JUDGMENT Waliullah, J. - This is a Plaintiffs' appeal against the decree passed by the learned Additional Civil Judge in suit No. 54 of 1922 dismissing the claim for a declaration that the Plaintiffs as mutwallis of the wakf made by Sbeikb Abdul Latif, were entitled to withdraw the amount of Rs. 13,800 which is in deposit in Court as the decretal amount of decree No. 97 of 1927 of the Court of the 1st Subordinate Judge, Cawnpore. 2. The dispute in this case relates to the right of withdrawal for the Court of the sum of Rs. 13.800 abovementioned The decree in suit No. 79 of 1927 was obtained by bavis(sic) Company through its proprietor Rai Bahadur Bhagwan Das against Wbotitled(sic) Company of Mohammad Razi and Haji Maula Bax. Sheikh Abdul Litif deceased, who was admittedly the sole proprietor of the West End Leather Works, purchased this decree from Rai Bahadur Bhagwan Das by means of a sale deed dated the 27th October 1933, 3. The case of the Plaintiff Appellants was that they were the trustees under the deed of waqf dated the 27th of April 1956 executed by Sheikh Abdul Latif alias Mathu deceased; that Sheikh Abdul Latif dedicated all his propertis for religious and charitable pruposes specified in the deed and so the trustees or Mutawallis are entitled to the aforementioned decretal amount in deposit in Court. 4. The suit was mainly contested by Hafiz Abdul Rashid, Defendant No. 1 and his transferee, Maualvi Ahmad Abdul Halim, Defendant No. 2. Of them Defendant No. 1 claims to be an beir of Abdul Latif deceased and as such entitled to the money in deposit. Defendant No. 2 claims to be a transferee of half of the rights and interest of Defendant No. 1. The defence set up was to the affect that the deed of wakf dated 7th of April 1938 was not executed by Sheikh Abdul Latif while be had a sound disposing mind and was in his proper senses. It was further alleged that the so-called deed of Wakf was vitiated inasmuch as Abdul Latif was suffering from MarZ-ul-maut at the time when be is alleged to have executed it Next, it was contended by the Defendants that the decree in question was cot included in the wakf property; it was contended in the alternative, that if it be deemed to be. so included, such a decree could not be legally dedicated as wakf the Mohammedan law. 5. Certain facts which are necessaray for appreciating the points involved in this appeal may be set out here. Admittedly Abdul Latif purchased the decree in suit No. 97 of 1927 from R. B. Bhagwan Das on the 27 th of October 1933. Thereafter he put the decree into execution. Haji Maula Bux as judgment-debtor filed objections in the execution proceedings and was successful in the Court of first instance. An appeal was, however, filed by Abdul Latif in the High Court and the appeal was allowed on the 1lth of January 1935 Haji Maula Bux thereupon preferred ' an appeal to the Privy Council. While the appeal was pending Abdul Latif executed the wakf deed dated the 7tb of April 1936 and it was registered on 17th of April 1935. Subsequently on the 10th of June 1936 Abdul Latif died at Mussoorie. In connection with the(sic) substitution of the names of the legal representative of Abdul Latif, Haji Maula Bux impleaded four persons, namely Plaintiff Appellant No. 1, the bead trustee under the deed of Wakf, and Defendants Nos. 1, 3 and 4 of the present suit It appears that one of the four persons sought to be impleaded as the legal representative of Abdul Latif raised objections against the impleading of the others and the High Court ultimately impleaded all of them without deciding who was actually the legal representative Later, the appeal in the Privy Council was decided on merits and it was dismissed. It is clear from the record that in the appeal before the Privy Council only Ghulam Mohi-uddin, Plaintiff-Appellant No. 1 - the head trustee-had put in appearance After the dismissal of the appeal he executed the decree (or costs in the appeal before the Privy Council. Subsequently the trustees under the wakf of Abdul Latif - the Plaintiff appelents-executed the decree of suit No. 97 of 1927 and the judgment-debt rs thereupon deposited Rs. 13,800 in Court. When the Plaintiff-Appellants wanted to withdraw that amount from Court Haji Abdul Rasid and Abdul Hamid, Defendants Nob. 1 and 2, raised objections The learned Civil Jugde thereupon directed the parties to get their claims decided by the Civil Court by instituting proper regular suits. 13,800 in Court. When the Plaintiff-Appellants wanted to withdraw that amount from Court Haji Abdul Rasid and Abdul Hamid, Defendants Nob. 1 and 2, raised objections The learned Civil Jugde thereupon directed the parties to get their claims decided by the Civil Court by instituting proper regular suits. As the result of the directions given by the learned Civil Judge the parties filed two suits; suit No. 54 of 1942 was filed by the Plaintiff Appellants while suit No. 69 of 1942 was filed by the Defendant-Respondents 1 and 2. Both the suits were heard together with ths coLsent(sic) of all the parties and evidence was ail recorded in suit No 69 of 3942 but it was agreed between the parties that both the oral and documentary evidence of the two suits was to be read in both the suits. After the conclusion of the bearing of the two cases and indeed after the conclusion of arguments it transpired that the Inspector of Stamps submitted a report to the Court that in suit No. 69 of 1942 the court-fee paid was insufficient. The Plaintiffs of that suit failed to make good the deficiency in court-fee determined by the Court with the result that the plaint in suit No. 69 of 1942 had to be rejected as insufficiently stamped. Thus the Court below had to determine only the issues raised in suit No. 54 of 1942. The learned Civil Judge in considering the issues raised in suit No. 54 of 1942 has adopted-and as he calls 'appropriated' to suit No. 54 of 1942-issues Nos. 2, 4, 5 and 6 of suit No. 69 of 1942 and determined them also along with the issues specifically framed in suit No. 54 of 1942. In order to understand issues 4 and 5 of suit No. 69 above-mentioned, it is necessary to state some antecedent events. Defendants Nos. 1 and 2, shortly after the death of Abdul Latif, applied for a succession certificate in their favour but their application was dismissed by the Court of first instance and their appeal to the High Court was equally unsuccessful. In view of these decisions the Plaintiff-Appellants raised the contention that these decisions operated as res judicata so as to bar the defence set up by the Defendants Nos. 1 and 2. It was further contended that the Defendants Nos. In view of these decisions the Plaintiff-Appellants raised the contention that