MAHAMMAD S CHAMNAD Vs. JAINABI

JUDGEMENT

(1.) The first point urged in this appeal is that the District Munsif should have granted an adjournment to enable the 4th defendant to give evidence in the case. No written application was made for an adjournment to the District Munsif, but an oral application is said to have been made by the 4th defendant s vakil on the ground that the 4th defendant was away in Delhi. The District Munsif refused to grant the adjournment and in appeal, this point, its is urged, was pressed before the Subordinate Judge. The Subordinate Judge has not adverted to it in his judgment. Though he sent down an issue to be tried by the District Munsif, he did not allow the 4th defendant to be examined with regard to some of the points in the case. I am not quite satisfied that the 4th defendant had sufficient excuse for not appearing before the District Munsif on, the day the case was taken up for trial ; and further I think his evidence will not be of much use in deciding the meaning of the word wakf in construing Exs. A and B. The main points in the case relate to the construction of the wakf deeds, Exs. A and B. I do not think, therefore, non-examination of the 4th defendant has in any way prejudiced him. His clerk or kariastan could have given evidence as regards the income of the property and the amount spent by him for maintaining the charity. There is no reason why his kariasthan should not have gone into the box and should not have produced the accounts kept by him. I, therefore, consider that there is nothing in this point.

(2.) The next point urged by Mr. Anantakrishna Aiyar for the appellant is that under Ex. A only male heirs are entitled to be Nazars or managers of the wakfs. Reliance is placed upon the word "moktessan," masculine singular, for the purpose of making out that only the male heirs are entitled to manage the charity. But the portion of the document relating to the devolution of management is as follows:

(3.) I think the word "heirs" should be understood in the ordinary acceptance of the term. It cannot be said to mean heirs of heirs, but only heirs. In this connexion, the principle of Mahomedan Law has to be taken into account in construing documents executed by Muhammadans. There is no such thing as hereditary right of management with regard to trust property. In the case of wakf, the management would depend upon the terms of the document. It is quite open to the author of the trust who creates a wakf to provide for the devolution of the management in his line. But when he does not make such a provision, we cannot apply the ordinary notion derived from the Hindu Law which favours hereditary rights even in the case of trustees, to the case of a wakf. In this connexion I may refer Atimannessa Bibi v. Abdul Sobhan [1916] 43 Cal. 467 and Sayad Abdula Edrus v. Sayad Zain Sayad Hasan Edrus [1889] 13 Bom. 555 where it was held that the principle of hereditary succession does not apply to the management of wakf property. So far as Ex. A is concerned, I am satisfied that the construction put upon it by the lower Courts is correct.