P L D 1964 Dacca 575 (PLP)

CHOWDHURY, C. J.‑‑I had the occasion to go through the judgment proposed to be delivered by my learned brother in this appeal. My learned brother dealt with the case with minute details of facts and circumstances and the wakfnama in this appeal. I need not repeat them. I agree with my learned brother that the wakf is a genuine wakf and the plaintiff and the proforma defendants Nos. 15 to 17 are the defendants of the saint Shah Sufi Amanat and they are the hereditary mutwallis under the wakfnama and that the wakf is not a wakf‑alai‑aulad, but that does not necessarily follow that it is a public wakf as the learned Subordinate Judge, the defence lawyers and the Wakf Commissioner seem to think which has since been rightly appreciated by Mr. Israil the learned Advocate on behalf of the Wakf Commissioner, who advanced an argument that it is a wakf other than wakf‑alai‑aulad. Wakf‑alai‑aulad is no doubt a private wakf, but all private wakfs are not wakf‑alai‑aulad and it is correctly held by my learned, brother that it is a private wakf created for the benefit of the grave of wakif's ancestor late Shah Sufi Amanat which, in course of time, matured into a shrine. I am also in full agreement with my learned brother that the offerings In the grave of the saint or in the Dargah are not wakf properties. They are neither income from the wakf properties or of the shine nor dedicated by any body for any specific purposes, and the heirs of the wakif, who are also mutwallis of the wakf created for the benefit of the grave of the saint, are entitled to collect the same and use it for the purpose of the Dargah as well as for their private needs, and needs of the descendants of the saint and the Wakf Commissioner has get no right to make it a subject‑matter of the scheme framed by him about wakf property is contrary to the provision of the wakf nama and is, therefore, illegal and void. There is no defect in the frame of the suit in tile facts and circumstances of the case. The money on account of offerings that are lying in deposits in the bank and kept in deposit in pursuance of the order, of the Court are payable to the hereditary mutwallis.

2. In these circumstances, I agree with my learned brother that this appeal should be allowed with costs throughout in terms of the order proposed by him. M. R. KHAN, J.‑This appeal by the sole plaintiff is from the judgment and decree in other Suit No. 25 of 1953/21 of 1955 of the Second Subordinate Judge's Court, Chittagong filed against the Commissioner of Wakfs, East Bengal (defendant No. 1) and the defendants 2 to 14 who were the members of a committee of management appointed by the Commissioner of Wakfs. The plaintiff's three brothers were also impleaded in the suit as pro forma‑defendants 15, 16 and

17. Various reliefs were sought for in the suit by the plaintiff, but the suit was mainly for a declaration that the properties described in Schedules A and B of the plaint constitute a wakf‑alai‑aulad or a private wakf, that the plaintiff and the proforma‑defendants 15 to 17 are the hereditary mutwallis of that wakf and that the order of the Wakf Commissioner, dated 1 1‑12‑52 by which he declared the wakf to be a public wakf and appointed a committee consisting of the defendants 2 to 14 for its management and further framed a scheme allocating the income of the wakf properties to different objects is illegal, void, inoperative and without jurisdiction. A prayer was also made in the suit for recovery of the amount of the offerings in cash collected by the committee of management. As an alternative to all these reliefs, the plaintiff prayed that in the event of the wakf being found to be a public wakf, the plaintiff and the proforma defendants 15 to 17 be declared to be hereditary mutawallis thereof, with right to administer the wakf, and the scheme framed by the Wakf Commissioner be declared to be illegal and without jurisdiction.

4. The suit has been decreed in the plaintiff's favour in respect of the alternative relief, but the scheme framed by the Wakf Commissioner has not been declared illegal as prayed for.

5. In order to appreciate the controversy, the issues involved and the grievance, of the plaintiff‑appellant against the decree passed in his favour, it is necessary to state the material facts of the case at some length.

6. The properties described in Schedule A of the plaint which are within the Chittagong town, belonged to a great Muslim Saint named Hazrat Sufi Amanat Khan. He died long ago and was buried within those properties. After his death, his grave attracted visitor‑both Muslims and Hindus from near and distant places. In course of time, the saint's grave attained celebrity and importance, came to be venerated by a considerable body of the public and attained its full stature as a shrine or Dargah. The plaintiff and his brothers (proforma defendants 15 to 17) claimed to be direct lineal descendants of the saint and are now in the seventh generation after him. The saint left this world leaving behind his son Anwar Khan. Alef Khan, the only son of Anwar Khan died during his father's life time, leaving behind two sons Aliar Khan and Amanat Khan. For the proper maintenance of the Dargah of Hazrat Shah Sufi Amanat Khan and for rendering services therein and also with a view to provide for the mainte nance of his descendants who were to render such services, Anwar Khan made wakf of the properties described in Schedule A of the plaint by executing a deed of wakf (Exh. 3) on the 11th Baisakh, 1202 M. E. (Maghi Era) corresponding to the 22nd April, 1840 A. D. By the same deed of wakf, Anwar Khan appointed his grandsons Aliar khan azid Amanat Khian as mutawallis of the wakf and made provision therein to the effect that the descendants of the said two mutwallis in the male line were to be successive mutwallis, from generation to generation. Of the two mutwallis appointed by the deed of wakf, Amanat Khan died childless, and Aliar Khan died leaving his only son Fazar Ali Khan who, after his father's death, became the next mutwalli. After the death of Fazar Ali Khan, his only son Sher Ali Khan became the next mutwalli, but he was under the guardianship of his mother Badi. unessa on account of his the then minority. After having acted as mutwalli for a long time, Sher Ali Khan died on the 21st January 1942, leaving four sons who are the plaintiff and the proforma defendants 15 to 17, his widow Feroza Khatun and several daughters. Thus the plaintiff and the proforma‑defendants 15 to 17, became the mutwallis of the wakf created by Anwar Khan.

7. The wakf properties, described in Schedule A and the saint's tomb lying within those properties have undergone subs tantial changes on account of additions, alterations and improve ments made, from time to time, by successive mutwallis. The pro perties described in Schedule B of the plaint were subsequently acquired and added to the wakf created by Anwar Khan. Besides the saint's tomb, the homestead and the tank of the wakif, a graveyard, a mosque, a water reservoir and a rest house for visitors to the Dargah have been in existence on the wakf lands.

8. The plaintiff and the proforma‑defendants 15 to 17 as hereditary mutwallis were managing the wakf properties and appro priating their income to the objects of the wakf in accordance with the terms of the wakf deed. Besides, they were collecting offerings in cash and kind made at the Dargah by visitors and, like all predecessors mutwallis, were appropriating such offerings to the service of the Dargah and to their own needs and those of their family members. In this state of things, a group of persons including one Serajuddin Ahmed (defendant No. 2) made an appli cation to the Commissioner of Wakfs on the 3rd September 1943, for enrolment of the wakf properties as a public wakf. By his order, dated 21‑3‑1949 the Wakf Commissioner declared that the lands described in the Schedules A and B of the plaint and the Dargah standing thereon, including the mosque, graveyard, tank and Musafirkhana constituted a public wakf, enrolled it as such, constituted a committee of management and appointed Fowzul Kabir Khan (proforma‑ defendant No. 15) as mutwalli. The proforma defendant No. 15 having objection against the order declaring the wakf to be a public wakf refused to act as mutwalli. On the contrary, the plaintiff and the proforma‑defendants 15 to 17 made an application to the Wakf Commissioner on 8‑9‑1952 Exh. 2 (7) for enrolment of the wakf as a wakf‑alai‑aulad. After re‑examining the matter and taking the wakf deed into consideration, the Commissioner of Wakfs by his order, dated 11‑12‑1952 Exh. 7 (a), held the plaintiff and the proforma‑defendants 15 to 17 to be hereditary mutwallis of the wakf, but maintained his earlier order, dated 21‑3‑1949 by which he declared the wakf to be a public wakf and appointed a committee of management. By the same order, the Wakf Commissioner framed a scheme for appropriation of the income of the properties, the details of which will be discussed later. Being aggrieved by the said order, the plaintiff instituted other Suit No. 25 of 1953 in the Court of the First Subordinate Judge, Chittagong, which, on transfer to the Court of the Second Subordinate Judge, Chittagong was numbered as other Suit No. 21 of 1955. The suit was instituted on 30‑11‑1953 claiming the following reliefs :‑