these decisions operated as res judicata so as to bar the defence set up by the Defendants Nos. 1 and 2. It was further contended that the Defendants Nos. 1 and 2 were estopped from denying the validity of the wakf. 6. On a consideration of the materials on the record, the learned Civil Judge held- and we think rightly-that Defendants Nos. 1 and 2 were not estopped(sic) from impeaching the validity of the wakf deed in question. He further rightly held that the decision of the Court dealing with the application for a succession certificate to Defendants Nos. 1 and 2 could not operate as ret judicata so as to shut out the pleas set up by the Defendants in the present case in regard to the validity of the wakf. On the two questions; (1) whether the deed of wakf dated the 7th of April 1936 was duly executed by Abdul Latif according to law after intelligentlly following the contents thereof and (2) whether Abdul Latif was at the tine the deed of gift was executed in Marz-ul-maul, the learned Civil Judge, after a careful consideration of the evidence and circumstances of the case, unhesitatingly came to the conclusion that the wakf deed was duly executed by Abdul Latif at a time when he was in bis carnal good health and was possessed of a sound disposing mind. He further fouud that ' there was no truth in the Defendants contention that Abdul Latif was either seriously ill or was not in his proper senses when the deed of wakf was executed. He thus definitely negatived the Defendants' contention that the deed could be attacked on the ground of Maiz-ul-maur. In this connection the learned Civil Judge found that Abdul Latif was only suffering from diabetes for some two years prior to his death. On the questions whether the decree in Suit No. 97 of 1927 was included in the property dedicated under the deed of wakf, and if so, whether it could be legally made the subject of a wakf under Mohammad an law, the learned Civil Judge found against the Plaintiffs. He held substantially on an interpretation of the deed of wakf that the decree in suit No. 97 of 1927 was not dedicated and made a wakf of under the deed. He held substantially on an interpretation of the deed of wakf that the decree in suit No. 97 of 1927 was not dedicated and made a wakf of under the deed. La view of certain rulings referred to in his judgment, be also recorded a finding that a decree for money such as the one passed in suit No. 97 of 1927 could not be the subject of a valid wakf under the Mohammadan law. He accordingly expressed the view that if the decree in question be deemed to have been included in the wakf property the wakf to that extent would be invalid. In view of the findings recorded by him, the learned Civil Judge came to the conclusion that the Plaintiff-Appellants bad no right to recover the decretal amount in question. He accordingly dismissed the suit with costs. 7. Learned Counsel for the Plaintiff-Appellants has argued only two substantial points in this, appeal; (1) whether the decree in question was included in the dedication evidenced by the deed of wakf dated the 7th of April 1936 and (2) whether such a decree could be a valid subject of wakt under the Mohammandau Law. No other contentions have been raised in the cousre of the hearing of this appeal. 8. We now proceed to determine the aforementioned two main questions which arise in this appeal. 9. The determination of the question whether the decree in suit No. 97 of 1927 was dedicated under the wakf deed dated the 7th of April 1936 depends upon the proper interpretation of the deed in question. This deed is Ex. C of the record. Learned Counsel for the parties have drawn our attention to relevant portions of this deed and have commented at length on the same. Learned Counsel for the plaintift-Appellants has contended that the whole trend of the deed clearly indicates that it was the iutention of the executant to make a wakf of the whole of the property owned and possessed by him and not only a part of it. Learned Counsel has invited our attention to the passage in paragraph 1 of the deed: The detail of the entire property and Imlak in my proprietary possession and occupation upto this time are given at the foot hereof. 10. Learned Counsel has invited our attention to the passage in paragraph 1 of the deed: The detail of the entire property and Imlak in my proprietary possession and occupation upto this time are given at the foot hereof. 10. He has further emphasized the passage in paragraph 2: With the same idea, I, the executant, had, for a long time, been thinking of making a wakf in respect of my entire property. 11. Next, be has laid great stress upon these words in the same paragraph: Now i do make, and have, of my own accord and choice, willingly made perpetual and Paivandi Wakf with regard to all the Imlak and moveable and moveable(sic) property belonging to me as per specification given below within all the inherent and adventiuous(sic) rights appertaning thereto, without the exception of anything, right or portion, for charitabe(sic) and pious purposes..... 12. Next, it has been emphasized on behalf of the Appellants that the contents of paragraph 11 of the deed which specifically deal with the dedication of the Ammunition & Boot Factory in Mohalla Farras-khana,called the West End Leather Works make it abundantly clear that the executant intended to dedicate every possible asset of the factory called the West End Leather Works. Lastly, learned Counsel for the Appellants has drawn our attention to paragraphs 14 and 15 of the deed which, in substance, provide for all the litigation and proceedings in Courts and Government departments including original suits, appeals or execution cases or miscellaneous matters to be carried on in the name of the President of the Committee of mautrwallis(sic). It may be mentioned here in passing that the deed provides that the wakif himself shall be the first mutawalli of the wakf so long as he remains alive and that thereafter a committee of five persons called the Committee of Mutawal-lis of the wakf of Abdul Latif alias Mathu shill be in charge of the waqf. Learned Counsel for the Appellants has strongly contended that the expression "all the imlah and moveable and immoveable property belonging to me as per specification given below" properly interpreted means "all my property of which I give details below". Learned Counsel for the Appellants has strongly contended that the expression "all the imlah and moveable and immoveable property belonging to me as per specification given below" properly interpreted means "all my property of which I give details below". Learned Counsel contends that the omission of a specific mention of the decree in dispute must be held to be due to a mere accidental omission of an item of property and as such it should not affect or in any way limit the meaning of the words "all my property". The argument essentially comes to this; unquestionably the dominant intention of the wakif was to dedicate every conceivable item of property that he possessed or owned at the time. That being the position, the mere fact that one particular item of property-the amount of the decree in dispute-was omitted, must be due to a mere accidental slip and, as such, it can have no material effect on the dedication. 