JUDGMENT :- This appeal raised two important questions of law concerning the Validity of a wakf under the Mohammedan Law.

2. One Qudarulullah owned a house, No. 474, Mohalla Colonelganj, Allahabad. Upon his death it devolved upon his widow Subban, his daughter Peeran and his brother Iddu, their shares being 2 annas, 8 annas and 6 annas respectively. Subban died leaving a daughter Rahiman from her first husband, and her two annas share in the house devolved on Rahiman. On September, 8, 1936, Iddu executed a deed of wakf dedicating his six annas share in the house for the upkeep and maintenance of the Bara Imambara mosque. Similarly, on September 7, 1938, Rahiman executed a deed of wakf dedicating her two annas share in the house to the same purpose. Under the two deeds of wakf Hafiz Mohammad Ishaq was appointed Mutwalli. Thus a share of eight annas in the house became the subject of a wakf devoted to the purpose mentioned above, while the remaining share of eight annas continued to belong to Peeran. The house was let out to tenants on rent, and it appears that the entire rent was realised by Peeran.

3. Accordingly, the suit out of which the instant appeal arises, was instituted by Hafiz Mohammad Ishaq against Peeran for a declaration that a half share in the house was wakf property, that he was the Mutwalli thereof and was entitled to realise half of the rent payable by the tenant, and for an injunction restraining Peeran from interfering with his right to realise the rent in respect of the wakf property. He also claimed a decree for damages.

4. One of the principal grounds upon which the suit was resisted was that no valid wakf had been created by either of the wakf deeds because an undivided share in property could not be made the subject of a wakf and because there could be no wakf of a house standing on a site belonging to the State and leased by it for a fixed term of years.

5. The trial Court decreed the suit and the decree was confirmed by the learned Civil Judge, Allahabad.

6. It is contended for the defendant-appellant that the wakf was invalid because it was a wakf of Mushaa for a mosque.

7. Now, a wakf of Mushaa is a wakf of an undivided share in property. The property may be capable of division or not. According to Abu Yusuf, the wakf of an undivided share of a property which is capable of partition is valid. This view was not accepted by Mohammed. It has, however, been adopted by modern thinkers, and, as the Fatawai Alamgiri notes, "the moderns decide according to the opinion of Abu Yusuf, who held that (the wakf of Mushaa) was lawful, and this is approved." As to the dedication of a share in property which is incapable of partition, Abu Yusuf and Mohammed agree that it is lawful.

8. There is an exception to the rule that a wakf of Mushaa is valid. That exception arises where a piece of land is dedicated for erecting a mosque or building a tomb thereon, such a wakf being valid only where the piece of (and dedicated is divided off. (Syed Ameer Ali's Mohammedan Law, Tagore Law Lectures, 1884) (1). To the same effect are the comments of Baillie in his Digest of Mohammedan Law (2). And Wilson in his Digest of Anglo-Mohammadan Law (3) states the rules thus :-

"...... the balance of authority seems to be in favour of allowing wakf of an undivided share, even in property capable of division; but it is agreed that the dedication of undivided property, whether naturally divisible or not, for use as a mosque or burying ground is invalid." The reasons for excepting a wakf of Mushaa for use as a mosque or burying ground are two-fold. As extracted by Wilson (Supra) from the Hedaya, objection is taken.

"because the continuance of a participation in anything is repugnant to its becoming the exclusive right of God", and "because the present discussion supposes the place in question to be incapable of division as being narrow and confined, whence it cannot be divided but by an alternate application of it to different purposes such is its b

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