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V. Kadir Ibrahim Rowther Vs. Mohammad Rahumadalla Rowther and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in4Ind.Cas.136
AppellantV. Kadir Ibrahim Rowther
RespondentMohammad Rahumadalla Rowther and ors.
Cases ReferredKaleloola Sahib v. Nusurudeen Sahib
Excerpt:
muhammadan law - wakf--right to recover money under a decree, whether can be the subject of wakf. - - 91 but we think that good reasons are given for dissenting from them......may (problematically) be recovered under the decree, we think that the weight of authority and argument is opposed to the plaintiffs' contention that the wakf is valid. the question has lately been discussed in a most elaborate judgment by mr. justice woodroffe in the calcutta high court, and his conclusion is that 'unless a moveable is accessory to land or allowed because of certain traditions concerning the prophet and the sacred writings or there is a custom to make wakf of it, it cannot be lawfully appropriated'. kulsoom bibee v. gulam hussain cassim asiff 10 c.w.n. 449 and this decision has been followed by mr. justice russell in the bombay high court bai fatmabai v. gulam husain 9 bom. l.r. 1337. no doubt the decision is opposed to some earlier decisions abu sayid khan v. bakar.....
Judgment:

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


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