JUDGMENT

Mukerji, J. - This is a Letters Patent appeal which has arisen owing to a difference of opinion between two learned Judges before whom the First Appeal No. 247 of 1925 came for decision. The difference of opinion has arisen only on a point of law, and therefore it would not be necessary to state the facts in detail. Briefly, they are these. One Mubarak Ali died possessed of certain immovable property of considerable value. He died on 2nd January 1914. Before his death he executed several deeds. One was a document described as a will, which was executed on 22nd June 1909, another was a codicil to that will executed on 3rd January 1911, and lastly he executed the document which is in dispute before us. This purported to be a deed of wakf created by means of a will. It was executed on 23rd October 1913.

2. By the document of 23rd October 1913 Mubarak Ali provided (see p. 29 of the printed book) that he would remain in possession of his property during his lifetime and would support himself, his wife and the members of his family. Then he proceeded to appoint certain gentlemen mentioned in the deed, who were going to be the trustees of the wakf that he was going to create. He also provided for the filling up of vacancies, if any, among the trustees. Para. 4 of the wakf deed provides that the trustees or mutawallis would pay the Government revenue payable on the property, meet the expenses of repairs and other expenses required for the maintenance of the property, pay the wages of the employees (evidently the men who were to manage the property, agents and others) out of the one-third income of the entire property. If a balance was left, it was to be employed by the mutawallis

on good acts recognized as such by the Mahomadan law (as for instance fatiha, offerings for elders, education and marriage of children etc.)

3. As regards the remaining two-thirds of the property, Mubarak Ali provided that out of the income of the property certain stipends should be allowed to his sons, daughters and the grandson. This was the subject-matter of the same para. 4. By para. 5 Mubarak Ali declared that the holders of the stipends should not be entitled to transfer them, and the stipends should not be liable to attachment or sale in any decree. By para. 6 the dedicator declared that the dwelling house was to be occupied by the stipend-holders, but they would not be in a position to transfer the same, it being treated as a part of the wakf property. By para. 7 Mubarak Ali provided as follows

After the payment of the aforesaid stipends out of the two-thirds of the income, the balance, be whatever it may, will be reserved and applied in multiplying the property. It will be lawful for the trustees to make an addition to the monthly stipends out of the balance in their hands according as it may be advisable when the number of the children of the stipendiaries grows larger.

4. By para. 8 the trustees were made incompetent to transfer the wakf property. Para. 9 declared that in cases in which the trustees were not unanimous on any point, the point for decision was to be decided by majority of votes. Para. 10 enjoined on the trustees the duty of keeping regular accounts. By para. 11 Mubarak Ali declared that if any of the terms of the wakf that he was going to create were violated, it would be competent to the mutawallis or to the beneficiaries to take action to remedy the violation. He however emphasized the fact that the wakf that he was creating was for the family and not for the public and the public had nothing to do with it.

5. It appears that one of the sons of Mubarak Ali, namely Syed Ali Ahmad, was adjudicated an insolvent in the lifetime of Mubarak Ali himself. On the death of Mubarak Ali, the Official Receiver was induced by two of the creditors of Ali Ahmad to attach a part of the wakf property. Thereupon the mutawallis, after taking the permission of the insolvency Court, instituted the suit out of which this appeal has arisen, with the obj