(a) For a declaration that the order, dated 11‑12‑1952 passed by the Commissioner of Wakfs on the enrolment petition of the proforma defendants. declaring the properties described in the Schedules below to be a public wakf and the directions for the continuance of the committee constituted by his order dated 21‑3‑49 and the allocation of the different proportions of the income of the said wakf property to different objects set out therein as illegal, void, inoperative and without jurisdiction and for revocation of the same. (b) For a declaration that the above wakf comprising the pro perties described in Schedules `A' and `B' is a wakf‑alal‑aulad or a private wakf as is otherwise commonly known and that the classification of the same to the contrary as made by the Commissioner of Wakfs, East Bengal, defendant No. 1 is wrong and not binding on the plaintiff or on the estate and that the constitution of the Committee or the framing of a scheme on the footing of a public wakf is illegal and ultra vires and not warranted or justifiable in the circumstances of the case. (c) For a permanent injunction restraining the members of the committee viz., defendant Nos. 2‑14 from interfering with the management of the wakf properties by the present mutwallis and restraining defendant No. 1 from realising the contribution payable under section 59 of the Bengal Wakf Act, 1934 from the plaintiff or from defendants Nos. 15‑17 until proper and lawful assessment is made in accordance with the terms of the said deed of wakf. (d) For temporary injunction in the above terms till the dis posal of the suit. (e) For cost of the suit. (f ) For any other relief or reliefs which may be deemed fit in the facts and circumstances of the case.

9. Meanwhile the members of the committee were making collections of offerings made at the Dargah by the visiting public which, according to the plaintiff, was unauthorised. Apprehend ing that such unauthorised collections of offerings might be construed as the plaintiff's constructive dispossession, the plaintiff made a petition on 5‑9‑1955 for amendment of the plaint, seeking additional reliefs, which was allowed by the trial Court's order, dated 6‑9‑

55. The additional reliefs sought for were as follows:‑

(g) That in case the acts of collection of the offerings and any other act relating to the affair of the Dargab, mosque and Hajrat Shah Sufi Amanat Manjir now named as Musafirkhana by defendants Nos. 2 to 14 be construed as an act of any dispos session, a decree for possession be passed accordingly in favour of the plaintiff and/or the plaintiff and proforma‑defendants Nos. 15 to 17. (h) That on taking proper court‑fees from the plaintiff a decree be passed in favour of the plaintiff and/or the plaintiff and proforma‑defendants for the recovery of the amount out of the collections that might have been found to have been made by the committee upto the date of the suit. (i) That the plaintiff may be permitted to sue defendants Nos. 2 to 14 hereafter for the recovery of the amount of their collections during the pendency of the suit. (j) That the plaintiff alternatively prays that in the event of this wakf being found to be a public wakf, the plaintiff and the proforma‑defendants Nos. 15 to 17 be declared to be the mutwallis thereof in hereditary right and they be declared to be entitled to the administration of the Wakf Estate in accordance with the terms of the wakfnama, dated the 11th Baisakh, 1202 M. F. and the scheme framed by defendant No. 1 be declared illegal, unauthorised, without jurisdiction being in con travention of the terms of the aforesaid wakfnama and the com mittee of management illegally appointed by defendant No. 1 be restrained permanently from interfering with the manage ment of the Estate by the present mutwallis and the male descendants of the wakf."

10. The Wakf Commissioner (defendant No. 1) was duly summoned and a copy of the petition amending the plaint was also served on him, but he did not appear and contest the suit.

11. Before the date fixed for filing written statements, defend ant No. 2, one of the members of the committee died. So, defend ants 3 to 14, the remaining members of the committee filed a joint written statement. After the amendment of the plaint seeking additional reliefs, the defendants 3 to 14 jointly filed an additional written statement. Their defence, in substance, was that the deed of wakf executed by Anwar Khan is not a genuine and valid document and was not acted upon; that the plaintiff and the proforma‑defendants 15 to 17 are not the descendants of Hazrat Shah Sufi Amanat Khan and are not, therefore, hereditary mutwal lis under the said wakf deed, that the wakf in question is a public wakf and not a wakf‑alai‑aulad, that the order of the Wakf Commissioner, declaring the wakf to be a public wakf and the scheme framed by him are valid and binding on the plaintiff and the proforma‑defendants 15 to 17, that the plaintiff's claim to the collections of offerings made at the Dargah is not tenable and that the plaintiff is not entitled to any relief. Besides, they pleaded non‑maintainability of the suit, defect, of parties and multifa riousness. The suit was also alleged to be under‑valued and the plaint insufficiently stamped.

12. The proforma‑defendants 15 to 17 also appeared in the suit and filed a joint written statement, but this substantially supported the plaintiff's case.

13. On the pleadings, as many as 17 issues were framed by the trial Court, and these were as follows:

(1) Is the alleged wakf deed by Anwar Khan, a genuine and valid document? Was it ever acted upon? (2) Is the suit bad for defect of parties ? (3) Is the plaintiff a descendant of Hazrat Shah Sufi Amanat Khan as alleged ? (4) Is the suit maintainable ? (5) Has the suit been properly valued and proper court‑fees paid ? (6) Is the plaintiff entitled to claim the property as a private wakf in the face of the declaration of the same as public wakf by the Wakf Commissioner? (7) What relief, if any, is the plaintiff entitled to ? (8) Is the wakf in question, namely, wakf of Anwar Khan, dated 11th Baisakh, 1202 M. E. a wakf‑alal‑aulad or a public wakf? (9) Is the order of the Wakf Commissioner, dated 11‑12‑1952 declaring the said wakf to be a public wakf liable to be revoked as illegal, void, inoperative and without jurisdiction ? (10) Is the scheme framed by the Wakf Commissioner legal and valid and binding upon the plaintiff and proforma defendants ? (11) Is the plaintiff's claim for money as made in prayers (h) to (i) of the plaint tenable ? (12) Is the plaintiff entitled to a declaration prayed for in prayer (j) of the plaint? (13) Is the suit bad for multifariousness ? (14) Is the suit barred by limitation? (15) Is the description of the property vague and indefinite? Can the plaintiff get any relief in respect of the properties so described ? (16) Can the plaintiff get possession as claimed in prayer (g) of the plaint? (17) Is the suit barred under section 92 of the C. P. C. and section 18 of the Religious Endowments Act ?

