ABDUL ALIM Vs. ABDUL HAMID

JUDGEMENT

(1.) This is an appeal by the plaintiffs and arises out of a suit for recovery of Rs. 1,692 being the rents of certain endowed property which were alleged to have been wrongfully appropriated by the defendant during a period of three years before the institution of the suit.

(2.) The parties to the suit are own brothers, being the sons of one Sheikh Qadir Bakhsh Plaintiffs alleged that their father had. founded two mosques in Mohalla Andha ka Pul in Talia Bagh of the city of Benares and that under a registered instrument dated 28 April, 1910, he had endowed certain property for the upkeep of these mosques and had constituted himself the first mutawalli of the endowment and directed that after his death two of his sons, Sheikh Abdul Alim and Sheikh Abdurrauf would succeed to the mutawalliship. Haji Qadir Bakhsh died on 6 December, 1912. The endowed property consisted of a number of shops which are admittedly in the possession of tenants. In 1917 the names of the plaintiffs were mutated in the Municipal records as mutawallis of the endowed property. The suit was instituted on 10 September, 1926, against Sheikh Abdul Alim, the eldest brother on the allegation that he had without any right appropriated the rents of the endowed property.

(3.) The defendant alleged that the mosques were not founded by Haji Qadir Bakhsh, that the properties in suit were not endowed by him and that the plaintiffs were not the mutawallis thereof. He admitted that Haji Qadir Bakhsh was the mutawalli of the said mosques but that during his life-time the defendant had relieved him of the management of the mosques and since then had remained in possession of the wakf property for a period of more than twelve years. The defendant admitted that he had been realising the rents of the disputed property but contended that he had applied the income "on the objects of the wakf."