B.K. Mukherjea, J.
1. This is an appeal on behalf of the plaintiffs and it is directed against the decision of the Subordinate Judge, First Court, Chittagong, modifying that of the Munaif, Fourth Court of that place passed in O.S.S. No. 539 of 1934. The facts are not disputed and the controversy, so far as this appeal is concerned, centres round a short point of law.
2. The plaintiffs commenced this suit for a declaration that they were the mutwall is of certain wakf estate created by Hazi Abdul Ali Sowdagar and the properties described in the schedule to the plaiut were wakf properties. It was alleged that Laturi Bibi, the wife of the founder, who was the previous mutwalli had committed various acts of breach of trust by executing benami conveyances in respect of some of the wakf properties in favour of defendants 2, 3, 5 and 7 and not paying the revenue in respect of the touzi described in Schedule 8 which led to that property being sold for arrears of revenue. The plaintiffs prayed for a declaration that the defendants did not acquire any title to these properties which they purported to purchase and that the surplus sale proceeds in respect of the Schedule 8 property which were still lying with the Collectorate was the wakf money. There was a prayer also for an injunction restraining defendants 5 and 7 from withdrawing any portion of the money that was deposited in the Collectorate. The defence of the contesting defendants inter alia was that there was no valid and legal wakf and the wakf namas alleged to have been executed by Abdul Ali were not bona fide documents and were never acted upon. The right of the plaintiffs to sue as mutwallis was also disputed and it was contended that the properties being the personal properties of the vendor, the alienees were bona fide purchasers and had acquired good title in them. The trial Court negatived all the defences and gave the plaintiffs a decree. It was found by the Munsif that there was a valid and legal wakf created by the vendor and that the wakfnamas were actd upon. The plaintiffs were also found to be the mutwallis of the wakf estate and as such competent to institute the suit. There was an appeal taken to the lower Appellate Court by the contesting defendants. The Subordinate Judge who heard the appeal substantially accepted the findings of the Munsif but he modified the decision of the latter to this extent, namely that the plaintiffs' suit was dismissed with regard to the properties described in Schedules 4, 6, 8, 12 and 15, the Subordinate Judge being of opinion that these properties being undivided shares of certain properties, no valid wakf can be created in Mahomedan law in respect of the same. The sole point for determination in this appeal is as to whether the view taken by the lower Appellate Court is correct.
3. It is not disputed that under the Hanifa law the preponderance of authorities is in favour of the view that the wakf of 'musha' Is perfectly valid : see Sir Roland Knyvet Wilson's Digest on Anglo Mahomedan Law, Edn. 6, p. 352, Section 321 and also Mahomedan Law by Ameer Ali, Vol. I, Edn. 3, page 196. This is the opinion of Abu Yusuf, Muhammad indeed gives a different opinion and this is the natural result of the difference in the view taken by him as to whether a wakf can be constituted by a mere declaration of intention, is being the opinion of Muhammad that an actual transfer of possession to the mutwalli is necessary for the purpose of completing a wakf. The opinion of Abu Yusuf is however approved by all modern authorities and can be regarded as an accepted doctrine on this point. To this general rule thus enunciated there is an exception recognized by Abu Yusuf himself, namely that:
When there is a dedication of undivided property, whether naturally divisible or not, for use as a mosque or burying ground it is invalid in law.
4. The learned Subordinate Judge is of opinion that in the present case as the properties were dedicated, amongst others, for the maintenance of certain mosques already established by the founder and for paying annual visits to the tomb of his ancestor, the case comes within the purview of the exception laid down above and consequently the wakf, so far as those properties were concerned which consisted of undivided shares of certain lands, was invalid in law. It seems to me that the learned Subordinate Judge has really misappreciated the rule of law that is laid down in Mahomedan law and the meaning he has put upon it is not the correct meaning. What is prohibited in the Mahomedan law is the dedication of an undivided property for its use as a mosque or as a burial ground. It is said by Abu Yusuf that
when a piece of land is dedicated as a cemetery or to build a mosque on it must be divided off from the other property of the wakf : vide Ameer Ali's Mahomedan Law, Vol. 1, Edn. 3, p. 196.
5. The reasons given by Abu Yusuf himself for recognizing this exception to the general rule mentioned above are two in number. The first is that 'the continuance of a participation in anything is repugnant to its becoming the exclusive right of God'.
The second reason given by him is that the 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 as its being applied one year to the interment of the dead and the next year to tillage, or at one time to prayer, and at another time to the keeping of horses, which would be singularly abominable : vide Hamilton's Hedaya by Grady (1870) at page 233.
6. From this it is clear that when an undivided piece of land is dedicated to be used as cemetery or a place to build a mosque on, the dedication for construction and endowment of such a mosque or cemetery is invalid. But when a mosque or a tomb already exists on a different parcel of land, if an undivided share of another property is dedicated for the upkeep of such a mosque the dedication is not hit by the exception mentioned aforesaid. The doctrine of musha has always been held to be unadopted to a progressive state of society, and an exception based on such doctrine must be kept within the strictest limits. I am therefore of opinion that the view taken by the lower Appellate Court on this question of law was wrong and the appeal must be allowed.
7. I may state here that some of the items of property with regard to which the plain, tiffs' suit has been dismissed by the lower Appellate Court do not come within the mischief of the rule of musha as laid down in Mahomedan law. The property No. 6 was undoubtedly certain shares of a revenue paying estate and the shares in respect of which the wakf has been created were separately assessed to revenue. Similarly, items 12 and 15 also constituted entire plots which were held exclusively by the wakif as representing his undivided share by some sort of arrangement with the cosharers. But whatever that may be, as I have already decided, that the present case does not come within the exception to the general rule as laid down by Abu Yusuf, the plaintiffs are entitled to a decree with regard to all the properties mentioned in the Schedule that are comprised in the wakfnama. The result is that the judgment and decree of the lower Appellate Court are set aside and the plaintiffs are entitled to a declaration that all the lands which are comprised in the wakfnamas are wakf properties and that they are the mutwallis thereof. The plaintiffs are further entitled to a declaration that half of the sale proceeds of Taraf Darap Rustum (mentioned in Schedule 8) which is lying in the Collector ate is wakf money. With regard to the other half of the sale proceeds of the said property the plaintiffs' claim is dismissed, as in the opinion of the Sub-Judge there was no wakf created with regard to this share. The plaintiffs-appellants are entitled to their costs in this Court as well as in the lower Appellate Court. The cross-objection is not pressed and it is dismissed without costs. Leave to appeal is prayed for and refused.