14. The learned Subordinate Judge who tried the suit has answered all the issues in favour of the plaintiff except the issues 8, 9, 10 and

11. He rejected all the technical objections raised by the defendants 3 to 14, enhanced the valuation of the suit, realized proper court‑fees on such valuation and found that the wakf deed executed by Anwar Khan relates to the Dargah of the saint Hazrat Shah Sufi Amanat Khan and is a genuine and valid docu ment and was acted upon and that the plaintiff, though a descen dant of the said saint and a hereditary mutwalli along with the proforma‑defendants 15 to 17, is not entitled to get possession and management of the Dargah and the wakf properties unless the wakf created by Anwar Khan is found to be a wakf‑alal‑aulad. With regard to the character of the wakf and its scheme of management, he has held that the wakf in question is a public wakf and not a wakf‑alai‑aulad, that the Wakf Commissioner's order, dated 11‑12‑52 by which he declared the wakf to be a public wakf, appointed a committee of management and framed a scheme is valid and operative. As regards offerings, his finding is that offerings made at the Dargah are consecrated to God or entrusted with a trust and are to be used for religious or pious purposes and, as such, the plaintiff is not entitled to lay any claim on such offerings. On these findings the learned Subordinate Judge has rejected all the reliefs claimed in the suit, except the first part of the alternative relief in prayer (J) of the plaint and passed a decree in the plaintiff's favour in the following terms: "That the suit be decreed in respect of the alternative prayer with costs on contest against the defendants 3 to 14 and ex parte against the rest. All other prayers are rejected. The plaintiff's hereditary right to the Mutwalliship of the wakf estate under dispute is hereby declared. The line of Mutwalliship will be confined to the lineal male descendants of the wakif Anwar Khan and accordingly the plaintiff who has attained majority along with the proforma‑defendants 15 to 17 will act as joint mutwallis of the wakf estate. If, however, any of them or all of them become irreligious and in the case of extinction of the male descendants of the wakif the indication regarding the appointment of successive mutwallis given in the wakfnama shall be followed." The present appeal by the plaintiff is from that decree. In this appeal, the plaintiff‑appellant has reiterated his contentions that the wakf in question is a wakf‑alal‑aulad or a private wakf and not a public wakf as held by the Wakf Commissioner and the trial Court that the Wakf Commissioner's order appointing a committee of management and framing a scheme for appropriation of the income of wakf properties is illegal, inoperative and not binding on the hereditary murwallis. As regards offerings made at the Dargah, his contention is that these are not wakf at all, but are the private property of the descendants of the saint, including the hereditary mutwallis.

15. All the defendants in the suit were impleaded in this appeal as respondents. Of them, the respondents 2, 3, 4, 7, 8, 10, 12 and 13 appeared and filed a cross‑objection. But on the happen ing of the following events, the Wakf Commissioner, respondent No. 1 alone remained in the field to contest this appeal. The Wakf Commissioner, by his order, dated 22‑5‑1961, dissolved the com mittee and appointed a new committee consisting of 12 persons. Accordingly, the names of the members of the old committee who were respondents 2 to 13 were struck off and, in their place the members of the new committee were substituted in the appeal as respondents 2 to 13 under the order of this Court. As the members of the new committee could not take over the management of the Wakf Commissioner, by his further order dated 21‑9‑1961, directed the appellant and his three brothers, I.e., the hereditary mutwallis to assume charge of the wakf properties. But, by yet another order, dated 2‑4‑1962, the Wakf Commissioner dissolved the new committee as well. In these circumstances, the Wakf Commissioner alone contested the appeal, although he did not contest the suit. He, however, did not file any cross‑objection. It may be mentioned that Wakf Commissioner has been designated in the appeal as Administrator of Wakfs on account of a change in the designation by the East Pakistan Wakfs Ordinance, 1962. The proforma‑defendants 15, 16 and 17 were also impleaded in this appeal as respondents 14, 15 and 16 respectively, but they did not appear to resist the appeal.

16. Mr. M. Israil, the learned Advocate for the Wakf Com missioner has pressed mainly four points in this appeal. His first contention is that the wakf created by Anwar Khan which is in dispute here is a wakf other than a wakf‑alal‑aulad. He next contends that the scheme for appropriation of the income of the wakf framed by the Wakf Commissioner by his order dated 11‑12‑1952 is valid, operative and binding on the Mutwallis. His third contention is that the offerings made at the Dargah are wakf or they are, at any rate, income of the Dargah. He lastly contends that, in the present form of the suit, the appellant is not entitled to any relief in respect of the offerings made at the Dargah even if these are held to be neither wakf nor income of the Dargah.

17. The following points, therefore, arise for determination in this appeal :‑

(1) Is the wakf created by Anwar Khan by the deed of wakf, dated the 11th Baisakh, 1202 M. E. (Exh. 3) a wakf‑alai‑aulad ? If not, what is the real character of that wakf ? (2) Is the scheme for appropriation of the income of the wakf framed by the Wakf Commissioner by his order, dated the 11th December 1952, valid, operative and binding on the Mutwallis including the appellant ? (3) Are the offerings made at the Dargah of Hazrat Shah Sufi Amanat Khan wakf ? If not, are such offerings income of the Dargah. (4) Is the plaintiff appellant entitled to any relief in this suit in respect of the offerings made at the Dargah ? As to the first point, it has been urged on behalf of the Wakf Commissioner that the wakf in question is a wakf other than a wakf‑alal‑aulad. The definition of `wakf‑alal‑aulad' was first introduced by the Bengal Wakf Act, 1934 (hereinafter called the Act). Section 6(11) of the Act defines wakf‑alal‑aulad as follows: "Wakf‑alai‑aulad" means wakf under which not less than seventy‑five per cent. of the net available income is for the time being payable to the wakif for himself or any member of his family or descendants."

18. After the disposal of the suit but during the pendency of this appeal, the Act was repealed and re‑enacted by the East Pakistan Wakfs Ordinance, 1962 (E. P. Ordinance No. 1 of 1962) which came into force on January 19, 1962. Although the repealing Ordinance does no more define wakf‑alai‑aulad, the definition thereof as given in section 6(1 I) of the Act will apply in the present case, because the repealing Ordinance not being retrospective in operation, the rights of the parties are to be determined in accordance with the provisions of the repealed Act.

19. In order to determine the character of the wakf in question, it is necessary to examine the wakf deed itself. The deed of wakf in original is in Persian language and was executed by Anwar Khan as early as the 11th Baisakh, 1202 M. E. corres ponding to the 22nd April 1840 A. D. It is marked Exh.

3. The original wakf deed was first translated into Bengali by two scholars in Persian (P.Ws. 1 and 2) and thereafter the two Bengali versions were rendered into English in the course of preparation of the paper‑book. The English renderings of the wakf deed are Exhs. 1 and 1 (a) which substantially tally with each other, and their correctness is not disputed before us. But there appears to be a slight difference between Exh. 1 and Exh. 1(a). There are a few missing words in the original wakf deed. The missing words have been indicated in Exh. 1 by dotted lines, but the same has not Exh. 1 (a) nor has the original sentence containing the missing words been translated therein. However, both the appel lant and the Wakf Commissioner have, for the purpose of this case, accepted before us Exh. 1(a) as correct English version of the original wakf deed in Persian language, although the sentence con taining the missing words is not to be found there. The accepted English version of the original wakf deed. Exh. 1(a) is reproduced below, except the Schedule of properties appended thereto: "I, Anwar Khan son of Late Shah Amanat Shahib (Kuddus Sirruhu) (may Allah bless his grave) inhabitant of Andarkilla, attached to Kotwali P: S. in the district of Chittagong do hereby declare and affirm of my own accord in sound health and in full possession of sense and without being forced by others in the presence of renowned and famous Muslims. Whereas I find that the Dargahs of Pirs and Darbeshes, Wali Allahs (saints) are not managed and administered properly for want of money and whereas I apprehend that it is impos sible that service to the sacred Dargah of the aforesaid Hajrat Shah Shaheb situated at Andarkilla, in the District of Chitta gong such as religious service, Jiarat, reading of the Fateha, distribution of bread and sweets, daily lighting and sweeping and annual Orash etc. will be performed in future. So, I do hereby promise and agree to dedicate in the name of Allah for the benefit of the said Shah Shahib's Dargah the entire 5 kanis, 8 gonaas of lands out of my own maliki khas possessed land, the value of which is Rs. 200 according to the company com prising nal bhita, homestead and pond as described in the Schedule below, as was, and I do hereby appoint my two grand sons Aliar Khan and Amanat Khan as Mutwallis for proper management of the Dargah of the said Shah Shaheb. They are the sons of my deceased son Alep Khan who died in my presence. Full right to the wakf property has been given to the two Mutwallis for the aforesaid purposes. After the death of these two Mutwallis their sons will succeed as Mutwallis from generation to generation. I, the wakif do declare that I did neither transfer the aforesaid property by way of sale, gift, heba, exchange, etc. nor I have given the same in permanent settlement and the said two Mutwallis also shall in no way be allowed to transfer the aforesaid lands by way of sale, gift, permanent settle ment etc. Whatever surplus will remain after defraying all these expenses I, the wakif shall appropriate for my own maintenance and other necessaries. If the Mutwallis act contrary to cannons of Islam they shall be deprived of all right to the land of the said Shah Shaheb and to the management thereto and some other persons will be appointed in their place. On the basis of the aforesaid words, these words are written by way of wakf nama. Dated the 11th Baisakh 1202 M. E."

