1. This appeal arises out of a representative suit under Order 1. Rule 8, Civil P.C., instituted on behalf of the members of the Mahomedan public for a declaration that certain properties were validly dedicated as wakf by one Tossadak Hossain on 10th Asar 1324 B. S. corresponding to 24th June 1917. The Courts below have dismissed the suit. Hence this second appeal by the plaintiff.
2. The only point for determination in this appeal is whether the disputed properties are wakf properties. In support of their case the plaintiffs produced a wakfnama which was admittedly executed by Tossadak Hossain on 24th June 1917. It is stated in that document that Tossadak had retired from Government service at the time and that he had a wife but no children. It further appears that he wanted to make some provisions regarding his properties as he apprehended that there would be dispute regarding the properties after his death amongst) the persons who would inherit the major portion of his property as residuaries under the Mahomedan law. The document begins with a declaration that the property is made wakf. Id is then stated that the wakf would have the right to cancel it during his lifetime if he would so desire. The declaration that the property is made wakf is therefore subject to this condition. In other words his intention was not to dedicate the property unconditionally and for ever. It was however contended by Mr. Sen on behalf of the appellants that the declaration in the first part of the document made the property wakf and the condition attached subsequently was invalid. We are unable to accept this contention. The real point for determination is whether the man intended to dedicate his properties then absolutely and for ever. These are the essential requisites of a valid wakf. When the declaration is conditional and the declaration can be nullified by the wakif at his own sweet will, there is no real intention to dedicate. The document in the present case therefore does not in our opinion show that Tossadak Hossain had the intention of dedicating his properties for ever as wakf. Mr. Sen also contended before us that the lower Appellate Court in arriving at its decision was very much influenced by the fact that the document was not acted upon by Tossadak during his lifetime. It cannot be seriously disputed that if the intention to make the wakf can be gathered from the declaration taken as a whole and the surrounding circumstances, the mere fact that the wakif did not subsequently act according to the terms of the wakf would not invalidate the wakf. Where the intention is clear from the surrounding circumstances, it is unnecessary to look into the subsequent conduct to find out the intention. If however the intention of the person executing the document is not clear and the declaration and the surrounding circumstances are equivocal, subsequent acts and conduct if they throw any light on the real intention may be looked into. In this particular case, we find from the document itself that the man had no intention of dedicating his properties absolutely and finally. Under these circumstances we are not prepared to differ from the conclusion of the Courts below that the properties were not validly dedicated as wakf by Tossadak Hossain.
3. The result therefore is that this appeal is dismissed, but regard being had to the facts and circumstances of this case we direct the parties to bear their own costs throughout this litigation. Subject to the variation for costs in the decrees of the Courts below this appeal is dismissed.