MOHAMMAD SAYEED Vs. M S MOHAMED JAFFAR

JUDGEMENT

(1.) THIS is a petition for leave to appeal to the Supreme Court from the judgment and decree of this court in App. 138 of 1961, to which one of us was a party which reversed the judgment and decree of the City Civil Court in O. S. 2292 of 1959.

(2.) THIS petition arises out of a suit filed by the first respondent herein for declaration that he was entitled along with the petitioner herein to manage the wakf properties created by one Magdoom Mohamed Maracayar, the maternal uncle of the petitioner herein. The founder of the said Wakf Magdoom Mohamed maracayar created a wakf alal aulad or family wakf by a registered deed dated 278-1924, appointing himself as the first Mutavalli, and after his lifetime, appointing the father of the first respondent and the father of the petitioner as joint mutavallis. The deed also provided that if one of the mutavallis died, the other should function, singly. It further provided according to the first defendant that, after the death of the two joint mutavallis, the eldest of the male issues of the aforesaid mutavallis should alone be the mutavalli. The contention of the petitioner was that, after the death of the two aforesaid mutavallis, viz, the father of the petitioner and the father of the first respondent, he alone was entitled to be the mutavalli, as he was the eldest of the male issues. The trial court dismissed the suit of the first respondent and declared that he could not claim to be the joint mutavalli along with the petitioner. But on appeal the said decision was reversed, and it was declared that the first respondent was entitled to act along with the petitioner as joint mutavalli in respect of the wakf properties created by Magdoom mohamed Maracayar. It is against this judgment and decree, that the first defendant has preferred this petition for leave to appeal to the Supreme Court.

(3.) LEARNED counsel for the petitioner contended that he was entitled to a certificate, as the judgment of this Court was one of reversal of that of the court below and as the pecuniary value of the subject-matter of the dispute both in the court below and in appeal was above Rs. 20,000, as given by the first respondent herein. If the value of the subject matter in dispute between the parties was capable of determination and if it was then determined at Rs. 20,000, by the first respondent, this argument of learned counsel for the petitioner would have force. The petitioner would then be entitled to grant of leave as a matter of right under article 133 of the Constitution. But the real question that arises for determination is, what is the subject matter in dispute between the parties in action. The first respondent filed a suit for declaration that he was entitled to act along with the petitioner as joint mutavalli. It is difficult to estimate the pecuniary value of the joint right of a mutavalliship in a wakf.