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We now proceed to deal with the new stand. It is necessary in that connection to refer to some of the important recitals in Ext. A-2 the waqf deed. In the preamble of the document it is recited that the waqf is being created with some religious purposes and for the regular support and maintenance of the descendants of the waqif for all times to come so that they may get their support from generation to generation. The ultimate object is for charitable purposes in the service of the God Fisaliilah. After referring to the Act of 1913 it is stated : "Hence the entire property given below having become Waqf-Alal-aulad in perpetuity, has become, uninheritable and non-transferable". Each Mutawalli of his respective qurra was appointed " the principal manager with full and complete powers of entire waqf property." From clauses 7 and 13 of the waqf deed it was rightly Pointed out on behalf of the appellant, and not disputed by the respondent either, that Rs. 6,000/- amiually had to be spent by Mutawalli of qurra no. 1 for the religious purposes mentioned therein. This was the first obligation of the Mutawalli before he could apply the rest of the usufruct in the support and maintenance of-the family beneficiaries. Then comes the most important clause in the waqf deed namely clause 18. The said clause as translated and printed in the paper book runs as follows "Syed Mahmood Hasan the Mutawalli of the, first lot is vested with the power to fix stipends for his children and their descendants and for his wives during his life time whatsoever he pleases or to lay-down conditions by means 0 a registered document or may get any writing kept reserved in the custody of the district judge, so that after him it be binding upon every Mutawalli, such in case he might not get any writing registered or kept in the custody of the district judge of the district, then under such circumstances the twenty percent (20%) of the income of the waqf property having been set apart for the expenditure of collection and realisation and right of the, Mutwalliship and the amount of Rs. 6,000/- (Rupees six thousand) for meeting the expenditure of Azadari' as detailed at para No. 7 above; the entire remaining will be distributed among the heirs of Mahmood Hasan according to their respective legal share provided under Mohammadan Law."

The High Court referring to this clause has said that the power given to the Raja in clause 18 could be exercised by him during his life time in the fixation of the stipends but it was to come in operation after his death. With the help of learned counsel for both sides,. we looked into the original clause 18 and found that there is some inaccuracy in the translation as made and printed in the paper book. But substantially there is not much difference. Correctly appreciated, the meaning of the clause is that Saiyed Mohammad Hasan, the Raja, was given a special power and right to fix stipends for his children, wives and descendants either by a registered document and or by a document in writing kept in the custody of the District Judge so that after him it may be binding on every subsequent Mutawalli. If he failed to do so, then after setting apart 20% of the gross income to meet the expenditure of collection and realisation and Rs. 6,000/the charitable expenditure mentioned in clause 7, the balance was to be distributed amongst the heirs of Saiyed Mohammad Hasan according to their respective legal shares provided under the Mahomedan law. The bone of contention between the parties before us was that according to the appellant such a power of fixation of stipends for the wives and children was given to the Raja even to be operative during his life time, while according to the respondent it was only to be effective after his death. We do not think it necessary to meticulously examine the terms of clause 18 and resolve this. difference. We shall assume in favour of the respondent that, in terms, the power was given which was meant to be operative after his death. But then, does it stand to reason that he had no such power during his life time ? On a reasonable view of the matter, either by way of construction of clause 18, or as a necessary implication of it, we find no difficulty in assuming in favour of the appellant that the Raja was vested with the power to fix stipends for his children and their descendants and for his wives during his life time also. A question, however, arises-was this power completely unfettered, unguided and not controlled by the general principles of Mohamedan law ? Apart from the fact that in clause 27 of the waqf deed it is specifically mentioned that any condition or phrase laid down in any of the paras of the waqf deed was not meant to go against the, Mohamedan law and was not to be of any effect, if it did so, it is difficult to conclude that the Raja was conferred an absolute power or discretion to fix any stipend for any beneficiary and no stipend for some beneficiary. Equality amongst all is a golden thread which runs throughout the Mohamedan law. It is a chief trait of that law. We have already pointed out from Tyabji's book that each beneficiary was entitled to share the usufruct of the waqf property per capita.The Power given to the Raja under clause 18 had to be reasonably exercised within a reasonable limit of variation according to the exigencies and special needs of a particular beneficiary. He had no power to spend money quite disproportionately for the benefit of one beneficiary-may she be his young wife or young daughter or be he a young son. He had no power to spend money for acquisition of any immovable property for a beneficiary. No income from the waqf estate could be, spent for acquisition of an immovable property, and particularly a big property with which we are concerned in this case, to benefit only one beneficiary ignoring the others who were about a dozen. The money had to be spent equitably for the support and maintenance of each and every beneficiary. Of course, the Raja had the discretion to spend more money-say on the education of a particular beneficiary it was necessary to do so or for the treatment of an ailing one. There it would be preposterous to suggest that money bad to be equally spent. It is, however, difficult to spell out from Clause 18, as was argued by Mr. Phadke, that the Raja should be deemed to have fixed as stipends for the young lady all the numerous sums of money spent from time to time in the various items of the acquisition of land or the construction of the Kothi. Such a construction will, not only militate against the tenets of the Mahomedan law as quoted from Ameer Ali's book, but would be obviously against the spirit of clause 24 of the waqf deed itself. The said clause says "If any property will be purchased out of the funds of the State, it shall also be deemed to be property included in and belonging to the waqf. It shall not become the private or personal property of any one."

