1. This is an appeal from a judgment of the Additional Subordinate Judge of Allahabad, giving the plaintiff-respondent a decree for a declaration that certain properties named in the plaint are wakf properties, and for possession thereof as mutwalli, and a sum of nearly Rs. 2,000 mesne profits which had been realized by some of the defendants from the property during the period of their possession and that of the Receiver. The property concerned was owned by one Arab Ali Khan, a resident of Allahabad city, it is mostly zamindari property in the three parganas of Arail, Sikandra and Chail, a consideration the importance of which will become clear later on. There is also some land occupied by the houses of tenants or lying waste in the city of Allahabad. The plaintiff-respondent Mt. Sikandra Begam is the daughter-in-law of Arab Ali Khan, and she claimed possession as mutwalli under the terms of a deed of wakf said to have been executed by Arab Ali Khan on 14th April 1919. The first three defendants are one of the widows and the two surviving daughters of Arab Ali Khan, and the defendant 4 is Khan Sahib Mahmud Ali Khan, to whom a small portion of the wakf property had been transferred before the institution of the suit. According to the contention made on his behalf before us he was unnecessarily impleaded, as he had parted with this property on 13th May 1925 after the institution of the suit but before the decision by the lower Court; he was included in the appeal by mistake and wished to withdraw at the time when the arguments started. To this part of the case we shall revert later on.
2. In 1918 Arab Ali Khan had attained an age of 70 years. He had been married four times, and two of his wives were still living, viz., the present defendant-appellant Mt. Musharraf Begam, who was living in a separate house from her husband, and Mt. Imtiazan who was living in the same house with him. There was one son Haidar Husain, who was at that time aged about 22 years, and two daughters, Mt. Sajida Begam, the sister of Haidar Husain, whose mother had died many years before, and Mt. Hatmi Begam, the daughter of Mt. Musharraf Begam. Both these daughters had been married, but Mt. Hatmi Begam was, we understand, separated from her husband and was living with her mother in Allahabad.
3. Arab Ali Khan arranged to marry his son Haider Husain to the present plaintiff-respondent Sikandar Jahan Begam, who is the daughter of Hakim Nazir Husain of Lucknow. There was at first some hitch about the wedding, as on the first occasion when the wedding procession went from Allahabad to Lucknow the ceremony was not completed, but there was a second wedding procession and the marriage was finally celebrated in July 1918. So far, the facts given have either been admitted as true or have not been contested before us. Mt. Musharraf Begam, the defendant, stated in evidence that the reason why the marriage was postponed on the first occasion was that Hakim Nazir Husain demanded a dower of 1 1/4 lakhs of rupees on behalf of his daughter from Arab Ali Khan, to be secured by a mortgage of all Arab Ali Khan's property, and that this was refused, but that on the second occasion it was agreed that the dower should be Rs. 25,000 and that some property should be mortgaged to provide maintenance for the bride, Arab Ali Khan promising to execute a document later on. Curiously enough Nazir Husain himself, who of course appeared as a witness for the plaintiff, his daughter, denied in evidence that there was any such agreement. It is possible that these two did not appreciate the bearing that this alleged agreement would have on their respective cases.
4. The deed of wakf was executed by Arab Ali Khan on 14th April 1919, about nine months after the wedding. Even the execution of the deed was denied in the written statement, though in a somewhat half-hearted way, but it has been abundantly proved. It is printed on p. 91 of the paper-book, and the essential provisions must be re-stated. Arab Ali Khan, who was a Shia Mahomedan is described as a religious man who kept up an imambara and was an ardent supporter of the Muharram celebration. In the deed, after setting forth that part of the property is pledged and hypothecated to the creditors in security of debts, he states that he wishes to make a wakf of the entire property described 'in favour of my male issues and their male issues under the provisions of Act 6 of 1913.'
5. The legal formula is referred to, and the mutwallis are named in order, viz:
(1) My son Haider Husain Khan.
(2) His eldest son by his wife Sikandar Jahan Begam (the plaintiff) or the ablest of the several sons, or if perchance Haidar Husain has no son by Sikandra Begam and he dies childless in my presence or if he, for any reason, resigns his office as a mutwalli I shall manage the wakf property as a mutwalli, but I shall not be benefited by the income of the wakf property.
