Judgment 1. THESE two appeals - one by the plaintiff and the other by the defendants -are directed against the decision of the learned Subordinate Judge, 10th Court, alipore, in Title Appeal No. 1162 of 1970 modifying the decree passed by the learned Munsif, First Court, Diamond Harbour, in Title Suit No. 413 of 1969. The plaintiff Namdar Molla instituted a suit in 1969 against the defendants for a declaration that the suit properties are wakf properties and the defendants have no right, title and| or interest in the said properties. The plaintiff has also asked for a perpetual injunction against the defendants restraining them from causing any obstruction, or from disturbing the possession of the plaintiff in the said properties. The subject matter of the suit is 4. 22 acres of land described in Schedule 'ka' and 2. 91 acres of land described in Schedule 'kha' of the plaint. The case of the plaintiff is that the said lands along with other properties belonged, to one Khas Mohammad Molla. Khas Mohammad set up a mosque in a part of his bastu at Madhusudanpur. To meet the expenses of the mosque, Khas Md. created a Wakf by a registered Deed of wakf on 7th May 1940, corresponding to 24th Baisakh 1347 B.S., whereby and where under he dedicated certain properties including 12 decimal of land out of 20 decimal of land of plot No. 1542 and 1.32 acres of land out of 2.18 acres of land of plot No. 1545 as described in schedule 'ka' in favour of Allah. In terms of the Wakf Deed Khas Mohammad himself became the Mutwalli of the wakf Estate so created by him. On the same date, i.e. 7th May 1940 Khas Mohammad executed another Deed whereby and where under he dedicated the 'kha' Schedule properties in favour of mosque with the limited right to his wife Amiron Bibi to enjoy the usufruct of the properties for her maintenance, during her lifetime. In Magh 1347 B. S. Khas Mohammad orally dedicated the remaining land of Schedule 'ka' in favour of Allah and included such properties within the Wakf Estate already-created. Since the creation of the Wakf and oral dedication made by Khas Mohammad, he had no personal interest in the 'ka' Schedule properties and other wakf' properties. In Magh 1347 B. S. Khas Mohammad orally dedicated the remaining land of Schedule 'ka' in favour of Allah and included such properties within the Wakf Estate already-created. Since the creation of the Wakf and oral dedication made by Khas Mohammad, he had no personal interest in the 'ka' Schedule properties and other wakf' properties. As Mutwalli of the wakf Estate Khas Mohammad used to possess the other properties and applied the income of the said properties f6r the upkeep of the mosque and for other religious charitable purposes in terms of the Deed of Wakf. 2. AFTER the death of Khas Mohammad, the plaintiff Namdar Mollah, the appellant in this Court, became the Mutwalli of the wakf Estate according to the terms of the Deed of Wakf and since the has been possessing the Wakf properties including 'ka' Schedule properties' and applying the income thereof for the upkeep of the mosque. Amiron Bibi died in or about 1362 b. S. Upon her death the 'kha'schedule properties came under the Khas possession of the Wakf Estate. The plaintiff as Mutwalli of the Wakf Estate has been in possession of the 'kha' Schedule properties as well and he has been applying income of the 'kha' Schedule properties for the expenses of the mosque. The defendants, it is alleged, in collusion with the certain successors of of Khas Mohammad obtained a few Kobalas in their favour claiming title to the suit properties and they had been threatening to dispossess the plaintiff from the suit properties. On those allegations the plaintiff as Mutwalli instituted the said suit. The defendants filed one written statement. The defendants admitted that 12 decimal of land of plot No. 1542 and 1. 32 acres of land in plot No: 1545 along with other lands not being the subject matter of the suit properties aggregating to 5. 82 acres are covered by the said deed of Wakf created by Khas Mohammad. Excepting,those lands 'no other land belonged to the Wakf Estate nor any dedication was made of any of the other suit properties as claimed by the plaintiff. The rest of the suit lands in schedule 'ka' were in Khas land of Khas mohammed, who possessed the same till his death as his personal property. The story of oral Wakf in respect of portion of 'ka' Schedule lands as alleged in the plaint has been denied. The rest of the suit lands in schedule 'ka' were in Khas land of Khas mohammed, who possessed the same till his death as his personal property. The story of oral Wakf in respect of portion of 'ka' Schedule lands as alleged in the plaint has been denied. Upon the death of Khas Mohammad the said remaining lands of Schedule 'ka' devolved upon "his heirs who while in possession sold the same to the defendant Nos. 1 and 2 by a registered Kobala dated 4th Baisakh-1376 B. S. The defendant Nos. 1 and 2 are in possession of 8 decimal of land on the northern side of plot No. 1542 and 86 decimal of land on the northern side of plot No. 1545 and whole of plot No. 1255 of Schedule 'ka' since their purchase 3. THE defendants also denied that any valid Wakf was created by Khas Mohammed in respect of 'kha' Schedule properties. Their case in this regard is that khas Mohammad gifted the 'kha' Schedule lands to his wife Amiron Bibi who was in possession of the same till her death. The plaintiff was in possession of bastu plot No. 548 as a licensee under amiron Bibi. Upon the death of Amiron bibi her brother Ishaque Molla inherited the 'kha' Schedule lands and he, while in possession sold the 'kha' Schedule lands to the defendant Nos. 2 and 3 by a Kobala dated 31st Jaistha 1376 b. S. Since such purchase the defendant nos. 2 and 3 are in possession of the 'kha' Schedule lands. 