P L D 1952 Dacca 206 (PLP)

GUHA, J.

‑I respectfully agree with the views of my learned brother; but before we part with this case I should like to mention that the persons who are responsible for the preparation of paper books must see that the paper books are prepared properly and before they are filed they are thoroughly revised. In many of the cases that come up before us for hearing the decision depends upon the interpretation of a certain document. In this particular case the decision of this Court is based on the interpretation of the wakfnama, Exh. C, in the case. It is unfortunate that this document has not been properly printed in the paper book. It is stated in the document that certain persons are nominated as mutwallis but their names do not appear in the paper book. Recital of their names in the document would have been an answer to the argument that the learned Advocate for the appellants could take advantage of in his submission for the omission of the word 'not'. I may further point out that this was a suit for partition and much of the arguments were based on the genealogy that was given in the paper book; but the genea logy itself was not correctly made. If these things were properly done much of the time and labour of the Advocates concerned and also of the judges of this Court would have been saved. This is a case in which we are concerned with Hanafi School of Muslim Law; and I can only add to what has been said by my learned brother that there is nothing either in the texts or in the judicial decisions that a minor cannot in herit the office of a mutwalli. My learned brother has cited various texts and decided cases on ‑the question of musha, but I shall only refer to Hamilton on Hedaya, 2nd Edition, at p. 233, where it has been stated that according to the moderns there could be a wakf of musha ; but the only exception would be a wakf created for the purpose of construction of a mosque or a burial ground. This is the view which has been accepted by the learned text‑writer Abu Yusuf whose authority is prevalent in the modern times. This learned text‑writer has said that there could not be a wakf for the construction of a mosque in respect of an undivided property. We respectfully agree with the view of the learned text‑writer ; but that is not the question in this case. The case before us is a case in which the mosque has already been in existence since the time of the great grand father of Abjan Bibi ; and the provisions that were made in the wakf of Abjan Bibi, dated the 7th August, 1902, were for the upkeep and management of that mosque. Therefore, the text of Abu Yusuf does not stand in the way of deciding that the wakf in this particular case is a valid one., It appears to me that the learned Subordinate judge was very much misled by what has been said in section 146‑D of Mulla's Muhammadan Law, Tenth Edition. As my learned brother has rightly pointed out by citing texts and decided cases, the exception mentioned by Abu Yusuf does not stand in the way of our holding that in this particular case the wakf is a valid wakf. A. H. Decree armed with modification.