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"It is, therefore, not a personal grant in the sense that it will be inheritable according to Muslim law but is a wakf, and Mashum Shah and his successors are nominated as Mutawallis."

The Division Bench after examining the concept of "wakf", and its meaning in Islamic Law stated the legal postition as to the nature of the wakf property:

"What is plain is that the motive in wakf is usually religious and its foundation endowed in perpetuity. In the eye of the law, the wakf property belongs to God and as such the dedication is both permanent and irrevocable. The property is detained or immobilished and no further transfers can be effected. The wakf property cannot thus be alienated by human beings for their own purposes. The wakf property is not alienable is the general rule."

28. It is true that even a wrong decision constitutes res judicata. But so far as Exs. X-1 and X-2 are concerned, in our view, they do not constitute res judicata. It is essential that the plea of res judicata should be properly raised and it is imperative to identify the subjects in dispute in the subsequent litigation with those in the previous litigation. In O.S.No. 24 of 1962 - Ex.X-1 - the relief claimed was entirely different from the present one. The former suit (Ex.X-1) was laid on the premise that the suit properties were public trust properties and they were mismanaged and the relief prayed was for framing a scheme to manage the properties. The permission sought under Section 92 of the Code of Civil Procedure was negatived by the Advocate-General and so, the plaintiffs, after obtaining permission under Section 55 (2) of the Wakfs Act, laid the suit -O.S.No. 24 of 1962 (Ex.X-1). The subject matter of Ex.X-1 did not pertain to the inam or the nature thereof. Further, all the necessary parties were not impleaded in O.S.No. 24 of 1962; the State, in whom the title vested, not being a party to that litigation, no declaration could be given in respect of the nature of the inam. That suit also was not laid in a representative capacity; the permission of the court, a mandatory requirement, was not obtained. The permission granted by the Wakf Board under Section 55 (2) is of no consequence as the same would not be a substitute for the mandatory provisions contained in Order I, Rule 8 of the Code of Civil Procedure. That an inam cannot be treated as a private property and that properties covered by inam grants and wakfs cannot be alienated and Mutawallis and Mujavars are only Managers but not trustees are settled legal principles. For a decree to be binding on the entire public, not only the subject should be same but specific permission should be obtained from the court and these vital requirements are totally absent in Ex.X.-1. We, therefore, hold that the finding in Ex.X-1, as affirmed in Ex.X-2, does not constitute res judicata. The plaintiffs in the present suit were conscious of this lacuna in Ex.X-1 and, therefore, they have not taken, advisedly, the plea of res judicata and there was neither an issue nor adjudication in that regard.

29. The next question for our consideration is: whether the gift deed, Ex.A-1, executed by Chettabi is valid? As regards the truth of the execution of the gift deed, Ex.A-1, there is little doubt. The finding as to its genuineness was not questioned before us. We do not find any merit in the contention that under Muslim Law, there is an absolute bar for women to function as Mujavars or Mutawallis. We have already referred to the Division Bench judgment of this court in L.P.A.No. 5 of 1970 wherein it was held that a Muslim woman is competent to perform Moharrum. It, therefore, follows that Chettabi did not suffer from any legal disability to function as a Mutawalli. But the more important aspect is: whether, in law, she was entitled to execute a gift deed in respect of inam properties. Our answer is emphatically in the negative. The right of Chettabi as a Mutawalli or Muzavir was only to manage the properties to the extent of her 1/3rd share. The inam was not a personal grant but one in favour of the institution. Even in respect of personal grants burdened with service, the grantees or their descendants had no power to alienate. The wakf properties which are vested in God Almighty could not be sold by a Mutawalli or Muzavar as held by this court in L.P.A.No. 5 of 1970, adverted to supra. Further, under Section 6 (d) of the Transfer of Property Act, an interest in property restricted in its enjoyment to the owner personally, cannot be transferred by him. Inam lands - both granted in favour of an institution or personal grants burdened with service - cannot be alienated.