Makame, Omar and Mfalila, JJ.A.: The parties are Brother and Sister. When their sister, Mwanabasi Shaha, died childless her properties were inherited by her siblings. B The present appellant got two houses and four cows, - while the respondent and a brother called Khamisi inherited a house. This property is House No. 20, Sukuma Street, Dar es Salaam, the object of a dispute which has now come to this Court on third appeal: After Khamisi's death the present appellant, the administrator of C Khamisi's estate, wanted to include Khamisi's portion of the house in dispute in Khamisi's estate, but the respondent resisted this, asserting that she and her brother, the deceased Khamisi, had created wakf over the property and dedicated it to the Rufiji Mosque in the City of Dar es Salaam. The Primary Court agreed with the respondent D that the house was wakf property but on appeal to the District Court, Ilala, (Kayombo, SDM) reversed the Primary Court decision, so in turn Mtumwa appealed to the High Court where Kazimoto, J. re-instated the decision of the Primary Court, holding that there was a valid wakf. That decision is now appealed from by Ibrahim, advocated E for by Mr. Semzaba, learned Counsel, while Mr. Mwajasho, learned advocate, appeared for the respondent Mtumwa.
We think that all along there was no serious dispute about the authenticity of Exh. B, the document purporting to create the wakf. We think also that the intention of Khamisi F and Mtumwa to create a wakfand dedicate the house to the mosque comes out clearly and is not at all in doubt. The issue however was whether a valid wakf had been created.
There was evidence by Mtumwa that after the house had been declared to be wakf in G favour of the mosque she was paying rent to the mosque for the portion she was occupying and also passing on to the mosque the rent being paid by tenants. The learned high Court judge was right that Mtumwa's assertion on this had not been disproved but, with respect, she was only one of the intending wafiks. There was no H similar evidence regarding Khamisi. There was, that is, no evidence that he was paying rent to the mosque so it must be assumed that he continued to live in the house rent - free; and that, quite rightly, bothered the learned Senior District Magistrate. Mr. Semzaba submitted that it meant that the property had not been conclusively dedicated as wakf. Mr. Mwajasho's references to Mulla's Principles of Mohamedan Law were I quite apt with regard
to transfer of physical possession and title. His submissions however left unanswered A the important issue of non-payment of rent by Khamisi, which rendered the purported wakf not absolute.
This appeal must succeed, however regrettable it may sound. We accordingly allow the appeal and make no order as to costs.
We note that Mtumwa is entitled to a portion of the house in her own right, having B inherited the same from Mwanabasi, and that she is also entitled to a portion of the deceased's Hamisi part of the house. According to the evidence on record Mtumwa and Ibrahim are Khamisi's heirs.
C Appeal allowed.