4. ON the pleadings the following issues, were framed : 1. Is the suit maintainable in its' present form? 2. Has the plaintiff alleged right, title and interest and possession in suit lands? 3. Is the plaintiff entitled to get a decree for declaration and injunction as prayed? 4. To what other relief, if any, is the plaintiff entitled? The learned Munsif held that there was an oral dedication of the properties by Khas Mohammad in favour of Allah. According to him, a mere declaration of endowment by the, owner of the properties is sufficient to complete the Wakf. He also held that by the Deed of Gift dated 24th Baisakh 1347 B.S. Khas Mohammad gifted corpus of 'kha' Schedule properties absolutely to Allah and the usufruct of the said properties to Amiron bibi for her maintenance for her life. He also held that by the Deed of Gift dated 24th Baisakh 1347 B.S. Khas Mohammad gifted corpus of 'kha' Schedule properties absolutely to Allah and the usufruct of the said properties to Amiron bibi for her maintenance for her life. Since there was no gift of corpus after the death of Amiron Bibi, heirs of Amiron Bibi did not get anything and the properties vested in Allah. The learned munsif also held that the suit properties were the properties of the mosque and were possessed as such. On those findings the learned Munsif decreed the suit in favour of the plaintiff. 5. BEING aggrieved by the said judgment and decree of the learned Munsif, the defendants went on appeal before the learned Subordinate Judge, 10th court, Alipore. The learned Subordinate judge held that by the Deed Khas Mohammad made absolute dedication of the properties in favour of Allah with a limited right to his wife Amiron Bibi to enjoy usufruct of such properties during her lifetime. The gift in favour of amiron cannot be said to be a gift of the corpus. Thus he affirmed the decision of the learned munsif with respect to 'kha' Schedule properties. So far as the oral dedication of 2.78 acres of land as mentioned in 'ka' Schedule is concerned, the learned subordinate Judge reversed the finding of the learned Munsif. He held that there is nothing to show that Khas Mohammad expressed any intention that there was any oral dedication. He took into consideration the fact that in October 1950 the plaintiff Mutwalli applied before the Wakf Commissioner for enrolment of the Wakf Estate and a list of Wakf properties was furnished therewith but the properties which are alleged' to be dedicated orally to Allah for being a part of the Wakf Estate were not shown. The learned Subordinate Judge held that although in the Dakhilas and R. S. Khatians the name of the plaintiff as Mutwalli of the Wakf Estate has been mentioned as a tenant of the properties, there was nothing to show on what basis landlord mutated the name of the plaintiff Mutwalli. There is also no evidence to show such mutation was made with consent and knowledge of other heirs of Khas Mohammad. He held that the said entry in R. S. Khatian by Itself cannot prove the oral dedication. There is also no evidence to show such mutation was made with consent and knowledge of other heirs of Khas Mohammad. He held that the said entry in R. S. Khatian by Itself cannot prove the oral dedication. Ha held that the plaintiff failed to establish the alleged oral dedication of the disputed 2.78 acres of land. The learned subordinate Judge also negatived title contention that the Wakf Estate acquired the title to the property by adverse possession. According to him, the plaintiff Mutwalli possessed the disputed 2. 78 acres of land as Mutwalli treating the property as Wakf of property. His possession was, therefore, the possession of a manager and on behalf of rightful owner, namely heirs and successors of khas Mohammad from whom the defendants purchased. He, therefore, held that the plaintiff did not acquire any title to the property either by adverse possession in his personal capacity nor can it be said that the Wakf of Estate acquired the property by adverse possession. He, therefore, held that the disputed land measuring 1. 84 acre's of plot No. 1255 and 94 decimal of land out of plot No. 1542 and 1545 pertaining to khatian 387 as detailed in Schedule 'ka' are not the Wakf property and the plaintiff's suit with respect thereto ought to be dismissed He therefore modified the decree passed by the learned Munsif. 6. AGAINST the aforesaid judgment and decree in respect of 2. 78 acres of land in 'ka' Schedule of the property, the plaintiff preferred an appeal being appeal No. S. A. 1356 of 1971 Similarly against the judgment and decree of the first Appellate Court in respect of 2. 91 acres of land in 'kha' Schedule the defendants preferred one appeal being appeal No. S. A. 1327 of 1971 Both these appeals were heard analogously. Mr. Bhabesh Chandra Mitter the learned Advocate appearing for the plaintiff appellant has submitted that the learned Subordinate Judge failed to consider all the relevant materials and evidence on record and came to an erroneous conclusion that there is no oral dedication of the lands to the Almighty. He has also submitted that the lower. Appellate Court should have held that inasmuch as the lands were throughout; in possession of the Mutwalli for more than 12 years adversely, the land in dispute became part of the Wakf Estate. He has also submitted that the lower. Appellate Court should have held that inasmuch as the lands were throughout; in possession of the Mutwalli for more than 12 years adversely, the land in dispute became part of the Wakf