13. On the other hand, learned Counsel for the Respondents has drawn our attention to the expressions in paragraphs 1 and 2 which speak of property as specified or described at the foot of the document. He has also invited our attention to paragraphs 10, 11, 14 and 15 and in that connection, has submitted that these paragraphs do not contain any reference to the decree in question, but if there had been any intention to include the decree in the dedication these paragraphs would have, in all probability, made a specific reference to the decree. Learned Counsel has contended that the document appears to have been very carefully drawn up and the fact that there is no specific mention of this decree along with other items of property dedicated, is very significant. It would go to show, so contends the learned Counsel for the Respondents, that Abdul Latif perhaps thought in April 1935 (when litigation regarding the execution of the decree was pending in the Privy Counsel) that the decree in dispute was too precarious an item of property to be made a wakf of and that would explain the omission of a specific mention of this item of property. In substance, therefore, his contention is that the omission to refer to the decree in question in the deed of wakf would appear to be intentional and not merely accidental. 14. In substance, therefore, his contention is that the omission to refer to the decree in question in the deed of wakf would appear to be intentional and not merely accidental. 14. We have listened to the able argument addressed to us by the learned Counsel for the parties and we have carefully considered the relevant provisions of the deed both in the original as well as in its translation. Obviously, the intention of the wakif as expressed in the deed would constitute the determining factor. There can be no doubt whatsoever that the wakif, Sheikh Abdul Latif had been contemplating the dedication of his "entire property" by way of wakf for it is recited in paragraph 2 of the deed that "I the executant, had, for a long time, been thinking of making a wakt in respect of my entire property". The general trend of the deed in all the material portions of it undoubtedly exhibits the intention of the executant to make a wakf of the whole of his property. It seems to us that even when the stage was reached when the details of the property referred to earlier in the deed were to be given, the details of only the moveable and immoveable property were set out. In the body of the deed there is everywhere reference to the "property" in a most comprehensive language e.g. "Kul jardad va Imlak" (the entire property and Imlak) but the details at the end refer only to two heads i.e. Tafsil jaidad Manhula (detail of the moveable property) and (2) Tafsil Jaidad Ghair Mankula (i.e. detail of the immoveable property). In view of these peculiar features of the deed in question, we are inclined to consider that the omission of a specific reference to the decree in question was merely accidental; as such the omission should not, in our judgment, be allowed to limit the plain meaning of the words "all my property." In this view of the matter, it follows that the decree in suit No. 97 of 1927 is included in the dedication evidenced by the deed of wakf. 15. Mr. C. B. Agarwala, the learned Counsel for the Appellants has raised a further contention in regard to the dedication of the decree in question. 16. 15. Mr. C. B. Agarwala, the learned Counsel for the Appellants has raised a further contention in regard to the dedication of the decree in question. 16. He has argued, in the alternative, that the decree must be deemed to be included in the dedication if the matter be looked at from a slightly different point of view. Assuming that the decree is not one of the items of property which was 'directly' or specifically dedicated by wakif, so contends the learned Counsel, there can be no doubt whatsoever that the Ammunition Boot Factory, called the West Etd Leather Works, was the subject mtater of wakf and the validity of wakf of this item of property has never been chgllenged by anyone. There was, thus, a valid wakf of a going business concern i.e. the West End Leather Works The decree in question was purchased by Sheikh Abdul Latif for Rs. 4,500 on the 27th of October, 1933. The evidence of Plaintiff's witness Zahid Ali, supported as it is by the account books of the West Ead(sic) Leather Works makes it perfectly clear that the decree was purchased from Rai Bahadur Bhagwan Das out of the funds of the West End Leather Works. It is significant that the entry with regard to this amount of Rs. 4,500 was made in the account-bocks of the firm and not the personal khata (account) of Sheikh Abdul Latif which he maintained in the Bahis (or account books) of the West End Leather Works. This would go to show that the wakf intended the decree to be part of the assests of the form. Learned Counsel in this connection also relies upon paragraph (sic)1 of the deed of wakf and contends that the outstanding of the firm must neccessarly be deemed to have been dedicated. It would follow, therefore, that the decree in question is included in the dedication in an indirect matter, i.e. as an asset of the going concern known as the West End Leather Works. 17. Learned Counsel for the Respondents has, however, contended that even if it(sic) be taker.! tor granted the decree was included in dedication, it would not be valid because it is nowhere directed by the wakif that the proceeds of the decree shall be utilized in a particular kind of inventrrent(sic). 