K.S. Venkataraman, J.
1. These two second appeals arise out of Original Suit No. 16 of 1959 on the file of the District Munsif's Court, Ambasamudram, and relate to the rights of the Lebbais in a Pallivasal or mosque called Mohideen Andavar Pallivasal at Pottalputhur in Triunelveli District. There were prior litigation on this question and as a result of these litigations it may be taken as settled that one Vakka Mahudu Meethi Lebbai, which may be abbreviated as V.M. Meethi Lebbai, was entitled to perform the duties of Lebbai in the Tamil month of thai (roughly 15th January to 15th February) once in two years and got the emoluments therefor. He died in 1948. The plaintiff, V.M. Umar Lebbai, is one of his sons. Two other sons of V.M. Meethi Lebbai, namely, Vakka Meethi Lebbai and vakka Ahmad Lebbai., had died before V.M. Meethi Lebbai but leaving sons, Defendant 6, Vakka Mahudu Meethi Lebbai (junior) is the sons of the deceased Vakka Meethi Lebbai, and minor defendants 7 to 8, namely, Mahudu Meethi and Asan Mohideen are the sons of Vakka Ahmed Lebbai.
2. Upon the death of V.M. Meethi Lebbai, the plaintiff claimed to have succeeded to his rights of Lebbaiship to the exclusion of defendants 6, 7 and 8. This claim was based on the footing of the ordinary rules of inheritance in Mohammadan Law, the females, however, being excluded on the ground that females are incompetent to perform the duties of Lebbai. Under the ordinary rules of inheritance of Sunni Law, the uncle (plaintiff) would exclude the nephews (defendants 6, 7 and 8). Defendants 6, 7 and 8 however, resisted this claim contending that the Lebbaiship right devolved on them as well, as representing their deceased fathers, that is, defendant 6 claimed as representing his father Vakka Meethi Lebbai, and defendants 7 and 8 claimed as representing their father Vakka Ahmad Lebbai. The share which they claimed was on the basis of the rule of per stirpes and not per capita. In other words, taking the share of the common ancestor V.M. Meethi Lebbai as 1/24 of the total emoluments of the body of Lebbais, defendants 6 to 8 contended that the plaintiff would be entitled to one-third of that, defendant 6 to another third and defendants 7 and 8 together to another third, the shares being on the basis of V.M. Meethi Lebbai having three sons. A per capita claim would, however, mean four claimants, the plaintiff being entitled to one-fourth, defendant 6, to one-fourth, defendant 7, to one-fourth and defendant 8, to one-fourth of the 1/24 share of the common ancestor V.M. Meethi Lebbai. The basis of the contention of defendants 6 to 8 is that the law of wakf would apply to the enjoyment of the income of the Pallivasal by its servants and that the law of inheritance of a wakf is different from the regular rule of inheritance in Sunni Law in that succession to the income of a wakf would be by all the male lineal descendants of the common ancestor, each division being per stirpes and not per capita, the nearer descendant excluding his own lineal descendants. This will be explained further in due course. It is sufficient to say at this stage that the contention of defendants 6 to 8 is that if the rule of inheritance to wakf property is applied, they will be entitled to the same shares as their fathers would have had, if alive on the date of the death of V.M. Meethi Lebbai. This is one of the main points in controversy between the parties.
3. In Appeal Suit No. 221 of 1951 of this Court, Govinda Menon and Ramaswami JJ., framed a scheme in respect of this mosque inter alia regulating the rights of the Lebbais. As a result of the scheme, the second defendant in the suit Sayed Shah Abdul Latiff Mohideen Kadir Sahib briefly referred to as Mohideen Kadir is functioning as swami-cum-mutawalli of the mosque and a managing committee is administering the affairs of the mosque. That managing committee is the first defendant in the present suit, Original Suit No. 16 of 1959. Defendants 3 and 4 besides defendant 2 are members of that managing committee. Defendant 5 is the executive manager of the committee.