(3) After me or after Haidar Husain Khan Mt. Sikandra Begam.
(4) The son of Haidar Husain, if any, by his second wife.
(5) After the son of Haidar Husain Khan his eldest son etc.
6. Finally if none of Haidar Husain's line be available a managing committee is to be appointed as described in the deed to spend the income on the religious and charitable purposes named in para. 4.
7. There is then a description of certain debts which have to be paid, viz:
(a) Rs. 2,900 a year is to be paid along with the Government revenue in accordance with the provisions of the 'Bundelkhand Act.'
(b) Rs. 40,000, in security of which the property is pledged and hypothecated and in lieu of the interest on which profits are paid to the mortgagee.
8. There is a direction that after the Government debt has been paid,
the annual amount... shall be paid to my creditors towards the payment of their principal amount so long as the entire debt is not paid up.
9. Then follow directions that the mutwalli shall pay monthly allowances to the two widows, viz., Rs. 15 to Mt. Musharraf Begam (the defendant) and Rs. 25 to Mt. Imtiazan with a further allowance of Rs. 30 a year for clothes to the former. After the payment of these debts and allowances the balance of the profits is to be realized by the mutwalli for his expenses and the maintenance of his children except in the event of Arab Ali Khan himself being mutwalli. It is to be observed that not only is a reference made to the legal formula which is to be recited and to the Act validating 'wakfs' of this nature, but Arab Ali Khan with the apparent intention of conforming with the law relating to wakfs executed by Shias is careful to provide that he shall not himself be permitted, when acting as mutwalli, to use the profits to meet his own expenses. There is no sufficient material on the record to enable us to make any exact estimate of the net income of the wakf property, but the gross income appears to be about Rs. 7,000 or 8,000. The two widows received most inadequate benefits, especially Mt. Musharraf Begam. Both daughters are entirely neglected, with the exception that Mt. Hatmi Begam is to receive for her life the scanty allowance payable to her mother after the latter's death. The learned Subordinate Judge has described the deed as having been executed
to all intents and purposes for the aggrandisement and benefit of the plaintiff to the exclusion of Arab Ali Khan's wife, daughters and the daughters' children.
10. This would not be an unfair description of the deed if we were to accept the further conclusion of the Judge that there was real apprehension in the minds of those who were responsible for the drafting of the deed of wakf, of Haidar Husain's premature death, but on the face of it the main object of the executant appears to have been the benefit of Haidar Husain and his descendants.
11. Haidar Husain applied for mutation of names on 12th June, two months after the execution of the deed, referring to the deed of wakf in his application, and mutation was effected accordingly in his name as mutwalli. There can be no doubt that notice was sent to his father, for whose name Haidar Husain's was substituted. In about six months, however, Haidar Husain died. The Judge remarks that it is proved by the defence evidence that he had been ailing even at the time of his marriage, and that he fell ill within two or three months after that and never recovered of the abdominal tuberculosis of which he died on 8th December 1919, i.e., seven or eight months after the execution of the deed. Arab Ali Khan made an application on 19th April 1920, for mutation in his own name, and on the report of the Tahsildar that no objection had been taken to the application by the widow of Haidar Husain, the Collector ordered Arab Ali Khan's name to be recorded. The result, therefore, was that he remained in possession for nearly four years until he died in November 1923. On his death the three defendants-appellants applied for mutation, and the Collector who of course was not in a position to settle the validity of the wakf or any question of title, allowed their application in spite of the opposition of the present plaintiff, who thereupon filed this suit.
12. The defendant-appellants, as has been remarked above, suggested that the deed of wakf had never been executed. But apart from this they contend that even if it was formally signed it was a fictitious deed, that is to say, that Arab Ali Khan never really intended to create a wakf, and also that the deed had never been acted upon and that possession had never been given to Haidar Husain. Other legal objections to the deed have been urged. In the view that we have finally taken the appeal must be decided, in regard to a part of the property at least, on a question of law which has not been dealt with in the judgment of the Court below, and was not raised in the written statement, although we are now assured that it was argued before the learned Subordinate Judge. As our decision turns on the interpretation of a particular statute, however, and as this suit may possibly be the subject of a second appeal, we have thought it necessary to set out the facts and also to deal with the evidence at some length.
