GANGANAPALLI MOORTHANNA Vs. GANGANAPALLI CHINNA ANKIAH

JUDGEMENT

(1.) The principal question that arises for decision in this appeal is whether Trust created by a Hindu for repairs, maintenance and worship at the tomb of a Muslim Saint is valid and can be enforceable. It is the important contention raised on behalf of the 1st defendant who is the appellant in the appeal. It arises out of O. S. No. 18/ 1969 on the file of the Additional District Judges Court, Cuddapah.

(2.) Six persons filed the above suit for declaring that the schedule mentioned properties are the trust properties relating to the Trust created by Ganganapalli Kotamma by her will dated 20th of March. 1930 and for delivery of possession of those properties to them who claimed to be the present trustees. The properties are two terraced houses in Ward No. 9 of Proddatur town.

(3.) The material averments in the plaint are : By and under a will dated 20th of March. 1930 (Ex. A-3) Ganaanapalli Kotamma endowed the above said two houses and land of the extent of Acs. 12-90 cents for repairs, maintenance and worship at the tomb of a Muslim Saint by name "Nemalladinne Hussain near Mirzampalli village. The trust was to come into effect after her death. She named three persons as trustees and authorised them to take possession of the properties and utilise the income therefrom for the aforesaid purposes relating to the tomb. She authorised the trustees to nominate their successors by a majority decision. In case these three named trustees do not discharge their functions properly, the elders of Gandla community of Proddatur (to which she belonged) or majority of them should administer the endowment. However, on 21st of June. 1930 by a gift deed. Ex. B-4 she gifted away the land of Acs. 12-90 cents which formed Part of the endowment on the tomb to her sister Subbamma. She died in 1931. But before she died, she had handed over the two houses to one Hussain Miah, the son of the Saint who was looking after the tomb. Nothing, which appears on record, happened till 1964. The trustees named in the will of Kotamma had died, but without nominating their successors. So. on 1-11-1964 elders of the Gandla Community assembled and resolved to appoint five trustees who included D-1, D-4, plaintiffs 1 and 2 and One Kondamma since deceased. Nine elders of the community signed this resolution. In the same year defendants 2 and 3 who are the sons of Hussain Miah and who were looking after the tomb after the demise of their father, attempted to alienate the two houses to one Pedda Narasimhulu. Immediately the five trustees appointed by the Gandla community issued two notices dated 3-12-1964, Exts. A-5 and A-6. the former to defendants 2 and 3 and the latter to the proposed purchaser, challenging the validity of the attempt to sell the two houses. Patently on account of this, this proposed sale was not proceeded with. Evidently the five trustees continued to be in office. On 18/01/1968 D-1 purchased some lands. Under a deed dated 24-1-1968 he exchanged those properties with the suit houses by entering into an exchange transaction with defendants 2 and 3. Defendants 2 and 3 described themselves as being in possession of the two houses as Archakas of the tomb. The 4th defendant was an attestor on the exchange deed. This action on the part of the 1st defendant supported by the 4th defendant provoked the elders of the Gandla Community who again met on 28th of January. 1968 and resolved to remove defendants 1 and 4 from the trusteeship. The copy of the resolution is Exhibit A-13 and as many as sixteen signed the resolution. On 3/02/1968 there was another resolution of the members of the community. Ex. A-2 this time signed by 22 persons, appointing the pre-sent plaintiffs as trustees. After going through the necessary formalities like issuing a notice to the defendants on 15/03/1968, the plaintiffs filed the present suit on 5-7-1968. They rested their claim on the provisions of the will.