4. The plaintiff alleges that because he was one of the plaintiffs instrumental for the framing of the scheme the second defendant whose powers were curtailed as a result of the scheme bore him ill-feeling and he and other members of the committee began to dispute the rights of the plaintiff to succeed as the sole heir of V.M. Meethi Lebbai and began to side the claims of defendants 6, 7 and 8, as being entitled jointly with the plaintiff. He alleges that he was prevented from doing his duties after 1951; and after waiting for the decision of this Court in Appeal Suit No. 221 of 1951 dated 12th March, 1956, he filed the present suit, Original Suit No. 16 of 1959, for a declaration of his exclusive right to the 1/24 turn and the consequent emoluments. Defendants 6 to 8 resisted the suit contending as already indicated that they would also be entitled to the 1/24 turn with the plaintiff. In other words, the turn of the plaintiff would only be for ten days in the month of Thai once in two years, the turn of defendant 6 would be for another ten days and the turn of defendants 7 and 8 together would be for another ten days. Defendants 1 to 5, while supporting the above contention of defendants 6 to 8 contended further that the plaintiff would not be entitled to share in the income of some of the items listed out in the B Schedule to the plaint. This is a matter of detail which will be referred to later.
5. The learned District Munsif who tried the suit accepted the contention of defendants 6 to 8 and held that the law of inheritance to wakf would govern the succession in this case, and, according to that law, defendants 6 to 8 would be entitled to the right of Lebbaiship equally with the plaintiff per stirpes. He also upheld the contention of the committee that the plaintiff and defendants 6 to 8 together would not be entitled to share in some of the items in the B schedule, namely, items 3, 7, 8 and 9 of the B schedule.
6. The plaintiff preferred an appeal, Appeal Suit No. 192 of 1960 which was disposed of by the learned Additional District Judge. The learned Judge agreed with the learned District Munsif on the question of succession, namely, that defendants 6 to 8 were also entitled to inherit along with the plaintiff the 1 /24 share of V.M. Meethi Lebbai. On the other question however, he differed from the learned District Munsif and held that the plaintiff and consequently defendants 6 to 8 would be entitled to share even in items 3 and 7 to 9 of the B schedule, according to his reading of the judgment of this Court in the scheme suit (Appeal Suit No. 221 of 1951) reported in Sayed Shah Abdul Latif v. Md. Lebbai : (1958)2MLJ199 .
7. Second Appeal No. 1245 of 1961 has been preferred by the plaintiff against the judgment of the learned Additional District Judge in so far as it has negatived the claim put forth by the plaintiff to exclusive right to the 1/24 turn of his father V.M. Meethi Lebbai. Second Appeal No. 1398 of 1961 has been preferred by the Pallivasal through its managing committee in so far the learned District Judge has recognised the claims of the plaintiff and defendants 6 to 8 to a share in items 3 and 7 to 9 of the plaint B schedule.
8. I shall first take up Second Appeal No. 1245 of 1961 and the main question there will be whether on the death of V.M. Meethi Lebbai the plaintiff became exclusively entitled to 1/24 turn of Lebbaiship of V.M. Meethi Lebbai as his sole heir under the ordinary rule of inheritance in Sunni Law, or whether as contended by the defendants 6 to 8, they would also be entitled to succeed jointly with the plaintiff. Before answering this question it will be convenient to describe briefly the nature of the duties of Lebbais. They have been set forth in paragraph 52 of the judgment of the learned District Munsif, dated 15th December, 1934 in Original Suit No. 292 of 1933 marked as Exhibit A-5 in the present suit. It is stated there:
The Lebbais must light the lamps of the Pallivasal, must call out bang, must read the fathima, must recite the maulud and the yazin and given salivat. They are also bound to attend to the comforts of the pilgrims coming to the Pallivasal. But they are not bound to sweep any portion of the. Pallivasal.
