1. This and the connected Appeal No. 410 arise out of a suit brought under Section 92 of the Code of Civil Procedure. It was alleged that one Musammat Wafatan made a wakf of certain property for the construction of a mosque and that a breach of the said trust had been committed. It was prayed that new trustees should be appointed and many other reliefs were asked for.
2. The alleged wakf is said to have been made under a Will executed by Musammat Wafatan. That document in its preamble states that besides making a disposition of her property, it was necessary to make some provision for charitable purposes for the benefit of her soul. The document then directs that her brothers, Dilawar and Shukrulla, should as regards three shops and a house with a shop sell the said property and with the proceeds of the sale construct a mosque. It is further provided in the document that if Dilawer and Shukrulla wanted to keep the property, they should devote the value thereof, which is mentioned in the document as being Rs. 2,500, to the construction of a mosque and continue to be the owners of the property. This alleged Will was made in 1898. Musammat Wafatan died in 1900 and shortly afterwards Shukrulla died. Dilawar lived until 1909: but nothing was done with respect to the property. After the death of Dilawar, in execution of a decree obtained against one of his sons, Yakub, a portion of the property was sold by auction and was purchased by Behari Lal, who is the principal respondent in this appeal. The learned Judge has held that there was no valid wakf and has dismissed the suit as against Behari Lal. At the same time he proceeded to try the suit as against, the other defendants, and in the end he appointed new trustees and provided a scheme for the management of the trust. This was somewhat inconsistent in view of his finding that there was no valid wakf. The plaintiffs have preferred, this appeal and it is contended on their behalf that a valid wakf of the three shops and the house in dispute was created by Musammat Wafatan. In our opinion upon a true construction of the Will of Musammat Wafatan, there was a waif of the value of the property for the erection of a mosque and not of the property itself. The property was not to be appropriated to the erection of a mosque but the proceeds of the sale of the, property, whether it was purchased by a stranger or kept by Dilawar and Shukrulla were to be devoted to the construction of a mosque. In these circumstances we think that the wakf was in fact a wakf of the value of the property and not, as we have said above, of the property itself. This being our view, there was no case against Behari Lal, the purchaser of a part of the property, and the suit was rightly dismissed as against him. We accordingly dismiss this appeal with costs to Behari Lal, including fees on the higher scale.