KALANDAR BATCHA SAIB Vs. JAILANI SAHIB

JUDGEMENT

(1.) THIS appeal arises out of a suit under Section 92, Civil P.C., for the removal of a trustee and for the appointment of a fresh trustee. The matter came up before us in A. Section 419 of 1924 which was an appeal against what may be regarded as a preliminary decree in the suit. That appeal was filed against the order of the Subordinate Judge removing the trustees, defendants 1 and 2 and recently we disposed of that appeal by confirming the order of the Subordinate Judge. The present appeal arises out of a later stage of the same proceedings. The question arose after the removal of the original trustees as to who should be appointed. There were various applicants. The appellants before us are nephews, sister's sons of defendant 2. C.R.P. 637 is on behalf of the minor son of defendant 3. The boy is aged 9 but it is contended before us that he may be appointed trustee and some respectable person may be appointed deputy to look after the management until he attains majority and becomes himself competent to look after the affairs of the darga. The respondent in this appeal is the lineal descendant in the senior line of Shah Phool, the second son of Shah Yedulla who was considered by his father unfit for managing these charities. By Ex. 16 Shah Yedulla entrusted the management of all the three trusts in Killai and Nawab pet which are not involved in this suit and Vellathorai which is the subject matter of this suit to his eldest son Gulam Mohideen. Two members of a junior branch of Shah Phool's line also file a C.R.P. 682.

(2.) THE question who should be appointed to some extent depends upon the nature of the trust, whether it was regarded as a hereditary trust or whether the trusteeship of each holder ends with him and it is a case of a fresh appointment by Court or some other competent authority. THE history of the devolution of the trust shows that in some form or other it was regarded as hereditary. THE original charities were founded by Rahimathulla. He was succeeded by his son Shah Yedulla. Shah Yenulla by deed, Ex. 16 appointed his eldest son Mohideen for all the three charities and Mohideen by Ex. 6, appointed his eldest son Fariduddin Attar for the darga of Killai, the second son Mahomed Ghouse for Nawabpet and by Ex. 7 his third son Gulam Jailani for the Vellathorai charties which are now in question in this suit. After Gulam's death it descended to his second son Khadame Hussain by Ex. 8. He having died issueless, he gave the endowment to his brother Shah Yedulla by Ex. 9 and defendant 2 is the son of Shah Yedulla last mentioned. It is true that in the case of the last four or five successions each person appoints the successor under a document, but, even if it were so, it is clear that the person appointed is always the next heir and, as I said, in some form or other the parties seem to have considered it hereditary. At the same time it must be remembered that there is no absolute right to be appointed trustee under the Mahomedan Law even if it is a case of hereditary trust. This is what we said in the connected judgment relating to the other two dargas, namely, A.S. 186 of 1923. But still if the original idea is that it should descend hereditarily, that fact may at least be remembered in making an appointment. Where the next heir happens to be a minor, the minor may be recognized as a trustee and a suitable deputy may be appointed. This is the view taken by Mr. Amir Ali in his Mahomedan Law of Gifts and Wakfs" p. 445 and Tyabji's "Mahomedan Law," p. 609. THEse authorities were approved in Piran V/s. Abdool Karim [1892] 19 Cal. 203: see also Secy. of State V/s. Ahmed Badsha A.I.R. 1921 Mad. 248 and Akhtari Begum V/s. Dilljan A.I.R. 1923 P.C. 11. THE net result of the matter is to some extent is in the Court's discretion but where the trust is hereditary we need not unnecessarily pass over the next heir unless there are strong reasons for doing so. We leave it to the Subordinate Judge to determine upon some respectable Mahomedan from out of the Mahomedans in the locality to look after the endowment as deputy during the minority of the minor. We allow, therefore, the Revision Petition No. 637. THE appeal and memorandum of objections are dismissed. THE petitioner in C.R.P. 637 will recover his costs from the trust estate. C.R.P. 682 and 683 arc dismissed.