9. This description was adopted by the learned Subordinate Judge who heard the appeal, Appeal Suit No. 2 of 1936 from the above suit and whose judgment has been marked as Exhibit B-2 in the present suit. It has also been adopted in the judgment of the Bench of this Court in Sayed Shah Abdul Latif v. Mohammad Labbai : (1958)2MLJ199 . This description clearly shows that the Lebbais may be taken as doing religious service in the mosque. The judgment and decrees in Original Suit No. 292 of 1933 and Appeal Suit No. 2 of 1936 (Exhibits A-4, A-5 and B-2) also declare the hereditary rights of the Lebbais and the emoluments which they were entitled to. The question of emoluments is a matter which will have to receive more detailed attention in Second Appeal No. 1398 of 1961; and for the purpose of Second Appeal No. 1245 of 1961 it is sufficient to state that these judgments recognised the right of the Lebbais to the one-fourth share in the following items: daily hundials collections and kanthuri hundial collections, rent derived from letting out any portion of the mantapam, income from the coconut tope near the muthawalli's residence and the income from letting out elephants. These items of income would, in the first instance, be income of the mosque and, therefore, the position is that for doing religious service in the mosque Lebbais are entitled to a one-fourth share of part of the income of the mosque. I am stating this at the outset because this circumstance has been relied on by Sri T.R. Mani, learned Counsel for defendants 6 to 8 in support of the contention as to why the law of inheritance relating to wakf or endowed property should govern the succession in this case. The two questions which will have, therefore, to concern us are (i) what is the law of inheritance in such cases in respect of wakf and (ii) whether that law can be invoked by defendants 6 to 8. The questions arise in this form because there does not appear to be any direct authority dealing with the succession of Lebbais and the question has to be decided by analogy with reference to rules of inheritance in other contingencies.
10. Taking the question of the law of inheritance in respect 'of wakf, though Sri Sivamani, learned Counsel for the plaintiff-appellant was inclined to doubt the position as stated in the tex-books and the decided cases, it is clear that the position is consistent and clear and is to the effect that the law of inheritance in case of wakf would let in defendants 6 to 8 also as heirs of V.M. Meethi Lebbai, they taking per stirpes as if their fathers were alive. Thus in Macnaghten's Principles of Mahommedan Law under Precedents of Endowments, case VIII, the following question and answer occur:
Q. 2. Several villages and bazaars were appropriated to the support of the shrine of a celebrated saint and his descendants. There are twenty persons belonging to his family, of whom several have children and grandchildren; others are childless. Under these circumstances, should the profits of the villages etc., and the offerings made to the tomb of the departed saint be divided exclusively among the twenty persons above mentioned, or should any portion be given to their families also; and if so, in what manner should the profits be distributed?
R. 2. The profits of the appropriations should be distributed equally among the twenty persons mentioned in the question. If any one of them die childless, a proportionate increase will be made in the shares of the survivors. The children of those twenty individuals will not be entitled to any portion of the profits so long as their respective ancestors survive: but, on the death of any one of the twenty persons, his family will receive such portion as the deceased received during his lifetime. They will take per stirpes and the division among themselves will be per cabita. This doctrine is maintained in a variety of Law authorities. It is laid down in the Khizanut-ool Mooftieen.-' A person made an appropriation of a village, on the condition that the profits should be enjoyed by Zevd and his offspring, generation after generation: in this case each branch of lineal descendants will share alike, whether consisting of one individual or of many persons: and the profits will be enjoyed by the descendants in this manner until the lineage becomes extinct, the nearer descendants continuing to exclude the more distant Whose ancestors are alive; and on the death of one ancestor leaving a family, his family succeeding to the portion enjoyed by him. Where one of the sharers dies childless, his portion goes to increase the Joint stock and when the whole lineage becomes extinct, the appropriation should be devoted the benefit of the poor.
So also in the Aulumgeeree, in the second chapter treating of appropriation, a passage is cited from the Mubsoot to the following effect:
A person makes an appropriation in favour of his lineal descendants who are ten in number; as long as those ten remain alive, they will be entitled to an equal share. But if four of them die childless, and two die leaving children, and a dispute arise between the four survivors and the children of two of the deceased sharers, the profits of the appropriation should be made into six portions, of which the former are entitled to four and the latter to two.