13. It was claimed by the defendants-appellants that the circumstances attending the execution of the wakfnama show that it was not genuine and valid. In paras. 13 and 14 of the written statement they said:
Arab Ali Khan had no intention of making such a wakf, nor did he make such a wakf.... If the wakfnama be proved to have been executed and completed the defendants submit that under improper pressure Arab Ali Khan, for the sake of policy, executed the same fictitiously and for show only.
14. As we have remarked the execution of the deed is clearly proved, and was not assailed in argument before us. This being so, it has been a matter of some difficulty to understand what the 'improper pressure' was that was exerted over Arab Ali Khan. The words 'undue influence' were not used in the written statement, but the record shows that they were used by the defendants' counsel in Court, and so far as we are able to judge the undue influence alleged was merely this that Nazir Husain, the father of the bride, having got a promise from Arab Ali Khan that the stipulated dower of Rs. 25,000 should be secured by a mortgage bond, came to Allahabad and persuaded Arab Ali Khan to execute the wakfnama instead. The learned Subordinate Judge has said:
It is apparent that Arab Ali Khan has been duped into executing such a deed of which he had to repent soon after as his conduct subsequent to Haidar Husain's death amply bears out.
15. He goes on to explain however, that by the expression 'duping' he does not mean '' undue influence.' There does not in fact seem to be any evidence whatever to show that Nazir Husain was in a position to exercise undue influence over Arab Ali Khan. Arab Ali Khan was, it is true, 70 years old, but there is nothing to show that he was in his dotage, and the evidence that he was in feeble health is of the very vaguest description. The Judge's reasoning merely amounts to this: that Arab Ali Khan was good nature and gave way to the importunities of Nazir Husain and possibly of Zahid Husain Khan, who was anxious to obtain the property for a committee.
16. There is no evidence whatever of any deception or fraud having been used. If the defendants case be true, Arab Ali Khan was merely carrying out his agreement to secure maintenance for his daughter-in-law and her children. It is not by any means clear that when the deed of wakf was executed Haidar Husain had shown any alarming symptoms. What has been suggested to us is that Nazir Husain being a doctor, was able to detect serious symptoms and to conclude that Haidar Husain was not likely to live long, and that for this reason he persuaded Arab Ali Khan to execute the deed for the benefit nominally of Haidar Husain but really of Haidar Husain's wife. This is however the merest conjecture, and even if it could be proved it would certainly not amount to proof of the exercise of undue influence. The deed was witnessed by a very large number of people, nine of whom were Arab Ali Khan's, own relations. We attach no importance to the fact that one of the witnesses is Mt. Musharraf Begam, the defendant, herself, because it is very unlikely that she thoroughly understood its contents. But when all these formalities were gone through before all these people it is scarcely conceivable that Arab Ali Khan, who was in the full possession of his faculties, should have been acting otherwise than as a free agent. All that can be said against Nazir Husain is that he was apparently very anxious to get the deed executed, as he brought the formula with him from Lucknow and possibly also a draft of the deed, and made all the necessary arrangements to raise money for the stamps. It was quite natural for Nazir Husain to be eager to have some such deed executed in fulfillment of the agreement about the dower, and it is by no means clear to us that the benefits obtained by Mt. Sikandra Begam under this deed, viz., the prospect of enjoying the profits of this property for her life in the event of her husband predeceasing her, were greater than a sum of Rs. 25,000 secured by a mortgage which, according to the appellant, is what Arab Ali Khan had promised to provide.
17. As regards the delivery of possession to Haidar Husain, it must be remembered that he was living with his father in the same house and that they had probably both had something to do with the collection of the profits before the execution of the deed, although of course only Arab Ali Khan's name was recorded in the revenue papers. It is, however most significant that mutation as mutwalli was effected in Haidar Husain's name two months after the execution of the deed and that Arab Ali Khan made no objection. At that date Arab Ali must have been quite willing to carry out the terms of the wakf, although it is clear that after Haidar Husain's death he wished to repudiate it. Not only was mutation effected in Haidar Husain's name but a lease was granted by him, and an instalment of Government revenue was paid by him.
