf in the Wakf Act of 1954. We would, therefore, hold that Ext. B2 does not constitute a valid wakf since there is no permanent dedication to any religious or charitable purpose. 17. We would like to refer here to one other part of the document, Ext. B2, to meet a possible contention that there is permanent dedication. It is provided in the document that after the appellant, his male descendants and the extinction of the progeny described therein, the properties have to be managed by the South Juma Mosque. What is provided here is not an ultimate permanent dedication to charity but the performance of the inconsequential ceremonies, very illusory in nature through the South Juma Mosque. We have already indicated that the rituals to be performed are not charitable and very remotely religious. The document is silent as to what should be done with the balance income on the extinction of the family. 18. Ext. B2 is executed by Ahammad, Kunhimohammed and the first defendant. Kunhimohammed and the first defendant had no right in the properties. One of the essentials for the validity of the wakf deed is that the property dedicated belong to the Wakif at the time of dedication. Since two of the executants of the document in question had no right in the property, wakf deed should be held to be invalid. It may be contended that one of the settlors was the owner of the property and as such the document cannot be held to be bad for the reason that the other settlors had no right in the property. We do not propose to repel this contention wholly, which will have to be considered in an appropriate case. So far as this document is concerned, the joining of two persons who had no right in the properties dedicated renders it invalid. The attendant circumstances lead us to hold that deed cannot be upheld as a wakf deed. We do not propose to repel this contention wholly, which will have to be considered in an appropriate case. So far as this document is concerned, the joining of two persons who had no right in the properties dedicated renders it invalid. The attendant circumstances lead us to hold that deed cannot be upheld as a wakf deed. The execution of an earlier wakf deed by the father, which was not acted upon, the fact that Kunhahammad was ailing and mentally depressed and the chances of the entire income from the properties coming into the hands of the appellant on the death of an old father, lead us to hold that joining of persons without rights in properties dedicated would render the document invalid in law as a wakf deed. In our view, we will be justified in holding that the document was manipulated by the first defendant to enable him to be the sole custodian of the substantial income. In the absence of sufficient material before us that the first defendant had prevailed upon an old father and an invalid brother to bring forth Ext. B2 for his own personal benefit which appears to be the truth in the case, we do not say that the document is invalid for that reason also. 19. There is still another infirmity with the document. Under S.3(b) of Act VI of 1913, wakfs for the maintenance of Wakif are valid provided he is a Hanafi. Ext. B2 provides for maintenance for the Wakif. Such reservation is permissible only if the Wakif is a Hanafi Muslim. In paragraph one of the plaint, there is a specific averment that the parties to the suit are Shafi Muslims. This has not been denied by the first defendant. On this score also the wakf deed has to fail. On this finding we hold that items 1 to 7 are not wakf properties and are available for partition. 20. Now about items 8 to 18. Regarding these items the plaintiff's case is that they belonged to Kunhahammad as per Exts. A1 and A4. According to her, the appellant trespassed upon these properties even in 1964 when Kunhahammad was alive. He has been in possession since then. The first defendant denied the case of trespass. In the written statement his case was that they were in the possession of the heirs of Kunhahammed. A1 and A4. According to her, the appellant trespassed upon these properties even in 1964 when Kunhahammad was alive. He has been in possession since then. The first defendant denied the case of trespass. In the written statement his case was that they were in the possession of the heirs of Kunhahammed. His present case is that they were assigned by Kunhahammed to strangers. We have no hesitation to reject this case. That this is an absolutely false case designedly put forward now with ulterior motives will be evident from the fact that the properties are still in his possession. The Court below has found, and according to us justifiably, that they continue to be in the possession of the appellant. This is based on the evidence in the case that neither the plaintiff nor the 2nd defendant is in possession of the properties and on the admission by the first defendant that they are in the possession of the legal heirs of Kunhahammed. The submission can only mean that they are in his possession as he, as the brother of Kunhahammad, is entitled to half share. We hold that these items are partible and have been in the possession of the appellant. 21. The appellant has a case that he is entitled to value of improvements. According to him, he has built a substantial house in item (1). There is no evidence in support of this. This case runs counter to what is stated in Para.5 of the written statement. His case was that neither he nor his father had put up any new building and all that they did was to improve the properties and repair the buildings in items 1 to 7. In the result, we confirm the preliminary decree passed by the Court below and dismiss the appeal with the costs of plaintiff.