Then in Ameer Ali's Mahommedan Law, fourth edition, volume I at page 362 the following passage occurs under the heading Wakf in favour of descendants:
The consensus of opinion is, that when a person dies during the lifetime of his father, leaving him surviving a child, that child takes his father's share in the interest of the grandfather but acquires no interest in that of his uncle.
and two authorities are quoted in support-Radd ul-muhtar, volume III, page 672 and Maj'aa ul-Anhar, part II, page 641.
11. In Tyabji's Mohammadan Law, third edition, paragraph 513, page 643, this is what is stated:
Unless a different intention appears (1) the interest of a beneficiary under a wakf lapses on his death, and accrues to the poor (or the other ultimate charitable object of the wakf); (2) under a dedication providing expressly or impliedly that the descendants shall succeed to the interests of their ancestors, the descendants succeed per stirpes and not per capita, males and females taking equal shares...
The authorities quoted are Saadat Kamel v. A.G., Palestine A.I.R. 1939 P.C. 185, 189, Macnaghten, page 341, case VIII, question 2 (already quoted) and Ameer Ali, volume I, page 361 (fourth edition) already quoted.
12. Saadat Kamel v. A.G., Palestine A.I.R. 1939 P.C. 185, deals primarily with the question of limitation in regard to wakf property. The question before us did not arise for decision there but there is a passage in the judgment of their Lordships showing that they recognised the special rule of inheritance in wakfs as laid down in the passage from Macnaghten already quoted. Here is the passage:
The particular example given may be one in which all the beneficial interests happen to arise at one and the same time. It looks as if the draftsman had in contemplation a case where descendants Were to take per capita subject to the condition, though the condition may be applied equally well to qualify a stirpital order of succession (cf. Macnaghten, op. cit. p. 342), Wilson's Anglo-Muhammadan Law, Edn. 6, S. 324, page 353) so that (as the present wakfieh puts it) parents enjoy before children but not before children of other beneficiaries.
Again in Saksena's Muslim Law as Administered in India and Pakistan, fourth edition (1963) at page 563, under the heading Muslim Law of Inheritance how far deviated we find the following rule:
If a wakf is purported to be made in favour of one's own or any other person's descendants, without defining the order of succession among them, succession is to be Per stirpes and not per capita, contrary to the principles of the Muslim Law of inheritance.
The authorities quoted are Sayed Mohammed Ali v. Sayad Gobar Ali I.L.R.(1881) Bom. 88, Gaffur Saheb V. Moosa Saheb (1911) 17 I.C. 124 and Macnaghten, page 341.
13. Sayad Mohamed Ali v. Sayad Gobar Ali I.L.R.(1881) Bom. 88, was not a direct case on the point but it proceeded on the footing that in the case of wakf property the succession per stirpes would be a rule contrary to the ordinary law. But it was pointed out that in that particular case the grant did not constitute a wakf.
14. Gaffur Saheb v. Moosa Saheb (1911) 17 I.C. 124, was a decision of Benson O.C.J. and Sankaran Nair, J., affirming the judgment of Wallis, J. The suit related to the possession and management of a darga in Mount Road, Madras. The plaintiff's father, Sayed Ismail, and one Gulam Dastagir, father of the defendants, had been in possession and management with equal rights during their life-time, performing the duties of the office of superintendent of the darga and enjoying the emoluments and gifts pertaining to it by inheritance. The contention of the plaintiff was that he was entitled to succeed his father Ismail Sahib with half rights in the management and that defendants 1 and 2 were only entitled to the remaining half which their father Gulam Dastagir had. The contention of the defendants was that all of them being the descendants of a common ancestor, succession was per capita and that each of them, plaintiffs and defendants, was entitled to a one-third share in the management and in the emoluments pertaining to the darga. Wallis, J., upheld the plaintiff's contention. His decision was affirmed in appeal and this is what is stated:
The plaintiff is accordingly entitled to succeed his father and the defendants are only entitled to take their father's share. This view is supported by the authorities by Wallis, J., namely, Macnaghten, p. 341, Wilson's Digest, II edition, 372, and Ameer Ali, Volume I, page 426 (third edition (361-62 of fourth edition).