18. There is oral evidence on either side, but this is of comparatively little significance, for instance Majlis Rai, who was Arab Ali Khan's agent, states that Haidar Husain made collections after the execution of the wakfnama and that Arab Ali Khan executed no pattas after that, whereas Mt. Musharraf Begam, the defendant, states that Haidar Husain was never in possession, that he fell ill eight or ten months after his marriage and remained so for eight or ten months We are asked to assume that Haidar Husain had been too ill to manage the estate. Even if he could do very little work on the estate, however, and it is at any rate proved that he executed one lease and that he paid an instalment of the revenue, this could not affect the fact that possession was duly given and that the wakfnama was acted on. We may refer to the statement of Mt. Imtiazan who gave evidence for the plaintiff. She was managing the affairs of the household, and she certainly supports the contention that possession was given to Haidar Husain. It is true that she may have some reason for supporting the plaintiff's case, as under the wakfnama she is entitled to an allowance, whereas being a childless widow of a Shia Mahomedan she is not entitled either to a share in, or maintenance from Arab Ali's estate. She is to some extent prejudiced, but not more so than the defendant.
19. There is in fact no evidence that anyone took any step to repudiate the wakfnama until after the death of Haidar Husain. It was then that Arab Ali Khan in his application for mutation in his own name stated:
This applicant is and has always been in possession and occupation of the haqiat.... This applicant did not put Haidar Husain deceased, in possession and occupation by means of wakf.
20. This was less than one year after Haidar Husain had, with Arab Ali's consent, obtained mutation as mutwalli, and the obvious inference is that his own point of view had been changed by the death of Haidar Husain. He was in any case entitled to possession under the deed of wakf, under the clause by which he was to be the mutwalli in the event of Haidar Husain predeceasing him, and this no doubt explains why no opposition was made to his application by Haider Husain's widow. It is, however, worth remarking that in his application Arab Ali Khan does not make any suggestion that the wakfnama is fictitious. In fact we have no doubt on a consideration of all this evidence that Arab Ali Khan executed the wakf with the object of securing the property to Haidar Husain and his heirs, and at the same time of fulfilling his promise to Nazir Husain of securing a competence to Haidar Husain's wife. The death of Haidar Husain of course made the provisions in the wakfnama far less desirable from his point of view, and he therefore wished to go back on it. But as the Subordinate Judge rightly remarks, it was then too late.
21. The validity of the wakf in question has been challenged on several grounds, one of which, viz., that arising out of non-delivery of possession, has been already discussed. From what has been found by us it is clear that there was sufficient compliance with the rule that transmutation of possession is necessary to complete a wakf in presentae.
22. It has been next contended that the plaintiff-respondent, not being a member of the settlor's family, no provision could be validly made in her favour under the Musalman Wakf Validating Act of 1913. Section 3 of that Act lays down:
3. 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 a wakf is a Hanafi Musalman, also for his own maintenance and support during his lifetime 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 recognized by the Musalman law as a religious, pious or charitable purpose of a permanent character.
23. The circumstances which led to this enactment are well known. Their Lordships of the Judicial Committee had held in a series of cases that a wakf in favour of the settlor's family, children and descendants, generation after generation, and ultimately in favour of the poor when the settlor's family becomes extinct, is invalid, as the main object in such cases was to create a perpetuity for the benefit of his own family, the charitable object being too remote and illusory and that unless real and substantial provisions be made for charitable objects the wakf cannot be upheld: see for example Abdul Fatu v. Rasamaya  22 Cal. 619. It was represented by the Indian Muslim community that the law thus laid down was a departure from Mahomedan law which regarded a provision for one's family and children as an act of charity. Mr. Amir Ali exhaustively dealt with the object in Bikhani Mia v. Shuk Lal  20 Cal. 116(F.B.), and referred to a large number of original texts and earlier cases decided by British Courts upholding the validity of such dispositions. Accordingly, the Bill, which subsequently became the Wakf Validating Act, was allowed to be introduced in the Imperial Legislative Council (as it was then designated) by a non-official Muslim member. Section 3(a) with its proviso and Section 4 of the Act declare that such wakfs, i.e. those in favour of the settlor's family, children and descendants with ultimate benefit to the poor or other charitable objects, shall be deemed to be valid and that the remoteness of the contingency in which the benefit is to accrue to the poor or other charitable purposes shall not affect the validity thereof. Section 3(b) is confined to Hanafi Mahomedans because there was a difference of opinion between two of their doctors, one of whom, Imam Mohammad, maintained that the settlor could not reserve any benefit to himself, while, according to the other, Imam Abu Yusuf, such a provision ranked with that in favour of his family, children, and descendants and could be validly made The Shia authorities were unanimously in favour of the former view and consequently no special legislation on that point was necessary in case of Shia Mahomedans. Among the Sunnis, on the other hand, the generally accepted view was the latter, and therefore Section 3(b) was enacted to remove the element of uncertainty due to the difference of opinion above indicated.
