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Judgment
Mohan, J.—The first defendant is the Appellant before us in this appeal which arises out of O.S. No. 39 of 1973 on the file of the Sub-
Court, Thanjavur. The said suit was filed by the first Respondent herein for a declaration that the plaintiff is the sole trustee and also for a
consequential injunction. The facts leading up to this appeal are as follows: An extent of Ac.6-58 in Ullikadai village, Papanasam Taluk forms part
of a trust created by one Raja Mohammed Rowther under a registered Deed of Trust, Ex. A2, dated 18th August, 1910. In and by the Trust
Deed, it was directed that the properties shall vest in three trustees (1) Syed Mohideen Rowther, (2) Sultan Mohideen Rowther, and (3) Sheik
Mohideen Rowther. It was also provided that the last of the surviving trustees will nominate proper persons for carrying on the objects of the trust.
After the death of the founder, the heirs of the founder filed O.S. No. 30 of 1913 on the file of the Sub Court, Thanjavur challenging the validity of
the trust. That suit was dismissed. Thereafter, there were some internecine quarrel among the trustees, which led to the tiling of O.S. No. 1 of 1923
on the file of the District Munsif of Thiruvsyyaru. That suit ended in a compromise and the compromise inter alia directed that each trustee could
enjoy a specific portion of the property dealt with by the trust. The arrangement also did not subsist for a long time. Syed Mohideen died shortly
after this compromise somewhere in 1923. Sultan Mohideen also gave up his right in favour of Sheik Mohideen in or about 1935. As a result of
this, Sheik Mohideen became the sole trustee. In 1952, just before his death the nominated his wife Zulekha Bivi and his daughter Habid Ammal
(the plaintiff) as joint trustees. Consequent to the death of Zulekha Bivi in 1968 the plaintiff became the sole trustee. The first defendant was helping
the plaintiff and her mother in a litigation against the Periasami Moopanar, a former tenant. The Plaintiff and her mother being Pardhanashin ladies,
were practically under the control and domination of the first defendant. Recently the Plaintiff came to know that in 1966, the first defendant has
asked the Plaintiff''s mother to execute a document stating that the same was requited for getting return of certain documents in the prior
proceedings. In June 1971 the Plaintiff was informed that the first defendant was holding out as if he was the sole trustee and was attempting to rely
upon the document said to have been executed by the Plaintiff''s mother. On obtaining registration copies of that document, the Plaintiff came to
know that the first defendant had played a huge fraud. The document is a partition deed Ex.B6 and it contains false recitals and is void ab initio. It
is under these circumstances the suit came to be filed.
In the written statement it was contended that the properties were not the trust properties. The document, Exhibit A2 cannot be held to be a
trust deed at all. All the dealings concerning the properties were only as private property of Raja Mohammed Rowther. In O.S. 54 of 1955 on the
file of the District Munsif, Valangaiman at Kumbakonam, filed by Sultan Mohideen Rowther against Abdul Rahiman Rowther and others, it was
held, under the document the Settlor effected not an out and out dedication. It was further held that the trust deed was never acted upon and the
properties were the personal property of Sheik Mohideen. That would constitute res-judicata. The defendant is not aware of O.S. 30 of 1913 or
O.S. No. 1 of 1923. Sheik Mohideen was in enjoyment of the properties till his death in 1952. He left behind him his widow Zulekha Bivi and his
daughter, Habib Ammal. After the death of Sheik Mohideen, Sultan Mohideen Rowther filed O.S. 54 of 1956 mentioned above for recovery of
possession of a portion of properties. Though that suit was dismissed, there was an appeal. The defendant and Zuleka entered into a registered
partition deed under Ex.B6, as a result of which, this defendant is in enjoyment of the property absolutely. It was actually the plaintiff, who
obtained the thumb impression of her mother to Ex. B6 and therefore, her prayer for declaration cannot be sustained. The Second defendant filed
a written statement adopted by the third defendant, wherein it was contended that, as lessees, they have paid 31 Kalams to the Plaintiff and are
willing to pay the lease amount to such person as may be ordered by the court.
A reply statement was filed by the Plaintiff reiterating the allegations in the plaint.
On these pleadings, the following issues came to be framed for trial:
Whether the suit properties are Wakf properties?