In that case the question did not arise in the form in which it has arisen here because I find from the record that Sayed Ismail and Gulam Dastagir were cousin brothers (cousins) and it was assumed that their descendants would be entitled to succeed, and the only dispute was about the descendants being entitled per capita or per stirpes. But to the extent that the passages in Macnaghten and Ameer Ali quoted by me are referred to in that decision, it is useful as approving of the passages in Macnaghten and Ameer Ali. Incidentally it may be added that when the learned Judges say that they were of opinion that succession must be governed by the Muhammedan Law of inheritance they must have meant only Muhammedan Law of inheritance applied to wakf.
15. In Mulla's Mahommedan Law, fifteenth edition (1961), paragraph 200, this is what is stated:
Succession among descendants;-Where a wakf is made for the benefit of the settlor's descendants, but no rules of succession are laid down in the deed of wakf the descendants take per stirpes, and not per capita (Macnaghten, 341; Sayed Mohammed Ali v. Sayad Gobar Ali I.L.R.(1881) Bom. 88, and males and females take equal shares (Macnaghten, 342; Baillie, 553, See Abdul Ganne v. Hussan Miya (1873) l0 Bom. H.C.R. 7; Shekh Karimodin v. Nawab Mir Sayad Alamkhan I.L.R.(1885) Bom. 119 .
The Allahabad High Court has held that as each line branches off, the shares should be divided between the various branches, but in the same branch the nearer should exclude the more remote (Maqsood Ali v. Zahid Ali : AIR1954All385 . The High Court of Andhra Pradesh, however, differs from this view and maintains that the rule of exclusion of remoter by nearer heirs does not apply to endowed property. Thus if the wakf is in favour of the descendants 'generation after generation ', the implication is that the nearer line or class takes first, and after them the line next after. But the principle that the children of a predeceased son are excluded by their uncles and aunts does not apply to endowed property. Hence, where there are no such words as 'generation after generation' the profits are to be divided equally among all the descendants (Mazhar Ali v. Gulam Murtujah A.I.R. 1958 A.P. 8).
16. I shall first refer to Mazhar Ali v. Gulam Murtujah A.I.R. 1958 A.P. 8, the decision of Subba Rao, C.J., (as he then was) and Jaganmohan Reddy, J. The case related to wakf or endowed property. The facts are complicated and it is sufficient to state that in respect of the D Schedule properties this was what was observed at page 12:
The equal division between son and two daughters of Mir Fakir (in prior litigation) is inconsistent with the property being of a private nature. With respect to the endowed property made for the benefit of the settlors or grantor's descendants, where no rules of succession are laid, they take per stirpes and not per capita, males and females taking equal shares (vide Mulla, thirteenth edition, para. 200 at page 186).
With respect to A, B and C schedule properties the learned Judges held that the grant was not to the religious institution nor to the office of Muzavar as such but was a grant burdened with service to a named individual and they went on to state this in paragraph 10 at page 15:
When it is determined that the grant was to a named individual to be enjoyed hereditarily, the further question that would arise is whether the ordinary rule of Muhammadan Law would apply in which the nearer excludes the remoter, i.e., whether the well-known principle of Muhammadam Law applicable to private property that the children of a predeceased son are excluded from the inheritance by their uncles and aunts, would apply. This principle, however, which is applicable to private property is not applicable in the case of an endowed property.
Then there are quotations from Mulla (already quoted) and Ameer Ali (already quoted by me) and they conclude:
The rule of succession in the case of Wakfs or endowments, therefore, is not as contended by the learned Advocate for the respondent, that which applies in the case of private property of a deceased Muslim. If the succession of heirs is given or indicated, that is, the Wakf is in favour of the descendants generation to generation, the implication is that the near line or class takes first and after them the line next after. But where there are no such words the profits are to be divided equally among all the descendants. In this case there is no such indication.
The grant is to a named person burdened with service of Muzavar to be enjoyed hereditarily It is only limited to males capable of performing the service, the females being excluded by the fact that they being goshanishin are incapable of discharging the duties of fatias and other ceremonies. The plaintiffs, though sons of a predeceased son, take equally with the defendants and cannot be excluded.