17. Learned Counsel for the Respondents has, however, contended that even if it(sic) be taker.! tor granted the decree was included in dedication, it would not be valid because it is nowhere directed by the wakif that the proceeds of the decree shall be utilized in a particular kind of inventrrent(sic). The contention of tbe learned Counsel is that, in the absence of such Directions, the dedication of the amount realisable under the decree would be Void in law. We shall, however, consider (his objection in connection with the second question regarding the validity of a wakf of a ''decree" under he Mohammedan Law. At this steige, we are concerred with the question of the factum of dedication of the decree, directly, or indirectly through the wake(sic) of the going concern i.e. the West End Leather Works Looked at as an asset, or outstanding of the firm (i.e. the West End Leather Works), the decree in question must necessarly be deemed to be comprised in the wakf of the firm. In our judgment, this contention of the learned Counsel has considerable force and we would record a finding in favour of the Appellants on his ground. The result, therefore, is that, in our judgment, the Plaintiff-Appellants have succeeded in establishing that the decree in dispute was comprised in the wakf created by Sheikh Abdul Latif. 18. The next question which we have to consider is whether a wakf of the decree in question, in the circumstances indicated above, is valid under the Mohammedan Law. Obviously this question does not arise if only the second alternative contention of the learned Counsel for the Appellants be considered. In such a case there is no wakf "the decree" as such. There is certainly a wakf of the "going concern" known as the West End Leather Works and along ' with such a wakf all the assets, including all the outstandings of the firm (which included the decree in question) must be included. The validity of the dedication of the West End Leather Works has not been called in question in this case. The validity of the dedication of the West End Leather Works has not been called in question in this case. Clearly, therefore, the contention that wakf of the decree is defective in law would be pointless inasmuch as, ex hypothesi, there is no dedication of the decree as such, but this question certainly does arise in connection with the Appellants' first contention, namely that the decree in question was itself the subject matter of wakf. 19. The question whether a simple money decree such as is the case here, can be validly the subject-matter of a wakf under the Mohammadan Law is not at all free from difficulty. In the course of their arguments learned Counsel for the parties have invited our attention to a large number of rulings as well as to a number of standard woks on Mchammadan Law and we shall in a moment deal with the more important of the authorities brought to our notice. 20. The first case of this Court to which reference should be made is the case of Abu Sayid Khan v. Bakar Ali1, decided by a Bench of two learned Judges, Banerji and Aikman JJ. of this Court. The question before their Lordships was whether a wakf of "movable property" including "money" was valid under the Mohammadan Law. After hearing very able and erudite arguments from the learned Counsel on both sides and after a long and careful consideration of the texts and the case law cited before them, their Lordships came to the conclusion that such a wakf may be validly constituted. The view taken by the Calcutta High Court in Fatima Bibee(sic) v. Arif Ismailji Bham2 was expressly dissented from Their Lordships referred to the serious conflict of authority on the question which they bad to decide To quote their own own Words- We have carefully considered those authorities The conflict between them in bewlldering some assert that such an endowment as the present is absolutely void; others, that it is valid(sic) when customary; and others again -and these are in the majority-that it is valid without any restriction. Not only is there a conflict between different jurists, but we find different and irreconcilable opinions attributed to the same jurists by different commentators. 21. Not only is there a conflict between different jurists, but we find different and irreconcilable opinions attributed to the same jurists by different commentators. 21. After examining the authorities, particularly the Fatwa Qisi khan,Durrul maklitar(sic), Umdat-ul-kari (a commentary on Sahibul Bhukhari by Allama Aim) and the well know works of Ameer Ali and Wilson, their Lordships expressed the view that the question was not by any means free from difficulty. They however considered that tbe preponderance of authority was in favour of the view that such an endowment holds good. 22. The next case of this Court which has been referred to us is that of Amir Ahmad v. Mohammad Ejas Husain3. That was a case of a wakf created by a grove-holder of his rights as such and the question was whether the rights of a grove-holder could be the subject matter of a valid wakf under the Mohammedan Law. It was decided by two learned Judges of this Court, Sulaiman C. J. and Bennet J. At page 1318 it was observed: No doubt the essence of a wakf is its permanent character. Any property which is temporalily or for a limited period or without right in the possession of the wakif cannot be validly dedicated because such a dedication can never be of a permanent character But it does not follow that the subject matter of the waki must necessarily be the full proprietiry interest in immovble property This Court in Abu Sayid Khan v. Bakar Ali ubi Supra) held that according to the Musalman law a wakf of even moveable properly could be validly constituted The learned Judges expreessly dissented from the view expressed in Calcutta. There is even authority for the proposition that wakq of moneys and shares in joint slock companies and other modern forms of investments might well be the subject matter, of a valid wakf. All difficulties that might have arisen under the strict Mohammedan Law are now removed so far as wakfs governed by the Musalman Wakf Validating Act are concerned, It obviously(sic) follows that a wakf can be made of movable just as well as of immovable properties and that in fact "any property" can be made wakf of provided there is "a permanent dedication" of it..... 23. 