1. The plaintiff's title which has been found in his favour in the Court below rests for its validity upon the invalid character of a wakf which was executed by one Moriunnessa Bibi. The Subordinate Judge has found in favour of the plaintiff. Some of the defendants have preferred this appeal. The wakfnama was executed by the lady on 24th January 1902, and was registered on her own admission on 28th January 1902. Upon the evidence which is on the record, the circumstances under which she executed it were the following. She was at first married to one Syed Mehdl, who was a Police Sub-Inspector. He died in July 1901, when she was about or a little over 20 years of age. In 1899 under a partition amongst the members of her father's family, her father having died before, she had got some properties of her father amongst which were two houses in the town of Hooghly. In respect of these two houses the wakf was created by her. By the terms of the deed she was to remain mutawalli so long as she would remain alive, and on her death one Sujat Ali and one Kalimulla would be muta-wallis. The provision was that 4-annas of the rents and profits of the said two houses would belong to the mutawallis, another 4-annas would go towards repairs, and the remaining 8-annas would be spent in charities, it being laid down as a rule that the poor will be fed once every month and will be given clothes once every year. Certain other provisions were made for superintendence of the wakf after failure amongst the two mutawallis named.

2. In 1920 the plaintiff purchased from the lady the property in suit, which is admittedly included in this wakf but which she purported to sell as belonging to her personally and as having been obtained by her as an heir of her father and upon a partition with her coheirs in 1899. This is the title on which the plaintiff's suit rests and he has sought to establish it upon evidence, the most important of which is that of the lady herself. The case which she has sought to make out is very well described by the Subordinate Judge in these words taken from her deposition:

“People flocked round her to marry her for the sake of her properties. Her brother was a bad character; and he ran into debts and squandered his properties; and creditors sued him and got decrees. It was under the advice of Sujat Ali who used to look after her affairs and who once wished for her hand that a nominal document was created to protect the properties if (they were) attached by the creditors of her brother. She did not know that it was a wakf. She did not know the meaning of ‘wakf,’ and she was not explained the true import of it and nobody explained the true import of it and nobody explained the terms to her. Young as she was she wished to marry again and she never wished, to renounce the world and worldly affairs and never wanted to divest herself of her rights over the properties. In fact she never transferred her rights and she remained malik as before and enjoyed the properties for herself and realized the rents and spent the same for her own maintenance and she did not spend the incomes in distributing alms to the poor and in feeding them.”

3. A few more facts require to be stated. Within a year and half after the execution of the document the lady married one Moulvi Abdul Aziz, then a young pleader, and removed herself to Purnea to live with him there, where he began, to practise as a pleader. On the wakfnama appears an endorsement signed by the lady in Persian—the lady does not know Bengali in which language the deed is—purporting to have been written in the presence of her husband, who put down his signature under the endorsement as a witness. The endorsement translated runs in these words. “This wakfnama deed not having been acted upon is declared as invalid and void.” The exact time when this endorsement was actually made is a matter of controversy; one version is that it was made very soon after the marriage with Moulvi Abdul Aziz, and another version, is that it was made just after the plaintiff's purchase. On this conflict of evidence the endorsement must go out and the plaintiff can hardly rely on it as a, declaration or as indicative of an intention to declare that the deed was invalid or void. In 1907 thetfe was a mortgage-effected by the lady in respect of the-property in suit as a property belonging-to her personally, and on this mortgager a loan of Rs. 2,000 was contracted. This—loan was eventually paid off. As a piece-of evidence bearing on the question of the character of the wakf not much importance need be attached to that transaction. The Subordinate Judge has observed that the mortgagee would not have lent the money unless he thought that the wakf was a sham transaction. But the mortgagee has not been examined, even if he were, his view of the transaction would not be the deciding factor.

4. The declaration contained in the deed is perfect, and the transaction was completed with all necessary solemnities. The Subordinate Judge, upon an exhaustive review of the oral evidence and the circumstances disclosed or established therein, has come to certain findings, which go to indicate that the transaction was hatched in secret and there were elements of suspicion attaching to it. Before us an endeavour has been made on behalf of the respondents to improve upon those findings and to lead us to the conclusion that the lady was overreached by Sujat Ali and others, as was deposed to by the lady herself in order to serve their own ends, and she did not understand that she was making a wakf and never understood its contents. Indeed it has been suggested on behalf of the respondents that there was a conspiracy amongst persons, who really were no relations of the lady, to pose as her relations or as persons otherwise interested in her and to get the deed executed and registered; and at one stage of their arguments, doubts were sought to be cast even upon the factum of the execution and registration of the deed by the lady herself. We are not prepared to attach any weight to these findings or arguments. The evidence of the lady cannot obviously be taken at its face value. The fact that she executed the deed with full knowledge of its contents and of its import is a fact on which we entertain no doubt whatever. In fact it seems to us that such contentions as have been advanced before us in this respect are self-destructive and are also antagonistic to the other part of the lady's case, which is that the transaction was resorted to serve as an effective shield against her brother's creditors.

