- (1.) 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. 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.
(3.) 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.;