Judgment P.S.Mishra, J. 1. Although this appeal has been preferred against the original decree, facts generally ere not in dispute. 2. Abdul Hafiz, Mutwalli, son of Maulvi Majid Hussain (the plaintiff) was the original appellant. His successor in interest has since been substituted in his place. Majid Hussain had filed the suit for declaration that the properties described in Schedules 1 and 3 of the plaint were waqf properties of which ha was the Mutwalli and defendant Nos. 1 to 4 (b) had no right, title or interest in the same. Further relief sought in the suit was that deed dated 25-6-63 in the name of the Government of Bihar or sale deeds dated 8-10-64 in favour of the defendant 4 (a) and 4 (b) were null and void. He had accordingly claimed possession over the properties covered by the said deeds comprising of survey plot Nos. 248 and 1125 as described in Schedule 4 of the plaint. 3. Wajid Hussain had two sons, namely, the plaintiff and late Abdul Majid (the father of defendant No. 3). He had an estate, in which he had proprietary interests in the houses and lands. He executed a deed of waqf dated 9-5-1919. The said waqf, according to the plaintiff, was a Waqf-alat-Aulad. Wajid Hussain was the founder Mutwalli and remained in possession of the properties as such Mutwalli of the Waqf. After Wajid Hussains death in 1922, Abdul Majid (the eldest son) became the next Mutwalli of the Waqf. Abdul Majid, however, died without nominating the next Mutwalli of the Waqf, leaving defendants 1 to 3 as his male issues. 4. A dispute cropped up as to who succeeded Abdul Majid as the Mutwalli, which was settled with the plaintiff duly appointed as the Mutwalli. The plaintiff came in possession accordingly and was in possession when the suit was filed. Defendants 2 and 3 executed a registered deed of agreement dated 29-5-1933, according and acknowledging the plaintiff as the duly appointed Mutawalli and accordingly when Bihar Waqf Act, 1948 came in to force, the plaintiff was duly recorded in the office to defendant No. 5. The plaintiff came in possession accordingly and was in possession when the suit was filed. Defendants 2 and 3 executed a registered deed of agreement dated 29-5-1933, according and acknowledging the plaintiff as the duly appointed Mutawalli and accordingly when Bihar Waqf Act, 1948 came in to force, the plaintiff was duly recorded in the office to defendant No. 5. The Bihar State Waqf Board) as the Mutawalli of the Waqf Some properties of the Waqf were acquired by the Government of Bihar on payment of consideration and out of the sale money and surplus of the income of the Waqf, the plaintiff purchased two annas proprietory and Zamindaii interests including Bakasht from one Mr. S. G. Richardson under sale deed dated 19-3-1939. The said properties annexed to the Waqf and the Bakasht land fall to the possession of the plaintiff as the Mutwalli as occupancy Raiyat. 5. Defendants 1 to 3, however, made a complaint against the plaintiff before the Waqf Board (defendant No. 5) and sought plaintiffs removal, but they withdrew their complaint and filed a compromise petition dated 4-9-1951. According to the plaintiff, defendants 1 to 3 in collusion with the subordinate employees of the Board committed forgery by inserting and interpoluting some words in the said compromise petition. Armed with and on the strength of the said interpolation in the compromise petition, defendants 1 to 3 again raised dispute giving rise to a proceeding under Sec.144 of the Code of Criminal Procedure before the Subdivisional Officer, Muzaffarpur. The said proceeding concluded on 19-5-1954 and the other restraining defendants 1 to 3 was made absolute. 6. When Bihar Land Reforms Act, 1950 became operative, all proprietary and intermediary interests of the Waqf vested in the State of Bihar and Bakasht lands of Tauzi No. 4130 and other Tauzis became the Raiyati holdings of the Waqf. The plaintiff accordingly filed return to the State and fair rent of the Bakasht lands aforesaid was fixed in the name of the plaintiff. According to the plaintiff, defendant Nos. 1 to 3, however, once again got their names inserted in the rent schedule of defendant No. 4. 7. During survey operations, defendants raised their claims and besides the plaintiffs name their names were also included in the relevant schedules of the survey as the owner of the properties. According to the plaintiff, defendant Nos. 1 to 3, however, once again got their names inserted in the rent schedule of defendant No. 4. 