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(Kaji) Mahomed Ibrahim Vs. Sundaram Chetti and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1926Mad1066
Appellant(Kaji) Mahomed Ibrahim
RespondentSundaram Chetti and ors.
Cases Referred and Muizuddin v. Md. Ikhlaq A.I.R.
Excerpt:
- t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and..........1st plaintiff against the appellate decree of the court of the subordinate judge of sivaganga in appeal suit no. 66 of 1920. the suit was instituted by the deceased 1st plaintiff as hukdar of the wallajah nawab jumma kotwa pallivasal at sivaganga for delivery of possession of the site leased to the 1st defendant. the 1st defendant denied the sole right of the 1st plaintiff to the hukdarship and management of the pallivasal and contended that the pallivasal and its properties were being managed by the muhammadan community of sivaganga through persons appointed by them. he further contended that he was only in possession of the southern portion of the site as lessee from keelaka, perottasi, with the permission of the then managers, that he had executed a rent deed in their favour on 14th.....
Judgment:

Viswanatha Sastri, J.

1. Appeal by the legal representative of the deceased 1st plaintiff against the appellate decree of the Court of the Subordinate Judge of Sivaganga in Appeal Suit No. 66 of 1920. The suit was instituted by the deceased 1st plaintiff as hukdar of the Wallajah Nawab Jumma Kotwa Pallivasal at Sivaganga for delivery of possession of the site leased to the 1st defendant. The 1st defendant denied the sole right of the 1st plaintiff to the hukdarship and management of the Pallivasal and contended that the Pallivasal and its properties were being managed by the Muhammadan community of Sivaganga through persons appointed by them. He further contended that he was only in possession of the southern portion of the site as lessee from Keelaka, Perottasi, with the permission of the then managers, that he had executed a rent deed in their favour on 14th June 1915, for a period of three years, and that he was never in possession of the northern portion. The first issue framed related to the question whether plaintiff was the sole trustee of the Pallivasal and whether he was entitled to maintain the suit. The third issue and the additional first issue related to the question whether the northern and the southern portions of the suit site had been leased by the 1st plaintiff to the 1st defendant. These issues were found in favour of the plaintiff by the District Munsif and a decree-passed accordingly.

2. On appeal the learned Subordinate Judge held that the leases were not made out and that plaintiffs were not the sole hukdars of the plaint mosque. The latter finding was contested before me, and it was further urged on the facts found, it was clear that the 1st plaintiff was the de facto manager of the Pallivasal and that since the right of the Pallivasal site was conceded, the lower Court ought to have passed a decree for possession on the authority 0f the ruling in Benarsi v. Altaf Husain [1921] 63 I.C 171.

3. That on the facts found the 1st plaintiff must be deemed to have been the de facto manager of the mosque is clear to my mind. Evidence was let in to prove: (1) that plaintiff and his ancestors have been as trustees letting the mosque shops for rent and collecting rents therefrom and paying union tax thereon ; (2) that they have done the necessary repairs to the shops: (3) that they have repaired and improved the mosque building by erecting a front gate and a water cistern; (4) that they have acquired properties for the mosque and have charged or alienated the mosque properties for necessary purposes; (5) that they have sued the tenants and got decrees as trustees ; and (6) that they have openly asserted their rights as trustees in various proceedings and they have been so recognized by the public. The District Munsif has carefully considered the evidence on all these points, dealing with each point, separately. Bach point was found proved, and he came to the conclusion on the first issue that plaintiff was the sole trustee. The learned Subordinate Judge found that since the year 1867, plaintiff, his father, and grandfather were managing the affairs of the Pallivasal, and that they were doing the duties of Levvais in the mosque. He also found they had been taking rent-deeds with respect to properties belonging to the Pallivasal and that they were parties to the suits relating to Pallivasal properties; but he held that these circumstances did not lead to the conclusion that plaintiff was the sole trustee. This is what he says:

The documents filed in the case taken along with the oral evidence adduced on the plaintiff's side go to show that in the former times the mosque affairs were being managed by the Levvais of the mosque in conjunction with the Uravaini Murayara, that from and after 1867 or there abouts, ancestors of Plaintiffs Nos. 1 and 2 have been calling themselves hukdars and doing some acts of management including the collection of rent due from shops belonging to the mosque.

4. Then he goes on to say that

the evidence does not show how the hereditary right set up by plaintiff was governed, and 1st plaintiff was not willing to admit that his one younger brother or 2nd plaintiff had joint right of hukdarship.

5. Dealing with the evidence on defendants' side, this is what he says:

The oral evidence adduced on defendants' side was mainly directed to the appointment of managers from time to time by the Uravaini Murayars, collection of rent due to the mosque by them and their rendering accounts and to the collection of kalrimai, etc As the said oral evidence relating to the appointment of the managers and their rendering accounts and collecting accounts is conflicting and unsatisfactory, I do not think it necessary to discuss the same. It is sufficient to say that the oral evidence adduced by defendants does not in any way support the plaintiff's case.

6. The facts found by the learned Subordinate Judge with respect to the evidence, oral and documentary, on the side of the plaintiff clearly establish that the 1st plaintiff was the de facto manager of the Pallivasal. Such being the case and the title of the Pallivasal to the property in the suit having been admitted and the suit being only for the recovery of the property on behalf of the Pallivasal, 'the ruling in Benarsi v. Altaf' Husain [1921] 63 I.C 171 Relied upon by the learned vakil for the appellant, entitled the appellant to a decree for possession. In this connexion I may also refer to a' decision of the Allahabad High Court, in Muizuddin v. Mohammad Ikhlag A.I.R. 1924 All. 59. Both these are eases relating to de facto mutuwallis; and a similar conclusion has been come to with respect to de facto managers of properties belonging to an idol: see Hari Mohan Modak v. Rameswar Das [1920] 64 I.C. 787.

7. It was urged by the vakil for the 5th respondent in the connected appeal that since plaintiff had come to Court claiming to be the sole trustee of the Pallivasal, and since in the other appeal (No. 108 of 1923 with which I shall deal separately) to which certain other persons who claimed to be trustees were parties, it was held that plaintiff was not entitled to the declaration prayed for; it was not open to the plaintiff to get a decree for possession on the ground that he was de facto trustee. It was further contended that de facto trusteeship is not recognized by Muhammadan Law and reliance was placed upon the ruling of the Privy Council in Mata Din v. Ahmad Ali [1912] 34 All. 213. I am unable to agree with either contention. Considerations which apply to cases of de facto guardians of Muhammadan minors, which are based purely upon Muhammadan Law texts, cannot apply to the trusteeship of a Pallivasal. The decision in Benarsi v. Altaf [1921] 63 I.C 171 and Muizuddin v. Md. Ikhlaq A.I.R. 1924 All. 59 case above referred to, are eases relating to Muhammadan mosques and no such contention was raised. With respect to the other contention, the other persons who claimed as trustees are not parties to the suit out of which this second appeal has arisen, and simply because this suit as also the suit out of which Second Appeal No. 108 has arisen, were tried together, there is no reason why a decree should not be given for plaintiff for possession, on the ground that he has established his right as de facto manager, simply because in the other suit his right as sole trustee was not established. After all plaintiff claims the property solely on behalf of the Paliivasal and the right of the Pallivasal is conceded.

8. I, therefore, allow the appeal, and setting aside the decree of the Subordinate Judge restore the decree of the District Munsif so far as the northern portion is concerned with costs both here and in the lower appellate Court.


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