24. The effect of the Wakf Validating Act on the Mahomedan law is that a provision in favour of the settlor's 'family, children and descendants' with ultimate benefit reserved for the poor or for any other religious or charitable purpose is valid, though, but for the enactment, it would have been otherwise in view of the pronouncement of their Lordships of the Privy Council. In the case before us it is necessary to have recourse to the Act only if the word 'family' be held to include 'son's widow,' because in that case but for the Act, the wakf would be questionable on the view taken by the highest tribunal. Therefore, if she is one of the family the Act applies and the validity of the wakf is declared thereby; if she is not, then, she cannot and need not avail herself of that Act, but must found her case on the Mahomedan law pure and simple and the appellants must refer to some rule of that law which makes the wakf invalid for conferring a beneficial interest for life on the son's widow. We have not been referred to any authority in support of the appellants' contention. On the contrary Mahomedan law clearly allows provisions similar to life interests or other limited interest to be made in a wakf, see Bailie, Vol. 1, pp. 570-584, quoted by Tyabji in Section 473, p. 571, Edn. 2, which relates to Sunnis. The Shia law is the same with this difference only, that where a series of life interests are created the person taking in the first instance should be one in being and competent to take beneficially at the time when the wakf is made (Tyabji's Mohammadan law, Section 485, pp. 602-603, Edn. 2) both of which conditions are fulfilled in the case before us. It would be a very unsatisfactory state of law if a provision like the one in question invalidates the wakf. The plaintiff is to take a beneficial interest for life in the wakf property after her husband's death, only if she has no son of her own, who would, if there be one, take precedence over her. Sons born of any other wife of her husband are postponed till after her death. But for a provision of this kind it was felt that she would have to depend for her maintenance on the bounty of her step-son. We think that the word 'family' has been used in the decision of their Lordships of the Privy Council and in the Wakf Validating Act in its broad popular sense so as to include all relatives more or less dependent on the settlor. A daughter-in-law living with an Indian householder is undoubtedly a member of his family in that sense. The point is, however, only of academic interest because, as shown already, her position is not worse if she be not regarded as a member of the family. In this view of the matter we hold that this ground of attack on the validity of the wakf fails.
25. Another ground on which the validity of the wakf is impugned is that the settlor has reserved benefits under it for himself in so far as he has directed the payment of certain debts. Reference to these debts and directions with respect to them has already been made in an earlier part of the judgment, where relevant passages have been extracted from the official translation of the deed of wakf. In the preamble of the deed we have the following:
The said property is owned and possessed by me as a proprietor without the partnership of any one else and no one has a claim in respect thereof with the exception of this, that a portion of the property is pledged and hypothecated to the creditors in security of debts and I have all powers of making transfers of and exercising proprietary rights in respect of the said property.
26. It is to be noticed that the debts mentioned in the deed are of two kinds. Firstly, a large sum of money was due to the Government, who had paid up the debts of Arab Ali Khan under Bundelkhand Encumbered Estate Act 1 of 1903, and to whom it was repayable by easy instalments at a concessional rate of interest. The amount of yearly instalment was Rs. 2,900, recoverable as if it were Government revenue: see Section 26, Bundelkhand Encumbered Estates Act 1, 1903. With the Government revenue it was a charge on the property taking precedence over any other incumbrances: see Sections 141, 142 and 146, U.P. Land Revenue Act 3, 1901. The property situate within the area to which the Act applied could be sold in case of default. Clause (1) of the deed declares that this sum is 'paid along with the Government revenue.' It proceeds to direct 'therefore' that it should be paid. Secondly, a sum of Rs. 40,000 was due to various creditors who held lands under possessory mortgage-deeds and recovered interest from the usufruct thereof. There can be no doubt as to this class of debts being an incumbrance on the property. The opening lines of the deed clearly indicate that part of the property made wakf was incumbered property, and as such the mutwalli as representing the wakf must discharge the debt if the property is to be recovered from the mortgagees for the benefit of the wakf. As regards the first mentioned liability the direction in the deed to pay future instalments recoverable as Government revenue is no more a direction to pay the settlor's debt than a direction to pay the Government revenue itself. We think it cannot be reasonably contended that a direction, in a deed of wakf for payment of Government revenue as it falls due is a direction to pay the settlor's debt, making the wakf invalid. Nor is a direction to discharge certain incumbrances subject to which the property has been made wakf, a direction to pay the settlor's debt. It is in the nature of a direction for due administration of wakf properties. If the deed had made no reference to these debts the wakf property would nevertheless have been liable therefor, and the mutwalli for the time being would be responsible for payment.