7. During survey operations, defendants raised their claims and besides the plaintiffs name their names were also included in the relevant schedules of the survey as the owner of the properties. Taking advantage of their position defendants 1 to 3 got a deed dated 25-5-83 in the name of the Government of Bihar created in respect of the properties described in Schedule 3 (a) of the plaint. Some of them also executed sale deeds in the name of defendant Nos. 4 (a) and 4 (b). The gift dated 25-5-63 in the name of the Governor of Bihar and the sale deeds dated 9-10-64 in the name of Ram Prasad Narain Sahi defendant No. 4 (a) and Ramrup Prasad defendant No. 4 (b) created cloud upon the title of the Waqf and that of the plaintiff as Mutwalli and created the cause of action for the suit. 8. The contesting defendants on the other hand have come forward with the case that Wajid Hussain held the properties not as Mutwalli, but in his personal and secular capacity, that after Wajid Hussains death Abdul Hafiz did not succeed as the Mutwalli, that the plaintiff was never appointed Mutwalli, by any compromise and the acquisition made from Mr. S. G. Richardson was an advantage to the estate of the heirs of Wajid Hussain and not to any Waqf property. Accordingly, after the vesting of the family estate in the State of Bihar, the Bakasht and Jirat lands became Kasht lands of the heirs of Wajid Hussain, and accordingly rent schedules were granted. According to them, they donated some lands to defendant No. 4, because they were legally entitled to transfer by way of gift their interests as successor-in-interest of Wajid Hussain and they were accordingly entitled to sell their respective interests to defendants Ram Prasad Narain Sahi and Ramrup Prasad. 9. The main contest, however, by them was that the deed executed by Wajid Hussain on 9-5-1919 (Ext. 22) was not a document created for any charitable or religious purposes and if any charitable or religious purpose was indicated therein, it was too remote to give to the deed any such character. 9. The main contest, however, by them was that the deed executed by Wajid Hussain on 9-5-1919 (Ext. 22) was not a document created for any charitable or religious purposes and if any charitable or religious purpose was indicated therein, it was too remote to give to the deed any such character. According to them, Wajid Husain had created the said deed as a shield against the claim of his wife for Dian Mehar. 10. Above stated are the facts indicating the claims of the parties and the nature of the dispute. Learned counsel for the parties have agreed to the position that Wajid Hussain was competent to create a waqf and that he did execute a deed on 9-5-1919 (Ext. 22), They have also agreed that in case the said deed created a waqf, Wajid Hussain could appoint himself as a Mutwalli and the terms of the said deed would govern the succession, In other words, if the said deed created a waqf, all that the defendants did, in respect of the properties, were unwarranted and illegal. If, however, the said deed did not create a waqf, the plaintiff could not raise any dispute as to the claims of the defendants. 11. Musalman Wakf Validating Act, No. VI of 1913 which came into force on 7th March, 1913 with retrospective effect and applied to all waqfs, whether created before or after that date defining waqf to mean the parmanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussulman law as religious, pious or charitable. Courts have taken the view that the said definition is not exhaustive and always referred to the meaning given to the purposes which Muslims acknowledge as religious, pious or charitable. Mohammadan jurists have held the view that the term wakf literally means detention, according to Abu-Hanifa, detention of a specific thing in ownership of the waqf or appropriator, devoting or appropriating its profits or usufruct in charity on the poor or other good objects, according to Abu Yusuf and Mohammad, waqf signifies the extinction of the appropriators ownership in the thing dedicated and the detention of the thing in the implied ownership of God, in such a manner that its profits may revert to or be applied for the benefit of mankind. Jurists are unanimous that the Mutawalli is the manager of the wakf, but the property does not vest in him, as it would in a trustee in English law. If beneficiaries are Muslims and the wakif makes a permanent dedication of any property which belonged to him at the time of dedication for the purposes recognised by the Mohammadan law religious, pious or charitable, the ownership devolves to none except God. Mutwalli exercises only the managerial functions. 