JUDGMENT Wali Ullah, 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 mutawallis of the wakf made by Sheikh 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 from the Court of the sum of Its. 13,800 abovementioned. The decree in suit No. 97 of 1927 was obtained by Bavis Company through its proprietor Rai Bahadur Bhagwan Das against Whitfield Company of Mohammad Raza and Hag Maula Bux. Sheikh Abdul Latif 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 21th October 1933. 3. The case of the plaintiff-appellants was that they were the trustees under the deed of waqf dated 7-4-1936 executed by Sheikh Abdul Latif alias Mathu deceased ; that Sheikh Abdul Latif dedicated all his properties for religious and charitable purposes 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 l, and his transferee, Maulvi Ahmad Abdul Halim, defendant 2. Of them defendant 1 claims to be an heir of Abdul Latif deceased and as such entitled to the money in deposit. Defendant 2 claims to be a transferee of half of the rights and interest of defendant 1. The defence set up was to the effect that the deed of wakf dated 7-4-1936 was not executed by Sheikh Abdul Latif while he bad 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 he is alleged to have executed it. 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 he is alleged to have executed it. Next, it was contended by the defendants that the decree in question was not included in the wakf property; it was contended in the alternative, that if it be deemed to be so includes, such a decree could not be legally dedicated as wakf under the Muhammadan law. 5. Certain facts which are necessary 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 27-10-1933. 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 111-1935. Haji Maula Bux thereupon preferred an appeal to the Privy Council. While the appeal was pending Abdul Latif executed the wakf deed dated 7-4-1936 and it was registered on 17-4-1936. Subsequently on 10-6-1936 Abdul Latif died at Mussoorie. In connection with the substitution of the names of the legal representatives of Abdul Latif, Haji Maula Bux impleaded four persons, namely plaintiff-appellant 1, the head trustee under the deed of wakf, and defendants 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 Mohiuddin, plaintiff-appellant 1, the head trustee had put in appearance. 6. After the dismissal of the appeal he executed the decree for costs in the appeal before the Privy Council. Subsequently the trustees under the wakf of Abdul Latif the plaintiff-appellants executed the decree of suit No. 97 of 1927 and the judgment-debtors thereupon deposited Rs. 13,800 in Court. When the plaintiff-appellants wanted to withdraw that amount from Court Haji Abdul Rashid and Abdul Hamid, defendants 1 and 2, raised objections. Subsequently the trustees under the wakf of Abdul Latif the plaintiff-appellants executed the decree of suit No. 97 of 1927 and the judgment-debtors thereupon deposited Rs. 13,800 in Court. When the plaintiff-appellants wanted to withdraw that amount from Court Haji Abdul Rashid and Abdul Hamid, defendants 1 and 2, raised objections. The learned Civil Judge 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 the consent of all the parties and evidence was all recorded in suit No, 69 of 1942 but it was agreed between the patties that both the oral and documentary evidence of the two suits was to be read in both the suits. After the conclusion of the hearing 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 baa adopted and as be calls it 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 issued 4 and 5 of suit No. 69 above mentioned, it is necessary to state some antecedent events. Defendants 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. Defendants 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 defendants 1 and 2. It was further contended that the defendants Nos. 1 and 2 were estopped from denying the validity of the wakf. 7. On a consideration of the materials on the record, the learned Civil Judge held and we think rightly that defendants 1 and 2 were not estopped from impeaching the validity of the waif deed in question. He further rightly held that the decision of the Court dealing with the application for a succession certificate to defendants 1 and 2 could not operate as res 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; (l) whether the deed of wakf dated 7-4-1936 was duly executed by Abdul Latif according to law after intelligently following the contents thereof and (2) whether Abdul Latif was at the time the deed of gift was executed in marz-ul-maut, the learned Civil Judge, after a careful consideration of the evidence and the 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 his normal good health and was possessed of a sound disposing mind. He further found 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 marz-ul-maut. 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 Mohammadan law, the learned Civil Judge found against the plaintiffs. 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 Mohammadan 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. In view of certain rulings referred to in his judgment, he 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 had no right to recover the decretal amount in question. He accordingly dismissed the suit with costs. 