RAGHUBAR DAYAL, J. :- Hafiz Abdul Karim executed three waqf deeds in 1917 and 1918. Notification, was issued by the Central Board constituted under the Muslim Waqfs Act (U.P. Act No. 13 of 1938) on 26-2-1944, under S. 5, Sub-Section (1) of the Act, that the provisions of the Act would apply to these three waqfs. Badrul Islam, the mutwalli under the three waqf deeds, instituted a suit against the Sunni Central Boards of Waqfs for a declaration that these waqfs were exempt from the operation of the Muslim Waqfs Act. The Civil Judge did not agree with the contention for the plaintiff and dismissed the suit.

2. The plaintiff submits to the decree with respect to one of the waqfs, which was created by a deed, dated 11-5-1917. He challenges the decree of the court below with respect to the other two deeds executed on 20-3-1917, and 11-6-1918, respectively.

3. Badrul Islam, the plaintiff, has migrated to Pakistan and the Custodian of Evacuee Property has been given notice of this appeal in view of S. 50, Administration of Evacuee Property Act (Act No. 31 of 1950). He has not applied to be impleaded and we did not consider it necessary to implead him in the exercise of our powers under S. 50, Sub-Section (2) of the Act.

4. Exemption is sought for the first deed, dated 20-3-1917, as supplemented by a deed, dated 3-7-1919, on the ground that under the terms of the deed creating the waqf more than 75 per cent, of the total income after deduction of land revenue and cesses payable to the State Government of the property covered by the deed of waqf was payable for the benefit of the waqif or his descendants or any member of his family and that, therefore, this Act did not apply in view of S. 2, Sub-Section (2), Cl. (i) of the Act. Parties agreed that this wakf would be exempted from the operation of the Act in case it was held that Rs. 600 made payable to the mutwalli under the terms of the waqf deed amounted to a payment for the benefit of the descendants of the waqif.

Paragraph 4 of the waqf deed executed on 20-3-1917, is :

"The details of expenses :

"The income from the waqf property after deducting the expenses like income-tax, house tax, repairs and salaries of the employees, etc., shall be spent in this manner :

"Rupees six hundred shall be paid to Badrul Islam Mutwalli and thereafter to each Mutwalli for the time being annually and Rs. 1,200 for the spiritual benefit of the waqif, Rs. 300 per annum to Must. Sahibunnisa, wife of the waqif..........in all Rs. 3,120 shall be spent annually and the balance shall equally be divided amongst the five sons,"

5. Paragraphs 1 and 2 of the wakf deed relate to the appointment of mutwalli and provide that the waqif would be the first mutwalli for his lifetime and after his death his eldest son Badrul Islam shall be the mutwalli and after his death mutwalliship shall devolve upon Mishahul Islam and thereafter would be devolving on the eldest son living. It is only in the absence of any male descendant that a mutwalli would be appointed from among competent and honest Muslims.

6. The contention for the appellant is that, as a mutwalli would be one of the descendants of the waqif till a certain contingency comes into existence, this payment of Rs. 600 to the mutwalli will always be a payment to one of the descendants of the waqif and that, therefore, this amount should be taken to be a payment for the benefit of the waqifs descendants or a member of his family. We are not prepared to agree with this contention. It is clear from the provisions of para. 4 of the waqf deed that the payment to the sons from the balance after the payment of Rs. 3,120 has been made to others. The waqif does not say in the deed that the eldest male member of the family, who, according to the terms of the deed, would be the mutwalli, would get any larger share in the balance left after the other payments are made.

The payment of Rs. 600 is not to such eldest son or member of the family on account of his having that relatio