Whether the decision in Original Suit No. 34 of 1955 (District Munsif''s Court, Valangaiman) operates as res judicata?
Whether the release deed dated 27th November 1968 is true, valid and binding on the Plaintiff?
Whether the suit is barred under S. 92 of the Civil Procedure Code?
Whether the suit has not been properly valued?
Whether the Plaintiff is entitled to the declaration prayed for?
Whether the plaintiff is entitled to the injunction prayed for?
To what relief, if any, is the Plaintiff entitled?
Rightly, the learned Subordinate Judge considered issue 1 as an important issue and he was of the view that the suit properties are wakf
properties. On issue 2 he held that OS. 54 of 1933 on the file of the District Munsif of Valangiman would not operate as res judicata . Issue 3 was
found against the first defendant. Issue 4 was not pressed. Issue 5 in so far as no argument that the court-fee paid was insufficient, was advanced,
was found in favour of the Plaintiff. On issue 6 it was held that the Plaintiff was entitled to the declaration as she has been recognised at the trustee
of the wakf property and also by the High Court in the prior proceedings which were instituted on the advice of the first defendant. Therefore, it
was no loafer open to the first defendant, who is an interloper, who denies the very character of the trust property to be in management of the trust.
Thus this issue was found in favour of the plaintiff. Likewise, issue 7 was found in favour of the plaintiff. As a result of the above findings, the suit
was decreed as prayed for. Thus, the appeal by the first defendant.
Mr. N. Vanchinathan, the learned counsel for the appellant, vehemently urges that the plaint does not contain any details about Sultan Mohideen
giving up his rights in favour of Sheik Mohideen. It merely says, he gave up his rights and Ex. A3 was not even referred to in the plaint. Even on the
merits of the document, Ex. A5 cannot amount to nomination and where Sultan Mohideen had given up his rights for a consideration of Rs. 1.750
such giving up of the muthavalliship is illegal. In support of this submission reliance is placed on Khajah Sallmullah v. Abdul Khair M. Mustafa ILR
37 Cal. 263 and AIR 1931 379 (Lahore) . The further argument of the learned counsel for the appellant is that in so far as earlier there is Ex.B5
merely stating that this was not acted upon cannot mean that this nomination will not prevail. If, according to the terms of Ex.A2 it is the last of the
three surviving trustees, who will have the power of nomination undoubtedly, the nomination under Ex. B5 is valid.
In reply to this submission, Mr. S. Gopalaratnam, the learned counsel for the first respondent would urge that it is not correct to state that Ex.A5
is a Deed of partition. A reading of the document will clearly disclose that after the compromise was entered into on 30-7-1923 in O.S. 1 of 1923
Syed Mohideen died and thereafter Sultan Mohideen and Sheik Mohideen were in enjoyment of the property as trustees. Sultan Mohideen gave
up his 1/3rd right as early as 1935 since he had left for forelga country and thereafter Sheik Mohideen alone was the sole trustee. Thus, before
1952 he nominated the plaintiff and her mother, the widow of Sheik Mohideen as joint trustees. Therefore, what Ex. A.5 does is, nothing more
than an affirmation of this. Any semblance of right that might remain la Sultan Mohideen, is given up on receipt of consideration of Rs. 1,750.
