JUDGMENT

B.K. Mukherjea, J. - This appeal is on behalf of defendants 2 and 3 in a suit commenced by the plaintiffs u/s 92, Civil P.C. The suit relates to certain immovable properties situated at Rai Sahib Bazar in the town of Dacca, with regard to which he alleged one Khidir Buksh Khansama to have made a wakf for the upkeep of a mosque built. The plaintiffs are the members of the Mahomedan public who are interested in the mosque, two of them being the brother's grandsons of Khidir Buksh, and the suit was commenced with the sanction of the Collector of Dacca as contemplated by Section 98, Civil P.C. According to the plaintiffs the wakf was created by a towliatnama executed by Khidir Buksh on 9th May 1851, by which the properties specified in sch. A of the plaint were dedicated to the mosque which is itself described as property No. 1 of Sch. B. Another person named Miran who lived in the same locality is said to have dedicated a plot of land to the services of the same mosque by a deed executed on 25th June 1866, and this property has been described in Sch. C of the plaint. The defendants to the suit are three in number; defendant 1 is Akhtar Nabi, a daughter's son of Khidir Buksh who according to the plaintiffs became the sole mutwalli of the wakf estate by reason of certain transactions, which took place between the heirs of Khidir Buksh after the death of the latter. Defendants 2 and 3 are the present possessors of the properties, which are alleged to have been dedicated to the mosque by Khidir Buksh by the towliatnama of 1851. They got them by several conveyances executed by defendant l as well as by certain other transferees from the heirs of Khidir Buksh. Defendant 3 is a deity named Ganesh Deb and is represented by defendant 2 as its shebait.

2. To appreciate the contentions of the respective parties it will be convenient I think to give a brief narrative of the main events and transactions, as they appear on the record in chronological order. Khidir Buksh Khan, sama, the alleged wakif, was a man of moderate means living at Rai Sahib Bazar in the town of Dacca. Sometime before 1851 he had built a mosque on a small plot of land contiguous to his dwelling house. On 9th May 1851, he executed a document, which is de, scribed as a towliatnama and has been marked Ex.1 in this case. By this document he purported to make a wakf of his self-acquired pucca building and lakheraj land for the lighting of lamps of the mosque mentioned above. At that time he had no son and he made his wife Rostam Bibi alias Dana Bibi and his daughter Mohorjan mutwallis of the wakf, with a further provision that all his sons and grandsons as well as his daughter's sons and grandsons who might be born in future would become mutwallis and as such would be entitled to reside in the dwelling house and perform the work of lighting the mosque. Although the wife and daughter of Khidir Buksh were appointed mutwallis it is not disputed that there was no delivery of possession of the wakf properties in their favour and they never purported to exercise their function as mutwallis of the wakf. On 17th December 1874, a second towliatnama (Ex.z-1) was executed by Khidir Buksh. At that time two sons were born to him and by this deed he purported to remove both his wife and daughter from their office as mutwallis and appoint his two sons, Kasim and Mohammad, mutwallis in their place. The material portion of this document reads as follows:

The said two mutwallis being owners in posses, sion of the brick built havelli of the said wakf property described in the schedule below down to their sons, grandsons and other heirs in succession, shall personally reside therein, let out the same on rent and realise rent from the lessees, induct tenants in the wakf land appertaining to the same and eject them there from and make realisations of rents etc. from them and by residing in the Masjid shall do repairs thereto, give lights etc. therein and shall either appoint Mowazzin and Khu