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Mir Mahaboob HussaIn Sahib Vs. Mir SurajuddIn Sahib Bahadur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad1148
AppellantMir Mahaboob HussaIn Sahib
RespondentMir SurajuddIn Sahib Bahadur and ors.
Cases ReferredMunnavaru Begam Sahibu v. Mir Mahapalli Sahib
Excerpt:
.....into consideration his reference to the women, i doubt whether he meant anything more than that in his opinion a sharer who disclaimed all interest in and responsibility for the darga was not entitled to enjoy his share. hh (that is the statement of the claimants), which is signed among others by the father of defendants 3 and 4, though we find a similar difficulty in the reference to syed karim not having rendered service and therefore the other sharers having rendered service for his share and having enjoyed the income of his share, we find also that five ladies are shown in column 1 among the persons enjoying the income of the inam, though it is not suggested that any of them was rendering any service personally. it is not denied that the actual service at the darga has been..........not confirmed in favour of the 16 persons named so long as they themselves and their descendants rendered service, nor in favour of such of them as rendered service. among the sharers named in ex. c were five ladies, who it is admitted were gosha ladies; and it cannot be suggested that it was intended that they should render service personally. it has indeed been suggested that it may have been intended that their male descendants should enjoy their shares if those male defendants did service. but ex. c does not indicate that the shares of these ladies are to be in abeyance but transmissible to their male descendants, nor that those of the sharers who do not do service are not to share in the income, nor what is to be done with 'their shares while they do not do service. three of the.....
Judgment:

Reilly, J.

1. In this suit the District Munsif made declarations (1) that the village of Hasanapuram has been dedicated for the upkeep of the Badhu Sahib Darga and the mosque near it in the village of Pallavaram and also for the support of the mujavars of the said Darga and mosque; (2) that the plaintiff-defendants 1-8 and 25-29 and certain other persons are entitled to do mujavar service in the said Darga and mosque and share in the surplus proceeds of the income of the said village and the other properties appertaining to the said Darga and mosque and also to share in two-sevenths of the collections made in the Urus festival conducted at that Durga and mosque; (3) that the plaintiff and defendants 5, 6, 7 and 8 are each entitled to certain arithmetical shares in the income; (4) that none of the parties except defendant 1 was entitled to manage the Darga, mosque or property; and (5) that defendant 1 was entitled to continue in management until some other arrangement was made by competent authority; and he made an injunction restraining the plaintiff and the other defendants from interfering with defendant 1's management; and he made a decree that defendants 1 and 2 should make certain payments to the plaintiff and defendants 5, 6, 7 and 8 for their shares of the income for faslis 1320-22. Against that decree defendants 1 to 4 appealed; and, as defendant I died, his representatives were added as appellants in his stead. On appeal the Subordinate Judge dismissed the suit. The plaintiff has preferred this second appeal.

2. Mr. Jayarama Ayyar, who appears for defendants 3 and 4, has raised a preliminary objection that the appeal has abated because defendant 6 and Nuruddin, one of defendant 7's representatives (who was brought on record in the Subordinate Judge's Court) died since the second appeal was filed and their representatives were not brought 'on record in time. To that Mr. Venkatachariar for the plaintiff has replied that Mr. Jayarama Ayyar's objection cannot be raised now as the representatives of defendant 6 and Nuruddin have been brought on record and any abatement caused by their absence set aside in this Court after notice to them, though not after notice to Mr. Jayarama Ayyar's clients. A good many authorities have been quoted before us on this question; but I do not think it necessary to discuss them. If this appeal is one which in the absence of the representatives of defendant 6 and Nuruddin must altogether abate, then Mr. Jayarama Ayyar's clients can certainly claim to be heard if they wish to object that those representatives were not brought on record in time and that the abatement should not be set aside. As the order bringing on record the representatives of defendant 6 and Nuruddin and setting aside any abatement due to their absence was made in this case without notice to Mr. Jayarama Ayyar's clients, he can raise this objection for them at the hearing of the appeal and we are bound to hear it. It is obviously unreasonable to suggest that, when an appeal in which a number of respondents are concerned has abated against all 'the respondents because some of them have died and their representatives have not been brought on record in time, it is enough before setting the abatement aside to give notice to those representatives alone without giving any opportunity to the surviving respondents to defend the advantage which has accrued to them. If by some oversight the abatement is set aside formally without notice to the surviving respondents, their objections, if any,' must be heard when the appeal comes on for hearing. This is elementary, and no authority is needed to support it. There may be cases in which it is doubtful whether the abatement of an appeal against one or more respondents who have died involves its abatement against the surviving respondents. If, as in this case, surviving respondents maintain that by reason of the death of other respondents whose representatives have not been brought on record in time the appeal has abated against them also but the appellant denies that the appeal has abated against the surviving respondents, the surviving respondents must still be' allowed an opportunity to raise their objection for what it is worth; and, if no such opportunity is allowed to them before the appeal comes on for hearing, it must be allowed to them then. We can never deny to a surviving respondent altogether an opportunity to defend the decree in his favour by urging that it has become unassailable either by delay in appealing or abatement of the appeal.

