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Gori Bibi Vs. Sarasamed Meer Saheb and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtChennai
Decided On
Reported inAIR1929Mad635
AppellantGori Bibi
RespondentSarasamed Meer Saheb and ors.
Cases Referred and Mallikharjuna Vara Prasad Rao v. Gopalacharlu A.I.R.
Excerpt:
- - for the respondent-plaintiffs it is attempted to be said that one mutawali cannot appoint a successor and that there fore the husband of defendant 2 is in no better position than a trespasser. so that they have an income of something like rs. that abdul gaffar knew all about the proceedings is perfectly obvious......about the proceedings is perfectly obvious. his wife is defendant 2. in cross-examination in this suit gaffar says that he was instructing the vakils on behalf of his wife. so he has practically been a party all through. secondly, no fresh sanction on the authorities would be needed if the scope of the suit is not enlarged: compare vythilingam v. ramalingam pillai; goapalakrishna v. ganapathi iyer [1920] 12 m.l.w. 722 and mallikharjuna vara prasad rao v. gopalacharlu a.i.r. 1926 mad. 970. it seems to me that the scope of the suit is not enlarged here. the plaintiffs asked that one or both of them should be appointed trustees but the main prayer is for settling a scheme for this durga. it has been said that subsequent to this suit other people have tried to obtain sanction to file a suit.....
Judgment:
ORDER

Odgers, J.

1. This was a suit under Section 92, Civil P.C., for framing a scheme for the management of a certain Mahomedan Durgha which is said to have been founded as long ago as 1742 by the then Nawab of Chicacole. The defendants are distant decsendants of Jaina Bibi who got possession of the property about 65 years before the institution of the suit. Defendant 2 is said to be a sister's daughter of Jaina Bibi and the exact relationship of defendant 1 who is also a lady is somewhat obscure. The written statement of defendant 2 sets out that after the death of Jaina Bibi her sister and heir Kulsam Bibi succeeded 'to the management of the Durgha as mutawalli and that on her death Kulsan Bibi appointed the husband of defendant 2 one Abdul Gaffar Sahib as her successor in the Mutawalliship : see Ex. 11. The written statement proceeds to set out that this person is now in possession and management of the Durgha and that he is a necessary party to the suit. Certain issues were framed and issue 5 runs as follows:

Did Kulsam Bibi appoint Mahomed Abdul Gaffar as mutawalli of Durgha and is he in possession of Durgha and its properties?

2. The Subordinate Judge before whom the suit originally came held it was unnecessary to decide this and certain other issues as there had been no defects in the management of the Durgha and accordingly dismissed the suit. On appeal, the District Judge found that a charitable school had not been maintained in accordance with the terms of the wakf and remanded the suit to the Subordinate Judge for framing a scheme of management under Section 92 and appointing trustees therefor.

3. Now the objection raised in second 'appeal-and this suis was instituted in 1917 or eight years ago-is that the mutawalli, the husband of defendant 2 is necessary party and that that has not been considered by either of the Courts. There appears authority for the position for instance in Vaithilingam v. Ramlingam Pillai [1917] 6 M.L.W. 9 and Ramadas v. Hanumantha Rao [1911] 26 Mad. 364 and the reason for those decisions appear to be this; that once a scheme is framed, no private individual who is prima facie interested in the property in question or its management is not represented or has not a chance of being so, the Court must assume that his rights have been denied him and must interfere in order that he may be made a party. For the respondent-plaintiffs it is attempted to be said that one mutawali cannot appoint a successor and that there fore the husband of defendant 2 is in no better position than a trespasser. That point seems to me to be open to great doubt. It is expressed as an opinion by Mr. Tyabji in his book but on the other hand Wilson in Section 329 and Ameer Ali Vol. 1, p. 450 says that the last mutawalli has the power of nominating his successor only if the wakf has made no provision regarding the office. We do not know here that the wakf made any such provision. It is extremely unfortunate that this appeal, which has been pending for so long in consequence of a dismissal for default and subsequent restoration, should have to be sent down. I do not propose to send it down to the Subordinate Judge but to send it to the District Judge who decreed the framing of a scheme. Notice must be sent to Mahomed Abdul Gaffar Saheb who will be formally made a party and the District Judge will hear what he has to say and if necessary take his evidence and return a finding as to whether on that evidence there is, in his opinion, any necessity to modify the decision at which he has already arrived. Time for the return of finding two months and objections seven days. (After return of finding the following judgment was delivered).

