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Janab Mohamed Syed Trustee Yousuf Sahab Trust & Charities Chidambaram Taluk v/s Mohamed Sali & Others

    C.R.P. (NPD) Nos.562 and 563 of 2002
    Decided On, 13 April 2007
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE S. RAJESWARAN
    For the Petitioner: K. Kannan, Advocate. For the Respondents: R1, Hema Sampath, R2, V. Ramesh, Advocates.


Judgment Text
(Revision Petitions filed against the order dated 11.2.2002, passed in O.S.Nos.12/1998 and 115/1998, respectively, on the file of the Principal Sub-Court, Cuddalore.)


Common Order:


These Revision Petitions have been filed against the order dated 11.2.2002, passed in O.S.Nos.12/1998 and 115/1998 respectively, on the file of the Principal Sub-Court, Cuddalore.


2. The plaintiff in O.S.Nos.12/1998 and 115/1998 on the file of the Principal Sub-Judge, Cuddalore is the revision petitioner. He is aggrieved by the common judgment passed by the trial court and therefore the above revision petitions were filed under Sec.115 C.P.C., read with Sec.83(9) of the Wakf Act, 1995.


3. O.S.No.12/1998 was filed for a declaration to declare that the plaintiff is the only Muthavalli of Yousuf Sahib Trust and for a consequential injunction restraining the defendants from interfering with his possession and management of the trust property.


4. O.S.No.115/1998 was filed by the very same plaintiff for a permanent injunction restraining the defendants in the suit from interfering with his peaceful possession and enjoyment of the suit properties. First defendant in both the suits namely, Mohammed Sali is the son of the plaintiff's elder brother, Mohammed Sheik Maroof. 1st defendant is the 1st respondent in both the above revision petitions.


5. The case of the plaintiff is that the suit schedule properties were originally owned by one Mohammed Yousuf Sahib who, by a trust deed dated 19.1.1938 settled the properties in the name of the trust and according to that trust deed dated 19.1.1938, the founder trustee should continue to be founder trustee and after his death his grandsons namely (1)Mohammed Sheik Maroof (2)Mohammed Dawood, and (3) Mohammed Syed (plaintiff and the revision petitioner herein) should manage the properties as trustees. Mohammed Dawood passed away 12 years ago and even though the plaintiff's elder brother was a joint Muthavalli, he did not care for the administration of the properties and in fact he acted against the objects of the Trust by alienating some of the properties. Therefore the plaintiff alone continued as the Muthawalli of the Trust. His elder brother Mohammed Maroof passed away on 26.10.1988 and after his death the 1st defendant, who is the son of his elder brother Mohammed Maroof, interfered with the management and administration of the Trust and therefore the plaintiff has filed the above suits for the above said reliefs.


6. The 1st defendant alone contested both the suits. According to 1st respondent, the plaintiff is guilty of suppressing the earlier deed dated 1.6.1935 executed by the very same Mohammed Yousuf Sahib and according to that deed, the properties should be administered by the said Mohammed Yousuf Sahib until his death and thereafter by his eldest Son Mohammed Maroof and thereafter by the eldest male descendants of the said Mohammed Maroof. As the 1st defendant's father Mohammed Maroof passed away on 26.10.1988, the 1st defendant has got every right to be the only Muthavalli of the Trust properties, being the eldest son of Mohammed Maroof. The 1st defendant denied the averments that the plaintiff alone was acting as a Muthavalli of the Trust either during the lifetime of his father or after the death of his father.


7. The trial court after going through the evidence, by judgment dated 11.2.2002 dismissed both the suits on the ground that in Ex.A1, i.e., the first deed dated 1.6.1935, after the death of the founder trustee, it was specifically mentioned that the eldest male descendants should manage and administer the trust and in Ex.A2, it was specifically mentioned that after the death of the three trustees, their male descendants should administer and manage the trust properties. In other words, the trial court held that insofar as the properties contained in Ex.A1, the plaintiff could not be in contention at all, as, according to Ex.A1, after the death of the founder trustee, his male descendants alone should administer the trust properties contained in Ex.A1. It is not in dispute that Mohammed Maroof, the father of 1st defendant and the elder brother of the plaintiff, is the eldest son of the founder trustee and the 1st defendant is the eldest son of the said Mohammed Maroof. In such circumstances, 1st defendant alone is recognised as a trustee, who can administer the trust and manage the properties. Insofar as the properties contained in Ex.A2, the trial court held that as per Ex.A2, the male descendants of Mohammed Maroof and Mohammed Dawood are also entitled to administer and manage the properties and therefore the plaintiff cannot ask for declaration to declare that he alone is the Muthavalli of the suit schedule properties. Aggrieved by the above said finding of the plaintiff, the above revision petitions have been filed.