Estate. He has further submitted that a Wakf may be created or may arise in respect of the lands treated and possessed adversely as Wakf property for more than 12 years. It is also his contention that the successors of Khas Mohammad did not and could not have any interest in any part of the disputed property as the disputed property was part of Wakf Estate and the Kobala created by them in favour of the defendants have no legal effect at all According to Mr. Mitter the documents relied oh by the defendants are collusive documents. He has further submitted that the disputed properties appertain to the original Wakf estate. In any event the plaintiff appellant acquired the property by adverse possession and thereafter dedicated the said property to the Wakf and declared the said properties to be the properties of the Wakf created by Khas Mohammad and accordingly the disputed properties have become the properties of the Wakf. 7. MR. Anwar Hossain, the learned advocate appearing for the defendant appellants, has raised certain fundamental issues. He has supported the judgment of the lower Appellate Court insofar as the lower Appellate Court has' modified the decree of the learned Munsif. He has, however, assailed the judgment of the lower Appellate Court insofar as it has affirmed the decree of the learned Munsif. Relying on a decision of the Supreme Court in the case of gurucharan Singh vs. Kamala Singh, reported in AIR 1977 SC 5 , he has urged that a pure question of law based on undisputed and proven facts could be raised even before the Court of last resort. He has submitted that on the admitted facts the suit as framed is not maintainable because the Commissioner of Wakfs was not made a party it is his submission that under Section70 of the Bengal wakf Act 1934 in every suit and proceedings in respect of any Wakf property, the Commissioner of Wakf is a necessary party. He has submitted that on the admitted facts the suit as framed is not maintainable because the Commissioner of Wakfs was not made a party it is his submission that under Section70 of the Bengal wakf Act 1934 in every suit and proceedings in respect of any Wakf property, the Commissioner of Wakf is a necessary party. He has also submitted that the condition of creation of a Wakf as contained in Bengal Wakf Act 1934 have not been complied with and as such there is no valid Wakf at all in respect of 'kha' Schedule property. It is his contention that even if a gift to Amiron bibi by her husband was valid condition attached to the said gift is void being derogatory to the completeness of the gift. The lower Appellate Court, according to his submission, failed to note the distinction between usufruct and corpus. He has further submitted that the Mutwalli cannot claim that he became the owner of the properties by adverse possession. He has himself Stated in the plaint that the suit properties sare Wakf properties. Relying on a decision of Allahabad High Court in the case of Khaliluddin v. Sri Ram and Ors., imported in AIR 1934 Allahabad 176, he has submitted that the contingent Wakf to not valid. It is also his submission that the plaintiff Mutwalli made an application for enrolment of the Wakf and in the said application the disputed properties alleged to be covered by the Wakf was not shown and as such the lower Appellate Court was justified in disbelieving the story of oral dedication. 8. MR. Bhabesh Chandra Mitter, the learned Counsel appearing for the appellant, has submitted that the respondents at this stage cannot urge the point that" there has-been any non-compliance with the provisions of the Bengal Wakf Act. Even assuming there is any non-compliance, this will not invalidate the Wakf or will not make the. 8. MR. Bhabesh Chandra Mitter, the learned Counsel appearing for the appellant, has submitted that the respondents at this stage cannot urge the point that" there has-been any non-compliance with the provisions of the Bengal Wakf Act. Even assuming there is any non-compliance, this will not invalidate the Wakf or will not make the. suit bad Section 70 of the Bengal Wakf Act 1934 provides that in every suit or proceeding in respect of any Wakf property the Court shall issue notice to the Commissioner at the cost of the party instituting such suit or proceeding Section 70 (4) of the said Act provides that in the absence of any notice under sub section (1) of Section 70 any decree or order passed in the suit or proceedings shall be declared void, if the Commissioner within one month of his coming to know of such suit or proceedings applies to the Court in this behalf. 9. MR. Anwar Hossain has relied on a few decisions of this Court in support of his contention that notice under section 70 is mandatory and since no notice was issued the suit is liable to be dismissed in limini. He has relied on a decision of the Division Bench of this Court in the case of Benoy Kumar Acharjee chowdhury and Ors. v. Ahamad Ali and ors. reported in AIR 1942 Calcutta 467. In that case the learned Subordinate Judge dismissed' the suit on two preliminary grounds. He-held first that the plaintiffs had no cause of action and secondly that the suit was barred by the provisions of Section 42, Specific Relief Act. Against that decision an appeal was taken to the District Judge. The learned -Judge remanded the case holding that the decision of the learned Subordinate Judge on the preliminary issues was erroneous. The defendants appealed to this court. In course of the argument it came to light that no notice was issued to the Commissioner of Wakf under section 70 of the Bengal Wakf Act. The Court held that it is mandatory on Court to issue notice to the Commissioner of