8. Learned counsel for the plaintiff-appellants has argued only two substantial joints in this appeal; (l) whether the decree in question was included in the dedication evidenced by the deed of wakf dated 7-4-1936 and (2) whether such a decree could be a valid subject of wakf under the Mohammadan Law. No other contentions have been raised in the course of the hearing of this appeal. 9. We now proceed to determine the afore, mentioned two main questions which arise in this appeal, 10. The determination of the question whether the decree In suit NO. 97 of 1927 was dedicated under the wakf deed dated 7-4-1936 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 plaintiff-appellants has contended that the whole trend of the deed clearly indicates that it was the intention 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. 11. Learned counsel for the plaintiff-appellants has contended that the whole trend of the deed clearly indicates that it was the intention 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. 11. Learned counsel has invited our attention to the passage in para 1 of the deed: The details of the entire property and Imlak in my proprietary possession and occupation upto this time are given at the foot hereof. He has further emphasized the passage in para. 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. Next, he 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 Imark and movable and immovable property belonging to me as per specification given below with all the inherent and adventitious rights appertaining thereto, without the exception of anything, right or portion, for charitable and pious purposes. . . . 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 and Boot Factory in Mohalla Farraskhana, 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 paras. 14 and 15 of the deed which, in substance, provide for all the litigation and proceedings in Courts and Government Departments including original suite, appeals or execution cases or miscellaneous matters to be carried on in the name of the President of the Committee of mutawallis. It may be mentioned here in passing that the deed provides that the wakif himself shall be the first mutawallis of the wakf so long as he remains alive and that thereafter a committee of five persons called the Committee of Mutawallis of the wakf of Abdul Latif alias Mathu shall be in charge of the wakf. It may be mentioned here in passing that the deed provides that the wakif himself shall be the first mutawallis of the wakf so long as he remains alive and that thereafter a committee of five persons called the Committee of Mutawallis of the wakf of Abdul Latif alias Mathu shall be in charge of the wakf. Learned counsel for the appellants has strongly contended that the expression "all the imlak and movable and immovable 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. 12. On the other hand, learned counsel for the respondents has drawn our attention to the expressions in paras, 1 and 2 which speak of property as specified or described at the foot of the document He has also invited our attention to paras 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. 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 1936 (when litigation regarding the execution of the decree was pending in the Privy Council) 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. 13. We have listened to the able arguments 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 para. 2 of the deed that "I, the executant, had, for a long time, been thinking of making a wakf 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 movable and immovable 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 Jaidad va Imlak" (the entire property and Imlak) but the details at the end refer only to two heads i.e. Tafsi Jai dad Mankula (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. 14. 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. 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 End Leather Works, was the subject-matter of wakf and the validity of wakf of this item of property has never been challenged 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 27-10-1933. The evidence of plaintiffs' witness Zahid Ali, supported as it is by the account books of the West End 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 books of the firm and not in 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 wakif intended the decree to be part of the assets of the firm. Learned counsel in this connection also relies upon para. 11 of the deed of wakf and contends that the outstandings of the firm must necessarily be deemed to have been dedicated. This would go to show that the wakif intended the decree to be part of the assets of the firm. Learned counsel in this connection also relies upon para. 11 of the deed of wakf and contends that the outstandings of the firm must necessarily be deemed to have been dedicated. It would follow, therefore, that the decree in question is included in the dedication in an indirect manner, i.e., as an asset of the going concern known as the West End Leather Works. 