DORAISWAMY Raju, J.

This appeal has been filed against the judgment dated 29.1.1935 of a learned Single Judge of the Allahabad High Court in Second Appeal No.591 of 1973 where under the suit filed by the respondents-plaintiffs came to be decreed by reversing the judgments of the courts below. For a proper appreciation of the natuer of contoversy and the grievance expresed befor us, it becomes necessary to state the relevant facts and the conclusions recorded by the courts below at some length. The suit, out of which the present proceedings emanate, had been filed for a declaration that the property in dispute, which is the western portion of House No.D 50/222 (old No. D12/58), Mohalla Qazipura Kalan, Varanasi, is the sujet-matter of Wakf and for recovery of possession of the same from the defendant. The case of the plaintiffs was that two houses Nos D 50/39 and D 50/222, Mohalla Qazipura Kalan, Varanasi, belonged to Smt. Zohra Bibi, who was in her early years leading a life of a Prostitute. Subsequently, she got married to Haji Mohammed Siddi. Thereafter, Zohra Bibi executed a deed of gift dated 10.4.1923 in favour of her husband and he, in turn, on 15.4.1923 execute a Wakf Deed comprising the above mentioned properties, according to which the original owner Smt. Zohra Bibi was to be the first Mutwalli and on her death her husband Hazi Mohammed Siddiq was to be the next Mutwalli. The income from the property was to be spent for charitable purposes and one of which was that Rs.5.00 per month from the income was to be give to the Mosque Ranglieshah for the expenses of the same. Smt. Zohra Bibi died in the year 1948. The evidence on record established that the registry in respect of the house, originally recorded in the name of Smt. Zohra Bibi Tawayaf, was cancelled and go record in the name of Smt. Zohjra Bibi, wife of Hazi Mohammed Siddiq as Trustee in the year 1923 and thereafter it was mutated again in 199 in the name of Allah 0 owner and Hazi Mohammed Siddiq Mut walli, in cancellation of entry made in 1923, apparently after the death of Smt. Zohra Bibi in 1948. After the death of Zohra Bibi, her husband appears to have apparently become avaricious and started adopting ways and means to appropriate the same for himself. As part of such eneavours, he first seems t o have moved an application before the District Judge, Varanasi, for permission to sell House No. D 50/39 in Miscl. Case NO. 139 of 1949 and sold the same after obtaining permission. Thereafter, he got a suit filed in Suit No.46/53 by the original defendant on the present suit by name Mubarak Hussain. Hazi Mohammed Siddiq did not put up any defence and, therefore, it appear to have been decreed on 12.9.1953. A pretended effort to get the decree set a side was made, but was not successful. As per the final decree passed in the said suit, the defendant in the present suit came into possession of western portion of house bearing No.D 50/222. On 2.1.1957, Hazi Mohammed Siddiq died and before his death he appears to have appointed the plaintiffs as Mutwallis of Waqf Mosque Ranglishah and also of the Wakf created by hi. The plaintiffs also claimed that they were appointed Mutwallis by Sunni Central Board of Wafq. The partition suit filed by Mubarak Hussain, the defendant in the present suit as well as the other proceedings instituted by the Hazi Mohammed Siddiq were said to be collusive and manipulated and consequently could not affect the claim of the plaintiffs in the present suit.

(2) THE defendant in the present suit, who was said to be the brother of late Smt. Zohra Bibi, contended that the properties in question were purchases from out of the income earned by Smt Zohra Bibi as a prostitute and, therefore, the same could not be the subject-matter of a Wakf under the Muhammadan Law; that the gift deed by Zohra Bibi and subsequent wakf deed by her husband are manipulated documents brought into existence by her husband and that Hazi Mohammed Siddiq never came into