Wakfs under Section 70 even if the claim that the property is Wakf is contested. The Commissioner of Wakfs is an Officer appointed to protect Wakf properties. The intention of section 70 is to enable the Commissioner to carry out this function in suits. The Court held that it is mandatory on Court to issue notice to the Commissioner of Wakfs under Section 70 even if the claim that the property is Wakf is contested. The Commissioner of Wakfs is an Officer appointed to protect Wakf properties. The intention of section 70 is to enable the Commissioner to carry out this function in suits. If in a suit a claim is made that certain property is wakf, the Commissioner of Wakfs, as protector of all Wakfs, is obviously interested to see that the suit is properly ccaiducted so that no Wakf Estate is destroyed and adversely affected. Section 70 enables him to do this. To limit the extent of section 70 only to cases where the suit is in respect of property which is admittedly Wakf would be to stultify the very object of the section Under the aforesaid circumstances the orders passed by both the Courts below were set aside and the suit was directed to be heard de novo by the trial Court on all the points after the issue of the notice to the Commissioner of Wakf in accordance with the provisions of section : 10. THE next decision relied on by Mr. Anwar Hossain is in the case of commissioner of Wakfs, West Bengal v. Sm. Ayesa Bibi and Ors., reported in AIR 1966 Cal. 68 . On an application under section 115 of the Code of Civil procedure made by the Commissioner of wakfs P.B. Mukharji, J (as his Lordship then was) held that the language of section 70 (1) is imperative and the court' cannot be exonerated from the statutory obligation imposed upon it. Any decree or order which is made without notice under, section 70 (1) shall be declared void by the Court. It has no other option. The Court set aside the order of the lower Appellate Court and restored that of the learned Munsif directing that the decree challenged by the Commissioner of Wkfg is void under section 70 (4) of the said Act on the ground that the decree was passed without notice under section 70 (1) of the sum Act to the Commissioner of Wakfs. It may be mentioned that the said decision was the subject matter of appeal before the Supreme Court (Mst. Ayesha Bibi vs. The Commissioner of wakf, West Bengal and Ors. It may be mentioned that the said decision was the subject matter of appeal before the Supreme Court (Mst. Ayesha Bibi vs. The Commissioner of wakf, West Bengal and Ors. Supreme Court reversed the decision of the High court. The judgment of the Supreme Court is reported in AIR 1970 SC. 287 . There the Supreme Court held that notice under section 70 to the Commissioner of Wakf can be by way of letter from the Court giving him notice or if he is made a party by a summons to attend the Court. The Supreme Court held that the decree could not be declared as void on the ground that the Commissioner was not given a notice of the compromise. The judgment of the High Court was, therefore, reversed. 11. THE next decision relied on by the learned' Advocate for the defendants is in the case of Asrafannessa Khanum v. Mirza Ali Samin and Ors., reported in air 1979 Cal. 53 . In that case before the lower Appellate Court a prayer was made to issue a notice on the Commissioner of Wakfs under section 70. it was contended that since at the stage of appeal such proper notice was sent and the Wakfs Commissioner did not raise any objection within one month from the date of receipt thereof, that the suit was not maintainable could not be sustained. B.N. Maitra, J, held that the notice to the Commissioner under section 70 at the appeal stage is of no consequence. The learned Judge sent the suit back on remand directing issuance of notice and for trial of the suit afresh. If the appeal is in continuation of original proceeding or rehearing of the suit it is not known why such notice can not be issued at the appellate stage to protect the interest of Wakf Estate. The appellate Court has the jurisdiction to correct the mistake committed by the court of first instance. However, it is not necessary for me to go into that question in this case. 12. INSPIRED by the aforesaid decisions Mr. Anwar Hossain has submitted that the same bourse should be adopted by this Court in this case. It is difficult to accept the contention of Mr. Anwar hossain. This issue has been raised for the first time in this Court. 12. INSPIRED by the aforesaid decisions Mr. Anwar Hossain has submitted that the same bourse should be adopted by this Court in this case. It is difficult to accept the contention of Mr. Anwar hossain. This issue has been raised for the first time in this Court. The suit was decreed in 1970 and the appeal was disposed of by the lower Appellate Court in 1971. At no stage of this proceeding in the Courts below such an issue was raised. It is true, as laid down by the Supreme Court, that a pure question of law going to the root of the case based on undisputed or proven facts could be raised even before the court of last resort provided the opposite side was not otherwise unfairly prejudiced. First, it is not an Undisputed fact that no notice was issued. Secondly, had any such issue been raised, in the Court of the first instance the defect, if any, could have been cured then and there. If after 15 years the suit is directed to be heard afresh it will cause prejudice. The new plea does not spring from the common case of the parties and it will work injustice at this stage if such a plea is entertained, that apart, in none of the decisions it has been laid down that if no notice is issued the