JUDGMENT [ENTITY], J.
1. This is an appeal against the judgment and decree dated 16-11-70 of the District Judge, Goalpara at Dhubri in [CASE NUMBER] reversing the judgment and decree dated 24-1-73 passed by the Munsiff No. 1, Dhubri in [CASE NUMBER].
2. The circumstances which have given rise to the action may be briefly summarised. One [ENTITY] held a jote of about 73 Bighas of land in village Adabari under the Gauripur Raj Estate. The said jote was sold to one [ENTITY] and his three sons [ENTITY], [ENTITY] and [ENTITY]. by a registered deed of sale dated 4-5-1928. Out of this 73 bighas, 50 bighas of land was sold by the Sheikhs on 30-1-1940 to [ENTITY] also known as [ENTITY] (hereinafter referred to as '[ENTITY]') by registered sale deed dated 10-9-1940. [ENTITY] lived at Hamidabad, previously known as Ghagmari. Delivery of possession of the land in pursuance of the sale deed was made by vendors to one [ENTITY], who acted on behalf of [ENTITY]. Out of total 50 bighas so purchased, 25 bighas of land comprising two plots, was settled with the vendors themselve on Adhi. On the remaining 25 bighas [ENTITY] constructed his dwelling house and excavated a tank. The representative of [ENTITY], [ENTITY] AH lived in the house and also cultivated the land. [ENTITY]'s family also occasionally visited the place.
3. On 16-10-1943. [ENTITY] created a [ENTITY] of about 732 bighas of land situated in different mouzas, which included the 50 bighas of land purchased vide deed dated 30-9-1940 as stated above. The registered deed of [ENTITY] provided that half of the income of the property shall be spent for the maintenance of [ENTITY]'s heirs and the income of the other half would go to [ENTITY], a local religious insitution, to be spent on public welfare works permitted by the [ENTITY]. One [ENTITY] was appointed the first [ENTITY]. The [ENTITY] deed also laid down a scheme for appointment of subsequent [ENTITY]s.
4. After partition of the country, around the year 1950, [ENTITY] and his family left for Pakistan. The [ENTITY] [ENTITY] also left for Pakistan after resigning from the [ENTITY]. For sometime the management of the [ENTITY] property was in a quandary. One Mvi. [ENTITY] was put in charge of the property in the absence of the first [ENTITY]. Taking advantage of the situation, the adhiars of the 25 bighas of jote land stopped delivering the adhi share of paddy to the [ENTITY] authority and also threatened possession from the other part of the land. This gave rise to a proceeding under [SECTION] of the [ACT] in which the Additional District Magistrate of Dhubri by order dated 6-10-51 declared possession of the [ENTITY] authority over the 25 bighas of land covered by the house etc. The defendants (appellants herein) were found in possession of the 25 bighas as adhiars. That order was not challenged by the adhiras. They, however, did not deliver the adhi share of crop to the Multawalli of the [ENTITY]. The then [ENTITY], therefore, filed a case before the Revenue Court for eviction of the adhiras. In the meantime Adhi Conciliation Boards were constituted and the case was transferred to the Gauripur Adhi Conciliation Board. At this stage, for the first time, the defendants set up adverse title against [ENTITY] and the [ENTITY] of the [ENTITY] before the said Board and contended that the suit land was not sold to [ENTITY] by the vendors; and that the sale was benami and as such, the vendors were never adhiars, under [ENTITY] or the [ENTITY] of the [ENTITY]. In view of the aforesaid stand taken by the adhiars, who were the vendors of [ENTITY], the Adhi Conciliation Board dismissed the case with a comment that the dispute between the parties was of a civil nature and should be decided by a Civil Court. The Adhi case was instituted on 6-7-1955 and was disposed of on 10-1-1961. In the meantime, it is alleged that the defendants (appellants herein) forcibly cut and removed the paddy and also dispossessed the plaintiffs from the other 25 bighas of land.
5. Situated thus, the plaintiffs (principal respondents before this Court) filed the suit for declaration of title and recovery of possession of both the plots of land the plot of 25 bighas settled with the defendants on adhi as well as other plot of 25 bighas of khas land wherefrom it was claimed that the [ENTITY] Estate or the [ENTITY] had been dispossessed. It was contended that the principal defendants had forfeited their rights as adhiars by denying the title of the [ENTITY] and the [ENTITY] Estate.