15. Learned counsel for the respondents has, however, contended that even if it be taken for granted that the decree was included in the 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 investment. The contention of the 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 this objection in connection with the second question regarding the validity of a wakf of a "decree" under the Mohammedan law. At this stage, we are concerned with the question of the factum of dedication of the decree, directly, or indirectly through the wakf 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 necessarily 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 this 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. 16. The nest 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 of "the decree" as such. 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 of "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 Wofks 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. 17. The question whether a simple money-decree, such as is the case here, can be validly the subject-matter of a wakf under the Mohammedan 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 works on Mohammedan Law and we shall in a moment deal with the more important of the authorities brought to our notice. 18. The first case of this Court to which reference should be made is the case in (02) 24 All. 190, Abu Sayid Khan v. Bakar Ali decided by a Bench of two learned Judges, Banerji and Aikrnan JJ. of this Court. The question before their Lordships was whether a wakf of "movable property" including "money" was valid under the Mohammedan Law. After hearing very able and erudite arguments from the learned counsel on both sides and after a long and careful consideration of the tests 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 (81) 9 C.L.R. 66, Fatima Bibee v. Arif Ismailjee Bham was expressly dissented from. Their Lordships referred to the serious conflict of authority on the question which they had to decide. To quote their own words: We have carefully considered those authorities. The conflict between them is bewildering. The view taken by the Calcutta High Court in (81) 9 C.L.R. 66, Fatima Bibee v. Arif Ismailjee Bham was expressly dissented from. Their Lordships referred to the serious conflict of authority on the question which they had to decide. To quote their own words: We have carefully considered those authorities. The conflict between them is bewildering. Some assert that such an endowment as the present is absolutely void; others, that it is valid 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 difterent commentators. After examining the authorities, particularly the Fatwa Qazi Khan, Durrul Mukhtar, Umdat-ul-Kari (a commentary on Sahib-ul-Bukhari by Allama Aini) and the well-known 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 the preponderance of authority was in favour of the view that such an endowment holds good. 19. The next case of this Court which has been referred to us is that in Haji Amir Ahmad and Another Vs. Mohammad Ejaz Husain and Another, AIR 1936 All 15 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 3. At page 1318 it was observed: No doubt the essence of a wakf is its permanent character. Any property which is temporarily 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 subjectmatter of the wakf must necessarily be the full proprietary interest in immovable property.......This Court in (02) 24 All. 190, Abu Sayid Khan v. Bakar Ali held that according to the Musalman law a wakf of even movable property could be validly constituted. The learned Judges expressly dissented from the view expressed in Calcutta. 190, Abu Sayid Khan v. Bakar Ali held that according to the Musalman law a wakf of even movable property could be validly constituted. The learned Judges expressly dissented from the view expressed in Calcutta. There is even authority for the proposition that wakf of moneys and shares in Joint stock 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 follows that a wakf can be mate 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......... 20. The last case of this Court cited before us is that of Nosh Ali and Others Vs. Shamsunnesa Bibi and Another decided by a Bench of two learned Judges of this Court. In that case their Lordship's considered the question whether dedication of money is recognized by Mohammedan Law. Their Lordships expressed the view that the question was by no means free from difficulty and that there was great conflict of judicial opinion on the point. After considering various authorities, particularly the case in (02) 24 All. 190, Abu Sayid Khan v. Bakar Ali and the relevant passages from Ameer Ali's Mohammedan Law and Wilson's Mohammedan Law, their Lordships observed at p. 141: It will be observed that investment in Government securities and shares in companies etc., is a common form of investment recognized in the present times. Such investments yield regular income which can be expended on the maintenance of the objects of the waqf. If, on the other hand, a sum of money itself is dedicated and it is to be spent on the maintenance of the objects of the waqf it will be exhausted before long and it cannot be said that the property dedicated is of a reasonably permanent character as required by law. 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 p. 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. 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 p. 