3. In this case we have not heard in detail Mr. Jayarama Ayyar's arguments why the delay in bringing on record the representatives of defendant 6 and Nuruddin should not have been excused because it appears clear that the appeal against Mr. Jayarama Ayyar's clients had not abated by reason of that delay, on which question we have heard him in full. Neither defendant 6 nor defendant 7 disputed the plaintiff's claiming in the suit, and the plaintiff in this appeal does not contest the District Munsif's decree in their favour. When defendants 1 to 4 appealed against the District Munsif's decree, defendant 6 as well as the plaintiff supported that decree, and the representatives of defendant 7, who died while that appeal was pending before the Subordinate Judge did not appear. The plaintiff now asks for the restoration of the District Munsifs' decree, which the Sub ordinate Judge set aside dismissing the plaintiff's suit. He neither asks for, nor can he get, by this appeal anything to the detriment of defendant .6 or defendant 7 or their representatives. As against defendants 1 to 4 he could have got that decree restored, had his appeal against them been successful, even without bringing on record the representatives of defendant 6 or defendant 7. It cannot therefore be contended successfully by defendants 3 and 4 that any abatement of the appeal in respect of defendant 6 or defendant 7 involves the abatement of the appeal as against them. In my opinion the preliminary objection raised by defendants 3 and 4 must be overruled. Whether the defendants who support the plaintiff but did not appeal against the dismissal of the suit by the Subordinate Judge, can get anything out of this appeal is another question.

4. Mr. Jayarama Ayyar has eventually admitted that the plaintiff is a mujavar of the Darga in question. The learned Subordinate Judge has dismissed the plaintiff's suit on the ground that the endowment is only for the upkeep of the Darga and its mujavars' -that is the mujavars who do actual service- that no one does service as a mujavar who does not take part in lighting the Darga and sweeping it and keeping it clean and that the plaintiff has not done service as mujavar in that sense. The original grant is not available. Ex. A is a copy of the judgment of the District Court of Chingleput in Suit No. 190 of 1817 on its file. That judgment quotes a decree of the Wallajah Court of 1774 in a suit brought by a lady descended from the original grantee declaring that only those who do service to the Darga were entitled to the Darga income and that the plaintiff, being a woman, could not do any service.

5. The decision in Suit No. 190 of 1817 itself was that in consequence of an arbitration and an agreement among certain descendants of the original grantee the plaintiffs in Suit No. 190 of 1817, who were among the descendants of the original grantee were entitled to two out of four shares of the surplus income of the endowment, provided that they did 'the mujavar and all other services along with the defendants,' and that, as the defendants had prevented the plaintiffs from doing service in the year in question, they must pay to the plaintiffs half the surplus in-come of that year. But it appears that in 1826 an ancestor of the plaintiff and defendants 1 to 4 and some of the other defendants, Subadar Major Nuruddin Sahib, who was himself a descendant of the original grantee, bought from other descendants or heirs of the original grantee fractional shares amounting in all to nearly two out of the four shares mentioned and that his purchases were eventually recognized by the Board of Revenue and the Government. In 1865 the inam was confirmed by the Government, and it is held under the terms shown in the Inam Register, Ex. C. That shows 16 persons as the owners of the inam holding it in various shares. The inam was confirmed in favour of those persons

so long as the Darga is in good order and service therein is rendered.

6. Column 8, Ex. C shows that the inam was originally

granted for the support of the Darga situated in Pallavaram and for that of its Mavanjars (which is admitted to be a mistake for, or equivalent to, Mujavars) or servants;

and colmun 10, in which the inam is shown as 'free of tax so long as the service is rendered,' implies that it was hereditary. It is clear that the inam is now held under the grant as confirmed in 1835 by the Government. Ex. C shows that it was confirmed in favour of the persons named (and implicitly their descendants)

so long as the Darga is in good order and the service therein is rendered.

