THANGA MAYIL AMMAL Vs. PAPPA ALIAS FATHIMA BIBI

JUDGEMENT

(1.) This appeal arises out of a suit instituted in the court of the district Munsif of Tiruchirapalli, for possession of certain properties alleged by the plaintiff to be wakf properties. The District Munsif granted a decree as prayed for. The second defendant's appeal to the Subordinate judge, Tiruchirappalli was dismissed. The third defendant to whom the second defendant has transferred the property is the appellant in this second appeal.

(2.) The property belonged to one Hyder Masthan Sahib. He executed a wakf deed dedicating the property for the use of the Prophet on 12-10-1946. In the document Hyder Masthan said that the property was till then his and would thereafter be the Prophet's. Hyder Masthan declared that he would be the Mutavalli during his lifetime and after his death, the plaintiff, his daughter by his deceased first wife, would be the Mutavalli; and that after her death, the Mutavallis would be her descendants. There was also a direction in the document that, out of the income from the property, fatia should be performed in the name of the Prophet and that 11 fakirs should be fed on His birth-day, that Rs. 5 should be spent for the purpose; that kist should be paid; that the balance of the income should be taken by his daughter and her descendants from generation to generation and that they would have no right to alienate the corpus of the property. In 1954, the founder executed another deed purporting to cancel the wakf deed and to settle the property on his second wife, namely, the second defendant. The second defendant made a transfer of the property to the third defendant- the appellant in this second appeal. The suit which has given rise to this second appeal was instituted during the lifetime of the founder, namely, the first defendant. In the plaint as laid, the plaintiff prayed for a declaration that the cancellation and the alienation in favour of the third defendant were void. After the first defendant's death, the plaintiff amended the plaint so as to pray for possession.

(3.) Defendants 2 and 3 pleaded that the deed could not take effect as a wakf deed; and secondly that the deed was not intended to be given effect to and had never been given effect to.