This appeal arises out of a suit instituted in the Court of the District Munsif of Tiruchirapalli, for possession of certain properties alleged by the plaintiff to be wakf properties. The District Munsif granted a decree as prayed for. The second defendant’s appeal to the Subordinate Judge, Tiruchirapalli, was dismissed. The third defendant to whom the second defendant has transferred the property is the appellant in this second appeal.

The property belonged to one Hyder Masthan Sahib. He executed a wakf deed dedicating the property for the use of the Prophet on 12th October, 1946. In the document Hyder Masthan said that the property was till then his and would thereafter be the Prophet’s. Hyder Masthan declared that he would be the Muttavalli during his lifetime and after his death, the plaintiff, his daughter by his deceased first wife, would be the Muttavalli; and that after her death, the Muttavallis would be her descendants. There was also a direction in the document that, out of the income from the property, fatia should be preformed in the name of the Prophet and that eleven fakirs should be fed on His birthday, that Rs. 5 should be spent for the purpose ; that kist should be paid ; that the balance of the income should be taken by his daughter and her descendants from generation to generation and that they would have no right to alienate the corpus of the property. In 1954, the founder executed another deed purporting to cancel the wakf deed and to settle the property on his second wife, namely, the second defendant. The second defendant made a transfer of the property to the third defendant the appellant in this second appeal. The suit which has given rise to this second appeal was instituted during the lifetime of the founder, namely, the first defendant. In the plaint as laid, the plaintiff prayed for a declaration that the cancellation and the alienation in favour of the third defendant were void After the first defendant’s death, the plaintiff amended the plaint so as to pray for possession.

Defendants 2 and 3 pleaded that the deed could not take effect as a wakf deed ; and secondly, that the deed was not intended to be given effect to and had never been given effect to.

The first question for decision in this appeal is whether the deed could not, in law, take effect as a deed of wakf. The religious object which the deed provides for is the performance of fatia and feeding of fakirs on the Prophet’s birthday ; and it was directed by the founder of the wakf that after his death, the net income from the property should be taken by his daughter and her descendants, who, after his death, would be the trustees of the charity.

On the facts, the case before us cannot be distinguished from the case reported in Syed Ahmed v. Julaitha Bivi1. The charitable purposes provided for in the deed of wakf considered in that case were the performance of one Movulthu and one Hattam in the name of the Prophet, one Hattam in the name of Andawar, one Hattam in the name of Meera Akamad Shakathari and one Hattam in the name of the wakif after his death. There was a further provision for recitation of Mavulthu in the name of the Prophet and distribution of food at a cost of Rs. 100. The total expenses directed to be incurred for the performance of these services amounted to Rs. 160. The annual income of the property was Rs. 1,500. The rest of the income was directed to be distributed among the four daughters and their descendants from generation to generation. In the case before us Rs. 5 amounting roughly to a thirtieth of the income of the property which is given in the plaint as Rs. 150 per annum was directed to be spent on the religious objects mentioned in the instrument and the rest of the income was directed to be taken by the trustees after the wakif’s lifetime, namely, his daughter and her descendants.

It is argued that, since the income other than the sum of Rs. 5 directed to be spent on the performance of fatia on the Prop