1. The plaintiff applies by this Originating Summons for the construction of a deed of partition and particularly for a declaration as to whether a valid wakf has been created by it.
2. The deed of partition was executed by the heirs of Hussein-bhai Chimnaji Tamboli on the 29th of June 1899 and by it they divided his estate. The heirs were the widow, the sister and the paternal uncle; and the estate was divided into three parcels, one of which was allotted to each heir. The parcel allotted to the sister Lalbai consisted of two houses, one in Teli Gully and the other in Nagdevi Road. The uncle and widow relinquished all claims to this parcel and Lalbai covenanted that the entire parcel should become her property absolutely from the date of the deed and she further covenanted 'to spend one-fourth of the same in charity and for the spiritual benefit of the deceased performing the ceremony of Agiari Maulood and other charities as the deceased used to make, and that she constitutes and declares herself a trustee of the said one-fourth for the said purposes.' This is the portion of the deed to which the Originating .Summons relates.
3. Now, it seems to me clear that the surrender of the co-heirs in favour of Lalbai and Lalbai's covenant to become owner transferred the entire dominion of this parcel to Lalbai. This surrender and the covenant are equivalent to a gift and acceptance which is a valid transfer as between co-heirs of undivided property : Mahomed Bukuh Khan v. Hosscini Bibi I. L. R (1888) Cal. 684.
4. Lalbai having complete dominion of the parcel was competent to dedicate it by way of wakf.
5. According to Abu Yusuf she can do so by a mere declaration but according to Imam Mahomed the wakf is not complete until there has been delivery of possession.
6. The authority of Abu Yusuf on this point has received preference in this Court in the case of Abdul Rajah v. Bai. Jimbabai (1911) 14 Bom. L.R. 295. Imam Mahomed goes the length of saying that a wakf cannot be created of an undivided share of property. This is the result of his opinion that transfer of possession is necessary for the completion of a wakf. But wakj's of undivided shares in property are common. Fatawa Alamgiri prefers Abu Yusuf's opinion that such wakfs are valid: Baillie, p. 564, Wilson, 4th Edn., p. 362.
7. It seems, therefore, that Abu Yusuf's opinion is the correct opinion, and in the present case the settlor having appointed herself Mutavali or trustee, 1 doubt if even Imam Mahomed would require transfer of possession.
8. It is settled law that a settlor may appoint himself Mutavali, and the words of the deed quoted above are an explicit declaration of trust and the purposes are such as recognised by Mahomedan Law: Wilson, paragraph 323 A.
9. The answer to the 1st question is in the affirmative.
10. Questions 2 and 3 referred to the Commissioner to ascertain what amount should be set apart for the wakf and to frame a scheme for the purposes of the wakf; and to recommend the names of five persons to be appointed trustees.
11. Costs and further directions reserved.