P L D 1975 Lahore 1147 (PLP)

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10. Wakfs.‑(1) Land included in any Wakf of the nature described in section 3 of the Musalman Wakf Validating Act, 1913 (VI of 1913), shall, on the commencement of this Regulation cease to form part of such Wakf. (2) Such land, except the portion, if any already specifically dedicated for a religious, pious or charitable purpose, shall be appropriated as follows :‑-- (a) If the donor is alive and is the sole beneficiary of the Wakf, the land shall revert to him. (b) If the donor is alive and is not the sole beneficiary and there are other beneficiaries besides him, then such portion of the land as is reserved under the wakf for the benefit of the donor shall revert to him, and the remaining portion of the land shall be divided among the other beneficiaries, non‑heirs receiving share in proportion to the bene fit reserved for them under the Wakf, and heirs according to the law of inheritance, as if succession had opened on the commencement of this Regulation. (c) If the donor is dead, the land shall be divided among the benefi ciaries, non‑heirs receiving share in proportion to the benefit reserved for them under the Wakf, and heirs according to the law of inheritance as if succession had opened on the day the donor died. (d) If a benefit derivable from such land, not being a dedication of a specified land, is reserved under the Wakf for a religious, pious, or charitable purpose, the Commission may, in lieu of the benefit, allow for such purpose such portion of the land to be retained or such compensation to be paid, as it thinks fit, and utilise the land or a portion thereof, as the case may be, in accordance with the provisions of this Regulation. (3) Where under any such Wakf as aforesaid, any specified land has been dedicated for a religious, pious or charitable purpose, such land may continue to be utilized for that purpose, and shall be deemed to be owned or possessed by a religious or a charitable institution for the purposes of paragraph 9(c). (4) No land shall, on and after the commencement of this Regulation, be included in or subjected to any Wakf of the nature as is referred to in sub‑paragraph (1). (5) A person who comes into ownership or possession of land by virtue of this paragraph shall be subject to the provisions of this Regulation as an existing owner, except that he shall not be entitled to claim the benefit of exemption under clauses (e) and (f) of paragraph 9 if, but for his becoming an owner of land under this paragraph he would not have been entitled or could not have claimed the benefit of such exemptions. Explanation.‑A "beneficiary" in this paragraph does not include a future beneficiary to whom no present advantage accrues under the Wakf." Sub‑para. (1) provides that land included in any Wakf of the nature described in section 3 of the Musalman Waqf Validating Act shall on the commencement of this Regulation cease to form part of such Waqf. Sub para. (3) further provides that where under such Waqf any specified land has been dedicated for religious, pious or charitable purposes such land may continue to be utilised for that purpose and shall be deemed to be owned or possessed by, religious or charitable institutions for the purposes of Paragraph 9 (c) under sub‑para. (2) all the other land shall be appro priated in the manner provided by its clauses (a) to (d). Clause (c) to sub‑para. (2) is relevant to the present facts and provides that if the donor is dead the land. shall be divided among the beneficiaries. The income of half of the land which forms the subject‑matter of the Waqf was specified as having been set apart for being spent on religious, pious charitable purposes. Under sub‑para. 3 of para. 10, therefore, half of the land shall be deemed to be owned or possessed by the religious or charitable institutions and not by the appellants or any other beneficiary.

16. The property which was set apart for maintenance of Lambardar was not a property dedicated for religious, pious or charitable purposes. That portion of the land was to remain with the beneficiary Lambardar. It is only when a stranger Lambardar is appointed that half of the income of the property would be admissible for being spent on charitable and pious purposes. This land, therefore, cannot be deemed to be specifically dedicated for reli gious, pious or charitable purposes and will have to be disbursed in accord ance with sub‑para. (2). It cannot, therefore, remain as Waqf property under para. 10 of Martial Law Regulation No, 64.

17. Martial Law Regulation No. 64 defines `Land' as follows in its para. 2(5) : ‑

"2(5) "land" means land, including evacuee land, which is not occupied as the site of a town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purposes or for purposes allied or subservient to agriculture, such as forests or pastures or livestock or poultry farms, and includes also the sites of buildings and other structures on such land." The land other than the area of Chah Tibbey Wala amounting to 214 kanals 10 marlas cannot be declared as non‑Waqf property. This area is described in item 4 of the Schedule to the notification of taking over issued by the Chief Administrator of Auqaf under section 6 of the Ordinance which has already been reproduced above.