20. It is abundantly clear from Exh. 1 (a) that the main purpose of the wakf is to protect preserve, maintain and manage the shrine of the wakif's father Hazrat Shah Sufi Amanat Khan and to appropriate the income of the wakf properties to that end and also to the services of the shrine, such as, Jiarat, reading of Fatehas, distribution of sweets and cakes, daily lighting and sweeping, furnishing, repairing and annual Urs. It is also clear from Exh. 1 (a) read with the sentence in Exh. 1 containing the missing words, that if there remains a surplus after defraying all the necessary expenses, on account of, and in the services of the shrine the same will be appropriated by the wakif and his descen dants, including the successive Mutwallis for their maintenance and other expenses. The net annual income of wakf properties described in Schedules A and B of the plaint, as shown in the petition of enrolment Exh. C(7), is only Rs. 108/15. Such a meagre income of the wakf properties is hardly likely to leave surplus after meeting the requirements of the shrine itself. In no case, the surplus, if any, can be to the tune of as much as seventy‑five per cent. of the net income so as to render the dis puted wakf‑alai‑aulad within the meaning of the section 6 (11) of the Act. Therefore, both the Wakt Commissioner and the learned Subordinate Judge rightly held that the wakf in question is not a wakf‑alal‑aulad within the meaning of the said section. But both of them erred in holding that since the w.kf in question is not a wakf‑alal‑aulad, it is a public wakf. In pursuance of the power conferred by section 46‑A of the Act, the Wakf Commissioner, by orders, dated 21‑3‑1949 and 11‑12‑1952 declared the wakf lands including the shrine, mosque, graveyard, Musafir khana, reservoir, tank and other appurtenances as wakf properties and held that the wakf not being a wakf‑alai‑aulad is a publio wakf and should be enrolled as such. Similar was the approach and finding of the learned Subordinate Judge with regard to the character of the wakf. Obviously, this approach and the finding are incorrect. The Bengal Wakf Act, 1934, has defined wakf‑alal aulad, but not a publyo wakf. The Act has throughout divided all wakfs into two categories, namely, `wakl‑alal aulad' and `wakf other than a wakf alai‑auld'. That being so, it is not at all correct to say that a wakf is necessarily a public wakf if the same is found not to be a wakf‑alal‑aulad. Appreciating this division of wakfs under the said Act, Mr. Israil, the learned Advocate for the Wakfs Commissioner (the learned Advocate himself was the Commissioner of Wakfs at the relevant time) has now rightly conceded that the wakf under consideration is a wakf other than a wakf‑alai‑aulad. Thus, we find that the wakf in question, according to the provisions of the Act, is neither a wakf‑alai‑aulad, nor a public wakf, but a wakf other than a wakf‑alahaulad. What is then the true character of a wakf of the last kind otherwise than under the provisions of the Act ? Depending on the purposes of a trust and the primary intention of its creator, a trust created by a person professing the Mussalman faith may be a wakf for public or private purposes, or a wakf partly for public and partly for private purposes. Wakfs of these kinds are commonly known as public wakfs, private wakfs and mixed wakfs. A wakf created solely for public purposes of a charitable or religious nature is essentially a public wakf, but a wakf the purposes of which are private in nature, say, maintenance of the wakif and his descendants or maintenance of a family mosque is a private wakf. A mixed wakf, on the other hand, has both public purposes of a charitable or religious nature and private purposes as it objects. The question with regard to classification of wakfs and the criterion for determining their true character particularly that of a mixed wakf were fully considered by this Court in the case of Muhammad Fakirullah Mia v. The Commissioner of Wakf, East Bengal and others (P L D 1953 Dacca 73) to the decision of which one of us was a party. That case arose out of a suit by the Wakf Commissioner under section 92 of the Code of Civil Procedure for removal of the Mut walli of wakf on various grounds of malfeasance and misfea sance and for appointment of new Mutwalli in his place. The question that arose in that case was whether the wakf, having regard to its purposes, could be called a trust created for public purposes of charitable or religious nature within the meaning of the said section

92. The nature of that wakf was considered in the light of both section 92, Civil Procedure Code, and the provisions of the Bengal Wakf Act, 1934. After reviewing all the known authorities, the wakf involved in that case was construed not to be a trust for public purposes of charitable or religious nature. The relevant passages from that decision may be appropriately quoted here, and these are as follows :‑

"The decision of the questions whether the wakf is a wakf alal‑aulad or not and whether, the enrolment of the same as a wakf other than a wakf‑alal‑aulad is without jurisdiction or not does not decide the question of maintainability of the suit under section 92 of the Code of Civil Procedure. It neither helps the appellant nor the respondent. A wakf may or may not be a wakf‑alai‑aulad within the meaning of the Wakf Act of 1934. Still it may not attract the provisions of section 92 of the Code of Civil Procedure. The learned Advocate for the respondent as well as the lower Court are wrong in thinking that a wakf which is not a wakf‑alai‑aulad is necessarily a public trust within the meaning of section 92 of the Code of Civil Procedure. The lower Court is wrong in holding that because the wakf in question was enrolled as a public wakf by the Commis sioner of Wakfs as less than 75 per cent. of the net income was going to the descendants of the wakif, the suit under section 92 of the Code of Civil Procedure was maintainable. Nor is it correct for the learned Advocates of the parties to argue that if it is established that the wakf in question is or is not wakf‑alai‑aulad within the meaning of the Bengal Wakf Act, the case will necessarily fall within or without the class of public trusts to which section 92 of the Code of Civil Procedure applies. The Bengal Wakf Act divides all wakfs into wakf alai‑aulad and wakfs other than wakf‑alai‑aulad. This division originated from a certain view of the law which has since been altered but this division has been perpetuated in the present Act for the purpose of convenience of administration. Logically, there is no division. Both are wakfs and both are charities. The Act never contemplates a division of wakfs into public and private, a distinction contemplated by section 92 of the Code of Civil Procedure, and scrupulously avoided the use of the words "public wakf" throughout the Act. It is because the Act contemplates bringing all wakfs within its scope. A wakf may not be a wakf alai‑aulad, still it may not be a public wakf within the meaning of section 92 of the Code of Civil Procedure, as for example, a wakf for religious and charitable purposes but not for public purposes. Again, it may be purely a private religious purpose like reading the holy Koran for the salvation of the departed soul of the wakif, his ancestors and descendants or it may be partly for private and partly for public purposes. Therefore, it is clear that a wakf‑alai‑aulad may be a private wakfs but all private wakfs are not wakf‑alai‑aulad, as defined in the Bengal Wakf Act. So also a wakf which is not a wakfalal‑aulad does not necessarily mean that it is a public wakf and comes under section 92 of the Code of Civil Procedure to enable the Commissioner, under section 73 of the Bengal Wakf Act, to file a suit for relief under that section as that wakf though not a wakf‑alai‑aulad may not be a wakf for public purposes of a religious and charitable nature. There may be a wakf which is partly for public and partly for private purposes, i.e., a mixed wakf or purely for public purposes or purely for private purposes, so far as the two last classes of wakfs are concerned, there is no difficulty as to the applicability of section 92 of the Code of Civil Procedure. The most difficult and important question is whether a mixed wakf will attract the operation of section 92 of the Code of Civil Procedure. In the case of a mixed trust, it may be contended that the trust is one created for both purposes public and private. But it is the main purpose for which it is created and the primary intention of the creator of the trust which is to be looked into in each case and not the secondary purpose and the remote intention, to find out whether it is a trust contemplated by the section. It is not so much the percentage of the income devoted for the purpose but the purpose itself which should be looked into, though the consideration of the proportion of the income or property devoted may be necessary to ascertain the primary intention of the creator. If a substantial portion of the property or the income thereof is devoted for any purpose, then, that will be the main purpose for which the trust is primarily intended, if it is public, it will be a trust created for public purpose if it is private, then, it will be a trust created for that purpose. The word `substantial' must have reference to the trust property or income thereof and not independently of it. As for example a sum of Rs. 1,000 out of income of Rs. 5,000 a year from a trust property is directed to be paid to a hospital and the remaining Rs. 4,000 a year for the maintenance of the grantor's family and descendants. Though the grant of Rs. 1,000 a year may be a substantial amount of the hospital but with reference to the income of the trust property, it will not be substantial. So the trust cannot be said to be a trust created mainly or substantially for the hospital but will be a trust mainly or substantially for the maintenance of the family and descendants of the creator of the trust, though supplemented by a provision in favour of the public. One must therefore, look to the real substance of the trust, that is, the main purpose of the trust and the primary intention of the creator of the trust in each case to find out whether it is a trust created for the purpose contemplated in the section. If it is so created, then the mere fact that there are provisions for private purposes along with provisions for the public will not take it out of the scope of section 9l."

