Janab Mohamed SyedTrusteeYousuf Sahab Trust & Charities1,Agaraham Main RoadParangipettaiChidambaram v. Mohamed Sali2.The Tamil Nadu Wakf Board

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 13.4.2007Coram:The Hon'ble Mr.JUSTICE S.RAJESWARAN C.R.P.(NPD) Nos.562 and 563 of 2002C.R.P.(NPD)No.562/2002Janab Mohamed SyedTrusteeYousuf Sahab Trust & Charities1,Agaraham Main RoadParangipettaiChidambaram Taluk.. Petitionervs.1.Mohamed Sali2.The Tamil Nadu Wakf Board rep., by is Secretary 3, Santhome High Road Chennai.4.. RespondentsC.R.P.(NPD)No.563/2002Janab Mohamed SyedTrusteeYousuf Sahab Trust & Charities1,Agaraham Main RoadParangipettaiChidambaram Taluk.. Petitionervs.1.Mohammed Sali2.Mansur3.Mohammed Kaja Mohideen4.Abdul Hussain.. Respondents https://hcservices.ecourts.gov.in/hcservices/ Revision Petitions u/s 115 CPC r/w S. 83 (9) of Wakf Act1995 filed against the order dated 11.2.2002, passed inO.S.Nos.12/1998 and 115/1998, respectively, on the file of thePrincipal Subordinate Judge, Cuddalore.For Petitioner: Mr.K.Kannan for R. Yashod VardhanFor Respondents: Mrs.Hema Sampath, for R1 Mr.V.Ramesh, for R2 in C.R.P.No.562/2002. COMMON ORDER: These Revision Petitions have been filed against theorder dated 11.2.2002, passed in O.S.Nos.12/1998 and 115/1998respectively, on the file of the Principal Sub-Court, Cuddalore.2.The plaintiff in O.S.Nos.12/1998 and 115/1998 on the fileof the Principal Sub-Judge, Cuddalore is the revision petitioner.He is aggrieved by the common judgment passed by the trial courtand therefore the above revision petitions were filed underSec.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 thatthe plaintiff is the only Muthavalli of Yousuf Sahib Trust andfor a consequential injunction restraining the defendants frominterfering with his possession and management of the trustproperty.4.O.S.No.115/1998 was filed by the very same plaintiff for apermanent injunction restraining the defendants in the suit frominterfering with his peaceful possession and enjoyment of thesuit 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 inboth the above revision petitions.5.The case of the plaintiff is that the suit scheduleproperties were originally owned by one Mohammed Yousuf Sahibwho, by a trust deed dated 19.1.1938 settled the properties inthe name of the trust and according to that trust deed dated19.1.1938, the founder trustee should continue to be foundertrustee and after his death his grandsons namely (1)MohammedSheik Maroof (2)Mohammed Dawood, and (3) Mohammed Syed (plaintiffand the revision petitioner herein) should manage the propertiesas trustees. Mohammed Dawood passed away 12 years ago and eventhough the plaintiff's elder brother was a joint Muthavalli, hedid not care for the administration of the properties and in facthe acted against the objects of the Trust by alienating some ofthe properties. Therefore the plaintiff alone continued as the https://hcservices.ecourts.gov.in/hcservices/ Muthawalli of the Trust. His elder brother Mohammed Maroofpassed away on 26.10.1988 and after his death the 1st defendant,who is the son of his elder brother Mohammed Maroof, interferedwith the management and administration of the Trust and thereforethe plaintiff has filed the above suits for the above saidreliefs.6.The 1st defendant alone contested both the suits.According to 1st respondent, the plaintiff is guilty ofsuppressing the earlier deed dated 1.6.1935 executed by the verysame Mohammed Yousuf Sahib and according to that deed, theproperties should be administered by the said Mohammed YousufSahib until his death and thereafter by his eldest Son MohammedMaroof and thereafter by the eldest male descendants of the saidMohammed Maroof. As the 1st defendant's father Mohammed Maroofpassed away on 26.10.1988, the 1st defendant has got every rightto be the only Muthavalli of the Trust properties, being theeldest son of Mohammed Maroof. The 1st defendant denied theaverments that the plaintiff alone was acting as a Muthavalli ofthe Trust either during the lifetime of