23. The last case of this Court cited before us is that of Nosi(sic) Ali v. Shamsun Nesa Bibi4, decided by a Bench of two learned Judges of this Court in that case their Lordships considered the question whether dedication of money is recognized by Mohammedan Law. Their Lordships exressed the view that the question was by no means free from difficulty and that third was greare conflict of judicial opinion on the point. After considering various authorities, particularly the case of Abu Sayed Khan v. Bakar Ali1 (ubi supra) and the. relevant passages from Ameer All's Mohammadan Law and Wilson's Mohammedan Lav, their Lordships observed at page 141: It will be observed that investment in Government securities and shares in companies etc. is a common loan of investment recognized in the. present names(sic)Such investments yield regular income which can be expended can be expended on the maintenace of the objects of the waqf. If, on the otherhand a sum of money itself is dedicated and is the waqf it will be extruted(sic) objects of the waqf it will be extrusted before of the waqf it will be exatusted(sic) before long(sic) and it cannot be said that the property dedicated is of a reasonably permment character as required by law. 24. With reference to the particular question. which arose in that case viz. whether a valid waqf could be created by a Mohammadan widow of her unpaid dower debt, their Lordships observed at page 142: The dower debt was no doubt due to the lady but it was at the option of the residuaries to pay that sum or not. It was not a tangible property available to Mst. Fahimo(sic) and she certainly(sic) had no control over it The recovery of that sum was problematical and any dedication of such properly could not be recognised under the accepted principles, of Mohamadan Law. In Kidir(sic) ioiahim(sic) Rowther v. Matmoed(sic) Rahumad Ulli Rowther5, it was held that dedication of a decree was invalid. This principle will apply with greater force to the present case. In our judgment the rule of law laid down in Abu Sayid Khan v. Bakar Ali Khan mentioned above is not applicable to the present case at all. 25. In Kidir(sic) ioiahim(sic) Rowther v. Matmoed(sic) Rahumad Ulli Rowther5, it was held that dedication of a decree was invalid. This principle will apply with greater force to the present case. In our judgment the rule of law laid down in Abu Sayid Khan v. Bakar Ali Khan mentioned above is not applicable to the present case at all. 25. Turning to the cases decided by other High Courts in India, we have the case of Kadir Ibrahim Rowther v. Mahmoed Ulla Rowther5 in which two learned Judges of the Madras High Court held that: The right to recover money under a decree cannot be" made the subject of a waqf in the absence of a custom authorising such appropriation 26. Their Lordships went on to observe: Even if the proposed subject of the waqf be regarded as the money which may (problematically)(sic) be recovered under the decree, we think that the weight of authority and argement is opposed to the Plaintiff's contention that the waqf is valid. 27. Their Lordships referred to the conflicting authorities on the question whether a valid waqf could be created of a movable property which was not accessory to land and agreed with the view-expressed by the Calcutta High Court in the case of Kulsom Bibee v. Golam Hossein Casim Ariff and by the Bombay High Court in Ba Fatmabar v. Gulam Husen1. 28. Next reference may be made to the case of Abdul Sattar Ismail v. Abdul Hamid Sat8, in which two learned Judges of the Madras High Court had to consider the question whether the dedication of movable property was lawful under Mohammadan Law. Their Lordships pointed out that before the passing of the Musalman Waqf Validating Act it was the view of that Court and of other High Courts in India, except the Allahabad High Court, that there could not be a valid waqf of movabe property unless it were accessory to land or were allowed because of certain traditions concerning the prophet and the sacred writings or there was a custom to make a waqf of it. I was however, held that The definition of waqf n the Musalman Waqf Validating Act (1913) as a permanent dedication of "any property" indicate that a Waqf can be made of movables. I was however, held that The definition of waqf n the Musalman Waqf Validating Act (1913) as a permanent dedication of "any property" indicate that a Waqf can be made of movables. The definition in the Act is of general application and a waqf of movables even for objects other than those specified in the Act would be valid. 29. In, would be abserved that in this latter case the contention of the learned Counsel to the effect that the view expressed in Kadir Ibrahim Kowther v. Mahammned Rahimanulla Rowther3 (ubi supra) was rendered obsolete by the passing of the Mussalman Waqf Validating Act (1913) was accepted. 30. Reference has also been made to two cases decided by the Oudh Chief Court. The first case is that of Mirza Mohammad Shadiq Ali Khan v. Fakhr Jahan Begam9 decided by two learned Judges of that Court. They had to consider the question of the validity of a waqf of Government promissory notes under the Imamia Law. They, however, examined the question with reference to the provisions of the Hanafi Law as well. At page 111 it was obseryed: There has been a considerable difference of opinion in High Courts in India as to whether under the Hanafi law the waqf of shares in companies is or is net valid. 31. After considering the principles which govern the valicity ofsuch a waqf under the Hanafi Law as codtained in Ameer All's Mohanmadan Law, 4th edition, pp. 257-264, 503,505 and p. 264, their Lordships came to the conclusion that the waqf was valid. This case went up in appeal to their Lordships of the Privy Council and their Lordships' decision is reported in Nawab Mirza Mohammad Sadiq Ali Khan v. Nawab Fakr Jaban Begam10. It was found in that case that the waqf of the promissory notes in question bad been recognized by the members of the family for three quarters of a century or more, and the income of the fund had been applied, at all events in the main, consistently to charitable purposes. It was accordingly held that the waqf was valid. Finally their Lordships observed at page 21: Under the Circumstances, their Lordships find it unnecessary to attempt a solution of the interesting problem of Mohamadan(sic) Law which was propounded to the Chief Court. 32. It was accordingly held that the waqf was valid. Finally their Lordships observed at page 21: Under the Circumstances, their Lordships find it unnecessary to attempt a solution of the interesting problem of Mohamadan(sic) Law which was propounded to the Chief Court. 