21. The principle enunciated in the cited case is that the true character of a wakf is to be determined having regard to its main purposes and the primary intention of its creator. The Wakf deed itself offers the best guidance in this regard. The deed has already been reproduced, but the part thereof which is relevant to the point under consideration deserves to be quoted here even at the cost of repetition. The deed provides: "Whereas I find that the Dargahs of Pirs and Darbeshes, Wali Allahs (saints) are not managed and administered properly for want of money, and whereas I apprehend that it is impossible that services to the sacred Dargah of the aforesaid Hazrat Shah Shahib situated at Anderkilla in the district of Chittagong, such as, religious services, Jiarat, reading of Fateha, distribution of bread an.1 sweets, daily lighting and annual Orash etc., will be performed in future. So, I do hereby promise and agree to dedicate in the name of Allah for the benefit of the said Shah Shahib's Dargah the entire 5 kanis 8 gondas of lands out of my own maliki has possessed lands etc. etc." The above quotation clearly shows that the primary intention of the wakif was to protect, preserve and maintain his father's shrine and to render necessary services therein. It was mainly with the above intention that the wakif dedicated his properties with the express provision that the income thereof would be first appropriated to those purposes and the surplus, if any, after meeting the requirements of the shrine, would go to the wakif and his descendants, including the successive Mutwallis. It was further expressly stated in the wakf died that the dedication was "for the benefit of the said Shah Shahib's Dargah". According to the deed, no part of the income of the wakf was to go to the public or any section thereof. To protect, preserve and maintain the grave of a family member and to render services therein presumably for the salvation of the departed soul, are private; affairs of the family, and, as such, any dedication for those purposes by another member of the family is a trust for private purposes. Where, as here, such trust is created by a person professing the Mussalman faith, the trust is called a 'private wakf.

22. In this case, the intention of the wakif can be gathered also from other factors. The properties dedicated by the waktf included his homestead where his descendants have been living, generation after generation, and no member of the public has any access to that homestead. The tank has been in existence on a part of the wakf lands since the creation of wakf. There is no evidence that the tank is used for any purpose other than the domestic purposes of the descendants of the wakif. For performing ablution by worshippers, there is a water reservoir attached to the mosque. There also exists a graveyard on the wakf lands. According to the evidence of the plaintiff (P. W. 6), it is a family graveyard of the descendants of the wakif, but dead bodies of others can be buried in that graveyard only with the permission of the Mutwallis. This was corroborated by the evidence of P. Ws. 9, 13 and 16 who, as admitted by the defence witness No. 5, are leading citizens of Chittagong. Even the dead body of Serajuddin Ahmed (defendant No. 2), according to D. W. 4, was buried in the graveyard with the permission of the committee appointed by the Wakf Commissioner. Thus, it appears that the members of the public cannot bury dead bodies in the graveyard as of right. These facts also go to indicate that the wakf created by the plaintiff's ancestor Anwar Khan is a private wakf.

23. It appears from the evidence of P. W. 4, an octogenarian, that the saint's grave was not covered by any roof and pas lying bare by the side of a palm tree when he saw it for the first time. He further said that the palm tree having been broken by cyclone in the year 1259 M. E./1897 A. D. Sher Ali Khan, the father of the plaintiff constructed a pucca house over the grave. This goes to show that the saint's grave came into eminence during the last 60 or 65 years and started attracting visitors.

24. There exists a mosque on the wikf lands. As the deed of wakf does not mention any mosque, the inference is that the mosque was built subsequent to the creation of the wakf. According to the evidence of P. W. 4, a mosque with pucca walls and corrugated iron-sheet roofing was there on the wakf lands at the time of the cyclone of 1259 M. E./1897 A. D. but the existing pucca mosque was subsequently built by the plaintiff's father Sher Ali Khan. The evidence of P. W. 9 who is aged 76 years is also to the same effect. P. Ws. 8 and 13 corroborated that Sher All Khan built the existing pucca mosque. Thus, the mosque though constructed after the creation of the wakf, has been in existence for many years.

25. True, the members of the public, irrespective of caste, creed or religion, have access to the shrine. But this right of access not having been granted in the wakf deed itself must be taken to have been conceded by the successive Mutwallis with the growing popularity of the saint. It is also true that the mosque standing on the wakf lands is open to all Mussalmans for saying pra3ers. But these do not affect the character of the wakf which, as has been seen, is inherently a private wakf having regard to its purposes and the intention of its creator. We are, therefore, of pinion that the wakf created by the plaintiff's ancestor Anwar Khan as per Exh. 3, is a private wakf, but members of the public, irrespective of caste, creed or religion, have right of access to the shrine of the saint and all persons professing the Mussalman faith have right to say prayers in the mosque standing on the wakf lands.

26. Coming now to the next point with regard to the scheme for appropriation of the income of the wakf, it appears that Wakf Commissioner, by his order, dated 11‑12‑1952, drew up the following scheme :‑

"The committee is to maintain the following staff for the maintenance of the Dargah, the mosque and the attached graveyard and the Musafirkhana. (i) (1) One Imam Rs. 50 p. m. (2) One Muazzain Rs. 35. (3) One Sweeper Rs. 20. (4) One Collector Rs. 40. (5) One Khadem for looking after the comfort of the visitors Rs. 40. (ii) Candle, atar and golab Rs. 15 p. m. (iii) 1/3 of the net income to be invested in National Bank of Pakistan as reserve fund for the improvement and repair of the Dargah and mosque. of the remaining 2/3 N. I. as the remuneration of the Mutwallis. the 2/3 N.I for the recurring expense as detailed in items (1) and (11) and the surplus, whatever, it be, shall be credited to the Education Fund set up under the next item. of the 2/3 N. I. for Sbah Amanat Dargah Education Fund to be spent in awarding scholarships and stipends to the deserving boys of the Chittagong College (Science students only) Chittagong Medical School, Darul Ulum Madrasa, Chittagong or any other Madrasas imparting Deeny Talim on the recommenda tion of the heads of those institutions. The Urus ceremony to be arranged by the committee and Mutwallis."