This, therefore, would be a direct authority in favour of defendants 6 to 8, if the rule of inheritance to wakf is to be applied.
17. It will be seen from the commentary in Mulla that the learned author of the edition thinks that there is a difference between the view taken by the Allahabad High Court in Maqsood Ali v. Zahid Ali : AIR1954All385 , and that taken by the Andhra Pradesh High Court in Mazhar Ali v. Gulam Murtujah A.I.R. 1958 A.P. 8. But on going through the facts it seems to me that there cannot be said to be any difference between the decisions and actually the sentence quoted from the Allahabad High Court judgment in Mulla in the same branch the nearer should exclude the more remote will only mean that when the father is alive, he will exclude his descendants and nothing more. It was on that principle that in that particular case the claim of Maqsood Ali (plaintiff-appellant) was excluded, because he would not be entitled to a share in the life-time of his father Shahid Ali. At one time before the actual decision was read by me Sri Sivamani relied on the passage in the Allahabad decision, namely, in the same branch the nearer should exclude the more remote as supporting his contention that in the branch of V.M. Meethi Lebbai the plaintiff would exclude defendants 6 to 8. But on going through the decision I find that the decision does not lay down any such proposition and by the passage in question what was meant was only that the father, if alive, would exclude his sons and grandsons. The decision does not contain any proposition that the uncle would exclude the nephews, as contended for by Sri Sivamani.
18. It is thus clear that if the law of inheritance to the income of a wakf is to govern this case, defendants 6 to 8 will be entitled to share with the plaintiff per stirpes, namely, the plaintiff, one-third, the sixth defendant one-third and defendants 7 and 8, one-third.
19. The more difficult question is whether the rule relating to inheritance of the income of wakf should be applied in this case. The contention of Sri Sivamani is that that rule should not be applied. According to him the question of inheritance to the income of the wakf would not arise directly because inheritance in this case is only to the office of Lebbaiship and the receipt of emoluments is only incidental to the office. In respect of succession to office he relies on the decision in Abdul Samad Sahib v. Chinnathambi Sahib (1918) 37 M.L.J. 509. There the question was succession to the office of Kalibath. The last holder of the office was Sayed Peer Mahomed Sahib, maternal grandfather of the plaintiff. On the date of death of Sayed Peer Mahomed Sahib, his daughter Sayed Hamied Bibi (mother of the plaintiff) was dead. The competition to the office was between the daughter's son, the plaintiff, a cognate, and a very distant agnate of Sayed Peer Mohammed Sahib. The decision was that the agnate, however remote, would exclude the cognate even though much nearer from the point of view of blood relationship. That decision, however, does not discuss the question with which we are concerned. Further it looks as though the office was one and indivisible, whereas here admittedly several Lebbais are entitled to hold office by turns. Similarly the decision in Jafar Mohiudin Sahib v. Aji Mohiudin Sahib (1864) 2 M.H.C.R. 19, also is not useful. There the lands in question were granted to the plaintiff's grandfather Muhammad Ali as endowment for the performance of the duties of the office of Khatib and providing for the services attached thereto. The plaintiff succeeded to the office and was performing the duties and the only question was whether he was entitled to receive the whole amount of the income from the lands or only a share of it, the same being divisible amongst the members of Muhammad Ali's family at his death. The learned Judges said at page 20:
We are of opinion that the enjoyment of the land passed with the office, and that the plaintiff in right of the office was entitled to receive the whole of the tirvai.
Lower down they said:
The right to the enjoyment of the returns from the lands was not separable from the office for the support of which the grant was made, and the plaintiff, as the legal holder of the office, and charged with the due performance of all the duties and services attached to it, was entitled to demand and receive the tirvai.
Thus there was no dispute there that the plaintiff was the legal holder of the office. Here that is the very question in dispute, namely, whether defendants 6 to 8 will also be legal holders along with the plaintiff.
