MOHAMMAD ZAINULABUDEEN Vs. SAYED AHMED MOHIDEEN

JUDGEMENT

(1.) This Civil Appeal by the plaintiffs is directed against the judgment of High Court of judicature at Madras in Second Appeals Nos. 650 and 894 dated 17th November, 1981.

(2.) Mohd. Zainulabudeen and Yasin Bi filed a suit for declaration that they were entitled to be in enjoyment and possession of Saint Syed Moosa Shah Khadiri Dargah in Madras for a period of 27 days in all in the months of February, March, June, July, October and November and to restrain the defendants from interfering with the plaintiffs aforesaid right and management in the Dargah. The case of the plaintiffs as set up in the plaint was that the Dargah in question was being managed by the members of the family of one Sayed Mohideen Sahib. Sayed Mohideen had two sons Sayed Ismail Sahib and Sayed Gulam Dastagir Sahib. As per judgment in C. S. 116 of 1909 the right of management was divided between the two sons each taking six months for himself. According to this arrangement the branch of Sayed Ismail Sahib used to remain in management for the months of January, April, May, September and December and the branch of Gulam Dastagir Sahib for the other six months, namely, February, March, June, July, October and November. The present suit relates to the controversy between the descendant of the branch of Gulam Dastagir Sahib. According to the plaintiffs after the death of Sayed Gulam Dastagir the right and management of the Dargah according to Muslim Law devolved on his two sons and one daughter, namely, Sayed Gaffar Sahib, Sayed Mohideen and Fathima Bee in proportion of 2:2:1 respectively. The plaintiffs alleged that thus Fathima Bee had l/ 5 share in 6 months i.e. 36 days. Fathima Bee left surviving one son and two daughters. The plaintiffs who are one, son and one daughter of Fatima Bee as such are entitled to 3/4 share i.e. 27 days, as another daughter Zahurunnissa was not interested in claiming her right has been impleaded as defendant No. 2. After the death of Fathima Bee, the plaintiffs being her son and daughter associated themselves in the management of the Dargah with their maternal uncles and the sons of the maternal under and were getting share of the income of the Dargah. According to the plaintiffs this arrangement was going on for several years ever since the death of Fathima Bee in 1957. However on account of some dissensions, the first defendant Sayed Mohideen (since deceased) and another defendant being the son of another deceased maternal uncle were preventing the plaintiffs from exercising their right and enjoying the income of the Dargah. The plaintiffs served a notice on 23-3-1972 calling upon the defendants to recognize the right of management of the plaintiffs in the Dargah. The defendants sent a reply on 22-4-1972 stating that the plaintiffs claiming through female were not entitled to any right in the management or share in the offerings in the Dargah and even if they were entitled to any right or claim the same was barred by limitation.

(3.) Sayed Mohideen (since deceased) defendant No. 1, in the suit filed a written statement and took the plea that his father Sayed Gulam Dastagir was a Mujawar and was receiving the offerings by right of inheritance. Sayed Ismail being cousin brother of Sayed Gulam as such as was also a Mujawar along with Sayed Gulam Dastagir Sahib. Fathima Bee the daughter of Sayed Gulam Dastagir had no right of Mujawar as the right was given only to the male members and not to the females. Fathima Bee as such was not entitled to claim any right of Mujawar.