18. Next comes the question of other properties which includes the buildings. Some portions of these buildings are being used for Kutab Khana Muhammadia, Madrassa‑tul‑Banal with Kashida Kari branch, Madrassa Muhammadia and Daras‑e‑Islami. The decision about these properties was on the determination of the nature of the Waqf. If it is a Waqf created under Musalman Waqf Validating Act of 1913, these buildings will not be deemed to be Waqf properties. If on the other hand it is held that in regard to half of the property Waqf of charitable, pious and religious nature has been created it would be within the ambit of definition of Waqf property, and can not be declared as non‑Waqf property. For arriving at a conclusion it is not necessary to look to any other evidence except the substance of Exhs. P‑1 and P‑

2. These documents show that a Waqf under the Musalman Waqf Validat ing Act of 1913 was created by the waqif, although the set apart a substantial income of the property for being used on certain specified religious, charitable and pious purposes particularly on these institutions named in the Waqf‑deed of 1935. But in order to determine whether the Waqf was governed by the above Act the substance of these documents should be seen and not this declaration by the Waqif. It is necessary to find out whether on proper interpretation of the Act the entire property was covered by it or the income which was set apart specifically for religious or charitable purposes was not within its purview. According to law as declared by Superior Courts before the enforcement of the Act of 1913 a Waqf was considered valid only if its effect was to give the property in substance to charitable purposes. It was not valid if the effect was to give the property in substance to the Waqif's family. In Abdul Fata Muhammad v. Razamaya (ILR22Cal.619=221A 76), the Judicial Committee held that in case the income of the Waqf property was to be applied in the first instance for the benefit of the settlor's descendants from generation to generation and the trust in favour of charity was to come into operation after the extinction of the whole line of the settlor's descendents, the gift to charity was illusory and that the provision for the settler's family was invalid.

19. In order to find out the true scope of the Waqf Validating Act off 1913 it is necessary to make a reference to the view taken by the Judicial Committee of the Privy Council or the High Courts in India about the vali dity of a Waqf. There was no dispute about the legality of a Waqf which was created entirely for public purposes i. e. for purposes which are pious, charitable or religious according to the Muslim Law. In case of a dedication of property permanently for any or several of all the above purposes the Waqf was considered to be unassailable. A waqf in which a substantial portion was; set apart for charitable purposes even before the Act, 1913 was considered to be valid Waqf. In Mutu Ramanandan v. Vavva Levvai Marakayar (2), property E worth Rs. 20,000 was given in trust. Out of the income of this property 6 % per annum was estimated to be expenses for the Fateha of the ancestors and alms giving and the rest of the income which was estimated at Rs. 90 was for the benefit of the settlor's descendants. It was held by their Lordships of the Privy Council that though 2/5th of the income was to be devoted to the charity and the 3/5th was to go to the family, the effect of the deed was to give the property in substance for charitable reasons and that the deed was, therefore, valid. It was only in case of Waqfs where the properties were not substantially dedicated to charity and provision was made for the maintenance of the Waqf or his members of the family also that the Privy Council took the view in several cases that if the dedication was not substantially to charity but it was merely a cloak for getting the property tied up for the benefit of the members of the family of the Waqif that it was held that the dedication was illusory and as such void. This was held in Muhammad Ahsanullah v. Amarchand Kundu ((1889) 17 Cal. 498 = 17 I A 28), in the case of Abdul Fata Muhammad Ishaq the entire property was to remain in possession of the waqf and his heirs from generation to generation who had a right to appropriate its entire income. Only the ultimate benefit after the extinction of the family was given to charities, the Waqf was adjudicated upon as void and illusory. These authorities created some unrest among the Muslims of India. Ulti mately the Mussalman Waqf Validating Act, 1913 was passed with the follow ing object as given in the statement of objects and reasons :‑

"Whereas doubts have arisen regarding the validity of Waqfs created by persons professing the Mussalman faith in favour of themselves, their families, children and descendants and ultimately for the benefit of the poor or for other religious, piou9, charitable purposes : and whereas it is expedient to remove such doubts : it is hereby enacted as follows." Section 4 of the Act expressly stated that "No such Waqf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the Waqf." Section 3 declared :‑-- "It shall be lawful for any person professing the Musalman faith to create a Wakf which in all other respects is in accordance with the provisions of Musalman Law, for the following among other purposes :‑ (a) for the maintenance and support wholly or partially of his family, children or descendants, and (b) where the person creating Waqf is Hanafi Mussalman, also for his own maintenance and support during his life‑time or for the payment of his debts out of the rents and profits of the property dedicated Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Musalman Law as a religious, pious or charitable purpose of a perma nent character."

