ISMAILMIYA BANEMIYA Vs. WAHADANI BEGAM

JUDGEMENT

(1.) The claim in this suit and in suit No. 408 of 1897 is that the defendants Nos. 1 to 5 be ordered to give to the plaintiff a turn of one-fourth share of the management of certain villages which the defendant Wahadani carries on.

(2.) The facts found by the lower Courts are that the villages referred to in the prayer are three villages assigned by the ruling power in the 18th century for the support of a Darga and Khanga. The monastery was already attached to the Darga prior to 1708, the year of the first recorded grant of a village by the ruling power. In that year a Finnan of the Emperor Shah Allum was issued, whereby the village of Hatnur was granted to Hafizulla for expenses in connection with Fakirs and the monastery as money payable for the main-tenance of Syed Hafizulla, one of the children of Kutub Rubbini. The village of Sundarde was granted in the year 1745 to Mahomed Yasin who is stated by the lower Court to have been a brother of Hafizulla, and the village of Sonare was also granted to Mahomed Yasin, but the date of that grant is not given. Abdulla, the eldest son of Mahomed Yasin, was in possession as manager of the villages and the institution in the year 1823. In 1827 it appears that the management was being enjoyed by the three sons of Abdulla, Masuniiya, Hajimiya and Bismilla. Of these, Hajimiya and Bismilla pre- deceased Ma-sumiya, and Masumiya s management ceased on his death in 1838.

(3.) The villages were then taken into the management of the Collector and in the year 1840 were handed over by that officer to Masumiya s eldest son Janimiya. He died in 1842, and a dispute then arose between Masumiya s second son Ghasitamiya and Bismilla s eldest son Budhanmiya. The Collector decided the dispute in favour of Ghasitamiya who was installed as manager and remained in possession until 1849, when he died. His death exhausted the male descendents of Masuniiya. A dispute then arose between the widows of Janimiya and Ghasitamiya on the one hand, and Budhanmiya and Bannemiya, the elder sons of Bismilla, on the other, with regard to the right of management. The Collector again was the person who decided the dispute. His decision was that the management should be with Budhanmiya and Bannemiya, and that the widows of Janimiya and Ghasitamiya should be entitled only to maintenance. This was in 1854, and the management continued undisturbed between Budhanmiya and Bannemiya for some years but eventually disputes occurred which led to litigation. The disputes were finally settled in 1870 by the High Court, as a result of which each manager held office for periods of three years in turn. On the death of Bannemiya in 1874 his eldest son, the plaintiff in suit No. 407 of 1897, succeeded to his father s share in the management jointly with Budhanmiya. On Budhanmiya s death the Collector passed orders substituting his eldest daughter Jinatbegam in the Revenue books as the holder of the villages, but as she was a female she was not allowed to step into the shoes of her father when the plaintiff s turn of management ended in June 1885. However in October 1885 the Collector passed orders which necessitated the plaintiff s retiring from the management in favour of Jinatbi. She died and the names of her daughters Rahirnanibi and Wahadani were in succession substituted for hers in the revenue records. It is in consequence of the Collector s recognition of Wahadani as a person entitled to manage in rotation in place of Budhanmiya that this suit arid suit 408 have been brought by the two elder sons of Bannemiya.