his father or after thedeath of his father.7.The trial court after going through the evidence, byjudgment dated 11.2.2002 dismissed both the suits on the groundthat in Ex.A1, i.e., the first deed dated 1.6.1935, after thedeath of the founder trustee, it was specifically mentioned thatthe eldest male descendants should manage and administer thetrust and in Ex.A2, it was specifically mentioned that after thedeath of the three trustees, their male descendants shouldadminister and manage the trust properties. In other words, thetrial court held that insofar as the properties contained inEx.A1, the plaintiff could not be in contention at all, as,according to Ex.A1, after the death of the founder trustee, hismale descendants alone should administer the trust propertiescontained in Ex.A1. It is not in dispute that Mohammed Maroof,the father of 1st defendant and the elder brother of theplaintiff, is the eldest son of the founder trustee and the 1stdefendant is the eldest son of the said Mohammed Maroof. In suchcircumstances, 1st defendant alone is recognised as a trustee, whocan administer the trust and manage the properties. Insofar asthe properties contained in Ex.A2, the trial court held that asper Ex.A2, the male descendants of Mohammed Maroof and MohammedDawood are also entitled to administer and manage the propertiesand therefore the plaintiff cannot ask for declaration to declarethat he alone is the Muthavalli of the suit schedule properties.Aggrieved by the above said finding of the plaintiff, the aboverevision petitions have been filed. https://hcservices.ecourts.gov.in/hcservices/

8.Heard the learned counsel for the revision petitioner andlearned counsel for the 1st and 2nd respondents. I have alsoperused the documents filed in support of their submissions.9.The only point that arises for consideration is whetherthe revision petitioner alone is competent to be the soleMuthawalli of the Trust properties after the death of his twobrothers?10.It is not in dispute that the entire properties wereoriginally owned by one Mohammed Yousuf Sahib, who is thegrandfather of the plaintiff/revision petitioner. It is also notin dispute that the said Mohammed Sahib executed two deedsnamely, doc.No.855/1935 dated 1.6.1935 (Ex.A1) anddoc.No.137/1938 dated 19.1.1938. In the first document dated1.6.1935, it is specifically stated by the said Mohammed YousufSahib that all the charity works should be continued by hiseldest grandson Mohammed Sheik Maroof Sahib and after his death,his eldest male descendants. In case there is no eldest maledescendant, then the eldest female descendant should continue thecharities and even if there is no female descendant, then itshould be continued by a management consisting of three competentpersons of Cuddalore, who would continue the charity works.Therefore, it is very clear that only the descendants of MohammedShiek Maroof Sahib alone are competent to be in the managementand administration of the properties mentioned in Ex.A1. At thesame time, the said Mohammed Yousuf Sahib reserved his right toalter the provisions of the deed and also to appoint some othertrustees during his lifetime. Accordingly, during his lifetime,he executed another deed dated 19.1.1938, where he endorsed somemore properties in addition to properties already endorsed underEx.A1 for charitable purposes. But in Ex.A2, it was specificallystated that the properties should be managed and administeredafter his life, by his three grandsons namely, minor MohammedSheik Maroof Marikkyar, (2) minor Ahmed Dawood Marikkyar and (3)minor Mohammed Syed Marikkyar (the plaintiff/revisionpetitioner). It is further stated that all the three grandsonsshould jointly administer the properties, after the lifetime ofone person, the remaining persons, and after the lifetime of allthe three, the eldest male members of all the three grandsonsabove mentioned, should administer and manage the trust. Therelevant portion in Tamil is extracted below:@vd; $Ptjpir tiuapy; eh/Kfk;kJ a{Rg; rhfpg[ ehd; nfhy; ou!;oahf ,Ue;J