12. It is not in contest that the founder of the wakft has power to appoint the first Mutwalli and lay down a scheme for the administration of the trust and for succession to the office of Mutwalli. He could nominate the successors by name or indicate the class together with their qualification, from whom the Mutwalli could be appointed, and invest the Mutwalli with power to nominate a successor after his death or relinquishment of office. The founder could appoint himself as the Mulwalli and in the capacity of the Mutwalli appoint successor, but neither the founder after the dedication nor his successor as the Mutwalli could mortgage, sell or exchange Waqf property or any part thereof, without the permission of the court, unless he was expressly empowered by the deed of Waqf to do so. 13. It is the matter of legal history that waqfs, in which the benefits to charity or religion were either illusory or postponed indefinitely, while the property so dedicated was being enjoyed from generation to generation by the family of the Waqf were regarded as opposed to the rule against perpetuities as contained in the Indian Succession and the Transfer of Property Acts. This was so declared in a succession of cases by the Industrial Committee and the opinion of Amir Ali expressed in his Tagore Lectures was not accepted. When, however, observations in the case of Abul Fata Mahomed Ishak and Ors. V/s. Russomoy Dhur Chowdry and Ors. This was so declared in a succession of cases by the Industrial Committee and the opinion of Amir Ali expressed in his Tagore Lectures was not accepted. When, however, observations in the case of Abul Fata Mahomed Ishak and Ors. V/s. Russomoy Dhur Chowdry and Ors. 22 I.A. 76 to the effect-"...it would be doing wrong to the great law giver to suppose that he is thereby commending gifts for which the donor exercises no self-denial in which he takes back with one hand what he appears to put away with the other ; which are to form the centre of attraction for accumulations of income and further accessions of family property which carefully protected so-called managers from being called to account which seek to give to the donors and their family the enjoyment of property free from all liability to creditors ; and which do not seek the benefit of other beyond the use of empty words" came there was agitation in India Mussalman Wakf Validating Act then was promulgated, declaring that Mussalmans could make settlements of property by way of waqf in favour of their families, children and descendants. It defined waqf to mean permanent dedication by a person professing the Mussalman faith of property for any purpose recognised by the Musalman law as leligious, pious or charitable, 14. A. Division Bench of the Calcutta High Court in Syed Mohiuddin Ahmad and Ors. V/s. Sofia Khatun A.I.R. 1940 Cal. 501 considered the provisions in Muslims personal Laws and the Mussalman Wakf Validating Act and held that a waqf by way of family settlement may be valid, if ultimate benefit is reserved expressly or impliedly for the poor or any other purpose of a permanent character recognised by the Mussalman law as religious, pious or charitable. It has observed that maintenance and support of the family, children or descendants of the wakif is not to be regaided as a religious, pious or charitable purpose but the dedication will be valid if the ultimate gift for the said purposes is postponed till after the extinction of the family, children or descendants of the wakif. If, however, such postponment is made more remote to take effect on the extinction of a more extended group of persons, it may not be valid. 15. If, however, such postponment is made more remote to take effect on the extinction of a more extended group of persons, it may not be valid. 