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 and she certainly had no control over it. The recovery of that sum was problematical and any dedication of such property could not be recognised under the accepted principles of Mohammadan Law. In (10) 33 Mad. 118 : 4 I.C. 136, Kadir Ibrahim Rowther v. Mahomed Rahumad Ulla Rowther it was held that dedication of a decree was invalid. This principle will apply with greater force to the present ease. In our judgment the rule of law laid down in (02) 24 All. 190, Abu Sayid Khan v. Bakar Ali mentioned above is not applicable to the present case at all. 21. Turning to the cases decided by other High Courts in India, we have the case in (10) 33 Mad. 118 : 4 I.C. 136, Kadir Ibrahim Rowther v. Mahomed Rahumad Ulla Rowther 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. Their Lordships went on to observe: Even if the proposed subject of the waqf 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 plaintiff's contention that the waqf is valid. 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 (05) 10 C.W.N. 449, Kulsom Bibee v. Golam Hossein Casim Ariff at p. 494, and by the Bombay High Court in (07) 9 Bom. L.R. 1337, Bai Fatmabai v. Gulam Husen. 22. Next reference may be made to the case in Abdul Sattar Ismail Vs. L.R. 1337, Bai Fatmabai v. Gulam Husen. 22. Next reference may be made to the case in Abdul Sattar Ismail Vs. Abdul Humid Sait, AIR 1944 Mad 504 in which two learned Judges of the Madras High Court bad 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 movable 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. It was, however, held that: The definition Of waqf in the Musalman Waqf Validating Act (1913) as a permanent dedication of "any property" indicates 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. It would be observed that in this latter case the contention of the learned counsel to the effect that the view expressed in 33 Mad. 1185 was rendered obsolete by the passing of the Mussalman Waqf Validating Act (1913) was accepted. 23. Reference has also been made to two cases decided by the Oudh Chief Court. The first case is that in (29) 16 AIR 1929 Oudh 97 : 3 Luck. 521 : 117 I.C. 385, Mohammad Sadiq Ali Khan v. Fakhr Jahan Begam 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 observed: 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 not valid. After considering the principles which govern the validity of such a waqf under the Hanafi Law as contained in Ameer Ali's Mohammadan Law, 4th edition, pp. 257-264, 503-505 and p. 264, their Lordships came to the conclusion that the waqf was valid. After considering the principles which govern the validity of such a waqf under the Hanafi Law as contained in Ameer Ali's Mohammadan 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 AIR 1932 13 (Privy Council) It was found in that case that the waqf of the promissory notes in question had 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 Mahomedan Law which was propounded to the Chief Court. 24. The next case of the Oudh Chief Court to which reference has been made is that in (36) 23 AIR 1936 Oudh 213 : 11 Luck. 735 : 160 I.C. 495 (F.B.), Mt. Rahiman v. Mt. Baqridan decided by a Full Bench of three learned Judges of the Oudh 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 waqf was held invalid for two reasons: (l) that the waqif was not the owner of the mortgaged property and had therefore no permanent control over that property and (2) that an usufructuary mortgage itself is not valid according to Mohammadan Law. 25. The next case to which reference may be made is that in (42) 29 AIR 1942 Sind 137 : ILR (1942) Kar. 179 : 205 I.C. 449, Hashimi Haroon v. Gounsalishah decided by two learned Judges of the Sind Chief Court. 25. The next case to which reference may be made is that in (42) 29 AIR 1942 Sind 137 : ILR (1942) Kar. 179 : 205 I.C. 449, Hashimi Haroon v. Gounsalishah decided by two learned Judges of the Sind Chief Court. That was a case which arose out of a suit under S. 92, Civil P.C. 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 waqf, it was observed that the case in (36) 23 AIR 1936 Oudh 213 : 11 Luck. 735 : 160 I.C. 495 (F.B.), Mt. Rahiman v. Mt. Baqridan had no application to the facts before them, but that the case in (02) 24 All. 190, Abu Sayid Khan v. Bakar Ali was much more in point and it was against the contention pressed before them. It must, however, be noted that these observations were obiter as the question did not legitimately arise in the case before them. 26. The last case which has been brought to our notice is that in Abdulsakur Haji Vs. Abubakkar Haji Abba, AIR 1930 Bom 191 decided by Mirza 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 conflicting rulings of various High Courts in India as to whether a 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 (07) 9 Bom. L.R. 1337, Bai Fatmabai v. Gulam Husen (05) 10 C.W.N. 449, Kulsom Bibee v. Golam Hossein Casim Ariff and (10) 33 Mad. 118 : 4 I.C. 136, Kadir Ibrahim Rowther v. Mahomed Rahumad Ulla Rowther. The High Court of Allahabad had held that a waqf of movables would be valid even apart from the considerations set out in the rulings of these three Courts: see (02) 24 All. 118 : 4 I.C. 136, Kadir Ibrahim Rowther v. Mahomed Rahumad Ulla Rowther. The High Court of Allahabad had held that a waqf of movables would be valid even apart from the considerations set out in the rulings of these three Courts: see (02) 24 All. 190, Abu Sayid Khan v. Bakar Ali. In my judgment the controversy is now set at rest by the definition of waqf under