(2) A.T.R. 1949 F.C. 88.

In our opinion it is not necessary to decide as to on which side of the dividing line this case falls in the light of the principles enunciated, in the case aforementioned. Truly speaking, the concurrent findings of the Courts below on the, primary facts could not be seriously challenged. They are obviously correct. But a new stand was taken on' the basis of clause 18 of the waqf deed which we have already discussed and rejected.

Mr. Phadke, heavily relied upon clause 19 of the Win dated 17-6-1938-Ext. 15 executed by the Raja fixing various amounts of stipends to be paid to the beneficiaries after his death. He had executed two other wills prior to this Will. In an earlier litigation, a question had arisen as to which Will would prevail-the first one or the last one. The amounts fixed for the plaintiff in the last Will was much higher than the amount fixed for her in the first Will. in an earlier judgment dated 3-9-1949-Ext. 3 which was a judgment inter-partes it was held that the amount fixed in the first Will would prevail. Clause 18 of the waqf deed was also interpreted in a particular manner. Mr. Lal Narayan Sinha endeavoured to use this judgment operating as res judicata in regard to some of the questions falling for decision in this litigation. We do not propose to make use of that judgment in that form. Nor do we propose to express any final opinion as to which amount of stipend was effective-the first one or the last one. We. shall assume in favour of the plaintiff that the. amount fixed by the last Will was effective and binding on the subsequent Mutawalli. We are, however, concerned to read clause 19 of the last Will which runs as follows "My wife Siddique Fatima has got a kothi known as (main (?) Shagird Pasha in mauza Doodhpur (paper torn) by taking on perpetual lease. I or the state has no concern with the same. It has been 'constructed by her with her own funds. All the articles lying there belong to her and have been purchased by her from her own money. I have certainly given some articles to her which belonged to me personally. In short all the articles, of whatever sort they may be are her property and nobody has got any right in respect thereof because the state or any one else has got no concern or right in respect thereof. Hence she(?) has got the right to dispose the same off or to make a waqf of the same. She may give it to any of my sons, who renders obedience and service to her or may give the same to any of my grandsons. My other heirs shall have no right in respect thereof. If any body brings, any claim, in order to harass her, the same shall be false."

Let us see whether this clause advances the case of the appellant any further. On a close scrutiny, it would be found that it directly demolishes her stand taken in this Court. The recital by the Raja in clause 19 is that his wife bad taken the perpetual lease and constructed the kothi with her own funds. All the articles lying there have been purchased by her from her own money. He had certainly given some articles to her which belonged to him personally. There is no recital that the Raja had constructed the kothi ',for the plaintiff out of his own funds nor was there a recital that he had constructed the kothi by taking the money from the waqf estate and treating it as payment of stipends to her as and when the sums of money were paid. By no stretch of law such a recital could create a title in favour of the plaintiff and finish the right of the, waqf to the property. The recital was demonstrably false and could not bind the subsequent Mutawalli. If the property became the acquired property of the waqf a Mutawalli,as the Raja was, by his mere declaration contained in clause 19 ofthe Will could not make it a property of the lady. The recital of fact could be pressed into service only to lend additional support to the plaintiff's case if she would have stuck to that case and proved it by evidence aliunde. The appellant's counsel relied upon the various circumstances to, advance her case in this Court-the foremost of them is based upon clause 18 of the waqf deed, which we have already dealt with. It was next contended that the real question was that the property was of waqf- alal-aulad of which the main object was the maintenance and support of the members of the settler's family and to tie up the corpus of the property in perpetuity so as to, make it inalienable.The Raja, however, according to the submission was left free duringhis life time to make disbursement of the income in any manner he chose and liked. Acquiring a property with the waqf fund was the fulfillment of the object of the wakf. It was a part of making a provision for the maintenance and support of the wife of the Mutawallii. It was an integral part of the object of the waqf and was not in breach of the trust. We are not impressed with this argument and have already dealt with it in the earlier portion of this judgment. True it is that the property was not acquired by the sale of the corpus of any of the waqf property but even acquisition of an immovable property directly with the, waqf fund was an accretion to the waqf property. The Raja had no power while administering the waqf to acquire a property for a particular beneficiary by way of maintenance and support of such a beneficiary. As indicated earlier, a Mutawalli of a waqt although not a trustee in the true sense of the terms is still bound by the various obligations of a trustee. He like a trustee or a person standing in a fiduciary capacity, cannot advance his own interests or the interests of his close relations by virtue of the position held by him. The use of the funds of the waqf for acquisition of a property by a Mutawalli in the name of his wife 'would amount to a breach of trust and the property so acquired would be treated as waqf property. In the tenth edition of The Law of Trusts by Keaton and Sheridan it has been pointed out at page 329, Chapter XX "The general rule that a trustee must not take. heed of one beneficiary to the detriment of others has already been discussed. Put in another way, the rule implies that although a trustee, may be the servant of all the beneficiaries, he is not the servant of any one of them, but an arbitrator, who must hold the scales evenly."