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Kaji Mahomed Sheriff Saheb Vs. Eusuff Sheriff Saheb and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Judge
Reported in5Ind.Cas.455
AppellantKaji Mahomed Sheriff Saheb
RespondentEusuff Sheriff Saheb and ors.
Cases Referred and Minakshisundaram Pillay v. Chockalinga Royer
Excerpt:
religious institution - wakf--property granted for support of mosque--separate enjoyment of property by the managers of the mosque--right to alienate--sale of property in execution of a decree against one of them--civil procedure code (act xiv of 1882), section 31--non-joinder of parties--dismissal of suit. - - there the property was beneficially enjoyed by the alienors and had been granted for such beneficial enjoyment......that the sale in execution of a decree against one of the khatibs cannot be upheld against the mosque.2. but the district judge has thrown out the suit on the ground of the non-joinder of certain other khatibs. this objection was not taken in the first court, but was raised for the first time on appeal. we think that the proper course, the judge should have adopted, was to order the joinder of the other khatibs and a fresh trial. we reverse the decrees of the courts below and remand the case to the court of first instance to bring all proper parties on to the record and dispose of according to law. the costs hitherto incurred will be provided for in the revised decree.
Judgment:

1. The inam title deed and register make it abundantly clear that the lands were granted for the support of the mosque. The fact that the kazi and the khatibs divided the property and managed it in separate shares cannot make it the property of the managers to be alienated by them at their pleasure. The decisions in Lotlikar v. Wagle 6 B. 596 and Minakshisundaram Pillay v. Chockalinga Royer 15 M.L.J. 10 do not touch the present case. There the property was beneficially enjoyed by the alienors and had been granted for such beneficial enjoyment. We must hold that the inam was inalienable and that the sale in execution of a decree against one of the khatibs cannot be upheld against the mosque.

2. But the District Judge has thrown out the suit on the ground of the non-joinder of certain other khatibs. This objection was not taken in the first Court, but was raised for the first time on appeal. We think that the proper course, the Judge should have adopted, was to order the joinder of the other khatibs and a fresh trial. We reverse the decrees of the Courts below and remand the case to the Court of first instance to bring all proper parties on to the record and dispose of according to law. The costs hitherto incurred will be provided for in the revised decree.


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