V KADIR IBRAHIM ROWTHER Vs. MOHAMMAD RAHUMADALLA ROWTHER

JUDGEMENT

(1.) THE question for decision in this second appeal is, whether right to recover a sum of money under a decree can be made the subject of wakf according to Muhammadan Law. We are of opinion that it cannot. Even if the proposed subject of the wakf be regarded as the money which may (problematically) be recovered under the decree, we think that the weight of authority and argument is opposed to the plaintiffs contention that the wakf is valid. THE question has lately been discussed in a most elaborate judgment by Mr. Justice Woodroffe in the Calcutta High Court, and his conclusion is that "unless a moveable is accessory to land or allowed because of certain traditions concerning the prophet and the sacred writings or there is a custom to make wakf of it, it cannot be lawfully appropriated". Kulsoom Bibee V/s. Gulam Hussain Cassim Asiff 10 C.W.N. 449 at p. 494 and this decision has been followed by Mr. Justice Russell in the Bombay High Court Bai Fatmabai V/s. Gulam Husain 9 Bom. L.R. 1337. No doubt the decision is opposed to some earlier decisions Abu Sayid Khan V/s. Bakar Ali 24 A. 190; Sakina Khanam V/s. Laddan Sahiba 2 C.L.J. 218; Banubi Umar Sahib V/s. Narasingarao Runagiro Mani 31 B. 250; 9 Bom. L.R. 91 but we think that good reasons are given for dissenting from them. THE only decision of this Court which has been referred to in the argument before us is in accord with the view we have adopted Kaleloola Sahib V/s. Nusurudeen Sahib 18 M. 201 at p. 209. In the present case no alleged custom has been relied upon. We must, therefore, hold that the wakf is invalid and dismiss the second appeal with costs.