Therefore, this has nothing to do with the nomination. Once Sultan Mohideen had given up his rights no power of nomination remained in him no
again could it ever be construed as an alienation of muthavalliship, since there was nothing to alienate after giving up his right -in favour of Sheik
Mohideen even as early as 1935. As regards Ex. B5 the very document Ex. A5 clearly mentions that it never came into force. Even otherwise, if
Sultan Mohideen had given up muthavalliship as early as 1935, there was no power left to him to nominate anybody also as the muthavalli for him
to exercise the power under Ex.A5. Looked at from this point of view Khajah Sallmullah v. Abdul Khair M. Mustafa ILR 37 Cal. 263 is clearly
distinguishable. That was a case wherein the widow, who had no power of nomination under the Wakfnama in view of the specific directions given
by the founder of the wakf purporting to be a muthavalli, nominated somebody else. But, here, no such question arises. Equally, AIR 1931 379
(Lahore) will have no application, because, that was a case of a transfer of muthavalliship. Therefore, no interference whatever is called for in the
judgment of the court below. Having regard to the above submissions, the one and only question that arises for our determination is: ""What is the
legal effect of Ex. A5 and whether the power of nomination survived in Sultan Mohideen to exercise under Ex. B5?"" The document Ex. A5 is
styled as a deed of release executed by Sultan Mohideen, one of the trustees under Ex. A2 in favour of Zuleka Bivi. the mother of the Plaintiff and
the Plaintiff,
A careful reading of the same clearly discloses the following: (1) That a trust was created on 18 8-1910 (Vide: Ex. A-2) and in and under that
trust three persons were constituted as trustees. Viz., Syed Mohideen, Sultan Mohideen and Sheik Mohideen. The said Sheik Mohideen is none
other than the father of the Plaintiff, Habib Ammal, and the husband of Zulekha Bivi. (2) Concerning his, in Tiravayyaru District Muasif''s Court,
here was a litigation in O.S. 1 of 1923. That ended in a compromise on 30-7-1923, as a result of which the eastern 1/3rd was to be enjoyed by
Sultan Mohideen and the middle 1/3rd was to be enjoyed by Syed Mohideen and the Western 1/3rd was to be enjoyed by Sheik Mohideen and
from out of the income from the respective shares, the charitable objects, mentioned under the trust, were to be carried out. (3) Accordingly when
the parties were in such enjoyment. Syed Mohideen, gave up his rights in favour of Sheik Mohideen and immediately afterwards, he passed away.
(4) As far as the ""releasor"" Sultan Mohideen was concerned, he states categorically that because he had to go to foreign countries he gave up his
rights with regard to his 1/3rd share in favour of Sheik Mohideen as early as 1935 and from that time onwards it was only Sheik Mohideen, who
was in enjoyment of the property and was performing the objects of the charities, (5) Since that date Sheik Mohideen, was attending to the lands
and was performing the charities by receiving the income from the lands (6) During that enjoyment he appointed Zuleka Bivi, his Wife and Habib
Ammal, his daughter, as joint trustees and he died in 1952. (7) After stating this, the document proceeds that in view of the mediation brought
about between the ""releasor"" and the ''''releasee"", this release deed is executed. The specific term in relation to the release is ""with regard to the
properties in which I am claiming rights, I have released all my rights"". Hereafter, it shall be the releasee; who will have the right of enjoyment and in
consideration whereof I have received sum of Rs. 1,750. That consideration is made up of Rs. 1,500 received by way of family expenses and a
sum of Rs. 250/ retained with the releasee.
One other clause which requires to be referred to is that the nomination of Haja Mohideen, the brother of the releasor as trustee did not come
into force and therefore, it got lapsed. It is under these circumstances we have to consider what exactly is the true purport or the intent of this
document. On a careful consideration, we are of the view that in and by this document, Sultan Mohideen was not releasing any rights. As a matter
of fact, the release had taken place as early as 1935, since he wanted to go away to foreign countries. This document, therefore, is'' merely an
affirmation of the earlier transaction. The legal consequence of the release in 1935 itself is, Sheik Mohideen became the sole surviving trustee.
Another important consequence is, whatever rights of Muthavalliship or trusteeship, Sultan Mohideen had with reference to the trust created under,
Ex. A2, all of them became extinguished.
Sheik Mohideen, in his turn, nominates Zuleka Bivi, his wife and Habib Ammal, the plaintiff. This is perfectly in accord with the terms of Ex.
A2, the deed of trust. If this is the correct position, as we understand, then we need not get bogged down by the presence of Ex. B5. No doubt,
Ex. B5 is a document, dated 9th December, 1957. There are two reasons why we do not think this document will be of any assistance to the
appellant. First is, Ex. A5 itself clearly mentions that this deed did not come into force at any point of time and got lapsed. The second reason
which is more formidable, according to us is. if really the rights of muthavalliship had been given up by Sultan Mohideen as early as 1935, as we
observed above nothing further survived him to enable him to nominate his brother, Haja Mohideen. Therefore by reason of surrender or
abdication of his rights, he completely effaced himself. We are unable to countenance the argument of the learned counsel for the appellant that it is
not open to a muthavalli to surrender his rights. In support of the contrary argument, reliance is placed on Khajah Sallmullah v. Abdul Khair M.