the Waqf Validating Act 1913 which speaks of the permanent dedication of "any property". "Any property" would include movable as well as immovable property. It was thus held that under the Waqf Validating Act, a waqf can be constituted by a permanent dedication of "any property" which expression would include money and other movable and immovable property. The same view has been taken by the Calcutta High Court in (05) 2 C.L.J. 218, Sakina Khanum v. Laddan Saheba In (08) 31 Bom 250, Banubi v. Narsingrao Ranojirao a. Division Bench of the High Court of Bombay, Jenkins C.J. and Beaman J. dealing with the question whether the dedication for 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 subject of a waqf, we need only say that movables, in our opinion, may; and if movables, there seems no sound reason in these days, to exclude from that category, funded moneys. 27. 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. Dealing with the question with regard to the property which may be subject matter of a valid waqf under the Mohammadan Law, Sir Abdur Bahim at page 307 of his Mohammadan Jurisprudence (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 all 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 the nest place it must be productive or capable of being used without the substance being consumed. This rule excludes moveable property generally including money. In the nest place it must be productive or capable of being used without the substance being consumed. This rule excludes moveable property 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 a prevalent practice (ta'ammul) to make waqf has been established in the particular country in which the grantor resides are exempted from the operation of the rule. It has been held in (05) 10 C.W.N. 449, Kulsom Bibee v. Golam Hossein Casim Ariff. and (07) 9 Bom. L.R. 1337, Bai Fatmabai v. Gulam Husen and (10) 33 Mad. 118 : 4 I.C. 136, Kadir Ibrahim Rowther v. Mahomed Rahumad Ulla Rowther following (81) 9 C.L.R. 66, Fatima Bibee v. Arif Ismailjee Bham and dissenting from (02) 24 All. 190, Abu Sayid Khan v. Bakar Ali that waqf of shares in a joint stock company and of Government promissory notes is not valid. This view is undoubtedly 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 Mohammedan 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 waqfa, especially as the doctrine 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 are obviously unsuited to the modern circumstances of life. 28. 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 are obviously unsuited to the modern circumstances of life. 28. 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 wants of social life are, as we shall see, the two all important guiding principles recognized by Muhammadan jurisprudence in conformity 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 borne in mind, the Court in administering Muhammadan laws is entitled to take into account the circumstances of actual life, and the change in the people's habits and modes of living. 29. From the two quotations set out above, it is clear that, according to, Abdur Rahim, all restrictions' regarding the property which may be made the subject of waqf being based on juristic deduction and not on any positive text may be modified if not altogether done away with in the light of the necessity and the wants of social life of the present generation and these are, according to him, the two all important guiding principles recognised by Muhammadan jurisprudence. 29A. Under the Mussulman Law", says the Rt. Hon'ble Syed Ameer Ali in his monumental work on Mohammedan Law, Vol. I 4th Edn., page 246. there is absolutely no restriction on the dedication of any kind of property so long as it admits of yielding 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 or being reduced to possession actually or constructively, equally with interest in trade, commerce, or investments is a fit and lawful subject of waqf. Thus every kind of property, immovable as well as movable, every object in fact which is capable of being possessed or being reduced to possession actually or constructively, equally with interest in trade, commerce, or investments is a fit and lawful subject of waqf. It will be seen, therefore, that the validity of a waqf does not depend on the nature of the property dedicated, but on the probability or presumption 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 profitable use, that its dedication falls to the ground.....But an object which was likely to be consumed in user and which, therefore, had 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 eatables are fit subjects of waqf for they can be sold and the price so obtained laid out "in business" when a waqf is made of actual coin (dirhems and dinars), it is to be invested with the like object. 30. Again, after examining the relevant authorities he observed thus at page 255: The sunni doctrine as to the validity of a waqf of movables including money is repeated in the same terms in the Tas-hil, the Jouharat-un-Nayyereh, the Ghait-ul-Bayan and other works. From these principles it will be seen that under the Hanafi 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 Hanafi doctors had expressed as 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 notion that as perpetuity was essential to the validity of waqfs, it could hardly 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 universally recognised that the waqf of everything, "to which practice appertains among mankind or which it is customary in any particular locality to do so, is valid." 