20. It is apparent from sections 3 and 4 that as held in Haji Qadir Murtaza Hussain Sahib v. Muhammad Murtaza Hussain Sahib (A I R 1943 Mad. 234), that under these sections only private Waqfs had been declared to be valid. It was observ ed in that case that "Under section 3 of Act VI of 1913 certain Waqfs are valid. The first of these is a Waqf for the maintenance and support wholly or partly of his family, children or descendants by a person professing Mussalman faith. It is evidently under this subsection that the learned District Judge thought that the present Waqf came. It seems to me that this view is mistaken. . That section 3(a) of Act VI of 1913 cannot apply to Waqfs which sub‑serve partly charitable and partly private, but must apply to Waqfs originally designed to serve one purpose only and that is private. `For the maintenance support wholly or partly of his family children or descendants' describes two possible sources of Waqf, the first one being sufficiently large to maintain family completely and the second one being insufficiently large for this purpose. That this must be the meaning of the verse seems to be clear from the use of the words 'ultimate' in this proviso :‑‑-- "Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purposes recognised by the Mussalman Law as religious, pious or charitable purpose of a perma nent character." The existence of this proviso in the section shows, l: think beyond all possi bility of dispute, that the waqf which the section validates are those which are primarily and wholly for the purpose of supporting and maintaining the family, children or descendants of the creator of the Waqf. This view also appears to have be‑on taken by the High Court of West Pakistan in Chief Administrator of Auqaf West Pakistan, Lahore v. Pir Rashid ud‑Daula and others (P L D 1961 Lab. 993), as is apparent from the following quotation :‑ "The learned trial Judge has held that as the objects of the Waqf under consideration were at least partly private, namely the enjoyment of a part of the income by the descendants of the dedicator, section 3 of the Mussalman Waqf Validating Act, 1913 applied to it. I am clear in my ‑mind that the interpretation which the learned trial Judge has placed on section 3 of the Mussalman Waqf Validating Act, 1913, is not correct. It should be remembered that mixed Waqfs, of the kind of which, according to the learned trial Judge, the Waqf under consi deration was one, were always recognised as valid by the Courts in British India and it was' out of the private Waqf created under the Muslim Law and the Courts in British India had declined to recognise and that it was to get recognition for that kind of Waqfs that the Mussalman Waqf Validating Act was passed. The Statement of Objects and Reasons which has been reproduced in the last paragraph leaves not the slightest reason for the view that Waqfs which are not purely private fall under the section. The correct position that emerges is that while the Mussalman Waqf Validating Act (VI of 1913) governs private Waqf or Waqf‑al‑aulad as they are called, the ordinary Muslim Law governs the public and mixed Waqfs. It follows, there fore, that even if the respondents had succeeded in proving that they were entitled to a part of the income from the shrine, which in my view they have not, the provisions of section 2(d) of the West Pakistan Waqf Properties Ordinance XXI of 1959 would not be inapplicable to the case."

21. It may be stated at this stage that the learned counsel for the appellants had relied upon an observation of their Lordships of the Supreme Court in Rashid‑ud‑Daula v. Chief Administrator, Auqaf (P L D 1971 S C 401 ). The Supreme Court's decision is in the appeal filed against the judgment of the High Court of West Pakistan reported in P L D 1961. Lab. 993, while dealing with the same question their Lordships came to the conclusion that the income of the shrine was Waqf within the meaning of the West Pakistan Waqf Properties Ordinance, 1959. "In this view of the matter", it was held that "no question also arises of these being private or mixed Waqfs within the meaning of section 3 of the Mussalmans Waqf Validating Act, 1913, which have been excluded from the definition of a Waqf under the impugned Ordinance. If it is a Waqf then it is Waqf created by operation of law which is not excluded from the mischief of the Ordinance.

22. On the basis of this observation it was argued by the learned counsel for the appellants that in the view of their Lordships of the Supreme Court both private or mixed Waqfs were within the meaning of section 3 of the Act, 1913. This particular sentence cannot, however, be given this wide interpretation. The High Court's clear view, reproduced above, was not over‑ruled. Their Lordships merely stated that this question whether private or mixed Waqf was covered by section 3 of the Act, 1913 did not arise.

23. The interpretation of the High Court of West Pakistan is justifiable as stated above, from the history of the legislation, its objects and reasons and its section.