27. The rule of Shia law on the subject is thus stated by Sir R.K. Wilson:
Section 484: It-is essential to the validity of a Shia wakf that the founder should divest himself not only of full ownership, but of everything in the nature of usufruct; and, therefore, where by the terms of the endowment a portion of the income is reserved to the endower himself during his life, not only is the actual clause of reservation void, but all that part of the deed which relates to the subsequent devolution of the reserved income is also void; but so much of the deed as relates to property devoted from the first to purposes unconnected with the personal benefit of the endower may nevertheless be valid.
Explanation 1. If the endower (vakil) happens to be included in some general class of beneficiaries described in the deed of endowment, he will not be debarred from claiming in, that capacity.
Explanation 2. There is no objection (any more than in Hanafi law) to an endower constituting himself trustee (mutwalli) of his own endowment, and allotting to himself for his services in that capacity the same remuneration that he assigns to his successors: Wilson's Digest of Anglo-Mahomedan law, Section 484, pp. 480, 481, 4th Edn.
28. One of the Hanafi lawgivers who is of the same opinion has tersely expressed the rule that the settlor should not 'eat out of' the wakf property. It is only a corollary from this general rule that some text-book writers have stated that
if the wakf were made in favour of another with a condition for the payment of the wakif's (appropriator's) debts, and current expenses, it would not be valid, e.g., Shama Charan Sarkar's Tagore Law Lectures 1874, p. 473.
29. The principle underlying the rule obviously is that having made wakf of his property the settlor should not participate in the enjoyment of the property. Where debts are charged on the property made wakf and must, therefore, be paid out of it there is no benefit reserved for the settlor in the direction to pay such debts. Payment of such debts by the wakf is a discharge of its own obligation. The case will be otherwise if the settlor makes it a condition that his personal debts for which the wakf property cannot be made liable should be paid, for in such a case the wakf funds are to be spent on him and would not be so spent, but for the condition. Such was apparently the character of the debts referred to in Hamid Ali v. Mujawar Husain Khan  24 ALL 257. In view of these considerations we hold that this line of attack on the validity of the wakf also cannot succeed.
30. The third contention against the validity of the wakf is more serious and refers to Section 10(2), Encumbered Estates Act (Bundelkhand) 1, 1903, which is designed to afford facility to proprietors of land in certain areas for liquidation of their debts. It is not disputed that a part of the wakf property detailed in the deed at pp 95 and 96 and reproduced in the plaint at pp. 2 to 4 mentioned as situate in perganah Arail lies within the area to which the Act applies. The procedure prescribed by the Act is that the Local Government should appoint a Special Judge (Section 4) to whom applications made by indebted proprietors stating the particulars of their debts and property are to be forwarded for enquiry and report, by the Commissioner who is to receive such applications in the first instance (Sections 6 and 7). The Special Judge should
publish in the Gazette a notice is the vernacular language of the district calling upon all persons having claims against the person or the property of the proprietor... to present to the Special Judge, within two months from the date of the publication, a written statement of their claims, (Section 9).
31. The Special Judge is to enquire into the history of dealings between the parties (Section 13), and has wide powers to reduce interest in taking accounts, and has to declare the amount due to a particular claimant (Sections 14 and 15). If the proprietor cannot himself pay the amount so found due the Special Judge is to submit a report to the Commissioner who may direct the money to be advanced from the public treasury repayable with interest at the rate of 5 per cent per annum by instalments within 15 years. Section 10(2) of the Act runs as follows:
10(2). Until the Commissioner has declared as hereinafter provided, that the proprietor has ceased to be subject to the disabilities mentioned in this clause:
(a) The proprietor shall be incompetent to exchange, give or, without the consent of the Commissioner, sell, mortgage, or lease his proprietary rights in land or any part thereof; and
(b) no suit or other proceeding shall be instituted in any civil or revenue Court in the United Provinces against those rights in respect of any private debt contracted by the proprietor after the publication of the notice.