27. As already said, the wakf in question, though a private wakf is a wakf other than a wakf‑alal‑aulad according to the provi sions of the Bengal Wakf Act, 1934. In respect of such a wakf, the Board of Wakfs as well as the Wakf Commissioner empowered . under section 29, had the power to frame a scheme under section 27(2) (1) and (ii) of the Act, allocating the income of the wakf including the surplus income, it any, but that power could be exercised only in the absence of any directions by the wakif or any lawful authority. Section 27(2) (i) and (ii) ran thus: "

27. Subject to the provisions of this Act and of the rules made by the Provincial Government thereunder ‑

(2) the functions of the Board shall include. (i) in the absence of any directions by the wakif or any lawful authority, declaring what proportion of the income or other property of the wakf shall be allocated to any particular object of the wakf ; (ii) declaring in what manner any surplus income of a wakf shall be utilised." Section 27 as its opening words "Subject to the provisions of this Act" show, could apply only in conformity with the other provisions of the Act. Now, section 28 which controlled section 27 provided: "The Commissioner and the Board in exercising their powers under this Act in respect of any wakf shall act in conformity with the directions of the wakif, the purposes of the wakf sanctioned by the Islamic law: Provided that in the furtherance of the objects of the wakf or in the interest of the beneficiaries the Board may revise any provisions in the wakf deed which has become inoperative or impossible of execution owing to efflux of time or changed conditions." Thus, it is abundantly clear from section 27(2) (1) and (ii), read with section 28 of the Act that no scheme allocating the income of a wakf could be made contrary to the directions of the wakif. In the instant case, the wakif gave express directions in the wakf deed to the effect that the income of the wakf would be spent in preserving and maintaining the saint's shrine and rendering services therein and the surplus income, if any, would go to the wakif's descendant, including the Mutwallis. But the scheme framed by the Wakf Commissioner which has been reproduced herein before obviously went beyond the wakif's directions in that it instituted an Education Fund and allocated a definite share of the net income to that fund and further allocated another definite share of such income to the Mutwallis as remuneration. The scheme suffers from other defects as well. The scheme allocated J of 2/3rd of the net income, i.e., 1/3rd of such income to meet the monthly recurring expenses under items I and II thereof. The total of the sums shown in items I and II is as much as Rs. 200 per month, whereas the net annual income of the wakf properties, according to the application for enrolment Exh. C (7), is only Rs. 108‑15‑

0. The question of investment of a surplus income could hardly arise in such a case. This shows that the scheme was framed without having any regard to the annual income of the wakf properties. In framing the scheme, the Wakf Commissioner presumably treated the offerings made at the Dargah either wakf or income of the Dargah. But such offerings, as will be seen hereinafter, are neither wakf nor income of the Dargah. At all events, the disputed scheme was clearly violative of the provisions of section 27 (2) (1) and section 28 which, however, were com pletely overlooked by the learned Subordinate Judge in arriving at a finding in support of the scheme. The scheme being repugnant to the provisions of the said sections is illegal, inoperative and note binding on the Mutwallis including the plaintiff‑appellant.

28. The appellant, it is recalled, questioned also the validity of the appointment of the two successive committees by the Wakf Commissioner. As, however, both the committees have been dissolved by the Wakf Commissioner and the Mutwallis have been placed in charge of the management of the wakf, including the Dargah in terms of the wakf deed, it is no longer necessary to determine this question.

29. The next point with regard to offerings is the most controversial in this appeal. 08eriLgs which are commonly known as nazranas or nazr and niaz are made at, or given to the shrines or Dargahs of saints by their devotees, in cash or kind, from a feeling of veneration and to reap temporal, religious or spiritual benefit. The devotees give offerings to the shines or Dargahs to invoke the blessings of the saints who, though physically dead, are considered by them to be spiritually alive. The offerings are also often made in pursuance of vows taken by the devotees that they would give nazranas, either in cash or in kind, to the shrines or Dargahs in the event of fulfilment of their desire which they had made previously. Usually, offerings are made by the devotees personally at the time of their visits to the shrines or Dargahs, but there may be cases where offerings are also sent by others through the devotees who actually visit them. Sometimes cash offerings are also sent by postal money‑orders. However, offerings, irrespective of their kind and the manner in which these are made, are purely voluntary, and the intentions of the persons making them are not usually expressed by them. The givers of offerings through ignorance or indifference or from a desire to avoid solicitations, generally refrain from disclosing the objects and purposes for which they are given. But there may be cases where the givers of offerings earmark them for particular objects, say, for repairs of the shrines or Dargahs, reading of the holy Quran or for the personal benefit of the Mutwallis or Sajjadanashins who ate in charge of management of the shrines or Dargahs. Offerings in kind are usually flowers, sweets, bread, milk, ghee (butter oil), attar (scent), incense, candle and the like. Offerings in kind may also include copies of the holy Quran, prayer carpets, rosaries, building materials and other articles necessary for or useful to the shrines or Dargahs. Also animals like cows, goats, sheep and fowls are offered to the shrines or Dargahs for sacrifice, particularly at the time of the annual Urus. All givers of offerings may not necessarily be persons professing the Mussalman faith ; in many a case members of the public, irrespective of casts, creed or religion, may have access to the shrines or Dargahs, as in the present case, and give offerings. Again, offerings may be made even by minor Muslims or non- Muslims, although they are incompetent in the e3 a of law to make any dedication. Can such offerings be called wakf at all? The definition of wakf as given in section 6(10) of the Wakf Act is as follows: ` Wakf means the permanent dedication by a person profes sing Islam of any movable or immovable property for any purpose recognised by the Islamic law as pious, religious or charitable and includes a wakf by user." It follows from the definition that in order to be valid, a wakf must satisfy at least the following conditions: (i) There must be a declaration dedicating the property. (ii) The declaration must be made by the owner of the property. (iii) The declarant must be a person professing Islam. (iv) The dedication must be permanent. (v) The objects of the dedication must be recognised by the Islamic law as pious, religious or charitable. (vi) The objects of the dedication must be indicated wit reasonable certainty.

30. As already said, the givers of offerings do not usually make any declaration dedicating the things offered, nor do they indicate the objects and purposes thereof. Their intention behind the offerings remain always unknown except in cases where offerings are earmarked for particular purposes. In the absence of declarations by the givers of offerings, it may be inferred, at the most, that these are intended to be utilised for pious, charitable, or religious purposes. Even then, the objects and purposes of offerings remain uncertain for which they cannot be treated as wakf. Moreover, offerings are made not only by Muslims but also by persons professing faiths other than Islam. Again, offerings are made by minors as well who have no legal capacity to make a permanent dedication. Furthermore, some offerings in kind, by their very nature, are so trifling and perish able that they, strictly speaking, are not the proper subjects of permanent dedication. These are the main reasons for which we are of opinion that offerings made at the disputed Dargah are not wakf.

31. Mr. Israil, the learned Advocate for the Wakf Com missioner submitted that offerings are wakf according to the definition of "wakf property" in section 2(12) of the East Pakistan Wakfs Ordinance, 1962. No doubt, `wakf property' as defined in that section expressly includes offerings. But the said Ordinance having been made after the disposal of the suit and not being retrospective in operation, the definition of `wakf property' in section 2 (12) thereof is not applicable in the present case. It is significant that such a definition was not there in the Bengal Wakf Act, 1934. This indicates that the Legislature itself had a doubt if offerings made at a Dargah (for the benefit of which there is a wakf) prior to the coming into force of the said Ordinance were to be treated as wakf at all, and it was perhaps with a view to making the matter free from doubt or controversy that 'wakf property' has been defined in section 2(12) of the said Ordinance so as to include offerings. But be that as it may, the definition, as already said does not apply in this case.

32. Mr. Israil then cited the case of Chief Administrator of Auqaf, West Pakistan Lahore v. Rashid‑ud‑Daula (P L D 1961 Lah. 993), in support of his contention that offerings are wakf. In that case, the parties and also the learned Judges appeared to have proceeded on the basis that offerings made at a shrine are income of the shrine, but, in the judgment, no reason was given nor was it necessary to give any reason why such offerings should be treated as income of the shrine. In our view, however, offerings made at a shrine are not Income of the shrine for which we shall give reasons presently. Apart from this, the West Pakistan Wakf Properties Ordinance, 1959, wherennder the petition giving rise to the cited case was filed, expressly provided that the income from boxes placed at a shrine and offerings or subscriptions for charitable purposes were to be treated as wakf property. That being so, the cited case is of no assistance here.

