The main legal point established in the judgment is the interpretation of the grant by the Nawab of Chicacole, which led to the finding of the properties as wakf and inalienable.

Phillips, J.

1. I agree, bat I prefer not 10 express any opinion as to the meaning of the deed of grant (Exhibit VI), but would base my decision on the two points (1) res judicata, (2) failure to prove necessity. The decision of this Court in Appeal No. 169 of 1991 is undoubtedly based upon (sic) take of fact, but is nonetheless binding upon plaintiff for that reason. He cannot now contend that the properties are not wakf; that being so, he must prove necessity for the alienation. Having failed to do this, his appeal fails and must be dismissed wish, costs, of the first respondent.

2. Plaintiffs right to retain possession of the property, if he is really in possession, does not arise in this suit for money and need not be discussed.

Devadoss, J.

3. This appeal is against the decree of the District Judge of Vizagapatam dismissing the plaintiffs suit on a mortgage-bond dated 8th December 1900 on the ground that the hypotheca are wakf or trust properties and, therefore, Could not be alienated, and that there was no necessity to mortgage the wakf properties.

4. It Is contended for the plaintiff (appellant) before us, (1) that the properties are not wakf properties, but are only burdened with a trust in favour of certain charities; (2) that there was necessity for the mortgage, and (3) that the plaintiff has prescribed for a mortgagees possession and he could not, therefore be evicted without the amount due on the mortgage being paid.

5. The question whether the properties are wakf properties or not depends upon the construction of Exhibit VI which is a grant by the Nawab of Chicacole in the Hijira year 1121. The material portions of the document, are,--Hajee Mir Mahammad Sadique, servant of the Holy Heirs of the Holy Prophet, engaged himself in praying the Creator of Day and Night and always caused the humble fare reach some of the pious men, devotees, righteous and poor men after performing Fatiha (blessings) on the victorious soul of the leader of all Prophets. He decorates, lights and performs the anniversary of the mausoleum every year and low and high people gain prosperity by acquiring a portion of what was left of food and drink, presented and offered to the holy men and as there is no sufficient means for these laudable expenses in this world of causes, accordingly considering all which relates to 1be person of the King of the world and the entire village of Buradi Kunjram belonging to the said Sircar assessed at even hundred and twenty rupees with effect from the commencement of the 1125 Fasli, as per endorsement, was granted by way of expenses of farsh (carpetting, matting, etc.,) and lighting at the anniversary and maintenance of servants, students and other men deserving help at the Viands of the Refuge of Nobility. It is necessary that they should leave it in the enjoyment of the aforesaid person and treat it as above mentioned civil liability so that from year to year utilising the income thereof for the expenses of maintenance of servants and requisites of the Dargak where angels pray, etc." On this document there is the following endorsement: "The endorsement is to this effect that the entire village of Burdi Kunjram belonging to the Chicacole Sircar assessed at seven hundred and twenty (720) has been fixed by way of aids to maintenence of Haji Mir Mahammad Sadique, servant of the Holi Relies and for the expenses of the Dargah; it is necessary that the said village should be left in the enjoyment of the said person with effect from the beginning of 1125 Fasil. The signature on the petition is to this effect "Give sannad. One village, assessed at 720", Mr. Ahmed Hassan, the Persian interpreter, has explained to us the object of "the endorsement; when a petition for a grant was presented to the Nawab, and endorsement was made as to the order of the Nawab on the petition with a direction that a sannad should issue and on the basis of this the farmans or grant was prepared and signed by the Nawab, Exhibit VI is a gra