Judgment

WANCHOO, J. : (On behalf Of Gajendragadkar J. and himself). This is a defendant s appeal on a certificate granted by the Allahabad High Court. The suit was brought by Thakur Sabir Ali plaintiff-respondent for possession. The following pedigree-table omitting the unnecessary names) which is not in dispute, may be set out to appreciate the case of the plaintiff:

The case of the plaintiff was that Thakur Amir Baksh owned considerable properly known as Tipraha Estate in the district of Bahraich at the time of the annexation of Oudh. He died in 1857 and was succeeded by his son Thakur Faten Mohd., who was subsequently recognised by the Government as the talukdar of the Tipraha Estate. Thakur Fatch Mohd. died issueless and on his death Thakur Nabi Baksh succeeded him as the talukdar under the family custom and under the provisions of the Oudh Estates Act, No. 1 of 1869, (hereinafter called the Act), On the death of Thakur Nabi Baksh the estate passed to his only son Asghar Ali. who in his life time acquired certain other properties which were, both talukdari and non-talukdari in nature. In August 1925 Thakur Asghar-Ali executed a deed of wakf-alal-aulad by means of which he created a wakf of his entire property for the benefit of himself, his family and descendants generation after generation. He was to be the first mutwalli for his life-time and thereafter his son Thakur Mohd. Umar, and after him, his other sons and then his other descendants selected according to the rule of primogeniture were to be mutwallis. The wakf deed provided that some amounts would be paid to charities and some as maintenance allowance to the members of his family generation after generation, the remainder going to the mutwalli Asghar Ali died in February 1937, leaving behind properties included in Schedules A to I appended to the plaint. Disputes arose thereafter about succession to and possession of his properties, Mohd. Umar claimed to be entitled to the entire property under the wakf deed of August 1925 while the plaintiff, being the eldest son of the eldest son Nasirali who had died in the lifetime of his father Thakur Asghar Ali claimed succession to the property under the rule of lineal primogeniture. This led to protracted litigation in the Revenue Courts and eventually an order for mutation was passed in favour of Thakur Mohd. Umar defendant who is now dead. Thakur Mohd. Umar came into possession of the properties mentioned in schedules A, B, D, E, F, H (except certain items mentioned therein) while the other defendants came into possession of certain other properties, with the details of which we are not concerned now.

2. Thakur Sabir Ali then instituted the present suit for the possession of the entire property left by Thakur Asghar ali and for mesne profits. His case was that he was entitled to succession under the rule of male lineal primogeniture in accordance with the provisions of the Act and the family custom. He denied the execution, attestation, genuineness and validity of the wakf deed alleged to have been executed by Thakur Asghara ali which was relied upon by Thakur Mohd. Umar for his title to the property. The wakf deed was further challenged on other grounds with which we are however not concerned now except one. But the main attack against the validity of the wakf deed was that the subject-matter of the deed was property subject to the special provisions of the Act and therefore the said deed was not valid, particularly in view of the provisions contained in Ss. 11 and 12 of the Act. This is the main point which falls to be considered in the present appeal.

3. The defence was that the wakf deed was duly executed and registered and acted upon and that no fraud, undue influence or coercion as alleged by the plaintiff had been practised upon Thakur Asghar ali in that connection. It was further alleged that even if the wakf was invalid as a gift it would be operative as a will and the mutwalli would be entitled to the possession o