24. The Judicial Committee of the Privy Council as well as the Indian High Courts had always taken the view that where the gift to charity is substantial, the Waqf is valid, even though some income of the property might be set apart for the maintenance of the Waqif or the members of his family or the future generations. In Riba Jan v. Kalb Hussain (I L R 31 All. 136), out of the entire income Rs. 1000 was reserved for charitable purposes. It was held that this was substantial dedication to charitable purposes and the Waqf was valid. In Massirat Hassain v. Hossain Ahmad (A I R 1938 Cal. 278 ), cases have been collected in which the Waqf has been held to be public or a private trust on the proportion of income set apart for charitable or secular purposes. It was held to be a private trust in Satheppayyar v. Pariassami (I L R 14 Mad. 1), Abdul l‑lassan v. Aziz Ahmad (25 I C 661 ), Gopal Lai Seth v. Porna Chandra Baset (AIR 1922 P C 253), Parad Dos Pal v. Jagan Nath Pal (A I R 1933 Cal. 519 ), Ali Bakhtar v. Haji and Khundkar Altaf Hussain (A I R 1933 Cal 581), Din Shaw Manrhjee Petit v. Jamsetji Jijibhai (A I R 33 Bom. 509 ) and Syed Shabbir Hussain v. Ashiq Hussain (A I R 1929 Oudh 225). The cases where it has been held to be a public trust referred to in this authority are Jugal Kishore v. Lakshmandas Raghonathdas (I L R 23 Bom. 659 ), Puran Atal v. Darsandas (I L R 34 All. 468), Jadab Jha v. Satdeo Jha (A I R 1929 Pat. 723 ), Ramanaahan Chettiar v. Vavva Levval Markayar (A I If 1916 P C 86), Valdya Nath Ayyar v. Swaminatha Ayyar (A I R 1924 P C 221 ) and Sakhumal Manumal v. Uttam Chand (A I R 1937 Sind 230 ). In Ramanandan Chettiar v. Vavva Levvai Marakayar and others it was provided in the Waqf deed that out of the 2/3rd income Rs. 10 will be paid as salary to the trustee, some provision was made for specific customary charities to be performed and the surplus was to be divided every year among the heirs. Regarding the 1/3rd it was provided that it shall be utilised in purchasing properties to be added to the charity properties to be dealt with similarly. It was held that the dedication to charity was not illusory but was substantial. The following test was also laid down for determining whether the provision for charity is illusory or substantial :‑ "To determine whether any particular case answers the test, all the circumstances existing at the date of the deed must be taken into consideration, such as the financial position of the grantor, the amount of the property, the nature and the needs of the charity, their probable or possible expansion, the priority of their claim upon the settled fund and such like."

24. In Vaidynatha Ayyar and another v. Swaminatha Ayyar and another the terms of the Waqf recited that 2/3rd income will be given to the wife for her life time. Out of the 1/3rd certain debts would be discharged and the balance would be expended on establishing ann dhanam for the pur poses of feeding the poor. After the death of the wife the 2/3rd property will also be used for charitable purposes. It was held that it was a public trust. In Tafazzal Beg v. Majidullah (A I R 1924 Lab. 432), Rs. 2 out of Rs. 22/4 p. m. were given to the relations and balance was to go to charity. It was held that this was not illusory provision. In Nawaz Syed M. Hashim All Khan v. Iffat Ara Hamidi Begum (A I R 1942 Cal. 180 ), 5/10th of the income was to go to Mutawalli, 2/10th to descendants, 2/10th for mosque and an Imambara and 1/10th for extension and improvement. It was held that the Waqf would be valid even without invoking the provisions of Act of 1913.

25. There are at least two cases in which the income was divided equally between charity and the family as in the present case. One is Narain Dass v. Abdul Rehman (A I R 1920 Cal. 379), where it was held that this was substantial gift to charity. Another is Tyebhai Essafali Thingna v. Collector of Ahmad abad (A I R 1944 Bom. 94 ) where half the income which was set apart for charitable purposes was held not to be governed by section 3 of the Act of 1913. This later authority will be considered later in another context also.