32. The disability created by this section terminates on the Commissioner declaring under Section 28 that the proprietor has ceased to be subject to the disabilities mentioned in Section 10, Sub-section (2), which he (the Commissioner) cannot declare except when the entire sum due has been recovered.
33. We have found it necessary to outline the frame work of the Encumbered Estates Act as it has been questioned whether Arab Ali Khan was under this disability created by Section 10(2) of that Act or whether certain circumstances relied on by the appellants necessarily prove that he was. We think, however, that the evidence is conclusive. Ex. C-b (p. 65), is the award dated 1st May 1905, purporting to be under the 'Bundelkhand Encumbered Estates Act' made by Mr. Piggott (as he then was) who was the Special Judge adjudging Rs. 45,201 in favour of a claimant named Aj Kumar against Arab Khan and two others described as applicants. Section 14(g) of the Act is referred to in the award, and the Judge has exercised powers given to him under the Act for limiting the amount of interest equal to that of the principal. The deed of wakf itself recites that the settlor was indebted to the Government under the Bundelkhand Act and a sum of Rs: 2,900 a year was payable with the Government revenue. It is not disputed by the plaintiff-respondent that it was so payable. Indeed, it appears that Arab Ali Khan pleaded his disability and invoked the aid of Section 29, Bundelkhand Encumbered Estates Act, as late as 20th August 1923, when he successfully resisted the attempt of one of his creditors to have his (Arab Ali Khan's) property sold in execution of a decree. In view of these circumstances we think, that it is incontrovertible that he was under the disability which Section 10(2), Encumbered Estates Act, imposes on the proprietors coming within its purview.
34. The next question of importance is whether the disability contemplated by Section 10(2) of the Act extends to a transaction like the one in question. It is argued that the expression 'give,' occurring in the section, which alone can be relied on as importing a prohibition against making wakf, is applicable only to cases of gift as defined in the T.P. Act, 4 of 1882. Section 10, Encumbered Estates Act, it is contended, declares the proprietor to be
incompetent to exchange, give... sell, mortgage or lease his proprietary right
and, dealing as the Transfer of Property Act does with the transactions of exchange, gift, sale and lease, the word 'give' in the former has reference to gift as defined in the latter. We are unable to give effect to this contention, as it unnecessarily narrows down the meaning of the word 'give,' which should be construed in its natural sense as implying a transfer without consideration, a view which is in accord with the object underlying the entire provisions, viz., that a proprietor to whom the benefit of the Act has been extended should keep the property affected by the enactment intact till his liabilities are fully discharged. In every wakf there is a transfer of ownership. It is generally without any consideration. The right of the settlor is completely extinguished. It vests in the deity to whom it is dedicated for the benefit of mankind. This in substance is the definition of the wakf as given in the Wakf Validating Act and most text books on Mahomedan law. In Sadiq Husain v. Hashim Ali A.I.R. 1916 P.C. 27 creation of a beneficial interest in a deed of trust conveying the property to a trustee was held to be a 'gift through the medium of a trust.' The case is not different where a beneficial interest is created under a wakf which in many aspects partakes of a gift, inter vivos or testamentary. Delivery of possession is as essential in case of a wakf as in that of a gift. A testamentary wakf is like an ordinary will by a Mahomedan, valid only to the extent of one-third of the testator's assets. For these reasons we are of opinion that the word 'give' in Section 10(2), Encumbered Estates Act (Bundelkhand) 1 of 1903 is wide enough to cover a case of giving away property by way of wakf, and that Arab Ali was incompetent to make the wakf evidenced by the deed dated 14th April 1919. The learned Counsel for the defendants-appellants would not extend the disability created by the section to the case of property other than that situate within the area to which the Act has been made applicable, and does not contend that such disability is personal affecting all properties belonging to the person who is declared as incompetent to exchange, give, etc. We are therefore relieved of the necessity of entering into a question which could possibly arise. Our view of this part of the case, therefore, is that the wakf is invalid as regards the property lying in Perganah Arail which is admittedly part of the area to which the Encumbered Estates Act applies and which is separately detailed in the deed in question (see pp. 96 and 97).
