Madras High Court
Syed Mahomed Ghouse vs Sayabiran Sahib (Deceased) And Ors. on 7 May, 1934
Equivalent citations: (1935)68MLJ684, AIR 1935 MADRAS 638
JUDGMENT
1. These four appeals all arise out of the same suit. It related to the right of trusteeship of the durgas of Killai and Nawabpet in Chidambaram taluk and was originally filed by the sixteenth defendant (who is now dead) claiming to have been nominated by the last holder Mohideen Shah who died in 1905. That case was found against by the Subordinate Judge who therefore dismissed the suit. There was an appeal to the High Court A. S. No. 168 of 1910. That appeal was disposed of by Sankaran Nair and Spencer, JJ., in 1914. They agreed with the finding of the lower Court that the plaintiff was not nominated by the last holder but held that the suit need not be dismissed, and that fresh appointment can be made by the Civil Court and they reversed the decree and sent the case back with a direction that all other interested parties should be made parties to the suit. After the case went back, the original plaintiff compromised the matter and did not prosecute the suit any further. Four other persons then became plaintiffs; Of these the first plaintiff was ultimately appointed as Manager of the Killai durga and the second plaintiff was appointed for the durga of Nawabpet by the Subordinate Judge. Against his decree, the above mentioned appeals have been preferred. During the pendency of these appeals the first plaintiff died. So that so far as the durga of Killai is concerned, the question now before this Court is not whether the order of the lower Court should be confirmed or should be varied but whether fresh appointment should be made by this Court. This Court therefore is now in the position of an original Court trying the suit for the first time.
2. The various claimants who are now putting forward their various claims before us are : (1) the second plaintiff who in addition to his being manager of the durga of Nawabpet also claims to be appointed to the durga of Killai. He also says, that, if it is considered undesirable that the same man should be manager of two durgas, he would prefer to be appointed as manager of Killai durga which is bigger than the other durga at Nawabpet, and he is now willing to give up the benefit of the order of the lower Court.
(2) fourth plaintiff who is the sister's son of the last holder Moideen Shah. His mother is the fourth defendant in the case.
(3) twelfth defendant. He is the son of another sister, fifth defendant (deceased), of the last holder, a younger brother of the first plaintiff who died during the pendency of the appeals.
(4) sixth defendant who belongs to a branch collateral to the last holder and is a brother of the sixteenth defendant who originally filed the suit.
3. These four are all the males now putting forward claims for the offices. The original third plaintiff who appeared by Vakil in this Court does not appear before us either by an Advocate or in person and does not urge his claim. Then there are certain females also asserting their claims. These are (1) the fourth defendant. As already mentioned she is the sister of the last holder and mother of the fourth plaintiff, (2) eighth and ninth defendants. These are sisters of the twelfth defendant. They are put together merely because they appear by the same advocate and put forward the same arguments. They even claim the office jointly, (3) second defendant. She is the widow of the last holder but through her father she belongs to the same branch as that of the sixth defendant being his sister.
4. In considering the claims of these various claimants it is said in some of the decisions and text books that the wishes of the founders may be considered by the Court. But subject to this no party has any absolute right to be appointed to the office. The Court has got to make the appointment in the best interests of the institution. This is practically conceded by all the parties vide Shahar Banoo v. Aga Mahomed Jaffer Bindaneem (1906) I.L.R. 34 I.A. 46 : 34 Cal. 118 (P.C.) Atimannessa Bibi v. Abdul Sobhan (1915) I.L.R. 43 Cal. 467 and Phatma Bi v. Haji Musa Sahib (1913) I.L.R. 38 Mad. 491 : 26 M.L.J. 115. Now the Killai durga came into existence as the tomb of the ancestor Rahimtullah who was a saintly person and was apparently managing a mosque. His son Edulla got gifts of lands in addition to the gifts given to his father. But it is not very clear that during his lifetime these lands were dedicated to any of the institutions in particular. All that we can say is that at that time the then rulers made the grants to the father and son on the ground that they were holy persons and they were likely to spend them for the benefit of certain institutions in their hands. The judgment relied upon by Mr. Sitarama Rao which is Ex. XXIII does not carry us beyond this. Edulla's son Ghulam Moideen was the first person who attempted to make permanent arrangements for the conduct of these institutions and also incidentally for the maintenance of his descendants. He first executed a will Ex. D in 1826 and because his eldest son predeceased him, he afterwards altered the arrangement and executed another document Ex. M in 1839. These documents are practically the same. They show a desire that the three durgas then in the family should be managed by the descendants of his three sons. The eldest son's branch was to take Killai, the 2nS son's branch was to take Nawabpet and the 3rd son's branch was to take the other durga which is not now in dispute. The 2nd son's branch now became extinct and by certain transfers through a foster son of the 2nd son, Nawabpet durga also came into the hands of the eldest son's grandson namely Moideen who was the last holder. In Ex. D the words used were "Batnam bad batnam". In Ex. M these words and also the words "Naslan bad Naslan" were used. The primary meaning of the words 'Batnam bad bainam' seems to be generation after generation. See Wilson's Glossary and Durga Prasad's Arabic dictionary. It is contended by Mr. Rangachari and also by the Advocate for the sixth defendant that these words exclude the cognate descendants. It seems to be so in the case of