Mustafa ILR 37 Cal. 263. In that case, the facts were that in and by a wakfnama created on 22nd January, 1954, the founder appointed himself as
his muthavalli and also gave directions as to the appointment of his successors. That deed further provided that after the death of the founder, his
widow would remain in possession of the endowed properties and a muthavalli would act under her orders. During the lifetime of the founder
himself, the parson, who was nominated, as the successor in the office of muthavalli died; subsequently, on the founder''s death in 1868 his widow
obtained a certificate and undertook the performance of the duties of muthavalli and continued to do so till the 29th January, 1877, when she
executed a towlist-nama, by virtue of which she surrendered the office of Muthavalli, and appointed a third party as her successor in that office,
who accordingly took possession of the endowed properties. Under these circumstances, in a suit filed by the plaintiff as one of the representatives
of the founder for declaration of his right as muthavalli and for recovery of possession of the endowed properties, it was held:
In as much as the widow of the founder was in no sense a general trustee, and that she had no authority, express or implied to modify in any way
the terms of the trust-deed nor she had the authority to renounce the office an appoint a successor, her acts were illegal under the Mohomedan
Law, and that Art. 120 of schedule II of the Limitation Act applied to the cause, and the plaintiffs'' suit was barred by limitation.
In discussing this, it was held at page 273:�
We may assume, for the purpose of the present discussion, that although Faizunnessa was not expressly appointed as muthawalli, the wakfnamah
of 1864 clearly intended to give her the same right of superintendence after the death of her husband as the latter had retained during his life time.
We assume, therefore, that Faizunnessa lawfully took possession of the wakf-properties as mutawalli after the death of her husband in 1868. There
is nothing in the deed of endowment, however, which would authorise her to appoint a successor or to vacate the office in favour of another
person of her choice.
It is further observed:
Tested in the light of these principles: What is the position of the parties in the case before us? Faisunnessa was in no sense a general trustee. She
had no authority, express or Implied, to modify in any way the terms of the trust deed; nor had she authority to renounce the office and appoint a
successor. In 1877, however, she professed to act in this manner. She gave up the office of mutawalll and appointed Nawab Absanullah as her
successor. The Plaintiff, who, as one of the representatives of the founder, was entitled to claim the office of mutavalli, was alive at the time, and
according to his deposition in the present case, was then about 25 years old. Ha had full knowledge of the circumstance that Faizunnessa had
renounced the office of mutawalli and that Nawab Absanullah had taken possession of the Office and of the properties appertaining thereto. He
was in fact a defendant in the suit commenced by his cousin, Washiduddin, in 1880 against Faizunnessa and Nawab Ahsanullah for appointment as
mutawalli and for recovery of the waqf properties. He deposed in favour of the then plaintiff and sided with him in that litigation which terminated
against his cousin in 1883. It was obviously open to him to assert his claim to the office of muttavalli at the time, and he deliberately abstained with
full knowledge of all the circumstances. His title to the office, therefore, if any became barred by limitation under Art. 120 of the Second Schedule
of the Limitation Act.
This case, therefore, on the very facts, is clearly distinguishable. Then, what remains to be considered is the decision reported in AIR 1931 379
(Lahore) . That was a case in which it was held at page 382 :
...It is in elementary principle of the Mahomedan Law that the office of a sajjada nashin or a Mutawali of a religious endowment cannot form the
subject of transfer of sale or mortgage.
In the instant case, there is no question of transfer whatever to enable the appellant to rely upon the ruling. The reason why we hold so is that there
is no transfer is apart from the fact that a release would not amount to transfer in the strict sense of the term what is it that he has released and
how? Any semblance of a claim that he might have had by reason of his enjoyment is given by receiving a consideration of Rs. 1,750. Therefore,
this is to assure the proper conduct of the performance of charities as detailed under Ex. A.2. But, certainly this cannot amount to a transfer or
alienation as contemplated in AIR 1931 379 (Lahore) . For all these reasons, we hold that Ex. A5 is a document under which Sultan Mohideen
affirmed the earlier transaction and it does not amount to a transfer. Ex. B5 never came into existence. From this point of view, we see absolutely
no difficulty in upholding the judgment and decree of the Court below. The appeal accordingly fails and is hereby dismissed with costs.