8. Heard the learned counsel for the revision petitioner and learned counsel for the 1st and 2nd respondents. I have also perused the documents filed in support of their submissions.


9. The only point that arises for consideration is whether the revision petitioner alone is competent to be the sole Muthawalli of the Trust properties after the death of his two brothers?


10. It is not in dispute that the entire properties were originally owned by one Mohammed Yousuf Sahib, who is the grandfather of the plaintiff/revision petitioner. It is also not in dispute that the said Mohammed Sahib executed two deeds namely, doc.No.855/1935 dated 1.6.1935 (Ex.A1) and doc.No.137/1938 dated 19.1.1938. In the first document dated 1.6.1935, it is specifically stated by the said Mohammed Yousuf Sahib that all the charity works should be continued by his eldest grandson Mohammed Sheik Maroof Sahib and after his death, his eldest male descendants. In case there is no eldest male descendant, then the eldest female descendant should continue the charities and even if there is no female descendant, then it should be continued by a management consisting of three competent persons of Cuddalore, who would continue the charity works. Therefore, it is very clear that only the descendants of Mohammed Shiek Maroof Sahib alone are competent to be in the management and administration of the properties mentioned in Ex.A1. At the same time, the said Mohammed Yousuf Sahib reserved his right to alter the provisions of the deed and also to appoint some other trustees during his lifetime. Accordingly, during his lifetime, he executed another deed dated 19.1.1938, where he endorsed some more properties in addition to properties already endorsed under Ex.A1 for charitable purposes. But in Ex.A2, it was specifically stated that the properties should be managed and administered after his life, by his three grandsons namely, minor Mohammed Sheik Maroof Marikkyar, (2) minor Ahmed Dawood Marikkyar and (3) minor Mohammed Syed Marikkyar (the plaintiff/revision petitioner). It is further stated that all the three grandsons should jointly administer the properties, after the lifetime of one person, the remaining persons, and after the lifetime of all the three, the eldest male members of all the three grandsons above mentioned, should administer and manage the trust. The relevant portion in Tamil is extracted below:


11. If the above extracted portion from Ex.A2 is perused carefully, the only conclusion that could be arrived at is that only after the death of all the 3 grandsons named in Ex.A2, then eldest male descendants would come into picture and as long as at least one of the three grandsons of Mohammed Yousuf Sahib is alive, he alone is the sole Muthawalli of the properties mentioned in Ex.A2 and only after the death of the three named persons mentioned in Ex.A2, it is open for the eldest male descendant of those three persons to come into the management and administration of the trust. Admittedly, the plaintiff/revision petitioner is one of three persons named in Ex.A2 and the other two persons namely, Mohammed Sheik Maroof, the father of 1st defendant/1st respondent and Ahmed Dawood passed away and in such circumstances, the plaintiff revision petitioner is the only Muthawalli who could administer and manage the properties mentioned in Ex.A2. The stake of 1st defendant/1st respondent could be considered only after the lifetime of the plaintiff/revision petitioner. Therefore in my considered view, the plaintiff/revision petitioner alone is to be declared as a sole Muthawalli for administering the properties mentioned in Ex.A2.


12. The trial court clearly committed a manifest error in interpreting Ex.A2 by holding that after the death of Mohammed Sahib Maroof and Ahmed Dawood, their eldest male descendants are entitled to be the joint Muthawallis along with the plaintiff. The relevant portion of the judgment of the trial court reads as under:


13. The above findings, in my view, are contrary to the clauses contained in Ex.A2 as extracted above and therefore I am inclined to interfere with the judgment of the trial court in this regard.


14. Whil

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e upholding the conclusion of the trial court that insofar as the properties contained in Ex.A1, the plaintiff/revision petitioner has no right at all to manage and administer the same, I am setting aside the findings of the trial court that the eldest male descendants of Mohammed Sheik Maroof and Ahmed Dawood are also entitled to be joint Muthawallis along with the plaintiff. It is made very clear that as long as the plaintiff/revision petitioner is alive, he alone is the sole Muthawalli of the properties contained in Ex.A2. If some of the properties mentioned in Ex.A1 were also mentioned in A2, the plaintiff/revision petitioner would be the sole Muthawalli to administer those properties also. The 1st defendant or any one for that matter should not interfere with the plaintiff's/revision petitioner's administration and management of the trust properties contained in Ex.A2. 15. In the result, the Civil Revision Petitions are partly allowed in the above terms. No costs. C.M.P.No.5892/2001 is closed.
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