private grants. In the case of documents relating to private property, the words have now become words of limitation and as such they indicate absolute estate and in the case of absolute estate agnate heirs being residuaries exclude cognates under the Mahomedan law. But where these words occur in documents laying down the line of devolution for a religious office, such as the managership of a wakf, the above said consequence does not necessarily follow. There the words generation after generation must be taken literally and we do not see any reason why at least in the case of descendants of a person claiming through females they should be excluded. It has been contended relying on Abdul Ganne Kasam v. Hussen Miya Rahimtula (1873) 10 B.H.C.R. 7 and Shah Ahmud Hossain v. Shah Mohiood-deen Ahmud (1870) 16 Weekly Reporter 193 that descendants through females should not be regarded as members of the family and must be regarded as strangers. The word 'family' itself is ambiguous. In this decision it is used in the sense of agnate heirs. In a larger sense a man's descendants through females are equally members of his family and certainly under Muhammadan Law are heirs though they are remote heirs and they can come in by the use of the appropriate words, for example, by the use of the word "Ahfad" as in Shekh Karimodin v. Nawab Mir Sayad Alam Khan (1885) I.L.R. 10 Bom. 119. The passages relied on in the various text books no more than summarise the effect of these decisions and do not help us further. The word "Naslan" certainly includes all descendants vide Tyabji's Muhammadan Law, Section 508; and "Naslan bad Naslan" indicates all descendants. That is how ,it was transalated in Ali Muqtada Khan v. Abdul Hamid Khan (1919) I.L.R. 41 All. 412 at 413 and 415. On the whole therefore we come to the conclusion that the words 'batnam bad batnam' in Ex. D and the words "naslan bad naslan' in Ex. M are not intended to exclude the descendants through females. Baillie's Mahommedan Law, page 579 does not indicate a contrary view. We have therefore to consider the relative merits of all the claimants including the descendants through females. The appellant in Appeal No. 186 argues before us that females should be entirely excluded on the ground that originally the office was Sajjada Nishin. But he also concedes that, at present it is practically the office of Muttavalli and no duties like those of the Sajjada Nishin are being performed by anybody. That being so, we do not think that females should be necessarily excluded. At the same time we remember that ordinarily when a competent male is available it may not be desirable to appoint a female as manager especially in the case of Muhammadans on account of their habits of seclusion even though they can perform the duties of manager through a deputy. Not until therefore we find the four male claimants namely the second and fourth plaintiffs and the sixth and twelfth defendants to be. incompetent for being appointed as managers should we begin to consider the claims of the female claimants. If they are incompetent certainly a female should be appointed. At present it is not desirable to say anything more before we know of the qualifications of all the male members. Something has been said in the Subordinate Judge's judgment as to the qualifications of the second plaintiff, fourth defendant and the sixth defendant, but nothing has been said about the qualifications of the twelfth defendant, because for a long time he was a minor and it is only just about the time of the arguments in the Court below he put forward his claim and even this he put it forward only faintly because his elder brother, the first plaintiff, was then living and he was not seriously putting forward any claim of his own against that of his elder brother who was found competent by the Subordinate Judge. But now we have got to consider his qualifications also. We therefore call for a finding from the Subordinate Judge on the qualifications of the twelfth defendant intrinsically and also in comparison with the qualifications of the second plaintiff, fourth plaintiff and sixth defendant; and this is only so far as Killai Dharga is concerned. So far as the Nawabpet Dharga is concerned, the second plaintiff has already been appointed. The question now before us is not whether we can find some better person or not but whether the order of the lower Court should he disturbed. Nothing serious has been said against the competency of the second plaintiff to be the manager of Nawabpet. It may be that we may choose him hereafter for Killai and we may have to ask him to give up his managership for Nawabpet which he is willing to do. But except for that contingency there is no reason to disturb it. The Lower Court appointed him on probation for three years reserving the discretion to further examine his work. We do not fetter the discretion of the lower Court. All that we say at present is, we confirm the order of his appointment on probation for three years.
5. As to the sixth defendant the Subordinate Judge in paragraph 24 of his judgment merely said that there are a number of objections and number of allegations against him with respect to the discharge of his duties as Receiver. But the Subordinate Judge has said nothing more about these allegations. The learned Advocate for the sixth defendant claims that he showed a considerable balance about Rs. 25,000 in his management as Receiver and he also argues that his mortgaging of the property of Vellaithorai Dharga was really for the purpose of freeing the Killai Dharga from a liability of Rs. 10,000 which was incurred by the first defendant. These matters also will be considered by the lower Court in comparing the qualifications of the various claimants. The remarks of the Subordinate Judge in paragraph 24 were really not meant to be final especially as he thought the claim of the first plaintiff was really superior to that of the sixth defendant, a circumstance which does not now exist. All the parties wilt be at liberty to adduce fresh evidence. The finding will be submitted within one week after the re-opening of the High Court after the summar vacation, and 10 days for objections.