33. We shall now deal with the question whether offerings made at the Dargah in suit are income of the Dargah. Obviously, offerings are not of the nature of rents and profits or other benefits accruing from lands, these are absolutely voluntary gifts or presents from the devotees of the Dargah. A property may fetch income when it is put to its proper use. The Dargah Itself cannot be put to such use as is capable of yielding income. No doubt, the Dargah is open to all members of the public, but no one is obliged to pay anything as a consideration for his visit to it as in the case of, say, a zoo or an aquarium which is accessible to the public on payment of a small fee. The distinction between income and offerings is that while an obligation contractual or otherwise is attached to the former, no obligation whatsoever is attached to the latter. Therefore, offerings voluntarily made at the Dargah by its devotees are not income of the Dargah in the legal sense although such offerings, in common parlance may be called as income of the Dargah. As offerings are not income of the Dargah in the legal sense, they cannot be appropriated like other income of the wakf properties.

34. Mr. Israil next cited the case of Advocate‑General of Bombay v. Yusuf Ali Ibrahim and others (A I R 1921 Bom. 338), in support of the contention that offerings made at the Dargah are its income. In that case, the learned Judge, no doubt, accepted the view that offerings at the tomb of the saint Chandabhoy are gifts to God and God's property, but it was not held therein that the offerings are income of the tomb. On the contrary, doubt was expressed if the offerings were the income of the tomb. What the learned Judge said was as follows :‑

"The Advocate‑General suggested that the gulla offerings were the income of the tomb. This is to some degree supported by Zoolekha Bibi v. Syed Zynal Abedin where the Court held that nazranas (offerings) to the Dargah should be treated as income of the Dargah and were liable to partition (see pages 1069 and 1071), but that nazranas to the defendants personally could be retained by them. I am not, however altogether satisfied that this Is the correct legal relation of the tomb and the gulla. On the other hand, there would seem to be something in the nature of a good‑will attaching to the tomb, viz., expectation that worshippers will repeat their visits and repeat their gifts. There may, therefore, be a remedy against those who might try to injure that goodwill. But for present purposes I do not think it necessary to pursue this. Whether it be wakf or sadakah, endowments or donation, the tomb or the offering may yet be charitable."

35. Mr. Israil then referred to the application for enrolment Exh. C (7) and pointed out that the Mutwallis themselves showed offerings in that application as income of wakf. Of course, it appears from Exh. C (7) that a sum of Rs. 3,000 on account of gifts to the Dargah was shown in the column of income, separately from other income of the wakf. But that does not mean that offerings are income of the wakf like its other income. Exh. C (7) itself shows that the Mutwallis spent money out of the said sum of Rs. 3,000 for the purposes of the Dargah. It will be seen hereinafter that a part of the offerings is always utilized for the purposes of the Dargah. That being so, the Mutwallis natur ally thought it fit to show the amount of cash offerings on the income side of the enrolment application, separately from other income of the wakf. But this does not amount to an admission of the Mutwallis that offerings are income of the Dargah. Even if fit is an admission, the Mutwallis are not bound by it, because it has been found that offerings, legally speaking are not income of the Dargah.

36. The question with regard to character of offerings made at the shrines of saints was considered at great length in the case of‑Syed Hussain Ali and others v. The Dargah Committee (A I R 1959 Raj. 177). That was a case relating to the renowned holy shrine at Ajmeer. After reviewing a good number of authorities, including the two decisions of the Privy Council in Vidya Varathl v. Baluswaml (AIR 1922 P C 123) and Khwaja Muhammad Hamid v. Miah Muhammad (AIR 1932 P C 384), the learned Judges of the Rajasthan High Court took the general view that offerings at the shrines of saints are not income of the shrines, but such offerings are governed by the customary mode of their utilisation. It was further held in that case that if an offering is earmarked for a particular object by the person making it, it is to be appropriated to that object. On appeal against that decision, the Supreme Court of India, of course set aside the judgment on other grounds, but the finding of the High Court with regard to the character of offerings and the mode of their utilisation remained undisturbed (of. A I R 1961 S C 1402).

37. Although the offerings made at the Dargah in suit in our view are not its income, there is some connection between the Dargah and the offerings inasmuch as the offerings are gifts or presents made by the devotees of the Dargah out of their veneration for the departed saint. This gives rise to the question as to who are entitled to collect the offerings and how they are to be utilised and brings us to the last point as to the relief, if any, to which the appellant is entitled in respect of the offerings.

38. The deed of wakf Exh. 3 being silent about the offerings at the Dargah offers no guidance in regard to their utilisation. The overwhelming evidence on record is that the successive Mutwallis used to receive the offerings made at the Dargah and utilise them partly for their private purposes and those of the descendants of the saints. This is clear enough from the evidence of P. Ws. 3, 6, 8, 9, 13, 15, 16 and 18 most of whom, according to the defence witness No. 5, are leading citizens of Chittagong. D. W. 5 himself saw the appellant's father Sher Ali Khan receiving offerings made at the Dargah. Even Salim Shah (D. W. 2) who, along with others, submitted a petition of complaint to the Wakf Commissioner Exh. C (1) admitted in cross‑examination that the appellant and his brothers used to receive the offerings, but his grievance was that they neglected the up‑keep of the Dargah. Before the appointment of the Com mittee by the Wakf Commissioner for the first time on 21‑3‑1949, the successive Mutwallis alone were in exclusive charge of the management of the wakf and the Dargah. Accordingly, the successive Mutwallis, to the exclusion of all others, must have been receiving the offerings and utilising them up to the time of appointment of the committee. The evidence on record shows that many improvements of the Dargah were made by the Mutwallis viz., construction of a pucca house over the saint's grave, building of a pucca mosque, construction of a reservoir, walling up of the graveyard, extension of the compound walls and construction of gates. Besides, the Mutwallis used to prepare food and feed the poor and perform the annual Urus. These facts are clearly borne out by the evidence of the witnesses examined on the plaintiff's side. D. W. 8 also admitted some of those improvements. As the net annual income from the wakf lands is very meagre, a part of the offerings must have been utilised by the Mutwallis in meeting the expense of the improve ments and other purposes of the Dargah. The accounts Exh. 14 series and the application for enrolment Exh. C (7) show that offerings were utilised for the purposes of the Dargah and also for the private purposes of the Mutwallis and the descendants of the saint. As regards eatable offered at the Dargah, the evidence of P. W. 6 is that the Mutwallis used to appropriate them partly and distribute a part thereof among baggars. Thus, it has been very satisfactorily proved that offerings made at the disputed Dargah are customarily received by the Mutwallis and appropriated by them partly to the needs of the Dargah and partly to their own needs and those of the descendants of the saint.

