MOHAMED GHOUSE Vs. MOHAMED YUSUF

JUDGEMENT

(1.) THE defendant in O.S. No. 36 of 1968 on the file of the Court of the Subordinate Judge of Nagapattinam, is the appellant. Under Ex. A -1, dated 16 -12 -1904 Sikkandar Rowther, the common ancestor of the parties before us, executed a deed of Wakf endowing considerable agricultural properties, both Nanja and Punja of an extent of about 179.17 acres for the purpose of performance of certain charities and incidentally directing the muthavalis functioning under the Wakf deed to divide the 6/16 of the net income after expending for the charities amongst his own descendants. The balance of 10/16th share of the net income was to be spent towards the performance of moulooth on a prescribed date at a prescribed place at which the prescribed quantity of rice Pulav should be cooked for distribution among the poor, the relatives and the friends. Similarly, a moulooth for the distribution of food to all Muslims and miskins present at the Nagor Andavar Vasal should be prepared and so distributed. Besides the agricultural properties, premises No. 35, Therupalli Street, including certain moveables were endowed for the purpose of performance of the obligations under the trust. Under Exhibit A -2, a friend of Sikkandar Rowther, by name Vanjoor, Madar Sahib, executed another Wakf deed on 27 -6 -1914; thus creating an accretion to the original Wakf, the purposes, however, are to a similar effect excepting for the fact that Briyani rice of a particular quantity should be cooked and distributed to the poor and the relatives of Sikkandar Rowther on every anniversary of his. Under Exhibit A -1 Sikkandar Rowther appointed himself as the first trustee and gave directions as to the succession of trustees. He left behind him three sons, two daughters and provided for the trusteeship devolving on one of his male descendants, who is capable of properly managing the endowment. There is a provision for removal of an incapable trustee or a trustee, who has become unfit to hold the office. One Bava Mohideen assumed such management of trusteeship in or about 1915. According to the plaintiffs in the action, who claimed to be interested in the trust as descendants of Sikkandar Rowther, Bava Mohideen was not managing the affairs of the trust property. A suit O.S. No. 188 of 1934 was filed in the Court of the District Munsif, Nagapattinam, against the said Bava Mohideen complaining about such mismanagement. But the contesting and the interested parties settled their differences and under an agreement dated 26 -3 -1934, it was agreed that Bava Mohideen, Haleeth Rowther, one other son of Sikkandar Rowther and Mohammad Ghouse, the daughter's son of Sikkandar Rowther, should look after the Wakf by turns. Soon after Haleeth Rowther died. Again troubles arose. The difference had to be referred to the arbitration of the Village Headman, one Mohammad Kasim, who gave an award on 2 -2 -1941. In connection with the award, there were two litigations, one was filed by Mohammad Ghouse, the daughter's son of Sikkandar Rowther for passing a decree in terms of the award. One Maimoon Sharifa Beevi, daughter of Haleeth Rowther, who is the second respondent herein, was also a party in that suit. It is unnecessary to refer to the other parties in that action and the other connected litigations. The second litigation objecting to the award passed by Mohammad Kasim was filed by Bava Mohideen himself under O. P. No. 72 of 1943. The suit filed by Mohammad Ghouse (O.S. No. 18 of 1941) was decreed and Bava Mohideen's petition to set aside the award was dismissed. The Wakf apparently was satisfactorily functioning under the terms of the award and in relation to the management of its properties till Bava Mohideen died on 30 -3 -1953. We may state that between 1943 and 1953 Bava Mohideen, one of the sons of Sikkandar Rowther was, in joint management along with Mohammad Ghouse, the appellant herein during that period. After the death of Bava Mohideen Mohammad Ghouse become the sole trustee. Thereafter disputes arose between the descendants of Sikkandar Rowther and a spate of litigation started.

(2.) JAMILA Ammal, one of the descendants of Bava Mohideen filed a suit against Mohammad Ghouse for rendition of accounts and for payment of her share in the net income of the properties as per the deed of trust. This suit had a chequered career and it is still pending in the Subordinate Court. Mohammad Ghouse, the appellant, in turn filed a suit against some of the descendants of the common ancestor for recovery of possession of the trust properties in their possession. This is reported to have been decreed in 1975. Thereafter two suits were filed by respondents 1 and 2 against the appellant for an account of the trust monies and for other reliefs. They are O.S. No. 66 of 1965 and O.S. No. 5 of 1969. It is reported, however, that both have been dismissed for default. The present suit by respondents 1 and 2, who are the daughter's daughter's son and the son's daughter of late Sikkandar Rowther, is a suit for declaration that Mohammad Ghouse, the appellant herein, who is also a daughter's son of the ancestor, is not a fit and proper person to be a trustee of the Wakf properties and for removing him from trusteeship from the Sikkandar Rowther Wakf and for framing a scheme for the proper management of the same.

(3.) ADDITIONAL Issues framed on 25 -9 -1970.