32. The next case of the Oudh Chief Court to which reference has been made is that of Mst. Rahiman v. Mst. Baqridan11, decided by a Full Bench of three learned Judges of the Oudb Chief Court in which it was held that a valid waqf cannot be made in respect of the rights of a usufructuary mortgagee in an immovable property . The waqif was held invalid for two reasons:- (1) that the waqif was not the owner of the mortgaged property and bad therefore no permanent control over that property and (2) that an usufructuary mortgage itself is not valid according to Mohammadam Law. 33. The next case to which reference may be made is that of Hashim Haroon v. Gounsalisbah12 decided by two learned Judges of the Sind Chief Court. That was a case which arose out of a suit u/s 92 of the CPC Cede. With reference to the contention urged before their Lordships that there can be no valid waqf by a Sunni Musalman of a debt due to him under a mortgage deed inasmuch as such a debt was not property of a kind of which a Sunni Musalman could make valid weqf, It was observed that the case of Mst. Rahman v. Baqridau11 (ubi supra) had no application to the facts before them, but that the case of Abu Sayid Khan v. Bakar Ali1, was much more in point and it was against the contention pressed before them. It must, however, be noted(sic) that these observations were obiter as the question did not legitimately arise in the case before them. 34. The last case which has been brought to our notice is that of Abdulsakur Haji Rahimatulla v. Abubakkar Haji Abba13 decided by Misra J At page 196 the learned Judge observed: The dedication made in Clause 3 of the will is at least partly that of money. Prior to the Waqf Validating Act there were confilicting rulings of various High Courts in India as to whether valid waqf could be made of money. Prior to the Waqf Validating Act there were confilicting rulings of various High Courts in India as to whether valid waqf could be made of money. Our Court in common with the High Courts of Calcutta and Madras inclined to the view that a waqf cannot validly be made of moveable property unless the moveable property was accessory to some immovable property of which waqf was being made or unless the waqf of movables was allowed by custom see Bai Fatmabai Vs. Gulam Husen, (1907) 9 BOMLR 1337 , Kalsem Bibee v. Gulam Hassen Cassim Ariff (l905) 10 C, W. N. 409 and Kadir Ibrahim Rowther v. Mahomed Rahumated a Rowther. (1909) 33 Mad, 118 the High Court of Allahabad had held that a waqf of movables would be valid even, apart from the consideration act out in the rulings of these three Courts-: see Abu Savid Khan v. Bakar Ali, (I. L. R. 84 190) In my judgment the controvesy set at rest by the definition of waqf under the Waqf Validating Act 1913 which speaks of the permanent dedi. cation of 'any property". "Any property" would include moveable as well as immoveable property. 35. It was thus held under the Waqf Validating Act, a waqf can be constituted by a permanent dedication of "any property" which expression would include money and other moveable and immoveable property. The same view has been taken by the Calcutta High Court in Sakina Khanum v. Laddan Saheba14. In the case of Bonubi v. Narsingrao Ranojirao Mane15 a division Bench of the High Court of Bombay, Jenkins C J. and Beaman J. dealing with the question whether the dedication of moveable property including money was valid under the Mohammadan Law expressed itself in the following terms: As to whether property of this kind can legitimately form the subjet of a waqf, we need only my that movables, in oar opinion, may; and it movables, (here seems no sound reason in these days, to exclude from that category, founded moneys. 36. Apart from the case law briefly reviewed above, it will be profitable to refer here to the views expressed by some of the well known writers on Mohammadan Law. 37. 36. Apart from the case law briefly reviewed above, it will be profitable to refer here to the views expressed by some of the well known writers on Mohammadan Law. 37. Dealing with the question with regard to the property which may be subject matter of a valid waqf under the Mohammadan Law, Sir Abdur Rahim at page 307 of his Mohammadan Jutisprudence (1911 edition) has expressed himself thus: The accepted juristic theory is certainly very narrow as to the forms of property which can be properly settled in waqf. The property must first of any answer the description of mal or tangible property, as in the case of a gift so that waqf of a mere right to the usufruct such as a rent charge is not allowed In (he next place it must be productive or ocapable(sic) of being used without the substance being consumed. This role excludes moveable property(sic) generally including money. A few specified articles such as war horses camels and swords are taken out of the rule by force of certain traditions, and such moveables with respect to which prevent practice (talammul) to make waqf has been established in the particular country in which the(sic) grantor resides are exemples from the operation of the rule It has been held in Kusom Bib. v. Ghulam Husain Ariff 10 C. W. N. 449, and 9 B m L K 1337 & 33 Mad. 118, following 9 C.l. k. 66, and dissenting from 24 All. 190 that waqf of shares in a joint stock company and of Government promissery notes is not valid. This view is undoubtedly(sic) in agreement with the strict conception of waqf in Mohammadan Law, but it may be a matter for further consideration whether it is in accord with the principles of construction and application of Mahammedan law as enunciated by the Privy Council. As the validity of a simple gift of Government securities and of shares in companies is well established, it may be argued that the same principle should be analogically applied to waqfs, especially as the dectnne(sic) of riba has never been recognized by the British India Courts. As the validity of a simple gift of Government securities and of shares in companies is well established, it may be argued that the same principle should be analogically applied to waqfs, especially as the dectnne(sic) of riba has never been recognized by the British India Courts. The above restrictions regarding the property which may be made the subject of waqf are based on juristic deduction and not on any positive text, and it may also be said that they should not be followed to the letter as they obviously unsuited to the modern circumstances of life. 38. Again, dealing with the principles on which rules of Mohammadan juristic law are applied by Anglo Indian Courts Sir Abdur Rahim at page 43 observes as follows: Necessity and the(sic) wants of sociallite(sic) are, as we shall see, the two all(sic) important going principles recognized by Mohammadan jurisprud in community to which laws should be applied to actual cases, subject only to this reservation, that rules, which are covered by a clear text of the Quran, or a precept of indisputable authority, or have been settled by agreement-among the learned, must be enforced as we find them. It seems to me beyond question that, so long as this condition is borre in mind, the Court in administering Muhanmmadan laws is entitled to take into account the circumstances of actual life, and the change in the prople's habits and modes of living. 39. From the two quota ions set out above, it is clear that, according to Abdul Rahim, all restrictions regarding the property which may be made the subject of waqf being based on juristic deduction and not on and positive text may be modified if not altogether done away within the light of the necessity and the wants of social life of the present general ion and these are, according to him, the two all important guiding pinciples recognised by Muhammadan jurisprudence. Under the Mussulman Law'. 