6. A number of issues were framed before the trial Court, including issues, whether the the plaintiff were interested in the suit property, whether the [ENTITY]nama was void for uncertainty and indefiniteness, whether the original [ENTITY] resigned his post and if not, whether the appointment of subsequent [ENTITY] was legal and valid. The learned trial Court held that the sale executed by the vendors to [ENTITY] by registered deed of sale dated 30-9-40 was benami. It also held the [ENTITY] created by [ENTITY] to be void for uncertainty. It observed that the plaintiffs failed to prove that the first [ENTITY] had resigned and, as such, it was held that the appointment of the subsequent [ENTITY] was illegal. It was further observed that in view of his finding that the creation of the [ENTITY] estate and the sale of the suit property by the defendants to [ENTITY] had not been proved, the question of settlement of the land with the defendants by the plaintiffs on adhi did not arise. The trial Court held it to be a case of adverse possession. In view of the aforesaid findings, the suit was dismissed by the trial Court.
7. On appeal, the learned District Judge reversed the findings of the trial Court. It was observed that no issue had even been framed as to whether the alleged sale of the suit land in favour of [ENTITY] was a benami transaction or not. The appellate Court, on consideration of the facts and circumstances of the case, did not approve the finding of the trial Court that the transaction was benami. It was held that the transaction of sale by the defendants to [ENTITY] was not benami but a genuine one. Regarding validity of the [ENTITY], it was observed that it could not have been the subject of decision in the suit in question. However, in view of the findings arrived at by the trial Court, the appellate Court examined the same and arrived at a finding that the [ENTITY] executed by [ENTITY] was not void for uncertainty. The objection to admissibility of certified copy of the [ENTITY] deed, on the facts and circumstances of the case, was held to be not tenable. The appointment of the subsequent [ENTITY] was also held to be valid and legal. The appellate Court also held that the defendants, who are adhiars, became trespassers the moment they denied the title of the landlord and that the civil suit filed by the plaintiffs for their eviction was maintainable. In view of the aforesaid findings, the judgment and decree of the trial Court were set aside. It was declared that the suit land was the property of the wakf created by [ENTITY] and that the plaintiffs were entitled to recover khas possession thereof.
8. Aggrieved by the aforesaid judgment, the defendants have preferred the present second appeal before this Court. The order of the appellate Court has been challenged mainly on the following grounds. The finding that the sale of the land to the [ENTITY] was genuine and not benami was not tenable; the certified copy of the [ENTITY] deed had been admitted in evidence in violation of the provisions of [SECTION] of the [ACT] without complying with the technical requirements prescribed for the purpose; the finding that the object of the [ENTITY] was not vague and the [ENTITY] deed not void on that count is errouneous; the observation that under [SECTION] of the [ENTITY] Act a person who manages a [ENTITY] property is to be treated as [ENTITY] is contrary to law. The other two grounds are that the appellate Court was not correct in holding that the khatians never indicated any title under the provisions of [SECTION] of the [ACT] and that the appellate Court was not correct in applying the doctrine of forefeiture under [SECTION] of the [ACT] to the facts and circumstances of the case.
9. At the time of hearing, the learned counsel for the appellant Mr. [ENTITY] fairly submitted that he did not like to press his objection to the genuineness of the sale deed dated 30-9-1940 which was based on the ground of benami in view of the provisions of the [ACT] and the decision of the Supreme Court in [PRECEDENT] wherein it had been held that the said law envisages in its sweep past benami transactions also in its retroactivity and the nullification of defences available to the real owner in recovering the benami property from the benamidar shall apply irrespective of the time of the benami transactions. In that view of the matter, the finding of the appellate Court that the sale of land by the vendors to [ENTITY] was not benami but genuine is upheld. The other questions, therefore, shall be examined in that context.
10. Now, I may turn to the other objections of the appellant. The first grievance is in regard to the admissibility of the certified copy of the deed of [ENTITY]. Before dealing with the same, it may be pertinent to mention that the existence of the [ENTITY] itself is not disputed by the parties. The [ENTITY] was reconised by the Board of [ENTITY] in terms of the provisions of the [ENTITY] Act and'a notification to that effect was also published in the Official Gazette dated 8-1-1958. The [ENTITY] was not only in respect of the suit land but in respect of 732 bighas of land including the suit land. The certified copy of the [ENTITY] deed was filed in the Court and proved. The grievance of the appellant is that the certified copy of the [ENTITY] deed being a secondary evidence should not have been admitted in evidence as there was no explanation as to why the original had not been produced. In support of his contention Mr; [ENTITY] relies on the decision of Supreme Court in [PRECEDENT]. In that case, the Supreme Court had held that though certified copies of registered documents could be adduced as secondary evidence, the foundation for reception of such evidence has to be laid in the pleadings. Mr. [ENTITY], learned counsel for the respondents, on the other hand, submitted that the certified copy of the [ENTITY] deed was duly proved and the reason for producing the certified copy in place of the original had already been explained to the Court. In this connection, the learned counsel pointed out to the evidence of P.W. 7, the [ENTITY], who stated that the original deed was not traceable and, as such, the certified copy had been filed. The deed-writer had also been examined as P. W. 5. The scribe having been dead, could not be examined. According to Mr. [ENTITY], the certified copy of the [ENTITY] deed was a public document within the meaning of [SECTION] of the [ACT] and that the same had been duly proved in the manner laid down in [SECTION] of the said Act. He relies on the decision of this Court in [PRECEDENT]. I have carefully considered the rival submissions. [SECTION] of the [ACT] defines what are knwon as public documents. This section, so far as relevant, reads:
"74. The following documents are public documents
(1) xxx . xxx xxx (2) Public records kept in any State of private documents,"
This clause evidently refers to records kept under the [ACT]. Public record of a [ENTITY] deed which is a private document kept in the office of the Sub-Registrar is a public document as defined in [SECTION] of, the [ACT] and certified copy thereof is admissible in evidence.
