MAZHAR ALI SAHEB Vs. GULAM MURTUJAH SAHEB

JUDGEMENT

(1.) THIS is a plaintiffs appeal, Plaintiffs 1 and 2 filed a suit for rendition of accounts by the 1st defendant relating to the management of plaint schedule properties from 26 -6 -1940 till the date of the suit and for the recovery of half share of the income which might be found due till then and for directing defendants 1 and 9 and their representatives to pay plaintiffs every year their half share of the income and costs. The following pedigree will show the relationship of the parties.

(2.) THE 1st defendant died during the pendency of the suit and therefore defendants 10 to 15, namely, Tara Begum, Zahra Begum, Fazulunnissa Begum, Sakhina Bibi, Faizunnisa Begum and Mir Hussain Shah Durwesh were added on 23 -6 -1950 and they along with the 2nd and 3rd defendants are the legal representatives of the 1st defendant. As defendants 13 and 15 were minors, the 2nd defendant was appointed their guardian. The 9th defendant Kalagara Venkatarathnam is the lessee in possession of the suit lands. The plaint A to G schedule properties form one lot and the D schedule properties form another lot. The suit properties consisting of about six Kathis are held on Wakf known as Pacha Saheb Darga at Eluru. Out of this one Kathi was granted to Fathima Khatoon, the common ancestress of plaintiffs and defendants 1 to 8 and the other five kathis were granted to Mir Hussain Shah Durwesh the common ancestor of the plaintiffs, and defendants 1 to 8 under another grant. The plaintiffs alleged that the properties have been in possession and enjoyment or the grantee and subsequently of their descendants and therefore they are entitled to the suit properties and the income therefrom.

(3.) ON these pleadings several issues were lamed and decided by the Lower Court, but it is not necessary to advert to them as they have been negatived by both the Courts and have not been urged before us. The suit was mainly disposed of by the trial Court on the ground that the plaintiffs' suit with respect to the D schedule properties is not maintainable because the descendants of Fathima Khatoon were not made parties to the suit and secondly that the grant with respect to A to C schedule properties was to provide the emoluments to an individual who may hold the hereditary office of Muzavar from time to time and his family from the surplus income from these properties and that that office does not devolve either by the rule of primogeniture or lineal primogeniture on the members of the family.