40. Says the Rt. Hon'ble Syed Amear Ali in his monumental work on Mohammadan Law, Vol. I, 4th Edn. P. 246 there is absolutely no estriclion on the dedication of any kind of property so long as it admits of yie ding(sic) permanent benefit either in itself or by renewal from time to time or by conversion into something else which admits of the same possibility. I, 4th Edn. P. 246 there is absolutely no estriclion on the dedication of any kind of property so long as it admits of yie ding(sic) permanent benefit either in itself or by renewal from time to time or by conversion into something else which admits of the same possibility. Thus every kind of property, immovable as well as movable, every object in fact which is capable of being possessed of being reduced to possession actually(sic) or constructively, equally with interest in trade, commerce, or investments is a fit and lawful subject of waqf. 41. It will be seen, therefore, that the validity of a waqf does not depend on the nature of the property dedicated, but on the probabability or presumtion of permanent benefit being derived from it by any mode of dealing of which it is capable, or by converting it into something else It is only where the object is absolutely unfit for being turned into profitible use, that its dedication falls to the ground... But an object which was likely to be consumed in user and which therefore no permanency in itself can be sold and the proceeds invested in any manner customary among people in order to yield a permanent return without any restriction to its renewal from time to time. For example, even estables are fit subjects of waqf for they can be sold and the price so obtained said out "in business". When a waqf is made of actual coin (dirhems and dinars'), it is to be invested with the like object. 42. Again, after examining the relevant authorities he observes thus at page 255: The Sunni decrine(sic) as to the validity of a waqf of movables including money is repeated in the same terms in the Tashil, the Jouharat-un-Nayyereh. the Ghait-ul-Bayan and other works. From these principles it will be seen that under the Hindu(sic) Law, the waqf of Government securities shares in companies, debentures and other stock, is perfectly lawful and valid. the Ghait-ul-Bayan and other works. From these principles it will be seen that under the Hindu(sic) Law, the waqf of Government securities shares in companies, debentures and other stock, is perfectly lawful and valid. The doubt, which one or two of the ancient Haiati(sic) doctors had expressed us to the validity of the waqf of certain kinds of movable property in contradistinction to certain other things, was the outcome of the primitive and archaic conditions of society, and was founded on the action that as perpetuity was essential to the validity of wiqf's, it could hadly be secured by the dedication of movable things generally. But as the Mussulman communities progressed in material civilisation and commerce developed, it came to be universaly recognised that the waqf of everything, to which practice appertains among mankind or which it is cus omary in any particular locality to do so, in valid. 43. Again, at page 257 referring to the decision of the Calcutta High Court in Kulsum Bibi v. Golam Hossain Cassim Ariff, where it was held that the waqf of shares in companies is not valid under the Mohammadan Law the learned author maintains that this decision was based upon an erroneous and strained construction of the principles recogaised by Mohammadan Law and observes: This case has been followed without examination of the a thorities by the Bombay High Court in Bal Fatmabai v. Golam Husen (1907, 9 B L R 1937 and the Madras High Court in Kadir Ibrahim Rowther v. Mahomed Rahumatulla Rowther I L R (1909) Mad. 118. 44. The learned author continues: There can be no question that funded moneys and shares in commercial companies constitute property (mal) within the meaning of the Mahommedan Law; they are capable of being renewed and are, therefore, mal mutakawwim, somtehing over which the rights of ownership can be exercised; and as they form the subject of common dealing they are not 'extra commercium'. Again, they yield, or can yield permanent benefit either as shares or by other forms of investment. Then it may be asked how is it that a waqf of shares in commercial companies is invalid. 45. Then again at page 263 he observed: Since the days of Abu Yusuf, the legal conception regarding articles that may validly be made waqf has made a great advance. Then it may be asked how is it that a waqf of shares in commercial companies is invalid. 45. Then again at page 263 he observed: Since the days of Abu Yusuf, the legal conception regarding articles that may validly be made waqf has made a great advance. He did not recognise the validity of the waqf of buildings and trees apart from the land; that is now universally admitted by the Hanafi jurists. The waqf of money (dirhems and dinars) which he discountenanced on the ground of analogy (kyas) as likely to be consumed in use, is now admitted as lawful, wherever it is in vogue, and it is declared that where money is dedicated its value should be laid out in muzaribat (business) or baza'at (commerce) ...... No sacramental value or significance is attached to the waqf of any particular kind of property in contradistinction to another. What the Judge has to see is whether the article dedicated is capable of yielding permanent benefit by renewal from time to time, or by investment of the proceeds, when sold, in business or commerce (muzaribat of baza'at). It is a mistake to attach canonical importance to the statements and arguments in the Hedaya, for many of the doctrines set forth in it are long since exploded, or have been considerably modified. 