suit will not be maintainable or the decree passed by the Court would be void ipso facto. Sub-section (4) of section 70 provides that if such notice has been issued the Commissioner may apply to the Court to have a declaration that the decree passed in the suit is void. The intention of Section 70 is to protect the interest of Wakfs. The mutawalli in this case has been diligently taking all steps to protect the interest of Wakf and properties allegedly belonging to Wakf estate. He has not claimed any personal interest in any of the properties in the suit. In. any event, it is ascertained from the records that on 12th January, 1970 a petition was filed by the plaintiff praying for issue of notice under Section 70. It appears from the records that after the requisites were put in for issue of such notice, as directed by the learned Munsif, notice under Section,70 was issued by the Court on 19th January, 1970. It appears from the records that after the requisites were put in for issue of such notice, as directed by the learned Munsif, notice under Section,70 was issued by the Court on 19th January, 1970. It is obvious that the fact of issuance of notice under Section 70 was known to the defendants, as such no plea was taken in the Courts below. The, contention of Mr. Anwar hossain therefore must fail. My attention has also been drawn to the decision of this court in the case of Commissioner of Wakfs vs. Syamal kumar Bose and Anr. reported in 1976 (2)CLJ 367. In that case Chittatosh Mookerjee j has observed that Section 71 of the Act confers a substantive right upon the Commissioner of Wakfs to intervene in the suits and proceedings in respect of a Wakf or a Wakf property Section 71 may be attracted not only in a case where the existence of Wakf or Wakf property is admitted but also in a case where the party asserts existence of a wakf property or existence of a Wakf and the other party denies and disputes the same. Even in a case involving disputed claim Commissioner may intervene under section 71 of the said Act in order to conduct or defend such suit or proceedings. The Commissioner may intervene any suit in respect of a Wakf property in the interest of Wakf. When a decision in a suit or proceeding is likely to affect a Wakf or a Wakf property the Commissioner of Wakf would be a proper party in the proceeding to enable the Court to effectually determine the question in controversy in the presence of the Commissioner of Wakf. 13. IN this case no application was made by the Commissioner not Wakfs nor any issue was raised as regards non joinder of a. necessary or a proper party; in any of the Courts below. It is for the commissioner to make an application for being added as a party and not for the parties to the suit to make the commissioner a party. 14. THE next contention of Mr. Anwar hossain is that Khas Mohammad made a gift of the disputed property to his wife and after the death of his wife the property passed on to her heirs and legal representatives from whom the defendants purchased the disputed lands. 14. THE next contention of Mr. Anwar hossain is that Khas Mohammad made a gift of the disputed property to his wife and after the death of his wife the property passed on to her heirs and legal representatives from whom the defendants purchased the disputed lands. it is contended that when a gift is made subject to a condition which derogates from the completeness of the gift, the condition is void and the gift will take effect as if, no conditions were attached to it, It is his submission that the condition that after the death of Amiron bibi the property would vest in Almighty is void According to Mr. Hossain, the Wakf is not valid because it is a contingent Wakf. He has relied on a few decision in support of his contention. The first decision is in the case of Khali Uddin v. Sri Ram and Ors, reported in AIR 1934 Allahabad 176 It has been held in that case that a contingent wakf is not valid. The dedication should be complete and should not depend on a contingency and the appropriation must at once be complete and not suspended on anything. The real test for deciding as to whether or not a particular Wakf Deed was good would be to see whether the decision was complete when it was made and not depended on any contingent event, which may or may not happen, The next decision, cited by Mr. Hossain is in the case of Jorabali Sardar and Ors. vs. Sm. Saleha Khatun and Ors., reported in AIR 1938 Cal. 257. The Division Bench of this Court held that in determining whether a Wakf was created or not the real point for determined is whether the man intended to dedicate his properties then absolutely and for ever. These are the essential requisites of a valid Wakf. 15. THE last decision cited by Mr Hossain is the case of Hazi Mohd. Safi and Ors. v. Kadim Ali, reported in AIR 1944 Oudh 291. It has been laid down in the said decision that the dedication should not depend upon a contingency and the appropriation must at once be complete and not suspended. 15. THE last decision cited by Mr Hossain is the case of Hazi Mohd. Safi and Ors. v. Kadim Ali, reported in AIR 1944 Oudh 291. It has been laid down in the said decision that the dedication should not depend upon a contingency and the appropriation must at once be complete and not suspended. The, interposition of :an intermediate estate limited in duration would not invalidate the creation of an Wakf if there is an out and out appropriation at the time of settlement, Where the immediate appropriation has been made in favour of an individual and the property is to become a Wakf only after his|her death, the endowment clause must fail. The fact that the event on the happening of which the Wakf is constituted in certain and definite does not mitigate the rigour of the main principle that the appropriation must be immediate. 