MAHAMMAD SCHAMNAD Vs. JAINABI

JUDGEMENT

(1.) The first point urged in this appeal is that the District Munsif should have granted an adjournment to enable the 4 defendant to give evidence in the case. No written application was made for an adjournment to the District Munsif, but an oral application is said to have been made by the 4 defendant's Vakil on the ground that the 4 defendant was away in Delhi. The District Munsif refused to grant the adjournment and in appeal this point, it is urged, was pressed before the (Subordinate Judge. The Subordinate Judge has not adverted to it in his judgment. Though he sent down an issue to be tried by the District Munsif, he did not allow the 4 defendant to be examined with regard to some of the points in the case. I am not quite satisfied that the 4 defendant had sufficient excuse for not appearing before the District Munsif on the day the case was taken up for trial and further I think his evidence will not be of much use in deciding the meanings of words in construing, Exs., A and B. The main points in the case relate to the construction of the wakf deeds Exs. A and B. I do not think, therefore, the non- examination of the 4 defendant has in any way prejudiced him. His clerk or Kariasthan could have given evidence as regards the income of the property and the amount spent by him, for maintaining the charity. There is no reason why his Karisthan should not have gone into the box and should not have produced the accounts kept by him. I, therefore, consider that there is nothing in this point.

(2.) The next point urged by Mr. Anantakrishna Iyer for the appellant is that under Ex. A only male heirs are entitled to be nasars or managers of the wakf. Reliance is placed upon the word "molctessan" masculine singular, for the purpose of making out that only the male heirs are entitled to manage the charity. But the portion of the document relating to the devolution of management is as follows: "In this manner if my heirs after my lifetime regularly make payments as detailed above, they should conduct the management of the property." I think the word "heirs" should be understood in the ordinary acceptance of the term. It cannot be said to mean heirs of heirs, but only heirs. In this connection, the principle o? Muhammadan Law has to be taken into account in construing documents executed by Muhammadans. There is no such thing as hereditary right of management with regard to trust property. In the case of wakf, the management would depend upon the terms of the document. It is quite open to the author of the trust who creates a wakf to provide for the devolution of the management in his line. But when , he does not make such a provision, we cannot apply the ordinary notion derived from the Hindu Law which favours hereditary rights even in the case of trustees, to the case of a wakf. In this.connection I may refer to Alimannessa Bibi V/s. Abdul Sobhan 32 Ind. Cas. 21 : 43 C. 467 : 20 C.W.N. 113 : 22 C.L.J. 577 and Sayad Abdula Edrus V/s. Sayad Zuin Sayad Hasan 13 B. 555 : 7 Ind. Dec. (N.S.) 368 where it was held that a principle of hereditary succession does not apply to the management of wakf property. So far as Ex. A is concerned, I am satisfied that the construction put upon it by the lower. Courts is correct.

(3.) As regards Ex. B, the contention by the appellant is that the full brothers and sisters of Mammade the elder son of the author of the trust are alone entitled to manage the property. The expression used here is "after him his younger sisters and brothers in order of succession according to seniority." This sentence is to be read along with what precedes it. The author of the trust directed that Mammade his eldest son, should manage all the family properties till partition, as well as wakf properties. That being so, it cannot be said that he had the intention to exclude the half brothers and sisters of Mammade. The Kanarese words are "Tangigula and Tarmma". Some stress is placed upon these two words as meaning full sisters and brothers. But as observed by the Subordinate Judge, these are generic terms for younger sisters and younger brothers. In the case of Muhammadans, unless there is explicit statement to that effect, the words brother, and sister-would include both half brothers and half sisters. I, therefore, disallow this contention of the appellant.