1. The suit relates to the possession and management of the Darga of Hazarath Syed Moosa Qadiri, situated in Mount Road, Madras. The plaintiff's case is that his father, Syed Ismail, and one Galam Dastagir, the 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 said Darga and enjoying the emoluments and gifts pertaining to it by inheritance. He contends that he is entitled to succeed his father Ismail Sahib in the management with the rights that he had and that defendants Nos. 1 and 2 are only entitled to the interest which their father Gulam Dastagir had. The contention of the defendants is that, all of them being the descendants of a common ancestor, the succession is per capita and that each of them, the plaintiffs and defendants, is entitled to one-third share in the management and in the emoluments pertaining to the Darga, Wallis, J., upheld the plaintiff's contention and decided that the 1st plaintiff and defendants Nos. 1 and 2 are entitled to perform the duties of a Majawar (superintendent) by turns, the defendants being entitled to one moiety and the 1st plaintiff being entitled to the other moiety.
2. There is no evidence when the founder died; no evidence whether any rules of succession were established by him. Nor is there any evidence of any usage 'governing the succession to the management of this institution or of similar institutions in the locality.
3. It is conceded that the property is not devoted exclusively to religious purposes. After defraying the expenses of lighting and clearing the Darga, paying the watchmen, celebrating the annual saint's day, the balance of the income is appropriated by the parties to their own use. According to the plaint, the plaintiff got a moiety and defendants the rest, In the written statement that the plaintiff was paid a moiety is denied and it was stated that the defendants' father, who was in sole management after the death of plaintiff's father the plaintiff being a minor, paid something to the plaintiff's mother for her maintenance.
4. The plaintiff has not proved the allegation in the plaint and there is no finding in his favour. No other mode of succession having been set up, and both parties conceding that the right of management descends according to the laws of inheritance, the only question being whether it descends per capita or per stirpes, we are of opinion that succession must be governed by the Muhammadan law of inheritance. See also the case of Kunhi Bivi v. Abdul Aziz 6 M.k 103. 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 cited by Wallis, J., Macnaughten p. 341, Wilson's Digest, II Edition, 372, and Ameer Ali, Volume I, p. 426 (3rd Edition). The general statement in Macnaughten, p. 339, that charitable donations should be distributed among the heirs of the departed saint is not applicable to the present case which is not a case of succession to the departed saint.
5. We agree, therefore, with the learned Judge and dismiss the appeal with costs.