MUNNAVARU BEGAM SAHIBU Vs. MIR MAHAPALLI SAHIB

JUDGEMENT

(1.) The appeal is by the third plaintiff, daughter of the first plaintiff who died since the institution of the suit; The suit was to recover certain lands which are attached to what is described in the plaint as the Astana Bara Imam at Inuguduru, a suburb of Masulipatam, from the defendants who are in possession. The third plaintiff s case is that she is entitled to the office of Head Mujavar of the Astana in succession to her mother, the first plaintiff. What the nature of the institution is one of the important questions we have to consider in the appeal.

(2.) There was a grant made by Nizam-ul-Mulk, Nizam of Hyderabad, in 1725 which is the root of the title of the parties, and one of the questions for consideration is as to the true interpretation of that document. The grant is in Persian, and when properly translated the material portions of it are to this effect.--It purports to confirm previous grants by ancient rulers made by way of Madad-Mash, or (literally translated) subsistence allowance of Mir Ali Akbar and others, sons of Mir Syed Mahomed Madani who are to recite Darood or blessings on the Prophet and Fatiha in the name of the Imams and the Martyrs, the descendants of the prophet. Then it goes on to say, "It is necessary that the said lands should be left in the possession of the aforesaid persons so that they should utilize the incomes thereof towards their maintenance and along with their descendants, literally, children and grand-children (aulad and ahfad), should engage themselves in offering prayers for the perpetuity of the State." If the matter stood merely upon the interpretation of this document, it might be contended that the grant was in absolute terms to the persons mentioned therein, Mir Ali Akbar and others, sons of Mir Syed Mahomed Madani, who were expected to perform certain religious ceremonies. Upon such an interpretation the grant would be of an absolute estate to the persons named in the sanad. But the evidence clearly shows that the parties concerned have put their own interpretation upon the document and the practice and usage has been in accordance with that interpretation. That is to say, they have treated the grant as creating a public religious trust for the performance of Fatiha and certain other ceremonies during the Muharram, and though it might be possible to hold that the grant was of an absolute estate to Mir Ali Akbar and others, sons of Mir Syed Mahomed Madani, I am not prepared to say that the parties interpretation of the sanad as creating a Waqf is unreasonable. In any case, so far as this appeal is concerned, we must proceed upon that interpretation, for, it is upon it that the parties base their claim.

(3.) Both the parties, are descendants of Mir Syed Mahomed Madani s sons and they are, according to the interpretation placed By themselves on the grant, entitled to allowances for maintenance provided they keep up and perform the religious duties mentioned in the sanad. There has been previous litigation with respect to the rights of the parties, some time in 1896, when a suit was instituted by the father of defendants Nos. 1 and 2 in the present suit against"the first plaintiff and another lady. That suit was compromised and a decree passed in the terms of the rajinama marked Exhibit B. By that compromise it was provided that "the second defendant, (that is, the mother of the appellant) should be Head Mujavar henceforward, the plaintiff should give up the remaining lands for which he had brought the suit in excess heretofore and the part produce, etc. . . . business should be carried on from generation to generation (not lineally as wrongly translated in the paper-book) according to the terms of this agreement." There cannot be any doubt that if this rajinama is binding on the parties the appellant is entitled to the office of Head Mujavar. This is what has been held by the lower Courts and is undoubtedly in accordance with the correct interpretation of Exhibit B. The lower Court, however, is of opinion that Exhibit B is in violation of, or contrary to, the provisions of the sanad already referred to (Exhibit VI) and cannot bind the parties; and that we have therefore to fall back on the terms of the sanad and in the light of the general Muhammadan Law to ascertain whether the plaintiff or the defendant is entitled to the office of Head Mnjavar.