16. THE Deed by which the gift was made in favour of the Almighty has to be read in the light of the principles laid down in the aforesaid decision the intention to make the Wakf has to be gathered from the declaration taken as a whole in the Deed and the surrounding circumstances. The real point for determination is whether Khas mohammad intended to dedicate his properties then and absolutely for ever, from the documents as a whole it appears to me that an Wakf was constituted immediately and the creation of it was not deferred to a future date. A distinction has been made under the muslim Law between the corpus of the gift and the Usufruct. The, right of the widow of the. donor was reserved in the usufruct so long as she was alive Excepting the utilisation of the usufruct of the properties during heir lifetime Amiron Bibi did not have any other right or power in respect of or over the property of which the Wakf was created. The widow was not given any right over the corpus. It cannot be disputed that by dedication and declaration the properties vested in the Almighty it has been laid down in the case of Naiju and zish alikhan vs. Ali Raja Khan, reported in air 1948 Privy Council 134 that a limited interest takes effect out of usufruct under the Muslim Law. It cannot be disputed that by dedication and declaration the properties vested in the Almighty it has been laid down in the case of Naiju and zish alikhan vs. Ali Raja Khan, reported in air 1948 Privy Council 134 that a limited interest takes effect out of usufruct under the Muslim Law. The Privy Council observed as follows "in dealing with a gift under the Muslim Law, the first duty of the Court is to construe the gift. If it is a gift of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant but if upon construction the gift is held to be one of a limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest". In my judgment the aforesaid principles will apply to the facts of this case, on a construction of the Deed of Gift it is manifest that the gift book effect out of the usufruct for maintenance of the widow during her lifetime. The ownership of the corpus was unaffected which was dedicated to the Almighty allah of Mosque set up by the Donor. The enjoyment of the corpus was postponed for the duration of the limited interest. In that view of the matter, the contention made by Mr. Hossain must fail. 17. THE next question is whether there was any oral dedication of 2. 78 acres of land of 'ka' Schedule. The learned munsif upheld the contention of the plaintiff. But the Subordinate Judge did not accept the case of oral dedication. It has been contended by Mr. Anwar hossain that the learned Subordinate judge was right in rejecting the contention of the plaintiff that any oral dedication was made by Khas Mohammad. He has submitted that the conditions prescribed by Sections 44, 48 and 52 of the Act have not been satisfied in this case and as such there is no valid Wakf section 44 (1) of the Act provides that an Wakf existing at or created after the announcement of the Bengal Wakf Act shall be enrolled at the office of the commissioner. Section 44 (2) provides that an application for enrolment shall be made by the Mutwalli. Section 44 (2) provides that an application for enrolment shall be made by the Mutwalli. It is contended that in the application for encirclement the Mutwalli has only shown the land measuring about 5.82 acres as shown in the Deed of Wakf. In that application the disputed property bad not been shown. Therefore, even if there was any oral dedication to the Almighty of the disputed land, such oral dedication has not been acted upon. 18. THE learned' Subordinate Judge, held that the evidence of oral dedication is not at all convincing and the story of oral dedication appears be highly improbable. He did not place any reliance on the evidence of the plaintiff or the other witnesses on behalf of the plain tiff. The learned Subordinate Judge held the Khas Mohammad created an Wakf-by a registered Deed in Baisakh 1347 b. S. and he died in Magh 1347 B. S. If he could have made registered instrument a few months earlier nothing prevented him from making further dedication of properties by another registered Deed. The learned Subordinate Judge also took into consideration that in October 1958 the plaintiff Mutwalli applied before the Wakf Commissioner for enrolment of the Wakf Estate showing a list of Wakf properties, which did not include the properties covered, by oral dedication. The learned Subordinate Judge held that the explanation given by the plaintiff that, by mistake the properties made Wakf by, oral dedication were not shown in the enrolment application cannot be accepted. The learned Subordinate Judge also rejected the evidence as appearing from the Dakhilas and r. s. Khatians. In the Dakhilas in respect of 94 decimals and of land in r. S. khatian 387, the name of the plaintiff as the Mutwalli of the Wakf Estate has 1beeh mentioned as the tenant of the said property. The learned Subordinate Judge observed that there is nothing to show on what basis the landlords mutated the plaintiff as Mutwalli nor is there any evidence to show that any such mutation was made with the consent and knowledge of the other her of Khas Mohammad. The learned Subordinate Judge observed that there is nothing to show on what basis the landlords mutated the plaintiff as Mutwalli nor is there any evidence to show that any such mutation was made with the consent and knowledge of the other her of Khas Mohammad. The