5. The question, in such circumstances, is the question of intention. The law in this respect is well-settled. The intention of the settler has to be inquired into in order to make out whether the wakf was real or not, and for the purposes of such enquiry, facts and circumstances showing or suggesting that it was never intended to be acted upon are relevant. The conduct of the settlor himself at the time of the trans action, as also his subsequent conduct, if it is merely in continuation of his conduct at the time and of a piece with it, are relevant in such an enquiry. The question whether in fact the wakf was acted upon or not is not relevant except as a means of or by way of a step for determining that intention: in other, words, if the intention that it should be operative is established, the fact that it was not acted upon by the settlor himself would not detract from its validity in the least, but would be only evidence of a breach of trust on the part of the settlor. Bearing this law in mind we have to see how the case stands.

6. The first and most important thing to be taken note of in this connexion is the age of the lady at the date of the transaction. At that date she was a young widow, for whom a complete renunciation of worldly affairs or even a partial gift of her properties to charitable objects cannot be readily predicated. Her subsequent second marriage, though not conclusive, is at least relevant on the question of her frame of mind at the time. There is no motive conceivable why she should think of making a wakf, and on the other hand ample motive has been made out why she should make a document for keeping away the properties from her brother's creditors and her co-widow's claim, for she had a co-widow in the shape of another widow of her first husband. There is not the faintest suggestion that either at the time or even afterwards the properties were treated as wakf properties, and on the other hand she notwithstanding the deed continued to own possess and enjoy them as their owner. The learned Judge has referred to the evidence on this point in detail and with his conclusions on them we can see no reason to differ. A feeble attempt has been made on behalf of the respondents to establish that the poor used to be fed and alms and clothes used to be distributed to them from out of the income of the properties, but that attempt in our opinion has not proved a success.

7. It has been argued on behalf of the appellant that if the wakf was not a real transaction, she would have at some time or other taken effective steps to declare it as such, and that at least two occasions had presented themselves on which she could and should have done so namely when she executed the mortgage and again when she made the sale in favour of the plaintiff, but that she did not do so. We are not prepared to hold that her omission in this respect is of any significance: the mortgage and the sale by themselves were sufficient declaration that no wakf existed. And in this connexion it may also be pointed out soon after the wakf came into being there was the litigation with her co-widow in which she could have easily set up the wakf, but never cared to do so. We think we must, in agreement with the learned Judge, hold that the wakf was not a real, but a sham transaction never intended to be acted upon.

8. Another contention advanced on behalf of the appellant is that the question of title which was raised in this suit was concluded on the principle of res judicata by reason of the decision in Title Appeal No. 163 of 1923. The facts on which this contention is founded are the following: The plaintiff had instituted a suit for ejectment with claim for rent due against one Abdul Jabbar. The defence of Abdul Jabbar was a two-fold one: Firstly that not Abdul Jabbar, but his brother was the real tenant; and secondly that the property belonged to the wakf which Mariumunnessa Bibi had created, and so the plaintiff had acquired no title by his purchase. The trial Court held that the wakf was valid, and so the plaintiff had no title. It also held that Abdul Jabbar alone was not the tenant, but his brother's widow and sons were also joint tenants with him. On both these grounds the trial Court dismissed the suit. The plaintiff took an appeal from that decision, and thereafter applied for withdrawal of the suit with permission to institute a fresh suit. The prayer for withdrawal of the suit was refused. At the hearing of the appeal the plaintiff as appellant admitted that Abdul Jabbar was not his tenant, and the Court upheld the trial Court's decision on that ground alone, holding that by that admission the foundation of the plaintiff's case was gone. The Court therefore declined to go into the question of the plaintiff's title, and expressly left it open, and dismissed the appeal. It is not possible to see how the decision of the trial Court on the question of title which did not form a ground of the decision of the appeal and was on the contrary expressly left open can operate as res judicata. The case of Kali Prasanna v. Panchanan Nandi . 1917 44 Cal 367, has been cited on behalf of the appellant in this connexion. It is enough to say of that case that it is a decision on the question whether a plaintiff should be allowed to withdraw his suit with liberty to institute a fresh suit after he has adduced all his evidence and finds that the evidence is insufficient to establish his case and it could only have a bearing on the question of res judicata if it could be shown that there was a permission to withdraw the suit or a part of it granted in contravention of O. 23, R. 1 of the CPC. That is not what happened in the present case. The appellate Court whoso decision is the test by which the question of res judicata is to be determined, had, on the appeal before it, ample authority to dispose of the appeal on one of the grounds on which the decision of the trial Court was founded, and to leave open and undecided the other issue in the case and in such circumstances as was observed by their Lordships of the Judicial Committee it would be contradiction in terms to say that the appellate Court had finally decided the issue though in fact the issue was left untouched and undecided: see Parshotam Gir v. Narbada Gir . 1899 21 All 505. In our opinion the appeal fails and must be dismissed with costs.

K.S

9. Appeal dismissed.