JUDGMENT

Jai Lal, J. - On 4th March 1918, Imam Din executed a document under the provisions of the Musalman Wakf Validating Act 6 of 1913 creating a wakf in respect of his immovable and moveable property described in the deed. He belonged to the Hanafi Sect of Musalmans and appointed himself as mutwalli and provided that after his death his third son Mehraj Din shall be the mutwalli and thereafter his fourth son Shamas Din. Out of the property described he reserved some for the residence of himself and his male descendants. One-fortieth of the income of the remaining houses, was to be divided in certain shares, and partially devoted to charitable and religious purposes specified in the deed. The remaining income was to be utilised for repairs to the houses, the religious and secular education of his descendants and for the maintenance of the family. Some other provisions, as so were made but they are not, material for the purpose of this case. It was finally provided:

If, God forbid, the line of my descendants, male or female, becomes extinct the income of the entire wakf property mentioned above, should be spent on charitable and religious purposes.

2. The words used are "Khairati aur mazhabi kamon men kharchi ki jawe." Imam Din died in the year 1918 leaving two daughters and three sons: Jalal Din, Shamas Din and Mehraj Din. These three men mortgaged part of the property purporting to have been made wakf by Imam Din on 10th August 1926, describing themselves as owners and in possession thereof. 'Again, on 27th December 1926, Jalal Din alone mortgaged his share in one of the properties and on 1st October 1927, Jalal Din, Mehraj Din and Shamas Din similarly mortgaged some property with possession. There are several other transactions which followed in quick succession in which these three brothers transferred the property which was intended to have been made wakf by Imam Din describing themselves as the owners thereof. The Punjab Sindh Bank Limited of Lahore, claiming to be the mortgagees of one of these properties started an action to have the same sold in execution of their decree whereupon the suit out of which this appeal has arisen was instituted by the Anjuman Himayat Islam, Lahore, for a declaration that property described in the deed of 4th. March 1918 was wakf and could not be transferred by the descendants of Imam Din and could not be sold in execution of any decree obtained against them. The descendants of Imam Din and the transferees from them were impleaded as defendants in the case. This suit has been decreed by the Sub-Judge. First Class, Lahore, consequently the Punjab Sindh Bank Ltd., has presented this appeal.

3. Several points were taken by the learned Counsel for the appellants in support of the appeal. With the exception of one however they have no force. It was contended that the deed of 4th March 1918, was never acted upon and therefore the property dealt with by it as wakf could not be held to be wakf. If however the deed was executed by Imam Din--and there is no dispute that it was not executed by him--and if it is valid then it is immaterial whether it was acted upon or not, because, according to the express terms of the "deed, Imam Din constituted himself a mutwalli of the property described therein and any action taken by him or his descendants and successors contrary to the terms of the deed does not make it ineffective, if it was otherwise valid. Nor can there be any question of any estoppel against the plaintiffs owing to the conduct of the descendants of Imam, Din because the plaintiff Anjuman Himayat Islam do not derive their title through them. Further, the wakf cannot be held to be illusory merely because during the continuance of the line of Imam Din a very small proportion of the income of the property is devoted to charitable or religious purposes described in the deed. The ultimate benefit of the bequest is reserved to "charitable and religious purposes." The proviso to Section 4, Musalman Wak