15. Expressing itself on the said aspect of the law, a Division Bench of the Calcutta High Court in Mohammad Nassau V/s. Muhammad Yusuf and Ors. has said that a valid wakf is one in which appropriation is at once complete. The question whether a property has been dedicated to religious or charitable uses may be determined with reference to the religious sentiments of the community to which the properties belong and not in accordance with the ideas or sentiments prevalent amongst a different community. A similar view is expressed in Mohamad Karim V/s. Abi Saghir A.I.R. 1932 Pat. 33. 16. Exhibit 22, the deed executed by Wazid Hussain contains- Man Mokir kuchch thori si jaidad hasil kiya hai wah Jaidad aiysa hai ki jabtak uski nigrani bakbubi naho kayam nahi rah sakti. 2. Khahis man mokir yah hai ki hasab mansai Act 6 san 1923 jaidad hai mokir jail wak upar upne wo upar Musamat Bibi Mahbuban jauje Abdul Majid Abdul Hafiz pesaran wakf Alal Aulad bare wo kisi kadar amdani wakf Bibi Dahnawag Masjid Banjar marammat wo roshvai bake mauje Abawakpur. 3. Take amdani jaidad hath sa manmokir wo ahliyan Khandan manmokir motfark ho. 4. Ma Bakiya amdani se moblig 6 rupya saiuna waste roshni wo maramat masjid Bae mauja Abawakpur garjaul wo moblig 24/- rupya salana masjid jinke kam mofasle jal se kharchan kiya jata hai sal ba sai deya karanga. The above leaves no manner of doubt that a religious purpose, namely, creation of a mosque and worship therein was contemplated and some income was set apart for the said purpose. No doubt, it reserved substantial portion of the income for the benefit of the family, yet it put upon the beneficiaries a duty to appropriate only after spending for the religious purpose of maintenance of the mosque and worship therein. 17 The above alone should conclude the case for dedication, gave no right to any beneficiary to alienate, incumber or otherwise dispose of the properties covered by it 18. Learned counsel for the respondents has, however, suggested that by an Ekrarnama dated 29-5-1933 Ext. 17 The above alone should conclude the case for dedication, gave no right to any beneficiary to alienate, incumber or otherwise dispose of the properties covered by it 18. Learned counsel for the respondents has, however, suggested that by an Ekrarnama dated 29-5-1933 Ext. 10 (a) executed by Abdul Hafiz and Anisul Haque, while the plaintiff Abdul Hafiz was acknowledged as Mutwalli, Azizul Haque was acknowledged as the owner in joint possession of the properties. This, according to learned counsel, is enough to show that there was no waqif, denying the interets and rights of successors of the original owner of the property, namely, Wajid Hussain. Since apart from the fact that it is fully evidenced that Abdul Majid (father of defendant 1 to 3) succeeded Wajid Hussain as the Mutwalli and, thus , there was no dispute to the properties being Waqf property, ext. 10 (a) could make no alteration in the conditions of the deed of waqf and create no interest beyond acknowledged in the deed of Waqf into any person to hold any portion of the property in a capacity other than of a Mutwalli, it is not ed possible to accept the said contention. 19. Although there were many issues and evidence was led by the parties in the trial court in several other accept of the controversy, as learned counsel for the parties have agreed that all ancillary questions would vanish once the main contention is answered favour of the waqf, we are not requir-to decide beyond interpreting exhibit 22". 20. As a sequence of my conclusions above, I hold that exhibit 22 created a valid Waqf, of which the Wakif himself was the first Mutwalli followed by the father of the defendants 1 to 3 (brother of the original plaintiff) and the original plaintiff. Since the original plaintiff is dead and nothing has been shown to us to hold one way or the other as to who is the present Mutwalli. I say nothing about it. However, the sale deeds dated 8-10-1964 in favour of defendants 4 (a) and 4 (b) and the deed of gift dated 25-5-1963 in favour of the Governor of Bihar are invalid, the properties vested and stand vested in the Waqf and shall so remain until the waqf is dissolved in accordance with law. 21. I say nothing about it. However, the sale deeds dated 8-10-1964 in favour of defendants 4 (a) and 4 (b) and the deed of gift dated 25-5-1963 in favour of the Governor of Bihar are invalid, the properties vested and stand vested in the Waqf and shall so remain until the waqf is dissolved in accordance with law. 21. In the result, the appeal is allowed and the suit is decreed, as indicated above, there shall be, however, no order as to costs.