learned Sub-: ordinate Judge, therefore, hold that mere fact that the name of the plaintiff was mutated in the sherista of the landlords cannot lead to a conclusion that there was any oral dedication of the pro-parties measuring 94 decimals of land, the plaintiff has been described as Mutwalli in respect of 94 decimals of land pertaining to Plot No. 1445 under R.S. khatian No. 387. No doubt, this entry in the khatian supports the possession, of the plaintiff as Mutwalli but such entry cannot by itself prove the oral dedication. In the R.S. Khatian No. 136 certain properties including plot No. 1255 were recorded in the name of the mosque with a note that such properties were in possession of Amiron Bibi having life interest. The learned Subordinate Judge observed that the entries in R. S. Khatian in respect of plot No. 1255 did not strictly support the case of the plaintiff that he was in possession of the said land as Mutwalli since the death of Khas Mohammad. The learned subordinate Judge therefore, held that the plaintiff failed to establish the oral dedication of the disputed 2.78 acres of land. It is not in dispute that in the R.S. Khatian 1. 84 acres of plot No. 1255 were recorded in the name of mosque with a note that such properties were in possession of Amirpi Bibi having life interest. In R.S. Khatian no. 387,94 decimals of land of Plot Nos. 1544 and 1545 have been recorded in the name of Mosque showing the plaintiff as Mutwaili. The learned Subordinate Judge brushed aside the said, evidence. Under section 44 (4) of the west Bengal Estates Acquisition act, 1953 every entry in the Record of Rights finally; published is presumed to be correct. No. evidence to the contrary has been adduced to show that the entry in the Record of Rights is incorrect. The learned Subordinate Judge brushed aside the said, evidence. Under section 44 (4) of the west Bengal Estates Acquisition act, 1953 every entry in the Record of Rights finally; published is presumed to be correct. No. evidence to the contrary has been adduced to show that the entry in the Record of Rights is incorrect. The reason given by the Learned Subordinate Judge in ignoring the evidence as recorded in R.S. Khatians cannot be accepted in absence of any evidence to the contrary it is now well settled that entries in a finally published record of Rights must be presumed to be correct unless proved to be incorrect. It is not for the party relying on such presumption to prove the foundation or the basis of the entries. In my judgment, the learned subordinate Judge fell in error in holding that the plaintiff failed to establish the oral dedication of the; disputed 2.78 acres of land. The fact remains that the disputed properties were treated as belonging to the wakf Estate 19. THE alternative contention is that in the event the oral dedication is not, accepted, the plaintiff by adverse possession became the owner of the disputed properties and treated the said properties as belonging to the Wakf. In other words he has treated the disputed properties as Wakf properties. The learned subordinate Judge held that the plaintiff was possessing the disputed 2.78 acres as Mutwalli treating the property as wakf property. His possession was therefore, the possession as a Manager. According to the learned Subordinate judge since there was no valid dedication of the property in favour of the wakf, the possession of the plaintiff must be treated as possession on behalf of the rightful owners, namely the heirs and successors of Khas Mohammad He, therefore, held that the plaintiff did not acquire any title to the property either by adverse possession in his personal capacity nor was the Wakf property acquired by adverse possession. 20. MY attention has been drawn to a decision of the Division Bench of this Court in' the case of Syed Mohiuddin ahmed and Anr. vs. Sofia Khatm and Or. reported in AIR 1940 Calcutta, 501. In that case a suit was brought by some persons of a family of the Wakif for a declaration that the Wakf was invalid in law. There the question was with regard to the validity of the Wakf. vs. Sofia Khatm and Or. reported in AIR 1940 Calcutta, 501. In that case a suit was brought by some persons of a family of the Wakif for a declaration that the Wakf was invalid in law. There the question was with regard to the validity of the Wakf. In that case a person created a Wakf of certain properties. The annual nett income of the dedicated properties amounted to Rs.1,800/-. Out of this amount, Rs.445/-was payable as allowances to the members of the family of the Wakif, Rs.50/-was earmarked for specific charities and Rs.36/- as the Mutwalli's salary. It was directed that the Mutwalli should spend the residue about Rs.1,300/- a year for the relief of the afflicted and the needy. The Mutwalli had no unfettered discretion to divert the residue of the income to non-charitable purpose, and he could be compelled to apply, it to charitable objects. The residue of the income was accordingly not under the absolute and uncontrolled discretion of the Mutwalli. It was held that there was an effective trust of the residue of the income in favour of the needy and the afflicted and as that residue was a substantial amount, the properties had been substantially dedicated to pious and charitable purpose. The Wakf was, therefore, valid. In considering the question of limitation the Court held as follows :- "the evidence establishes the fact that the' person appointed as Mutwalli was in possession as Mutwalli. The question is whether his possession would be adverse if the Wakf is invalid in law. This question has been answered in the negative by the Judicial Committee of the Privy Council in 32 LA. 86 and, by the Division Bench of this Court in. 32 C.W.N. 248. If the Wakf is valid no question of adverse possession on the part of the Mutwalli arises for he is than in possession lawfully, as Manager of the endowment. If the Wakf is invalid the possession of a Mutwalli on the supposition that it is valid, is still the possession of a Manager not his own possession in his personal right. His' possess was in the case where the Wakf was invalid, the possession for the rightful owner, not the possession of a wrong-doer. We accordingly hold that the suit is not barred by limitation." (at Page 506). 