11. In the light of the facts and circumstances of the case, and law on the subject, I am of the opinion that the certified copy of the [ENTITY] deed had been rightly admitted in evidence. The execution and the contents of the [ENTITY] deed had also been duly proved by the P.W. 5. Under the circumstances, no fault can be found with the finding of the learned appellate Court in that regard. The same is, therefore, sustained.
12. The next submission of the learned counsel for the appellant is that the [ENTITY] deed is void on the ground of vagueness of the object of the [ENTITY]. I have perused the object. In terms of the provisions contained in the [ENTITY] deed half of the income of the property is to be spent for the maintenance of [ENTITY]'s heirs and the other half is to be spent in public welfare works permitted by [ENTITY]. In the absence of any heir of [ENTITY] the entire income of the property is to be spent on such welfare works. A local religious body Anjuman Paygame Ismal is entrusted to receive half of the income or the entire income in case there is no heir of [ENTITY] and to spend the same on such welfare works. According to the counsel for the appellant the object of the [ENTITY] namely 'welfare works permitted by the [ENTITY]" is a very wide and vague expression and the deed of [ENTITY] is void on that account. I have carefully considered the submissions. I have gone through the recognised text on Muslim law as well as various decisions of the Courts on the subject. The principles that emerge may be briefly stated thus : "[ENTITY]" as defined in the [ENTITY] Act means a permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable. The object of the [ENTITY] must be one recognised by the Muslim law as 'religious, pious or charitable'. A [ENTITY] may also be created in favour of the settlor's family, children and descendants. Objects prohibited by [ENTITY] are, however, not valid objects of a [ENTITY]. Objects of the [ENTITY] must be indicated with reasonable certainty, but it is not necessry that each object should be named. A [ENTITY] for charity or for good objects permitted by [ENTITY] is valid and legal. These are the basic principles. The question that falls for consideration in the present case is whether "welfare works permitted by the [ENTITY]' can be termed to be vague or uncertain object of a [ENTITY]. As earlier indicated, what is necessary for a valid [ENTITY] is that the purpose of the [ENTITY] must be one recognised by [ENTITY] law as 'religious, pious and charitable'. A person who dedicates his property by way of [ENTITY], may, instead of enumerating the objects for which the income of [ENTITY] may be used, provide that it may be used for any welfare works permitted by the [ENTITY], that is, the [ENTITY] law. Such provision, in my opinion, is absolutely clear and there is no vagueness or uncertainty in it. The only difference is that instead of restricting the use of the income of the [ENTITY] to some of the specified objects, the [ENTITY] has allowed it to be used for any of the objects which are recognised by [ENTITY] to be welfare works. No exception can be taken to such declaration. If the object would have been described as "welfare works" without the rider "permitted by [ENTITY]", it could have been contended that "welfare works" as commonly understood might even include the works which are prohibited by [ENTITY] and in that event the object could have been challenged as vague. But that possibility has been ruled out in the instant case by use of the rider 'permitted by [ENTITY]'. The income of the [ENTITY], in the instant case, can be used only for such public works which are permitted by [ENTITY]. In my opinion, if a [ENTITY], instead of enumerating the various purposes for which the income of the [ENTITY] can be used, makes a general declaration and dedicates it to be used for any purpose of public welfare recognised by [ENTITY] it cannot be said that the [ENTITY] is void for vagueness of the object. This is in fact incorporation of object by reference. I do not find anything wrong in such incorporation by reference. I am, therefore, of the clear opinion that the object of the [ENTITY] in question is quite clear and certain and no infirmity can be found with the [ENTITY] deed on that count.