20. Sri T.R. Mani, learned Counsel for defendants 6 to 8 contends that in the absence of direct authority, the better principle would be the principle applicable to inheritance of the income of the wakf, though the enjoyment of the income is only incidental to the performance of the duties of Lebbai. He urges that since the religious services are done in a wakf and the emolumens also are derived from the income of the wakf, there is no reason why the law of inheritance in respect of the income of the wakf should not be applied to succession to the religious office. He points out that some immovable properties were endowed for the wakf in this case and the income therefrom forms a substantial part of the wakf. It seems to me that this contention is sound and must be accepted. It will be noticed that even the plaintiff admits that females are excluded from the office of Lebbai. That itself shows that the regular law of inheritance to private property cannot apply because under such law, females cannot be excluded. If to that extent there is departure from the regular rule of inheritance, there is no reason why the law relating to inheritance of the income of wakf should not be applied, and under that law, by custom it is permissible to exclude females where they cannot hold office. Further, the adoption of this rule of the sons like defendants 6 to 8 taking the place of their deceased fathers would ensure greater number of heirs of the common ancestor being available as Lebbais and that I think will be more in keeping with the object of the institution of Lebbais than the rule which would let in only the plaintiff to the exclusion of the nephews. Further, it will be seen that in this particular case in the prior litigation culminating in Appeal Suit No. 2 of 1936 it was observed (Paragraph 15 of Exhibit B-2):
As regards appointments, the Lebbai office is hereditary and the Inamdar has no right to introduce a stranger as Lebbai. If there are male members in the family of the dismissed Lebbai, they would automatically succeed to the Lebbaiship.
21. Though the point in controversy now was not in controversy then, and the above passage cannot be taken as a decision on the question, still it supports the view which I am inclined to take, and if further shows that at that time nobody thought of limiting the succession in favour of the uncle to the exclusion of the nephew. Moreover, it is seen that in 1958 Asan Mohideen, examined as D.W. 4 in this suit succeeded as Lebbai to his grandfather along with his uncles though at the time of the death of the grandfather, D.W. 4's father was dead. In other words, that was a case where the uncles of D.W. 4 did not exclude D.W. 4. That, of course, arose long after the present dispute between the plaintiff and defendants 6 to 8 arose in 1951. But, even so, it is worthy of note that in another branch D.W. 4 was not excluded by his uncles. At this stage Sri T.R. Mani says that the present suit was filed only in 1959 and he is inclined to doubt whether the present controversy arose even in 1951. But even on the footing that the controversy arose in 1951, the non-exclusion of D.W. 4 by his uncles has got some value. For the above reasons I confirm the findings of the Courts below that defendants 6 to 8 are also entitled to succeed to the office on the death of V.M. Meethi Lebbai along with the plaintiff and that they would take per stirpes, namely, plaintiff-one-third, defendant 6-one-third, and defendants 7 and 8-one-third, the one-third will be of the 1/24th of V.M. Meethi Lebbai in the total permissible income.
22. A minor grievance of the appellant in Second Appeal No. 1245 of 1961 is that the Courts below were wrong in not giving him relief of accounting from 1951. The Courts below denied him that relief on the basis that factually he did not do service of Lebbai from 1951 and that was done only by or on behalf of defendants 6 to 8 and that nobody prevented the plaintiff from doing service in 1951 and that his not doing service was due to his own fault. The decision of the Courts below is obviously right. Sri Sivamani cites Mir Mahaboob v. Mir Surajuddin : AIR1928Mad1148 , and contends that though the plaintiff may have abstained from doing the service of Lebbai he would be entitled to his legitimate share of one-third so long as the services including the plaintiff's turn were rendered by or on behalf of defendants 6 to 8. But that decision is distinguishable because there the other persons who did the service on behalf of the plaintiff did not object to the plaintiff receiving the income and the objection to plaintiff getting his share of the income came only from the management. It was under those circumstances it was held that so long as the services were rendered and the other persons did not object to the plaintiff getting his share, the management could not resist the plaintiff's claim. Here defendants 6 to 8 resist the plaintiff's claim and there is no reason why, when they did the service and did not exclude the plaintiff, the plaintiff should get the benefit.