A.K. SHERFUDDIN Vs. KAIROON BI AND ORS.

JUDGEMENT

(1.) IN the year 1674 a Rani of the Nayakhan dynasty made a grant of land to a Mahomedan named Dharves Ali Sha. The documentary evidence in this case leaves no doubt that the grantee was a member of a sect of Faqirs who were followers of Jalal -ud -din Bukhari. "When Dharves Ali Sha died he was buried on the property. He has since been regarded as a saint and his tomb as a durga. After the tomb had been recognised as a durga a mosque was built by the side of it. When the mosque was erected is not known, but it is clear from the Inam register of 1864 that there was then a mosque in existence. The main question which arises in this appeal is whether the grant to Dharves Ali Sha was a grant to him personally or for the endowment of a mosque. We shall in due course examine in detail the evidence relating to this question; but before doing so we think it necessary to refer to two previous suits and to the course which the present litigation has taken. In O.S. NO. 96 of 1930, of the Court of the Subordinate Judge of Trichinopoly three Mahomedans and two Hindus brought a suit under Section 92, Civil P.C., for the recovery of the property now in suit and for the framing of a scheme for its management. There were six defendants and it is common ground that they were all descendants of the family of the grantee. They were in fact described as trustees "of the Jalali Fakir Durga and mosque." The word "Jalali" also appears in the Inam register and this gives the indication that Dharves Ali Sha was a member of the sect of Fakirs to which reference has been made. The defendants had no objection to a scheme being framed, but they wanted to be appointed trustees and to be declared to be entitled to the balance of the income of the properties after meeting the expenses of the durga. The insistence that the properties of which they were in possession were the endowment of the durga as distinct from the mosque is not without significance. The fact that two of the plaintiffs were Hindus is another indication of the importance attached to the durga. In the course of the preliminary judgment, the Subordinate Judge expressly held that the mosque was only a subsidiary institution attached to the durga and intended for the purpose of worship by those Mussalmans who resorted to the durga. A scheme was eventually framed by consent. It has been suggested in the present litigation that the decree in O.S. No. 96 of 1930 prevents any claim being made by a descendant of the grantee, even though he were not a party to the suit. This contention cannot, however, be accepted. So far as the properties are concerned, the only members of the grantee's family who are bound by what transpired in O.S. No. 96 of 1930 are the defendants to that suit.

(2.) IN O.S. No. 135 of 1933, of the Court of the District Munsif of Trichinopoly the trustees who had been appointed by the Court in O.S. No. 96 of 1930, brought a suit to recover certain properties which they claimed to be part of the endowment of the durga. These were then in the hands of alienees. They were quite distinct from the properties now in suit but the question whether the original grant was personal to Dharves Ali Sha or to him for the endowment of a mosque arose. It was held that the grant was personal. That decision, however, only affects the properties which formed its subject -matter and also only binds the parties to the suit. On 12th October 1936, one Mohamed Ibrahim Sahib, a descendant of the grantee, instituted the suit which has given rise to the appeal. He died during its pendency, but it was continued by his legal representatives. The plaintiff advanced the plea that the properties which were held by the trustees appointed in O.S. No. 96 of 1930, belonged to the descendants of Dharves Ali Sha and did not constitute an endowment of the durga or the mosque. He claimed a one -eighteenth share and it is accepted that if his case is well founded his heirs will be entitled to this share. The defendants to the suit were the trustees appointed in O.S. No. 96 of 1930 and the other members of the family. The District Munsif held that the properties in suit constituted an endowment of the mosque. The plaintiff's legal representatives appealed to the Subordinate Judge, who held that the grant was personal to Dharvesh. Ali Sha and as the plaintiff was not bound by the decree in O.S. No. 96 of 1930 he was entitled to a one -eighteenth share in the property. The executive trustee appointed under the scheme appealed to this Court. The appeal was heard by King J. who held that the finding of the Subordinate Judge that the original grant was a personal one was a finding of fact and could not be challenged in second appeal. The learned Judge agreed with the Subordinate Judge that the decree in O.S. No. 96 of 1930 did not operate as res judicata, as the appellant had contended. The present appeal is from the judgment of King J. under Clause 15, Letters Patent. The appellant is the executive trustee.

(3.) IT is now necessary to decide whether the Subordinate Judge was right in holding that the grant was personal to Dharves Ali Sha. Wallace's Register shows that the claimant to the property was a grandson of the original grantee and the grant was registered as an inam, though the purpose is not specified. The entries only refer to a part of the property in suit, but it has not been suggested that any other portion was held on different terms. This register gives the year of the grant as 1739 and the grantor as Nababkanza Abdulla Cawn. It is common ground that this means that the original grant was confirmed by the Mahomedan ruler who succeeded the last Nayak ruler. The entries in Traverse's Register are very similar, but the following interesting statement is made in the " Remarks" column: