SHAHABUDDIN Vs. S NOHAMAN

JUDGEMENT

(1.) In this appeal at the Instance of the first plaintiff in 0. S. 24 of 1975, Sub- Court, Mayuram, the dismissal of that suit laid by the appellant and one deceased Mohammed Ibrahim in a representative capacity under S. 92 of the Code of Civil Procedure after obtaining the consent in writing of the Advocate General, praying for the removal of the first respondent from trusteeship and appointment of fresh trustees, for a direction to the first respondent to hand over the trust properties in schedules A and B to the plaint and the income there from and for the framing of a scheme for the proper administration of the wakf and its properties and the utilisation of the income for purposes mentioned in the wakf deeds and for other incidental reliefs, is challenged.

(2.) One Haji Udumansa Rowther was the great grandfather of the appellant and the first respondent. On 27-7-1919, he executed a deed of wakf in respect of the A schedule properties for the purpose of running an Arabic school for the propagation of the Muslim faith and religion from out of the income there from Subsequently, Haji Udumansa Rowther created another wakf on 2-81926 in relation to the B schedule properties and others and a 1/20th share from the income of those properties was set apart for the running of the Arabic school. Later on, in 0. S. 48 of 1947. Sub-Court, Mayuram, specific properties were set apart towards the 1/20th share of the income and those properties were the B schedule properties. Under the deeds, the wakif appointed himself as the administrator and manager of the wakf, its properties and the Arabic school and provided that after him, the eldest male member of the family should administer and manage the wakf and perform the charities. Haji Udumansa Rowther was-in management of A and B schedule properties and performed the charities in accordance with the wakf deeds dt. 27-7-1919 and 2-8-1926 till his death in or about 1943 leaving behind two sons Mohammed Ibrahim and Habb Mohammed, and a daughter by name Aysa Bivi. In the suit instituted in 0. S.48 of 1947, by the heirs of Haji Udumansa Rowther, Mohammed Ibrahim raised a plea that the properties cannot be divided as they were wakf properties but this stand was not accepted and in the total extent of the properties, 1/20th share was divided and set apart to meet the objects of the wakf! deed dated 2-81926 and the rest of the properties were directed to be divided. After the partition, Mohamed Ibrahim was managing the wakfs and on 18-6-1960. under a family arrangement, he provided that his son. Sarwar should manage the wakf properties. In accordance with this arrangement, Sarwar administered and managed the wakf properties till his death on 17-7-1973, leaving behind the appellant and the first respondent his second son and first son respectively, besides six other sons and a daughter. In accordance with the provision that the eldest male member of the family should administer and manage the wakfs and conduct the charities, the first respondent, being the eldest member, took over the management of the charities, According to the case of the appellant, the first respondent allowed the lands which were in pannai cultivation to be cultivated by tenants after securing a premium and had thus encumbered the lands. Besides, the appellant charged the first respondent with nonperformance of the charities by not employing a teacher for the conduct of the Arabic school and not using the building set apart for doing prayers and also for conducting the Arabic school. The building put up to accommodate the Arabic school, 'according to the appellant, had been converted into a residential one by the first respondent and the students were deprived of going to the school and learning Arabic and offering r4yers. According to the appellant, the first respondent had thus acted against the interest of the charities by committing malfeasance and misfeasance -and rendered himself unfit and incompetent to manage the waki and the properties and therefore he prayed that the first respondent should be removed from the trusteeship and a scheme should be framed for conducting the charities. Since the State Wakf Board, Madras, according to the t had not taken any steps for 'performance of the trust, and the charities, it was added as a party second defendant to the suit.

(3.) In the written statement originally filed by the first respondent, while admitting the wakfs and the charities to be performed, he denied having committed malfeasance and misfeasance attributed to him by the appellant. He pleaded that the properties were being managed and administered properly that the charities were also being performed regularly and that no irregularities as claimed by the appellant had occurred and therefore, no case for his removal from the trusteeship or the appointment of other trustees was made out. The suit was characterised as a frivolous and vexatious me owing to misunderstandings 'between the appellant and the first respondent and deceased Mohammed 'Ibrahim, was described as a tool in the hands of the appellant. An objection regarding the maintainability of the suit under S. 55 of the Wakf Act 1954, was also raised.