JUDGMENT

Cornelius, J. - This is a first appeal from an order of Mr. Muhammad Anwar, Sub-Judge, 1st Class, Lahore, made in a suit brought by one Muhammad Afzal, for possession of certain property which has been the subject of prolonged litigation. The facts relevant to the present appeal are as follows: One Ghulam Basul on 29th October 1917 executed a wakfnama in respect of a portion of his property. The wakf is described as wakf al-an nafs ta havat wa al-al-aulad 'wdl aval for the following purposes, namely:

for my own maintenance, for the upbringing, education, both religious and secular, and instruction of my descendants and their descendants from generation to generation and their heirs, for charity and for the help of orphans, the poor and widows and that the property may also subsist, whereby the name of my family may be preserved.

The wakif had two sons named Din Muhammad and Ghulam Mustafa and a daughter Mt. Mum-taz Begum. The deed of wakf provided that the wakif would be mutwalli and manager during his lifetime, and after his death his elder son Din Muhammad would be the mutwalli and after his death the second son Ghulam Mustafa, and thereafter the rule to be followed from generation to generation would be that

the eldest of the male descendants of both the aforesaid sons (provided he is educated and is qualified and be fitted for the office of mutwalli, according to the Muhammadan law) shall become mutwalli.

Provision was made also for the appointment of a mutwalli in case of default of male heirs and for other contingencies but it is not necessary to recite these provisions for the purposes of this order. As regards the distribution of the property the scheme was that from the income a monthly sum was to be set apart and added to a fund until the sum reached Rs. 50,000; this money was to be used for improvement of the wakf property. The balance of the income was to be divided into fifty shares, out of which three shares were to be devoted to charity, at the discretion of the mutwalli, it being stated that the application of this proportion of the income to these purposea every year "shall be essential and compulsory"; Beven shares were to be deposited in a Bank to create a fund for repairs etc., to the wakf property; the remaining forty shares were to be divided as follows, viz., 16 shares to Din Muhammad, 16 shares to Ghulam Mustafa, and 8 shares to Mumtaz Begum; and "in the same way and order would shares be distributed in accordance with the Muhammadan law, from generation to generation." There is a stringent provision in the deed regarding the effect of change of religion by any of the mutwalli's male descendants, viz. that if any of them openly or secretly became inter alia a Shia,

he shall not only be deprived of his right to become a mutwalli, but shall be permanently debarred from receiving his share of the income, which shall be distributed among other co-sharers.

2. It appears that no part of the income was ever applied to charitable purposes as prescribed in the deed. Some six years after the execution of the deed, Ghulam Rasul executed a deed purporting to cancel the wakf deed. At this time, his daughter was dead, and it seems that Ghulam Rasul had already effected a number of alienations of property included in the wakf deed. Ghulam Rasul died in 1925 and his property was entered in the mutation register after his death in the names of his sons Din Muhammad and Ghulam Mustafa in equal shares, and thereafter these two persons made further alienations of the property included in the wakf deed. In 1931, the sons of Din Muhammad including the present plaintiff Muhammad Afzal brought a suit for a declaration that the wakf deed of 1917 was valid and that the alienations of the property made up to that time were null and void. This was followed in 1936 by a further suit by the same per. sons, for the same reliefs, which was eventually decided in the Privy Council on 7th April 1948. Of the findings recorded by their L