UMAR LEBBAI Vs. AMBASAMUDRAM TALUK INAM POTTALPUDUR MOHIDEEN ANDAVAR PALLIVASAL MANAGING COMMITTEE THROUGH COMMITTEE PRESIDENT SYED VALILULLAH SHA KADARI PEERZADAH ALIAS S.V. SHAH

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent from the judgment of Venkataraman, J., in Umar Lebbai v. Ambasamudram Pallivasal (1967) 2 MLJ 218 who, agreeing with the conclusions arrived at by the two Courts below him, dismissed the plaintiff's Second Appeal. The earlier litigations had settled that one Vaka Mahadu Meethi Lebbai was entitled to perform the duties of Lebbai in Mohideen Andavar Pallivasal at Pottalpudur in Tirunelveli district in the Tamil month of Thai, once in two years and to get the corresponding emoluments therefor. In 1948, he died leaving his eldest son, Umar Lebbai the plaintiff, and 3 grandsons, defendants 6 to 8 by his predeceased two other sons, the last two defendants being the sons of the youngest of them. Syed Shah Abdul Latif v. Mohammed Lebbai (1958) 2 MLJ 199, had decided that the Lebbais in institution would be entitled to an one -fourth share out of the hundial collections both at the time of the kanthuri and in ordinary times and an one -fourth share under all other heads of income except the Sandhanakudam and lands.

(2.) THE plaintiff -appellant claimed in his suit, out of which the appeal arises, to have succeeded to the Lebbaiship to the exclusion of his three nephews. He would be well -founded in his claim if the ordinary rules of inheritance of Sunni law applied by which the uncle would exclude the nephews, the females being also excluded on the ground of incompetency to perform the duties of Lebbai. But, the first two Courts, accepted the case of the nephews that succession to the Office should be on the basis of the rule of per strips. Venkataraman, J., accepted that view, he being of the opinion that the rule of inheritance to wakf could reasonably be extended to succession to the Office of Lebbai. Syed Shah Abaul Latif v. Mohammed Lebbai (1958) 2 MLJ 199, observed with reference to this Pallivasal that "The Lebbais must light the lamps of the Pallivasal, must call out bang, must read the fathiha, must recite the maulud and the yazin and give salivat, must attend to the comforts of the pilgrims coming to the Pallivasal, though they were not bound to sweep any portion of the Pallivasal." The Office of Lebbai appears, therefore, to be more or less of a religious character. Succession claimed by the appellant is not to any wakf as such, but to the Office of Lebbaiship, the receipt of emoluments being only incidental to the Office. The rule of succession in the case of wakf is well settled. Mulla on Principles of Mahomedan Law, 17th edition says:

(3.) WHERE a wakf is made for the benefit of the settlor's descendants, but no rules of succession are laid down in the deed of wakf, the descendants take per stripes, and not per capita, and males and females take equal shares. The Andhra Pradesh High Court in Mazhar Ali v. Bulam Murtujah A.I.R. 1958 AP 8, however, held that if a wakf was in favour of the descendants ''generation after generation, the implication was that the nearer line or class took first, and after them the line next after. But the principle that the children of a predeceased son were excluded by their uncles and aunts did not apply to endowed property. But this is not a case of wakf, and much less, of wakf made for the benefit of the settlor's descendants. The sentiments of the Muslim Law appear to be against the application of the rules of inheritance or principles of hereditary succession to the administration, of wakf property. The instant case is not one such either. Succession to the Office of Lebbai is not covered by any decided authority or any precise rule of Muslim Law.