FIDAHUSSEIN KADERBHAI Vs. TYABALLY MULLA EUSUFALLY

JUDGEMENT

(1.) THIS suit is filed by the plaintiff to obtain a declaration that a deed of trust dated October 29, 1895, is void and inoperative, that defendants Nos. 1 to 3 who are the present trustees and holders of the property be ordered to deliver up the property and the deed for cancellation and to render an account of their management of the property. The plaint recites that on October 29, 1895, one Abdulhusein, who was a Shia Mahomedan, executed the deed in question. That deed is annexed to the plaint. According to the plaintiff it is a deed of wakf. The purport of that deed is set out in para. 3 of the plaint. The first object was to pay the income to the settlor during his lifetime. It is contended in the plaint that as the settlor was a Shia Mahomedan the deed was therefore void. The settlor died on June 7, 1897. In para. 7 of the plaint it is stated as follows: The plaintiff says that after the death of the said Abdulhusein Issoobbhai the trustees under the said deed of trust paid the rents of the said property to the said Jelamboo (widow of the deceased) till her death in 1934 and the said Aminaboo defendant No.3 abovenamed and the said Kulsumboo and her two daughters Sukhraboo and Sakinaboo and one son Abdulhusein in proportion mentioned in the said deed of wakf dated October 29, 1895. The plaint then recites different deaths and marriages resulting in the parties to the suit, other defendants Nos. 1, 2 and 7, being the present descendants of heirs of the deceased settlor. In para. 14 of the plaint it is stated as follows:- Defendants Nos. 1, 2 and 3 have been holding the property as trustees and have never put forward any claim to the said property on their own behalf. The plaintiff says that the possession of defendants Nos. 1, 2 and 3 is permissive and the suit is within time. Defendants Nos. 1, 2 and 3 have filed a written statement in which they denied the allegation in para. 14 of the plaint that their possession of the property was permissive. They contended that they have been in possession of the trust property as trustees under the said deed. In para. 10 of their written statement they have contended that they are entitled to retain possession of the property as trustees under the said deed, and they denied their liability to render accounts of their management of the property to the plaintiff.

(2.) THE question of the validity of the trust depends on the question whether the deceased was a Shia Mahomedan. That fact is not admitted on the pleadings. THE result is that oral evidence, perhaps considerable, will be required to be led to prove that fact. As the point of limitation raised on the pleadings appears to be clear on the authorities, I decided to try that issue first. That includes the decision of the allegation that the trustees' possession was permissive. I should state at once that the plaintiff has made that allegation in the plaint. That is denied in the written statement of defendants Nos. 1, 2 and 3 and also in the written statements of defendants Nos. 6 and7. THE plaintiff has led no evidence to show that the possession was permissive. THE sixth issue is a question of fact, and as no evidence is led in support of this allegation by the plaintiff, the same must be found against him.

(3.) THEREFORE, the facts here are, that ever since the death of the settlor the trustees on the face of the plaint admittedly administered the property as under the trust deed and their possession is of trustees claiming to be so under the trust deed in question. They do not claim to hold the property for anyone except the beneficiaries mentioned in the trust deed and therefore the present claim of the plaintiff as the settlor's heir's heir in my opinion is clearly barred by the law of limitation. The second issue must therefore be found against him and the suit must therefore be dismissed with costs.