31. But as the Mussulman communities progressed in material civilisation and commerce developed, it came to be universally recognised that the waqf of everything, "to which practice appertains among mankind or which it is customary in any particular locality to do so, is valid." 31. Again, at p. 257 referring to the decision of the Calcutta High Court in (05) 10 C.W.N. 449, Kulsom Bibee v. Golam Hossein Casim 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 recognised by Mohammadan law and observes : This case has been followed without examination of the authorities by the Bombay High Court in (07) 9 Bom. L.R. 1337, Bai Fatmabai v. Gulam Husen and the Madras High Court in (10) 33 Mad. 118 : 4 I.C. 136, Kadir Ibrahim Rowther v. Mahomed Rahumad Ulla Rowther 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 axe capable of being renewed and are, therefore, mal mutakawwim, something over which the fights 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? Then again at p. 263 he observes: 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 or 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. 32. Finally, at p. 264 the learned author makes the following observations: The validity of the waqf of movables including moneys is accepted without question among the Shafeis, the Malikis, the Hanbalis, and the Shiahs." And Shafel 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 to 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 every where among Mahommedans from Algeria to India and Barman. The Shrine at Mecca and at Kerbela, the endowments at Ajmere, Hossainabad (Lucknow) and many of the mosques and religious institutions all over the country, are largely 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 shares 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 companies stands in the same category. And the waqf of moneys invested in trade or commerce (baza'aat) has been recognised as lawful for centuries. 33. Again, while dealing with the Shiah Law relating to wakf, at p. 503 the learned author clearly indicates that there is a close resemblance between the Hanafi Law and Shiah Law regarding the conditions relating to the subject of waqf. And the waqf of moneys invested in trade or commerce (baza'aat) has been recognised as lawful for centuries. 33. Again, while dealing with the Shiah Law relating to wakf, at p. 503 the learned author clearly indicates that there is a close resemblance between 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 specie was not valid, e.g. the waqf of a debt payable to a person was not regarded as valid, because it was a thing, in their opinion, not existing in specie. After referring to Sharaya-ul-Islam and Jawa-hir-ul-Kalam on the question of the subject of wakf he quotes the following passage from Mafaith: The waqf of a dayn (debt) which is a thing indeterminate, is not valid by reason of there being no certainty or identity of the same. 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 waqfs of moneys and of profits. Lastly, at p. 505 he observes: Similarly the waqf of a debt which is determinate and capable of specification has been recognised to be valid. 34. Tayabji in his well known book on Muhammadan Law, 3rd edition (1940) dealing with the subject matter of waqf states the law thus at p. 577: The texts provide with great particularity which classes of property besides immovable property may be the subject of waqf, 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 The learned author makes it quite clear, however, that in view of the discussion of the authorities, waqf of money or any other property, even apart from the Waqf Act of 1913 was valid. 35. In Mulla's Mahomedan Law the law is stated as follows at page 153: The subject of waqf under the Waqf Act may be "any property." A valid waqf 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. 36. 35. In Mulla's Mahomedan Law the law is stated as follows at page 153: The subject of waqf under the Waqf Act may be "any property." A valid waqf 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. 36. In view of the authorities referred to above it is quite clear that Courts in India have during recent years exhibited a general tendency, 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. 36a. Reverting to the specific question whether the right 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. Helms given the ancient view and 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 any 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 from the judgment-debtors; at any rate the recovery of any amount under the decree is problematical. In such circumstances it seems difficult to hold 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. In such circumstances it seems difficult to hold 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 an asset of that firm, it must follow that the decree in question is included in the dedication in an indirect manner and in view of that finding the appeal must succeed. Per Malik J. I agree to the order proposed. 37. The result, therefore, is that this appeal is allowed, the decree of the Court below 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.