6. In compliance with the above order the Subordinate Judge of Mayavafam submitted the following:
7. Finding. - I have been directed to submit a finding as regards the qualifications of the twelfth defendant, intrinsically and also in comparison with the qualifications of the second plaintiff, fourth plaintiff and sixth defendant, for the mutta walliship of the Killai Darga. [The learned Subordinate Judge dealt with the relative merits of the claimants to the office of trusteeship and concluded:]
8. Taking into consideration the other qualifications of the twelfth defendant, with the facts that he is a young man who has been certified to be trustworthy in Ex. XXXVI and that there is a possibility of his improving his conduct with age and experience as deposed to by P.W. 1. I am inclined to hold, and I find, that the twelfth defendant is the best fitted, under the circumstances, to be the Muttawalli of the Killai Darga and its properties.
9. These Appeals coming on final hearing after return of the findings on Tuesday the 9th day of May, 1933, the Court delivered the following JUDGMENT
10. In these appeals we called for a finding from the Subordinate Judge of Mayavaram on the question of the relative fitness of the four male claimants, namely, the second plaintiff, fourth plaintiff, sixth defendant and the twelfth defendant. After the case was sent back the fourth plaintiff died and it is unnecessary to express any opinion about him. As to the other three the Subordinate Judge has fairly summarised the various points that can be said in their favour and against them. [Their Lordships dealt with the finding and concluded:]
11. We therefore resolve to appoint the twelfth defendant as trustee of the Killai Darga on probation for three years. His work from April 1929 up to 1936 may then be reviewed by the Subordinate Judge and if there is no objection he can be made permanent. We express the hope that he will get on with the Hindu tenants and the Hindu neighbours without any disputes. The direction in the judgment of the first Subordinate Judge in this case that the trustee should submit a report as to the probable income and expenditure, an account of the surplus amount available for distribution and a list of the members of the family who would be entitled to such distribution and the proportion to which each would be entitled and take orders of the Court thereon before such distribution, was not made the subject of the appeal and the parties are agreed that these provisions should be carried out. The Subordinate Judge will now see that these provisions are carried out. If he thinks proper, the Subordinate Judge may give directions for distribution of a definite fraction between the members and of a definite fraction for the expenses of the darga with reference to the provisions in Exs. D and M. It has been brought to our notice that in the main Appeal No. 186 a large amount of court-fees was directed to be paid by the Taxing Officer but afterwards in the connected Appeal No. 77 of 1926 our brothers Krishnan and Venkatasubba Rao, JJ. found the smaller court-fee to be adequate. On the latter opinion the first court-fee collected was no doubt excessive and improperly collected. We cannot pass any order for its refund, but the parties are at liberty to apply to the stamp authorities for refund of the excess relying on the opinion of Krishnan and Venkatasubba Rao, JJ., and on our opinion. A certificate will issue that the Appellants paid the excess Court-fee.
12. These appeals having been set down for being spoken on Thursday the 11th day of May, 1933, the Gourt made the following ORDER
13. The trustee will file half-yearly accounts in the lower Court and have them passed.
14. The lower Court will pass the twelfth defendant's accounts kept as receiver and the surplus now available for distribution will be ascertained and dealt with.
15. The security of Rs. 6,000 (Six Thousands) already furnished by the twelfth defendant will continue during the period of probation. The parties will file the bill of costs.
16. These appeals having been set down for being spoken to on Friday the 20th day of October, 1933, the Court delivered the following JUDGMENT
17. All parties will get their costs (other than Advocates' fee) out of the estate. As the Advocates' fees, each party may get the minimum fee of Rs. 100 (Rupees One Hundred only) from the estate. The successful party will get Rs. 250 (Rupees Two Hundred and Fifty) from the estate. The sixth defendant will also get a fee of Rs. 250 in consideration of the fact that he worked as receiver without remuneration. The Court-fee paid by sixth defendant will be limited to Rs. 100 (Rupees One Hundred) for the purpose.
18. The legal representatives of the Appellant (fourth plaintiff) in appeal No. 76 of 1926 on the file of the High Court will be brought on record for the purpose of the order.
19. These appeals having been set down to be spoken to this day the Court delivered the following JUDGMENT
20. The legal representatives of the fourth plaintiff--fourth respondent as brought in in the orders passed in C.M.P. Nos. 3808 and 3817 of 1933 will be taken as the correct legal representatives. As a matter of fact they include the other legal representatives but the name of the widow is given differently. That name will be taken as Gousinnissa. She will be taken as the guardian of the minors.
21. None has been brought on the record as the legal representative of the first plaintiff - first respondent for the purpose of getting his costs. We do not see any reason to pass any order to that effect now.