26. Even after the Act of 1913 this question of the dedication to the charity being illusory or substantial was considered in so many cases for the reason that before the Waqf Validating Act of 1930 which declared that the Act of 1913 was retrospective in character, it was held by the Privy Council as well as the High Courts in India that the Act was only prospective and could not govern Waqf deeds which had been executed before the enforcement of the Act. In some cases, however, this question was raised and decided as and alternative to the plea of applicability of the Act of 1913. Thus in Balla Mal and others v. Alta Ullah Khan and others (AIR 1927 P C 191) the question of substantiality of dedication or otherwise was decided in view of the finding of their Lordships of the Judicial Committees that the Act of 1913 was not retrospective. In that case only a sum of Rs. 146 out of an income of Rs. 1,558 was reserved for charity. According to the view of their Lordships even this could have been substantial but for a condition of the deed. It was observed "If the Rs. 146 devoted to charity were necessarily to be increased as the life annuities fell in, there could in their Lordships' opinion, be no question as to the validity of the Waqf. Unfortunately, this is not the scheme of the deed." In Beli Ram & Brothers and others v. Chaudri Muhammad Afzal and others (P L D 1949 P C 8 ), this question was considered as an alter native as will be clear from this observation :‑ "Their Lordships think that in the present Waqfnama the gift in charity of three shares out of 15 is not a substantial part of property as would have rendered the deed valid before the passing of the Act, and that deed, if it is to be upheld, must come within the terms of the Act (of 1913)." Similar case is Muhammad Azam Khan v. Hamid Shah and another (A I R 1947 All. 137), where the Waqf was held valid apart from the provisions of the Act of 1913 on the ground that substantial sum was earmarked for charitable purposes.

27. There is yet another category of case‑law which is relevant for resolving the question in hand. In Mst. Ali Eagum and others v. Badar‑ul- Islam Ali Khan (AIR 1938 P C 184 ), the Privy Council held a waqf to be valid without invok ing in aid the provisions of the Act of 1913 and it was observed that in the circumstances of the case it was not necessary to "pray in aid the provisions of the Mussalman Waqf Validating Act, 1913". At page 87 of the report it was observed "but in their Lordships' view this provision does not show that the testator does not intend to make a Waqf of the properties nor does it render the dedication illusory or make it invalid either on the ground that the property was not substantially dedicated to charity or on the ground that the Waqf had retained a benefit for himself. It is not necessary to pray in aid the provisions of Mussalman Waqf Validating Act, 1913."

28. The Waqf Ordinances of 1959 and 1960 are not the only legislations in which the Waqf falling within the ambit of section 3 of the Act of 1913 has been excluded. A similar provision was there in the Waqf Act XLII of 1923. In section 92 of the C. P. C. it is provided that., it applies to public trusts. Similarly the Charitable and Religious Trusts Act 14 of 1920 w as also made applicable to public trusts. The question whether a Waqf in which the dedi cation is partly to charity and partly to family has arisen in a number of cases arising out of this enactment. I first take up those cases in which the provisions of Act XLII of 1923 specifically exclude the Waqf covered by the Act of 1913 have been interpreted. This question first came up for consideration in the case of Shabbir Hussain v. Ashiq Hussain, before a Full Bench of the Allahabad High Court. In that case the applicant Syed Shabbir Hussain purporting to act under the Mussalman Waqf Validating Act 1923 furnished particulars required by section 3 of the Act to the Court of the District Judge in respect of certain immovable properties which he held in the character of Mutawalli. Thereafter Sh. Ashiq Hussain made an application purporting to fall within the provision of section 3 of the Charitable and Religious Trusts Act 1920 to obtain an order embodying certain directions to be issued to Syed Shabbir Hussain. The following two objections inter alia were raised;