39. The question of appropriation of offerings made at the shrines or Dargahs of saints was considered by superior Courts in a number of cases. After reviewing the authorities, the Rajasthan High Court, as stated herein before, held in the case of the holy shrine at Ajmeer that offerings are governed by the customary mode of their utilisation. On the same point, their Lordships of the Privy Council held in the case of Khawaja Muhammad Hamid v. Miah Muhammad as follows "It was stated in the judgment of this Board in Vidya Ayyar 1922 P C 123, 48 that ordinarily speaking, the Sajjadanashin has a larger right in the surplus income than a Mutwalli, for so long as he does not spend it in wicked living or in objects wholly alien to his office, he, like the mahanta of a Hindu math has full power of disposition over it. But this does not mean that in every case the whole income from a Khankah is at the disposal of the Sajjadanashtn, and it is plain from the authorities, as well as from the evidence in this suit, that at certain shrines the, members of the founders family other than the Sajjadanasthin are treated as entitled to share in the sur plus offerings which remain after payment of expenses. Thus, it is stated in the Fatwa Azizi (page 90) that the offerings daily made at the Dargah should be spent in connection with the expenses of the descendants of the saint and the service of the Dargah according to their needs. An honest person should be appointed as Mutwalli, in order to collect the offerings and distribute them properly." Thus, the mode of utilisation of the offerings as has been found in this case is in conformity with the view taken by the Privy Council in the above‑cited case. Following this established practice, the hereditary Mutwallis as persons in charge of the management of the Dargah in suit are, entitled to receive the offer ings given to, or made at the Dargah, and the offerings so received are to be utilised by them for the purposes of the Dargah and also for the private purposes of the Mutwallis and the other descendants of the saint according to their needs, preference being given to the former over the latter. If, however, any offering is earmarked for a particular object by the maker thereof (the evidence of P. W's. 15 and 16 shows instances of offerings for specified objects), the same is to be applied to that object. The Dargah is an object of charity and as such the utilisation of a part of the offerings in its services is in itself a charitable purpose. Again the appropriation of a part of the offerings to the needs of the descendants of the saint is also a charitable purpose, for charity, under the Islamic law, includes the maintenance of one's descendants. Thus, the customary mode of utilisation of the offerings as has been established in this case is also in keeping with the Islamic law.

40. It was submitted on behalf of the Wakf Commissioner that no custom as to the mode of utilisation of the offerings can be invoked here by the appellant as he did not set up any such custom in this case. It is true that no such custom was specifically alleged in the plaint. But, having regard to the issues framed in the suit, both the parties had opportunities to adduce evidence as to the collection and utilisation of the offerings. As a matter of fact, both the parties adduced evidence on this point. According to the main defence witness (D.W. 2), it was the Mutwallis who received the offerings, but they them selves appropriated the offerings without applying them to the purposes of the Dargah. But the evidence recorded on the plaintiff's side is overwhelming and plainly proves the customary mode in which the offerings are being utilised.

41. It was then urged on behalf of the Wakf Commissioner that the plaintiff‑appellant is not entitled to any relief in this suit in respect of the offerings inasmuch as he filed the suit in his capacity as a Mutwalli, but claimed the offerings as private property. According to the custom that has been proved in this case, the Mutwallis are to receive, utilise and distribute the offerings in their capacity as such and not in their private capacity. Thus, there is no defect in the frame of this suit. In order to meet the objection as to the maintainability of the suit in respect of offerings a petition for amendment of the plain: was filed by the plaintiff appellant during the hearing of the appeal, but it was opposed by the Wakf Commissioner. As no defect has been found in the frame of the suit, 0te petition for amendment of the plaint is rejected.

42. All the points raised in this appeal have thus been disposed of, and let us now see what reliefs should be given in this case. In prayers (h) and (1) of the plaint, the plaintiff asked for a decree for the recovery of the amount of the cash offerings, collected by the committee up to the date of the institution of the suit and further prayed for permission to sue the committee hereafter for the recovery of the amount of such collections made by it during the pendency of the suit. The amount sought to ‑be recovered has not been stated in the plaint, nor is there anything on record to show what amount was collected by the committee and what remained as surplus after meeting the expenses of the Dargah. In these circumstances no decree for the recovery of any definite sum can be passed in this suit in favour of the plaint. Nor is it necessary to puss such a decree for the reason given below. The Wakf Commissioner has since dissolved both the committee appointed by him and placed the Mutwallis, including the plaintiff in charge of the management of the Wakt and the Dargah. The Scheme framed by the Wakf Commissioner has also been found to be illegal, inoperative and not binding on the Mutwallis. The offerings being neither Wakf nor income of the Dargah, are also beyond the control of the Wakf Commis sioner. Accordingly, the unspent amount of the cash offerings, collected by the committee and deposited in the National Bank of Pakistan in terms of the said scheme as a matter of course, payable to the Mutwallis and to none else, they alone being in exclusive charge of the management of the Dargah. It appears from the trial Court's Order No. 18, dated 29‑4‑54, passed on the plaintiffs application for appointment of a receiver that the trial Court though it rejected the application, kept the cash offerings collected from time to time and their withdrawal from the bank absolutely under its control. The relevant part of that order runs thus: "I find from the papers filed that Rs. 15,956 was deposited with the National Bank of Pakistan till 24‑4‑

54. This amount is already in deposit, and further deposits are also said to have been made in the meantime. This money provides safeguard to the interests of the plaintiff and his brothers. If ultimately they succeed in the suit, and if ultimately it be proved that they are entitled to get more than is payable under the Wakf Com missioner's scheme, they may have their claim satisfied out of the money kept in deposit in the National Bank of Pakistan. In this view of the matter I hold that appointment of a receiver is not necessary. It has been urged on behalf of the plaintiff that there is no guarantee against withdrawal of the money deposited from time to time in the National Bank of Pakistan. Safeguard against such contingency should, of course, be provided. Defendants 3 to 14 are therefore, called upon to give an undertaking in writing personally or through their lawyers, that they shall not withdraw any money deposited in the National Bank of Pakistan, without the permission of this Court till the disposal of this suit. This should be done within a week. They should also submit a statement of accounts to the Court every month by the 10th day of the next month. In default the question of appointment of a receiver will be considered favourably. The petition for appointment of a receiver is rejected subject to the above observations and reservations."

43. Thus, the unspent amount of the cash offerings lying in deposit in the bank is, according to the said order of the trial Court. Payable to the Mutwallis who alone are found to have the exclusive right to receive the offerings for which no decree for the recovery of any specific amount is required to be passed. In these circumstances, it will suffice if an alternative relief in respect of the offerings is granted under Order VII, rule 7, of the Code of Civil Procedure to the effect that the plaintiff, along with the other hereditary Mutwallis for the time being, is entitled to receive the offerings given to, or made at, the Dargah in suit. We think that a declaration of this intangible right of the Mutwallis is both permissible under the said Order V1I, rule 7 and sufficient for the purpose of this suit.

44. In the prayer (g) of the plaint, the plaintiff asked for a decree for possession if the committee's intervention in the collection of the offerings were construed to be an act of Mutwallis dispossession. As the possession and management of the wakf properties and the Dargah have already been restored to the Mutwallis under the orders of the Wakf Commissioner, the passing of a decree for possession is no more called for.

45. In the result, the appeal succeeds. We, therefore, allow the appeal with costs to the appellant throughout and pass the following decree in modification of the decree passed by the trial Court.

46. It is hereby declared that the wakf created by Anwar Khan by the deed of wakf; dated the 11th Baisakh, 1202 M. E. is a genuine and valid wakf in respect of the properties described in Schedules A and B appended to the plait for the benefit of the shrine Hazrat Shah Sufi Amanat Khan and the maintenance of the Saint's descendants, including the Mutwallis under that wakf, that the plaintiff‑appellant is one of the hereditary Mutwallis of the wakf and that the wakf is a private wakf though not a wakf‑al‑aulad under the Bengal Wakf Act, 1935, but the public have right of access to the Dargah, and all persons professing Islam have right to say prayers in the mosque standing on the wakf lands. It is further declared that the hereditary Mutwallis, including the plaintiff appellant have the exclusive right to receive offerings given to, or made at, the Dargah in suit which they shall, unless otherwise provided by law, utilise them for the purpose of the Dargah and for their own private purposes and those of the descendants of the saint, according to their needs, but in making such utilisation', preference shall be given to the needs of the Dargah, and any offering earmarked for a particular object by the person making it shall be applied to that object. It is further declared that the order of the Wakf Commissioner, dated the 11th December 1952, declaring the disputed wakf to be a public wakf is illegal and of no effect and that the scheme for appropriation of the income of the wakf framed by him by the said order is illegal, inoperative and not binding on the Mutwallis. The names of the respondents who filed the cross‑objection having been struck off along with the names of the other members of the committee, there was none to press the cross‑objection. In the circumstances, the cross‑objection has become infructuous and is, therefore, dismissed without any order as to costs. S. Q. Appeal allowed.