(1) This is a petition for leave to appeal to the Supreme Court from the judgment and decree of this court in App. 138 of 1961, to which one of us was a party which reversed the judgment and decree of the City Civil Court in O.S. 2292 of 1959.
(2) This petition arises out of a suit filed by the first respondent herein for declaration that he was entitled along with the petitioner herein to manage the Wakf properties created by one Magdoom Mohamed Maracayar, the maternal uncle of the petitioner herein. The founder of the said Wakf Magdoom Mohamed Maracayar created a wakf alal aulad or family wakf by a registered deed dated 27-8-1924, appointing himself as the first Mutavalli, and after his lifetime, appointing the father of the first respondent and the father of the petitioner as joint mutavallis. The deed also provided that if one of the mutavallis died, the other should function, singly. It further provided according to the first defendant that, after the death of the two joint mutavallis, the eldest of the male issues of the aforesaid mutavallis should alone be the mutavalli. The contention of the petitioner was that, after the death of the two aforesaid mutavallis, viz, the father of the petitioner and the father of the first respondent, he alone was entitled to be the mutavalli, as he was the eldest of the male issues. The trial court dismissed the suit of the first respondent and declared that he could not claim to be the joint mutavalli along with the petitioner. But on appeal the said decision was reversed, and it was declared that the first respondent was entitled to act along with the petitioner as joint mutavalli in respect of the wakf properties created by Magdoom Mohamed Maracayar. It is against this judgment and decree, that the first defendant has preferred this petition for leave to appeal to the Supreme Court.
(3) Learned counsel for the petitioner contended that he was entitled to a certificate, as the judgment of this Court was one of reversal of that of the court below and as the pecuniary value of the subject-matter of the dispute both in the court below and in appeal was above Rs. 20,000, as given by the first respondent herein. If the value of the subject matter in dispute between the parties was capable of determination and if it was then determined at Rs. 20,000, by the first respondent, this argument of learned counsel for the petitioner would have force. The petitioner would then be entitled to grant of leave as a matter of right under Article 133 of the Constitution. But the real question that arises for determination is, what is the subject matter in dispute between the parties in action. The first respondent filed a suit for declaration that he was entitled to act along with the petitioner as joint mutavalli. It is difficult to estimate the pecuniary value of the joint right of a mutavalliship in a wakf.
(4) Cases have frequently arisen in courts, where the subject matter of the dispute between the parties is the trusteeship, whether the trusteeship as such was capable of valuation. In Balaramireddi v. Mastan Sahib : AIR1953Mad968 a Division Bench of this court consisting of Govinda Menon and Basheer Ahmed Sayeed JJ, held as follows:-
'Where a wakf in question related to property worth admittedly more than Rs. 50,000 but the question decided in the second appeal was with respect of the trusteeship of the mosque and the subject matter of the appeal to the Supreme Court is whether the plaintiff has the right to function as trustee, it cannot be said that the subject matter of the suit is capable of valuation and as such Section 110(1) C.P.C. and Article 133(1)(a) of the Constitution cannot in strict terms apply. Though there was an ancillary prayer for recovery of possession of properties and sums of money on a rendition of accounts and a prayer for a permanent injunction restraining the defendant and his men from interfering with the plaintiff's right to manage the mosque and its endowments still the essential subject matter of the suit is the post of the trusteeship of the mosque and nothing more. The other reliefs automatically follow if it is found that the plaintiff is the validly appointed trustee. If the plaintiff's title is negatived then the other reliefs cannot be granted. Accordingly Article 133(1)(a) of the Constitution and section 110(1) C.P.C. cannot be invoked. Where the case done not involve any substantial question of law leave to appeal must be refused'
This decision seems to be an authority for the proposition, viz, that, whenever and where-ever there is a claim either for joint mutavalliship or joint trusteeship it is incapable of valuation. There are several unreported decisions of this court which have followed the Division Bench. It is enough to refer only to the latest on the subject--Chockalinga Sethurayar v. Arumainayagam, SCP No. 28 of 1960 (Mad), where Ramachandra Iyer C. J. and Ramakrishnan J. followed the decision of Govinda Menon and Basheer Ahmed Sayeed JJ. The learned Chief Justice observed thus:-
'It is now admitted before us that independent of the question regarding trusteeship there is no controversy in regard to title to the properties involved in the suit. In other words, it was conceded that possession of the properties would be taken by the person who would be declared by the Court to be the trustee. The question therefore arises what is the value of the subject matter in dispute. Precisely, the same question arose for consideration in : AIR1953Mad968 where a Bench of this court held that a prayer for recovery of possession of properties under those circumstances could only be said to be incidental and that the subject matter of the appeal should be regarded relating to the office of trusteeship which being incapable of valuation would not come under Article 133(1)(a) of the Constitution'.
Therefore, it seems to us that there is consistent authority as far as this court is concerned that whenever a right for joint mutavalliship or joint trusteeship is involved in a suit, the pecuniary value of it would be incapable of valuation. We are not inclined to disagree with the proposition of law laid down by two Division Benches of this court.
(5) Learned counsel for the petitioner contended that under Article 133(1)(b) of the Constitution the judgment in question involves directly or indirectly some claim or question respecting property of more than Rs. 20,000. Admittedly, the properties involved are worth more than Rs. 20,000. But the reasoning of Govinda Menon and Basheer Ahmed Sayeed JJ, seems to be convincing and acceptable, viz, that the question of Mutavalliship relates only to the office and not to the properties. The prayer in the plaint was for declaration that the first respondent was entitled to act as a Mutavalli along with the petitioner herein. That being so, the relief is incapable of valuation. Therefore, following the reasoning of the Bench decisions, we are inclined to hold that the petition is not maintainable, as it does not satisfy the requirements of Article 133(1)(a), (b) or (c) of the Constitution. We cannot say that there is any substantial question of law. The application is dismissed. No costs.
(6) Application dismissed.