4. This case is concerned with certain property which by the High Court (In Appeal No. 169 of 1911) was decided to be wakf property and not heritable; and the Court said that a proper trustee should be appointed for the same and that the framing of a scheme for the proper management of the Durgha was the proper remedy in that suit. The present is a suit under Section 92, Civil P.C., by two persons against two ladies called Chand Bibi and Gori Bibi. The history of the Durgha is set out in para. 3 of the plaint. It goes back to 1742 and the succession of mutawallis is traced up to Meer Akbar Ali, the last male heir of the original grantee, who died somewhere about 1850 without legally nominating anybody to succeed him in the mutawalliship or trusteeship. In consequence, his widow Jaina Bibi got possession and is alleged to have been negligent in managing the properties through her brothers. The plaintiffs are willing that either or both of them should be appointed trustees and allege that they are doing the duties of trustees. The prayer is for appointing one or both of these persons and for settling a scheme. Now the first defendant here is the widow of one Kurban Ali who is said to have been the adopted son of Jaina Bibi as mutawalli to the Durgha and that said Kulsam Bibi and she is also a relative of the defendant 2 who is the sister's daughter of Jaina Bibi. Defendant 2 in her written statement pleaded that Kulsam Bibi succeded after the death of Jaina Bibi appointed one Abdul Gaffar as mutawalli and that it is this man who is now in possession and management of the Durgha. She also pleaded that he was a necessary party to the suit. By issue 5 the question was raised:

Did Kulsam Bibi appoint Mahomed Abdul Gaffar as mutawalli of Durgha and is he in possession of Durgha and its properties.

5. The first Court, that of; the Subordinate Judge', held that the Durgha was properly managed and that there was consequently no power to remove the mutawalli whose sex was no bar in their management. The Subordinate Judge recorded no finding on issue 5. The plaintiffs took the suit on appeal to the District Judge who was then Mr. C.V. Viswanatha Sastri. He held that there was no mismanagement except in one particular. The original firman setting up the Durgha in his opinion mentioned a charity school as one of the objects of the charity. He held that as a charity school is not maintained, there was mismanagement and he therefore framed a scheme. It is against that the defendants have come here in second appeal. Now the original firman was translated for the first time in this case. When the matter was sent down by me at the end of 1925 it was in Arabic and our Persian translator Mr. Hameed Hassan had al-ready translated it for the purpose of another litigation and his translation will be found reported in full in Jagga Rao Bahadur v. Gori Bibi A.I.R. 1923 Mad. 545 The translation now furnished is Ex. '24 and it recites the objects of the charity as follows:

To perform the sacred deeds of the holy shrine, namely, spreading carpet, lighting, performing annual festivals, supplying livelihood to attendants and others that have a right with the abovenamed.

6. Now Mr. Hameed Hassan has again examined this document at my request and he says that his translation in Jagga Rao Bahadur v. Gori Bibi, is correct and so the passage just read from Ex. 24 ought to read thus

by way of expanses of farsh (carpeting, bedding, matting and etc.), and lighting at the anniversary and maintenance of servants, students, and other men deserving help at the hands of the refuge of nobility.

7. He says that a charity school does not certainly appear there, but that the charity should be devoted to the assistance of students among others. It ought to be mentioned that by the endorsement on the firman the original holder, Hajee Mahomed Sadak Saheb was empowered to maintain himself from the inam village which was appropriated to the durga by this firman. Abdul Gaffar says in the evidence he has now given before the second District Judge that no charity school was ever maintained and that the word ' talab ' really means maintenance of servants whereas the Persian translator says it means maintenance of students. That this idea of a charity school is not new can be seen from Ex. D which is a copy of the inam statement of 1863 where the vakil for Jaina Bibi says that the firman 'is for '' feeding fakirs and for maintaining a charity school.' However it seems to me that we now have a correct translation in Jagga Rao Bahadur v. Gori Bibi and as Mr. Hameed Hassan himself says the object of the charity is as I have said.