35. We must note that the plea which has thus succeeded with respect to part of the property in dispute was not raised in the written statement of the defendants-appellants and was not the subject of any definite issue. What was pleaded was that Arab Ali Khan was not competent to make the wakf in view of the provisions of the Land Alienation Act (Bundelkhand) 2 of 1903 which imposes restrictions on a certain class of proprietors in a given area in the matter of alienating their land. It was, however, attempted by the defendants-appellants to prove by production of documents that Arab Ali Khan was admitted to the benefits of the Encumbered Estates Act and was, for that reason, subject to the provisions of the cognate enactment Land Alienation Act (Bundelkhand) 2 of 1903, a plea which was rightly overruled by the learned Subordinate Judge. As the plea in its new form set up before us was one of law, based only on such facts as appear on the face of the wakf deed itself and from the award of Mr. Piggott already referred to, we allowed it to be argued. To guard against possible prejudice to the plaintiff-respondent we questioned her learned advocate as to what evidence could have been adduced on her behalf if the plea had been clearly raised originally, and the only evidence that he could suggest was that afforded by the Government Gazette of 1904 and 1905 showing that publication of notice required by Section 9, Encumbered Estates Act, did not take place. Unless it were a case of gross and palpable error Mr. Piggott's award dated 1st May 1905 and the subsequent advance of loan by Government referred to in the wakf deed could not possibly have been made. It is the Special Judge who is to publish in the Gazette a notice in the vernacular language. It is not easy to trace such a notice after the lapse of nearly a quarter of a century, specially if it appeared as a supplement to the, Gazette. The legal presumption being in favour of the regularity of official and judicial acts we should have had to act on the hypothesis that such notice was published in the manner required by law, unless the plaintiff-respondent had been able to prove otherwise by producing all parts of all issues of the Government Gazette for the period within which notice could have been published. In order, however, to give the plaintiff-respondent an opportunity of producing any evidence that could possibly have been helpful on this point we allowed her counsel one week to search the Government Gazettes and to show from them that the notice had not been published. This interval enabled the opposite party to show that the notice was published in Part 2 of the Vernacular Gazette dated 23rd April 1904 on p. 1065. The appointment of Mr. Piggott as Special Judge is further published in part 1 of the Vernacular Gazette of 9th July of the same year. The evidence to prove the disability of Arab Ali Khan under Section 10, Sub-section 2 of the Encumbered Estates Act must therefore he held to be complete.
36. The result therefore is that the wakf must be held to be invalid so far as it relates to the landed property of Arab Ali Khan in the pergana of Arail, and the appeal must be allowed to this extent. As regards mesne profits the plaintiff claimed a sum of Rs. 1,992-4-6 which had been collected by the defendants or realized from the Receiver during the mutation proceedings, and this amount has been awarded in the decree of the lower Court. We have no means of deciding what proportion of the total sum was collected in that part of the property which lies outside the perganah of Arail. On our findings the plaintiff-respondent is clearly only entitled to mesne profits for this lesser sum, and if, as we understand, the decree has already been executed in regard to mesne profits, the plaintiff must make good to the defendants-appellants the excess amount realized before obtaining possession of her share of the properties in dispute. That amount may be ascertained under Order 20, Rule 12, Civil P.C., and restitution will be made on that basis.
37. We have still to deal with the cross-appeal filed by the plaintiff-appellant and the application made by defendant 4, Khan Sahib Mahomed Ali Khan. The trial Court directed that the parties should bear their own costs. This order was evidently passed on a consideration of the fact that the defendants-appellants had been very shabbily treated by Arab Ali Khan. The result of our decision is that the plaintiff-respondent will be deprived of the greater part of the property to the profits of which she would have been entitled under the deed of wakf which she had no reason to believe to be invalid. In these circumstances the proper order to pass in regard to costs is that each party shall bear her own in both Courts. Khan Sahib Mahomed Ali Khan applied to withdraw from the appeal chiefly from a fear that he might be made liable to costs if the appeal failed, but there is now no need for that apprehension. We formally direct that his name he expunged from the array of appellants and pass no order in regard to his costs.