13. The next contention relates to the findings of the learned appellate Court that under [SECTION] of the [ENTITY] Act, a person who manages a [ENTITY] property is to be treated as a [ENTITY]. I have perused the relevant provision. Under [SECTION] of the [ENTITY] Act, 1954, [ENTITY] has been defined to mean :
"any person appointed either verbally or under any deed or instrument by whcih a [ENTITY] has been created or by a competent authority to be the mutawalli of a wakf and includes any naib-mutawalli, khadim, jeja-war, sajjadanishin, amin, or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person or Committee for the time being managing or administering any wakf property as such:"
I From a bare reading of the definition, it is clear that save as otherwise provided in the said Act, a person or Committee for the time being managing or administering any wakf property as such is also a [ENTITY]. This position is also well settled by a number of decisions of the Courts. A [ENTITY] is like a manager rather than a trustee. So far as the wakf property is concerned, he has to see that the beneficiaries get the advantage of the usufruct. In this connection, I may refer to the following observations of [ENTITY], J. in [PRECEDENT] :
"But the [ENTITY] law relating to trusts differs fundamentally from the English law. It owes its origin to a rule laid down by the Prophet of [ENTITY]; and means the tying up of property in the ownership of God the Almighty and the donation of the profits for the benefit of human beings'. When once it is declared that a particular property is wakf, or any such expression is used as implied wakf, or the tenor of the document shows : that a dedication to pious or charitable purposes is meant, the right of the wakf is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit. The manager of the wakf is the mutawalli, the governor, superintendent, or curator. In [PRECEDENT] the Judicial Committee call him 'procurator'. But neither the [ENTITY] nor the mutawalli has any right in the property belonging to the wakf; the property is not vested in him and he is not a 'trustee' in the technical sense".
This view was quoted with approval by the Privy Council in [PRECEDENT] and by the Supreme Court in [PRECEDENT]. In view of the aforesaid decisions, I am of the clear opinion that the position of a mutawalli is more analogous to that of a manager or a receiver. His position is distinguishable from that of a trustee. The wakf property itself never gets transferred to the mutawalli. He has control over the usufruct alone and he has to see that it is used for the objects of the wakf in accordance with the desire of the wakif. In that view of the matter, the learned appellate Court, in my opinion, was correct in holding that a person who manages the wakf property is to be treated as a mutawalli.
14. The next point pertains to resignation of original mutawalli and appointment of new mutawalli in his place. It may be pertinent to mention at this stage that there is enough evidence on record to show that the original [ENTITY] had resigned. His letter of resignation is Exhibit 3. He left for Pakistan. Thereafter in terms of the deed of wakf the next [ENTITY] was appointed by [ENTITY] and his appointment was approved by the Board of [ENTITY]. The resolution of the [ENTITY] appointing the next [ENTITY] is Exhibit 4 and the letter from the Secretary of the Board of [ENTITY] declaring the appointment is Exhibit 6. On the resignation of this [ENTITY] another [ENTITY] was appointed by [ENTITY]. I do not find any infirmity either in the resignation of first [ENTITY] or in the appointment of subsequent [ENTITY]. In fact, the whole scheme of appointment of subsequent [ENTITY] is contained in the wakf deed itself. Resignation of a [ENTITY] under the wakf deed is not a pre-condition for appointment of other [ENTITY]s. Even if a [ENTITY] is not available due to his long absence another [ENTITY] can be appointed.
15. The learned counsel for the appellant made a faint attempt to challenge the appointment of subsequent [ENTITY] on the ground that the appointment of a [ENTITY] by a Committee is unknown to [ENTITY] law. In fact, that was the view taken by the trial Court. The appellate Court rightly turned down the contention which is not tenable in view of the clear provisions to that effect contained in [SECTION] of the [ENTITY] Act.
There are also decisions to that effect. In this connection a decision of the Calcutta High Court in [PRECEDENT] may be referred wherein it was observed that under the [ENTITY] Law, the appointment of a [ENTITY] can be made by the donor and the succession to the appointment must be in accordance with the provisions of the deed of endowment, if there is any. In view of the aforesaid discussion, in my opinion, the appointment of present [ENTITY] in the instant case, was strictly in accordance with law.
16. The next contention of the appellant is whether the khatian under the provisions of [SECTION] of the [ACT] indicate the title over the land. It is well settled that khatians are not evidence of title. They may at the most indicate possession. The findings of the learned appellate Court on this score, therefore, is sustained.
17. The last contention relates to applicability of [SECTION] of the [ACT] to the facts and circumstances of the present case. The admitted position in this case is that when a proceeding was initiated for eviction of the defendants from the suit land as Adhiars, they renounced their character as tenant or Adhiar and claimed title for themselves. It was on the basis of such a stand taken by them that the Adhi Conciliation Board dismissed the cases commenting that it was a suit of civil nature. In that view of the matter, [SECTION] clearly applies. The findings of the learned appellate Court in this regard cannot be interferred with.
18. In view of the aforesaid discussion, I do not find any merit in the appeal and the same is dismissed with cost.