A P ABDUL LAZEEZ Vs. KANDOTH PAKKER

JUDGEMENT

(1.) The question that arises for determination in this case is whether an application filed for the appointment of a Muthavalli, when there is already one in management of the wakf, though not a validly constituted muthavalli, is sustainable. This question was answered against the petitioner by the District Judge of South Malabar.

(2.) For a proper understanding of the contentions raised on either side, it is useful to set out briefly a few facts. One K. P. Mohammad created a wakf by a document dated 19-5-1935 dedicating a house, a shop and a paramba in Ponnani, South Malabar District, the object of the wakf being feeding of the poor and other charitable functions like the chanting of katham etc., on the anniversary day of the founder's father's death. Under the deed he constituted himself as the first muthavalli and appointed his mother to succeed to him as muthavalli in case she survived him and directed that there. after his daughter who was then a minor should become the muthavalli, with his wife as her guardian. It was also provided in the deed that after the death of his existing daughter, the female children that may be born to him in future in the order of seniority from time to time should become the muthavalli. Sometime after the creation of the wakf the founder died and his mother succeeded him as muthavalli and continued in that office till her death in 1944. It may be mentioned here that the founder's minor daughter predeceased his mother. Subsequent to the death of the founder's mother, her sister who is respondent 2 herein assumed the management of the trust and has been continuing ever since as such. It must be mentioned here that the founder did not provide under the deed for any mode of appointment of muthavalli or for any other line of succession.

(3.) In January 1947 the petitioner herein who is the nephew of the late K. P. Mohammad filed an application for the appointment of a muthavalli alleging that on the death of the founder's mother, the line of succession to the office of muthavalli has become extinct and therefore a vacancy in the office of muthavalli had arisen. To that application, he impleaded respondent 2, the sister of the founder's mother, the second respondent's brother who is respondent 2, herein 1 and also the founder's wife's brothers and sisters. The application was opposed mainly by respondent 2 who is also the contesting respondent herein, inter alia on the ground that a mere application for the appointment of a muthavalli does not lie and that the proper remedy is a suit. She put forward the contention that she was in management of the wakf "agreeably to the presumed intention of the founder and to the wishes of the relations of the founder and others interested in the wakf'' and has been functioning as such ever since and as she has been administering the wakf property as prescribed by the founder. She could not be removed in an application. The learned District Judge who heard the petition rejected it holding that it is barred by Section 92, Civil P. C., and that it was not competent for the Court to entertain this summary application.