THANGACHI NACHIAL Vs. AHMED HUSSAIN MALUMIAR

JUDGEMENT

(1.) THIS is an appeal preferred against the decree and judgment of the learned subordinate Judge of Mayuram in O. S. No. 77 of 1951.

(2.) THE facts are:- Muhammad Abdul Kadir Ma-lumiar created a private trust on. 1911-1918 i. e. Bab-sequent to the Mussalman Wakf Validations Act of 1913. The wakf comprised of Ac. 12. 80 cents of land near Nagore, portion of a house bearing door No. 3 in Nagore Town, and cooking vessels etc. , men. tioned in Wakf Deed. The trust was created for the purpose of meeting the expenses of a Mouluth to be performed in the month of Rablulavul when 40 marakkals of rice should be cooked and distributed to relatives, friends and the poor and another Mouluth to be performed in the Mohurram month of each year in the Hussainia Moulath. khana belonging to the settlor when 25 marakkals of rice have to be cooked and distributed to poor muslims. This poor feeding is a valid object of a Wakf: Baillie (1) 550; Hidaya 240; Fatma bibi v. Advocate-General of Bombay, ILR- 6 Bom 42 (A); Assoo-bai v. Noorbal, 8 bom LB 245 (B); Keetyan v. Ravuthan, ILR 35 Bom 681 (sic ). The vessels were for use oh those occasions and it is provided that at the time of the Mouluths the entire house referred to above was to be vacated by the persons occupying the portion. The expenses have to te met from out of the income of the lands after paying the melwaram due to the Nagore Durgah. The wakf deed also provided that 3/4 ths of the net income from the lands was to be spent for the trust, but, in order to provide for the due performance of the trust, in years when there may be a failure of crops, a reserve-fund was to be kept sufficient to enable the trust being performed, for one year; and, subject to the said provision being made for the regular performance of the charity every year, one-fourth of the income was to be distributed among the founder's Santhathi, male end female. The first defendant, the eldest son of the dedicator, and the second defendant, his sons-in-law, were constituted trustees, but after them, or even during the lifetime, any Santhathi of the settlor, who was a male, who was a proper person, and who was capable of performing the charity, could be the trustee. And, any trustee, who misconducted himself, could be removed from office, at the instance of a santhftthi of the settlor. There are other terms prohibiting alienation and gifting of the Wakf property and for building up of reserves. Thus this was a permanent dedication by a Muslim, of properties partially for the maintenance and support of his family children and descendants and for purposes recognised by Mussalman law - religious, pious or charitable. Ahmed v. Julaiha bivi, (1946) 2 Mad LJ 335: (AIR 1947 Mad 176) (C) (Patanjali Sastri and Bell JJ.); vssucjeva Bao v. G. K. Kangai, A. S. No. 92 of 1946: (D) High court (to which Govinda Menon J. was a party); Abdur Rahim v. Narayan Das. ILR 50 Cal 329 at p. 334: (AIR 1923 PC 44 (2) at pp 45, 46) (E); Mahommed Ahsanulia v. Amar Chand ILR 17 Cal 498 at p. 509 (PC) (F); Abdul Fata v. Rasamaya, ILR 22 cal 619 (PC) (G); Alima Ammal v. Mohammed Hussain Marcair, Appeal No. 198 of 1946 (Govinda Menon and Chandra Red-di JJ.) dated 27-3-1951 (H) where a similar wakf by a Malumier from East Tanjore came up for consideration. 2. (a) This Abdul Kadir Malumlar so long as he was alive was carrying out the terms of the wakf deed. Subsequently after his death, according to the plaintiff, what happened was as follows. The first and the second defendants colluding with the sixth defendant purposely allowed arrears of rent to the Nagore Durgah to accrue when the nanja lands were fetching 130 kalams of paddy as the tenants' share, and a fraudulent revenue sale was held in 1839 and the bulk of the properties even then worth about Rs. 5,000/- and now worth Rs. 15,000/- was sold for Rs. 401/ -. This included a bungalow in item 1 and the tank which could not be sold for arrears under the Madras Estates Laud Act. '. After the said revenue sale of the bulk of the properties, defendants 1 and 2 purported to convey by a private sale the remaining properties covered by the D and E Schedules to the plaint to the self-same auction purchaser viz. , Haja Abdul hameed Sahib. This Haja Abdul Hameed Sahib -died four years ago and the third defendant la widow and legal representative. This Haja Abdul Hameed Sahib in his turn purported to make a wakf of the properties which he had purchased, prescribing similar celebrations and made the fourth defendant his trustee. The fifth defendant Is the daughter of the first defendant who has purported to gift to her a portion of the house. No. 3 as stridhanam on the occasion of her marriage in september 1946, entirely overlooking the terms of the wakf deed prohibiting any alienation or gift. In these circumstances the plaintiff, who is the son of the founder of the trust and is In the line of trustee appointed by the founder and interested in seeing that the properties are not lost to the trust and who is also a beneficiary of the surplus one-fourth which has to be distributed by the trustee amongst the heirs of the original founder, has filed this suit in 1951 in the pauper form alleging that on account of his suffering from mental illness he came to know of these alienations about one year prior to the filing of this suit, properties mentioned in B, C, D, E and F Schedules to the trust created by the plaintiff's father as per wakfnama dated 19-11-1918. The suit is stated to be not barred under S. 10 of the Indian trusts Act and that even otherwise It had been instituted within a year of the plaintiff's knowledge of the fraudulent alienations.

(3.) THE contest raised by the contesting defendants is reflected in the following issues: 1. Did the whole of B, D and E Schedule properties belong to Muhammad atadui Kadir Ma lumiar? 2. Is the sale in E. p. No. 27 of 1938 on the file of the Sub-Collector's court liable to be set aside for any of the reasons set out in the plaint? 3. Was the O Schedule property not liable to be sold by the Revenue court? 4. Is the sale of O and E Schedule properties to the third defendant's husband by defendants 1 and 2 valid and binding on the trust? 5. Has the plaintiff right to sue? 6. Is the suit, as framed, unsustainable? 7. Is the suit in time? 8. Is the suit barred under S. 47, Civil P. C. ? 9. Is the suit barred under S. 92, Civil P. C. ? 10. To what relief is the plaintiff entitled?