MAMMATHKUTTY Vs. MAMMY

JUDGEMENT

(1.) This appeal is against the order of the District Judge of Ernakulam in O.S. 97 of 1101. In that suit a scheme was framed for the management of the Kanjiramittom Jemavath Mosque. The second respondent in the appeal is the advocate-manager appointed by the court for managing the affairs of the mosque. There is an annual festival in the mosque called Kodikuthu festival. Under the scheme, a yogam was constituted composed of the head of the families enumerated in appendix E to the scheme. By clause (6) it was provided, that the yogam shall meet, at least once in a year, a month before Kodikuthu festival, when it shall depute four members to help the manager in the celebration of the festival. Two of the members so deputed shall be from the family of the first and second defendants, preferably the eldest member thereof, competent to discharge their duties. The manager convened a meeting for the election of 4 representatives on 14-12-58. The appellant Mammathkuty and the 1st respondent Mammy offered themselves as candidates. The appellant objected to the competency of the first respondent to represent the family of the second defendant. On 15-12-58 the manager filed a report before the District Judge for deciding this matter. Notice was issued to both parties and after hearing them the District Judge passed an order on

(2.) It is accepted that one Chevarathu the ancestor had three sons, Ismail, Kochunny and Kutty. Ismail had two sons, Pareed and Bava. Mammy is the son of Pareed and Mammathkutty is the son of Bava. This Bava was the 2nd defendant in the suit. In the suit it was held that second defendants family had hereditary trusteeship. The question is what is the family as contemplated in the decree. It will be seen from appendix E that Ismail the father of Bava, the second defendant was alive at the time and he is No. 84. The argument is that what was meant by second defendants family was only Bava and his legal descendants. The learned Judge has referred to para 6 of the judgment to show that Chevarathu was the original trustee and that in Ext. V, Nediyampurath family had been recognised as having trusteeship in the mosque at that time. This family is the one to which the 2nd defendant belongs. The learned Judge has also discussed the prior litigation and has rightly found that it is inconceivable that a hereditary right of trusteeship can be predicated for Bava, the second defendant, to the exclusion of his father Ismail and his grandfather Chevarathu. The learned Judge also held that the second defendants family referred to is of a wide import as to take in Ismail also and Mammy being none other than Ismails grandson can be taken as a member of the second defendants family. We do not think that the interpretation of the learned Judge is wrong, and the order calls for any interference.

(3.) A preliminary objection had been raised by the respondent that appeal does not lie from the order of the District Judge. The petitioner has added a prayer in the memorandum of appeal by way of abundant caution that if no appeal lies, the petition may be treated as an application in revision. The learned counsel for the respondent has referred us to the decision in Mohd. Ahsan Ali Khan v. Syed Ibrar Hussin (AIR 1931 All. 765). In that case relying on an earlier Privy Council case reported in AIR 1925 PC 155 , it was held that the order of the District Judge in such matters cannot be treated as a decree under S.47 read with S.2, C.P.C., so as to make it appealable. Madras High Court has also taken the same view in the case reported in AIR 1927 Mad. 427 (S. Logasigamani Mudaliar v. L.B.K. Theogaraya Chetti). We agree with the views expressed in these cases and we hold that no appeal lies.