8. Now this second appeal came before me as long ago as 7th December 1925, and it was then objected that Abdul Gaffar was a necessary party (a point which it will be remembered was taken in the written statement of defendant 2), and that it would be only fair that he should be represented: because if he were not, the scheme framed in his absence would bind him in spite of the fact that this objection had been taken. So to avoid as far as possible adding to the very great delay that had already taken place in this case I directed the District Judge to make Gaffar a party and asked him to take his evidence in order to see whether it would cause him (the District Judge) to change his previous view. Mr. Viswanatha Sastri has left the district or I should say the service by the time this got down to the District Judge of Berhampore again and Mr. Newsam was in charge. Mr. Newsam has now considered the matter afresh and supports Mr. Viswanatha Sastri's opinion of three grounds, viz....1. That the grant was originally for the unkeep of the durga. It must be so treated and I may state incidentally that it was not argued before me that this was really a gift to the mutawalli burdened with a trust for the upkeep of the durga. Now it will be seen from the original firman that the value of this village was in 1742 about Rs. 720 per annum. It has now gone up, as one would expect and the valuation is about Rs. 1,500 or Rs. 2,000 a year. Now the learned Judge has found that only Rs. 250 or about that, is in fact spent on this durga. Abdul Gaffar is in possession of half the village and the ladies-defendants 1 and 2 are in possession of the other half. Abdul Gaffar spends this comparatively small amount on the charity and apparently the ladies spend nothing; so that they have an income of something like Rs. 1,250 to Rs. 1,750 for themselves every year from this trust fund. The question is whether that is the proper way to administer this charity and whether that is what the original founder meant. With regard to the charity school Mr. Newsam says he does not attach great importance to that. He says the original grant certainly contemplates charity to students and other deserving men; but it does not seem to him that the original grant contemplated the maintenance of charity school.

9. The third reason that he finds to support the previous District Judge's view is that the mutawalli family have claimed partition of this property as if it were their own family property. The High Court dealt with this claim in Appeal No. 169 of 1911 as I pointed out at the commencement of this judgment. I have heard objections at some length to this finding which if accepted is sufficient to dismiss this appeal. It is said that the joinder of Abdul Gaffar as defendant necessitates a fresh sanction to validate the suit under Section 92, Civil P.C. I confess to some surprise that this point has-been put forward now as it certainly was not put forward when it was urged that Abdul Gaffar should be joined. I was pressed to bring him on record but no mention was then made that an objection of this sort would be taken. However it has been taken and must be considered. That Abdul Gaffar knew all about the proceedings is perfectly obvious. His wife is defendant 2. In cross-examination in this suit Gaffar says that he was instructing the vakils on behalf of his wife. So he has practically been a party all through. Secondly, no fresh sanction on the authorities would be needed if the scope of the suit is not enlarged: Compare Vythilingam v. Ramalingam Pillai; Goapalakrishna v. Ganapathi Iyer [1920] 12 M.L.W. 722 and Mallikharjuna Vara Prasad Rao v. Gopalacharlu A.I.R. 1926 Mad. 970. It seems to me that the scope of the suit is not enlarged here. The plaintiffs asked that one or both of them should be appointed trustees but the main prayer is for settling a scheme for this durga. It has been said that subsequent to this suit other people have tried to obtain sanction to file a suit against persons including this Abdul Gaffar. We do not know exactly what the allegations were and what the reasons were for refusing the sanction except that the Collector prima facie found no evidence of mismanagement. That leads me to the second of these objections viz., that there is no mismanagement.

10. Now Mr. Newsam finds three grounds of mismanagement as I have said, on two of which he lays great stress, namely, that the bulk of the endowment is devoted to the unkeep not of the durga but of individuals and secondly, that these are acting with regard to this inam as if it were their own private property; in fact they apparently have done so for many years since 1911. Further there is the fact that assistance to students is not provided. Now there has been litigation over the charities at least since 1905 and probably before but this is the earliest record we have in these proceedings, of suits with regard to this durga. The trust property has now become comparatively valuable and trustees obviously appropriate by far the larger portion of the income of this durga to themselves and further they have purported to treat the property as their own, though of course as I pointed out, there is a clause for maintenance. But I do not think the clause for maintenance is properly administered when the trust has so small a proportion of the income expended on it as in this case in proportion to the amount that the trustees take for themselves. I am of opinion therefore that the trust is not being carried out in accordance with the wishes of the founder as expressed in the firman and there does not seem to me to be any likelihood that it will be so administered so long as it is in private hands. Giving the best consideration I can to the matter, I, therefore, come to the conclusion in agreement with both the District Judges that a scheme is necessary and this second appeal must therefore be dismissed with costs of respondent 1 including the costs incurred for the finding,


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