21. His' possess was in the case where the Wakf was invalid, the possession for the rightful owner, not the possession of a wrong-doer. We accordingly hold that the suit is not barred by limitation." (at Page 506). 21. THE learned Subordinate Judge relying on the aforesaid decision held that the plaintiff was in possession on behalf of rightful owners, namely, the heirs and successors of khas Mohammad. In that case, a Trust was created. There was no dispute as regards the creation of a Wakf. The only question was whether the Wakf was valid having regard to the objects mentioned therein. In that connection, the court laid down the principles as indicated earlier. In our case, there is a dispute whether there was at all a 'wakf in respect of the disputed property. If there was no oral dedication by Khas mohammad then there was no Wakf and as such the plaintiff could not act as mutwalli in respect of the disputed proffer ties. The concurrent finding of fact is that the plaintiff was possessing the disputed 2.78 acres of land. If it is held that there was no Wakf at all as distinguished from a Wakf which is declared invalid, in that event, the plaintiff was in possession of the disputed property in his personal capacity. He could not hold the disputed property as Mutwalli. If there was no Wakf of the disputed property, the disputed property could not be treated as Wakf property without there being any dedication, oral or otherwise the plaintiff must, therefore, be held to have, acquired the title by adverse possession. He has thereafter treated the property to be the Wakf property. In a ease where there is no Wakf at all as contended by the defendants, the possession of the disputed property cannot be treated as possession on behalf of the rightful owners, viz., heirs and successors of khas Mohammad. They never obtained any possession of the disputed property. It must, therefore, be held that the disputed property which forms the subject matter of the Wakf was acquired by the plaintiff by adverse possession and thereafter the plaintiff treated the same as wakf property. Thus, in any event the heirs and successors of Khas Mohammad or Amiron Bibi cannot have any claim or title over the disputed land. 22. It must, therefore, be held that the disputed property which forms the subject matter of the Wakf was acquired by the plaintiff by adverse possession and thereafter the plaintiff treated the same as wakf property. Thus, in any event the heirs and successors of Khas Mohammad or Amiron Bibi cannot have any claim or title over the disputed land. 22. THE last contention of Mr Anwar hossain is that conditions prescribed by sections 44, 48 and 52 of the Act 'have not been satisfied in this case and as such there is no valid Wakf. Section, 44 (1) of the Act provides that all Wakfs existing at or created after the commencement of the Bengal Wakf Act shall be enrolled at the "office of the Commissioner. Section 44 (2) provides that an application for enrolment shall be made by the Mutwalli. Section 48 provides that every Mutwalli of a Wakf other than a Wakf-Aul-Aulad shall prepare and furnish to the Commissioner a full and true statement of Accounts. Every mutwalli of a Wakf-Aul-aulad shall prepare and furnish to the Commissioner a true statement in respect, inter alia, of income and expenditure. It has been contended in- this case that the Mutwalli has not complied with the aforesaid-provisions and, therefore, there is no valid Wakf in existence. Section 57 (1)provides that if a Mutwalli fails to apply for enrolment or fails to furnish statement of particulars of accounts or return as required by the Act he shall, unless he satisfies the Court that there was a reasonable cause for his allures be punishable with a fine which may ex tend to Rs. l,000/- Section 58 (1) provides that a Mutwalli may be removed if he has been fined or convicted more than once under Section 57. Thus noncompliance with the provisions for enrolment or for furnishing accounts will not make, a Wakf invalid, if it is otherwise validly constituted. Non compliance with the statutory provisions may be a ground for removal of the Mutwalli but not a ground for declaring the wakf as invalid or void. This contention of Mr. Anwar Hossain must, therefore, fail. . In the result the appeal of the plaintiff (S. A. No. 1356 of 1971) is allowed. Non compliance with the statutory provisions may be a ground for removal of the Mutwalli but not a ground for declaring the wakf as invalid or void. This contention of Mr. Anwar Hossain must, therefore, fail. . In the result the appeal of the plaintiff (S. A. No. 1356 of 1971) is allowed. The appellate decree of the lower appellate Court as regards 2.78 acres of land in 'ka' Schedule of the property is set aside and that of the trial Court is restored. 23. THE appeal of the defendants (S. A. Na. 1327 of 1971) in respect of 2. 91 acres of land of 'kha' Schedule of the property is dismissed and the appellate decree of the lower Appellate Court is affirmed. There will be no order as to costs. Appeal No. 1356 allowed.