(1) The Act of 1920 did not apply to this trust : and (2) Sh. Ashiq Hussain was not a person having an interest in the said trust. It transpired that the trust was a mixed Waqf. In spite of this the District Judge rejected the objections and issued certain directions. The following two questions were referred to the Full Bench by a Division Bench of the Court (1) Whether the Charitable and Religious Trusts Act XIV of 1920 applies to the case of mixed Waqfs or trusts where a portion of the benefit is allotted for private purposes and a portion for public purposes, so far as the later portion is concerned or whether it applies only to those cases where entire benefit in the Waqf or trust is allotted for public purposes; (2) Where a person interested in a public, religious or charitable Waqf is entitled to make an application under section 3 Charitable and Religious Trusts Act XIV of 1920 to the trustee or the said Waqf as already furnished to the Court and the particulars and accounts relat ing to the Waqf under sections 3 and 5 Mussalman Waqf Act (XLII of 1923). The Full Bench answered the questions thus :‑-- (i) That Act of 1920 applies only to those cases where the entire benefit under the Waqf or trust is allotted for public purposes; (ii) Where a trust is of a public nature any person having an interest in the said trust is entitled to make the application contemplated by section 3 of the Act of 1920, but that he is not so entitled if the pur pose of the trust is partly public and partly private. In the later case his remedy lies to make an application under section 4 of the Act of 1923." This authority was relied upon !n Tyebhoy Essofalli Thingna v. Collector of Ahmadabad, which has already been referred to. In that case it was held that section 3 of Act of 1913 applies to Waqfs which are in the nature of family settlements pure and simple, where the ultimate benefit is expressly or impliedly reserved fur the poor or for any other purpose recognised by Mussalman Law as the religious, pious or charitable purpose of a permanent character. The provisions of Mussalman Waqf Act, 1923 are applicable to a mixed waqf i.e. one that is partly a public Waqf, that is devo ted entirely to religious purposes and partly a private Waqf. That part of the Waqf which does not fall under section 3 Mussalman Waqf Validating Act 1913 is governed by Mussalman Waqf Act of 1923. This authority (1929 Oudh 225) however, was not relied upon in Mehboob Band! v. Mehboob Hussain Khan (A I R 1937 Oudh 454), on the ground that the observation about the applicability of Act XLII of 1823 was obiter dictum. This, however, does not appear to be correct for the reason that in that case Syed Shabbir Hussain bad himself made an application under the provisions of Act, 1923. Another application under the Act of 1920 was made by Ashiq Hussain. The question, therefore, whether the case was covered by Act of 1920 or Act of 1923 was very much relevant. One other case may be noticed in this connection i.e. Muhammad Abid etc. v. Jafar Hussain (A I R 1930 All. 53(2) ), where it was held that where a substantial portion of the profits of endowed property is earmarked for the support and maintenance of certain specified individuals who are relatives of the Waqf and the remaining portion for the betterment of Shia Community, the Act is not wholly for public purposes and the Act XIV of 1920 and XLII of 1923 are not applicable to it. This case is also distinguishable as in the present case the portion given to charity is not only substantial but is easily divisible. In Al! Bakhtear and others v. Khandkar Altaf Hussain and others, in case of a mixed Waqf where 1/3rd of the income went to the trustee and the rest to charity, it was held that it was governed by the Act of 1923.

29. Now coming to the case under the Act of 1920, in Vishram Manji v. Gangeram Ladha and others (A I R 1939 Sind 13 ), in a suit under section 92, C. P. C. the trial Court divided the trust into two portions : one relating to charitable purposes and the other relating to the trust for benefit of the members of the family. The second trust was held to be void as it was against the rule relating to perpetuity. The decree was, however, passed regarding the portion relating to charitable purposes and trustees were appointed. Appeal against this order was dismissed by the Sind Chief Court by observing that the counsel confessed his inability to dispute the finding. Similar division was effected in Abdul Rajak v. Bai Jimbabai ((1912) 14 Cal. 988). In that case between 1/6th and 1/8th of the income of the settled properties was devoted to immediate charitable trusts, while the rest of the income was substantially settled for the support of the descendants of the settlors in perpetuity. It was held that the trust for charitable purposes were valid, but the trust in favour of the settlor's descen dants is void as it cannot be supported as part of a valid Waqf.

30. In Nanhoobeg v. Ghulam Hussain and others (A I R 1951 Nag, 394), it was held that if a substantial part of the trust is for public purposes and the matter is otherwise covered by section 92 then a scheme can be framed. The Sind case of Vishram Manji v. Gangaram Ladha and others was followed.

31. The preponderance of the opinion is, therefore, in favour of dividing a mixed Waqf into the private trust portion and the public trust portion and to apply the law applicable to public trust or mixed trust at least to portion which is in the nature of a public trust. It appears, however, that there is one condition attached to it that the substantial portion of the dedication should be to public purpose. In the present case the two portions are easily divisible and the portion of dedication to charity is substantial.

32. The Waqf otherwise also will be valid even if no reference is made to the Act of 1913. This is an additional reason for holding that it was not in fact within the ambit of that Act and at least the portion given to charity can be treated as public Waqf by itself. For all these reasons I am of the view that the order of the learned District Judge was unexceptionable. I do not find any merit in either the appeal or the cross‑objections and dismiss all of them. As an important law point about the applicability of the Act of 1913 is involved in this case, there will be no order as to costs. S. A. H. Appeal and cross‑objections dismissed.