46. Finally, at page 264 th; learned author makes the following observations: The validity of the waqf of movables including moneys is accepted without question among the Shafies, the Malikis, the Hanbalis and the shiahs And Shafie has held," says the Hedaya, " that the waqf of everything from which benefit can be derived consistently with the retention of the corpus is valid: and whatever can be lawfully sold. (This gives an indication the sense in which the word taamul is used in this connection) may be lawfully dedicated, for what is capable of yielding profit (from changes of form) resembles lands, horses and arms. The waqf of money is now common everywhere amonge Mahommedans from Algeria to India and Burmah. The Shrine at Mecca and at Kerbals, the endowments at Ajmere, Hossainabad (Lucknow) and many of the mosques and religious institutions all over the country, are largly supported by the income of moneys invested in Government securities, which people have come to regard as safer and more permanent than even land. The Shrine at Mecca and at Kerbals, the endowments at Ajmere, Hossainabad (Lucknow) and many of the mosques and religious institutions all over the country, are largly supported by the income of moneys invested in Government securities, which people have come to regard as safer and more permanent than even land. In Egypt, the income of many important endowments created in modern times is, for the most-part, derived from thares in commercial companies. Money invested in Government or Municipal stock is employed by the State or local authorities, as the case may be generally in productive work, and a share of the profits derived therefrom is received by the investors under the name of dividends or interest. The income derived from money invested in commercial companis stands in the same category. And the waqf of moneye invested in trade or coramerce-(baza'aat; has been recognised as lawful for centuries. 47. Again, while dealing which the Shiah Law relating to waqf, at page 503 the learned author clearly lindiceates that there is a close resemblance betwen the Hanafi Law and Shiah Law regarding the conditions relating to the subject of waqf. He observes: According to the ancients, the waqf of anything which did not exist in species was not valid, i.g. the wakf of a debt payable to a person was not regarded as valid, because it was a thing, in then opinion, not existing in specie. 48. After referring to Shafaya-ul-Islam and Jawahir-ul-Kalam on the question of the subject of waqf be quotes the following passage from Mafatih: The waqf of a daya, (debt) which is a thing indeterminate, is not valid by reason of there being no certainty or identity of the same. 49. Then he deals with the modern doctrine regarding this question and says that in accordance with the altered conditions of society Shiah lawyers have upheld the validity of waqf of moneys and of profits. 50. Lastly, at page 505 he observes: Similarly the wakf of a debt which is determinate and capable of specification has been recognised to be valid. 51. 50. Lastly, at page 505 he observes: Similarly the wakf of a debt which is determinate and capable of specification has been recognised to be valid. 51. Tayabji in his well known book on Mohamedam Law 3rd edition (1940) dealing with the subject matter of weqf(sic) states the law thus page 577: The texts provide with great particularity which classes of prorerty besides immovable property may be the subject of wakf, and are not agreed with reference to money and things consumed by use. The Courts have followed the Waqf Act, 1913, under which waqf is defined as the permanent dedication of 'any property'. 52. The learned author makes it quite clear, however, that in view of the discussion of the authorities, wakf of money or any other property, even apart from the Waqf Act of 1913 was valid. 53. In Mulla's Mabommedan Law the law is stated as follows at page 153: The subject of waqf under the Waqf Act may be "any property" A valid waqt may, therefore, be made not only of immovable property, but also of movables, such as shares in joint stock companies, Government promissory notes, and even money. 54. In view of the authorities referred to above it is quite clear that Courts in India have during recent years exhibited a general tendeny, particularly since the Waqf Act of 1913, to hold waqf of any property valid and this is undoubtedly in accord with what Sir Abdur Rahim characterises as the two all-important guiding principles viz. the necessity and wants of social life of the times. The Courts in administering Mohammadan Law are entitled to take into account the circumstances of actual life and the change in the people's habits and modes of living. It is further clear that the preponderance of authority is undoubtedly in favour of the view that the waqf of movable property, Government promissory notes, shares in joint stock companies and even money at any rate funded money-is valid. 55. Reverting to the specific question whether the tight to recover money under a decree could validly be the subject of waqf, it must be said at once that most of the authorities referred to above do not specifically deal with this question. Reference to the question of the waqf of a debt in Ameer Ali's Mohammadan Law set out above is not also very helpful. Reference to the question of the waqf of a debt in Ameer Ali's Mohammadan Law set out above is not also very helpful. He has given the ancient view ad also indicated the modern view, but there is no reference to any particular authority in support of the modern view. It is no doubt true that since the Waqf Act of 1913 Courts try and support validity of waqfs of an kind of property. It cannot be denied, however that in the case of a simple money decree like the present money may or may not be ultimately realised fron the jadgment-debtors; at any rate the recovery of any amount under the decree is problematical. In such circumstances it seems difficult to bold that the dedication of the amount due under the decree, in other words the right to recover the money due under it, should be observed to be in any sense of the terms, a dedication of a permanent nature. "The decree" no doubt is "property" but so far as the permanence of the dedication of such property is concerned-and dedication must be permanent-it must be conceded that it is a more apparent than real, Property in this case is of too precarious a nature to admit of a permanent dedication by the person who was entitled to execute the decree. We accordingly find it difficult to hold that the view of the learned Civil judge viz. that a decree for money cannot be the subject of a valid waqf under the Mohammadan Law, was erroneous. But, in view of the finding recorded by us that the waqf of the going concern viz. the West End Leather Works embraced this decree as well as as asset of that firm, it must follow that he decree in question is included in the dedication in an indirect manner and in view of that finding the appesl must succeed. Malik, J. 56. I agree to the order proposed. 57. The results, therefore, is that this appeal is allowed, the decree of the Court bebw is set aside and Suit No. 54 of 1942 is decreed with costs throughout. A declaration is granted to the Plaintiffs, that they have a right to withdraw the amount which is in deposit in Court in connection with the execution case No. 97 of 1927 and the execution case No. 8 of 1934.