7. It was not confirmed in favour of the 16 persons named so long as they themselves and their descendants rendered service, nor in favour of such of them as rendered service. Among the sharers named in Ex. C were five ladies, who it is admitted were gosha ladies; and it cannot be suggested that it was intended that they should render service personally. It has indeed been suggested that it may have been intended that their male descendants should enjoy their shares if those male defendants did service. But Ex. C does not indicate that the shares of these ladies are to be in abeyance but transmissible to their male descendants, nor that those of the sharers who do not do service are not to share in the income, nor what is to be done with 'their shares while they do not do service. Three of the persons from whom Subadar Major Nuruddin Sahib obtained shares 'by purchase appear to have been women, who could not themselves render service; and yet the Government recognized that they had had a transferable interest and that that interest had passed by descent from the transferee to other women, who again could not render service personally. Whatever may have been the views of the original grant taken by the Wallaja Court in 1774 or by the District Court of Chingleput in 1817, the grant as confirmed by the Government in 1865 appears to have been a hereditary grant to the 16 persons named in Ex. C, to continue so long as the Darga was maintained in good order and the service was rendered by some one. By whom the service was actually rendered was naturally not a matter which interested the Government. That appears to me to be the proper way to interpret the confirmation of the grant as shown in Ex. C. There is only one thing in Ex. C which might be thought to throw doubt on that interpretation. In the column for the Deputy Collector's opinion and recommendation it is noted that Syed Karim, grantee No. 6, had not been in enjoyment of his share for 30 years, that 'the service duo to' that share had been rendered by the other Mavujars, who had been enjoying that share, and that the reason assigned for his ' neglect' was his dissatisfaction with the disposal of his claim to a share mortgaged by his brother's widow. But the Deputy Collector adds that Syed Karim has now agreed to hold his share and perform the' service attached to it and that he has entered Syed Karim's name as ho sees no transaction by which Syed Karim has forfeited his share. The Deputy Collector goes on to say that

if Syed Karim still persists in absence, his share will be enjoyed by the other Mavujars Nos. 9 to 16 (of whom five, it may be noticed, were women) who will perform in addition his share of service which has been done hitherto for the last 35 years.

8. Apart from the reference to the women among grantees Nos. 9 to 16 these remarks of the Deputy Collector appear at first sight to imply that the enjoyment of a share depended on rendering service in person. But, taking into consideration his reference to the women, I doubt whether he meant anything more than that in his opinion a sharer who disclaimed all interest in and responsibility for the Darga was not entitled to enjoy his share. At any rate I do not think that the Deputy Collector's remarks and opinion about Syed Karim can be treated as embodied in the confirmation of the grant, which is in favour of the persons named so long the service is rendered, not so long as it is rendered by them personally. If we turn to the Inam Statement, Ex. HH (that is the statement of the claimants), which is signed among others by the father of defendants 3 and 4, though we find a similar difficulty in the reference to Syed Karim not having rendered service and therefore the other sharers having rendered service for his share and having enjoyed the income of his share, we find also that five ladies are shown in column 1 among the persons enjoying the income of the inam, though it is not suggested that any of them was rendering any service personally. It is quite clear, I think, that in spite of the reference to Syed Karim the signatories to Ex-HH had no intention of maintaining that only those who actually rendered service at the Darga were entitled to share in the income.

9. I do not think it necessary to discuss whether a mujavar, who is sometimes something much more important than a mere servant or sweeper, see Munnavaru Begam Sahibu v. Mir Mahapalli Sahib [1918] 41 Mad. 1033, can be said to render his service by mere supervision, nor' whether the plaintiff at times actually rendered service in that way. It is not denied that the actual service at the Darga has been performed and performed satisfactorily by defendants 5 and 6, who do not oppose the plaintiff's claim, and that the Darga is maintained in good order. That being so, the conditions of the grant as confirmed are being performed and the sharers are entitled to the surplus income. That the plaintiff has inherited a share, if the shares are hereditary, is not disputed. The plaintiff therefore cannot be denied a share in the surplus income of the years in question merely because he did not personally light or sweep the Darga. In my opinion the appeal from the District Munsif's decision, so far as it concerns the plaintiff, should now be remanded to the Subordinate Judge for disposal in the light of that finding. So far as the District Munsif's decision was in favour of any of the defendants, as they have not appealed against the dismissal of the suit by the Subordinate Judge, the District Munsif's decree in their favour has gone. The suit is not one for general partition and we decide nothing as between the defendants inter se. The costs of this appeal will abide and follow the result of this appeal before the Subordinate Judge. The Court-fee on this appeal will be refunded.

Kumaraswami Sastri, J.

10. I agree.


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