i& brhj;Jf;fs;ghpghydk; bra;J tu vdf;F ghj;jpaKz;L/ vd;$Ptjpirf;Fg; gpwF i& brhj;Jf;fsptpUe;Jfpilf;Fk; tUkhdk; i& bghJ jh;k fhhpa';fSf;Fcgnahfg;gLj;jg;gl;L tu ntz;oaJ/ i& fpuak;go https://hcservices.ecourts.gov.in/hcservices/ jh;k';fs; ele;njhp tuntz;oajw;fhf ,jdoapy;fz;lgo Vw;ghLfs; bra;jpUf;fpnwd;/ mitfs;(a) vd; $%t jpirf;Fg;gpd; vd;Dila ,uz;lhtJkidtpa[k;. jw;fhy rk;rhuKkhd nrj;jh; ehr;rpvd;fpw Mr;rh ehr;rpahhpd; Fkhuh; mg[gf;ffhpd;K:d;W Fkhuh;fSk; vd; mgpkhd g[j;jpuh;fSkhdikdh; Kfk;kJ nc&f; khU:g; kuf;fhah;?1. ikdh;mcwkj;J jht[!; kuf;fhah;?2 ikdh; kfk;kJi!apj;:J kiuf;fhah;?3 ,th;fis $hapd;l;ou!;o!;fshf epakpj;J ,Uf;fpnwd;/ i&ahh;fs;vd; $Ptjpirf;F mg;gghy; i& brhj;Jf;fisou!;o!; ;Kwikapy; j';fs; !;thjPdk;itj;Jf;bfhz;L i& jh;k';fis elj;jptuntz;oaJ/ i&ahh;fSf;F u& brhj;Jf;fisghhjPdk; bra;anth ;my;yJ ve;jtpjkhdtpy;y';fKk; Vw;gLj;jnth mth;fSf;F ghj;ak;fpilahJ/ i& brhj;Jf;fspypUe;J fpilffFk;tUkhdk;go jh;k';fis fpukg;go elj;jp tuvf;fhyj;;;jpYk; nghJkhdJ u&&ahh;fs;. I&brhj;Jf;fspd;nghpy; VjhtJ tp;y;y';f';fs;Vw;gLj;Jk; gT&j;jpy; mitfs; ou!;of;Ftpnuhjkha; bry;Yk;goa[s;sjy;y (gp) i& K:d;Wou!;ofSf;Fk; $hapz;lhft[k;. xUth; fhyj;jpw;Fgpd; kw;wth;fSkhf i&ahh;fs; K:th;fspd;$Ptjpir tiuapy; Kiwna i& ou!;oia ghpghydk;bra;J jh;k fhhpa';fis elj;jp tu ntz;oaJ/(rp) i&ahh;fs; K:th;fspd; fhyj;jpw;F gpwF i&K:th;fspd; K:j;j Md; Fkhuh;fs; i& ou!;oiafpukg;go elj;jp tu ntz;oaJ// i& K:th;fspy;vtUf;fhtJ xUtUf;F my;yJ buz;LngUf;FMd; Fkhuh;fs; ,y;yhky;nghFk; gT&j;jpy;kw;wth;fspd; my;yJ kw;wthpd; Md; Fkhuh;fs;my;yJ Md; Fkhud; Kiwna i& jh;k';fiselj;jp tuntz;oaJ/ mk;Kiwapy; i& jh;k';fs;guk;giuapy; elj;jg;;gl;L tu ;ntz;oaJ/vf;fhyj;;jpyhtJ Md;. ThhpRfns ,y;yhky;;nghFk; gT&j;;jpy; bgz; thhpRfs;go ou!;oia xgg[f;bfhz;L i&ahh;fs; i& jh;k';fis elj;jptuntz;oaJ/ bgz; thhpRfSk; ,y;yhky;nghFk;gT&j;jpyhtJ my;yJ mJ rl;lg;go bry;yf;Toajy;y vd;W !;jpukha; Vw;gl;lhYk;mf;fhyKjy; flYhh; fh$pahh; i& brhj;Jf;fisxg;g[f;bfhz;L mg;ngh kcwk;kJ a{Rg; rhfpg; (10)ijf;fnghJ ,uz;L tUc&';fSf;F xUKiw K:d;Wbghpa kdpjh;fis $hapd;l ou!;ofshf epakpj;Ji brhj;Jf;fspypUe;J fpilf;Fk; g{whtUkhdj;ija[k; i& jh;k';fs; fpukg;gobra;tjw;F cgnahfg;gLj;jg;gl;L tuntz;oaJ/@ https://hcservices.ecourts.gov.in/hcservices/

11.If the above extracted portion from Ex.A2 is perusedcarefully, the only conclusion that could be arrived at is thatonly after the death of all the 3 grandsons named in Ex.A2, theneldest male descendants would come into picture and as long as atleast one of the three grandsons of Mohammed Yousuf Sahib isalive, he alone is the sole Muthawalli of the propertiesmentioned in Ex.A2 and only after the death of the three namedpersons mentioned in Ex.A2, it is open for the eldest maledescendant of those three persons to come into the management andadministration of the trust. Admittedly, the plaintiff/revisionpetitioner is one of three persons named in Ex.A2 and the othertwo persons namely, Mohammed Sheik Maroof, the father of 1stdefendant/1st respondent and Ahmed Dawood passed away and in suchcircumstances, the plaintiff revision petitioner is the onlyMuthawalli who could administer and manage the propertiesmentioned in Ex.A2. The stake of 1st defendant/1st respondentcould be considered only after the lifetime of theplaintiff/revision petitioner. Therefore in my considered view,the plaintiff/revision petitioner alone is to be declared as asole Muthawalli for administering the properties mentioned inEx.A2. 12.The trial court clearly committed a manifest error ininterpreting Ex.A2 by holding that after the death of MohammedSahib Maroof and Ahmed Dawood, their eldest male descendants areentitled to be the joint Muthawallis along with the plaintiff.The relevant portion of the judgment of the trial court reads asunder:@18/,t;:tHf;fpy; thjpjug;g[ fw;wwpe;j tHf;Fiu"h;jd; ;thjj;;;jpd;nghJ. nc&f; khU:g; nc&f; jht[j; ,UtUk; ,we;Jtpl;ljhy;; jdf;F KG ;chpika[k; te;Jtpl;lbjdt[k;. jhd;jhd; xnumw';fhtyh; vd;Wk; thjpl;lhh;/ Mdhy;th/rh/M/2y; 19/1/38 njapl;l Mtzj;ijftdkhfgoj;J ghh;j;;jhy; thjpapd; tHf;fwp":h;TWk; thjk; Vw;g[ilajhf ,y;iy/ th/rh/M/2y;K:thpd;; fhyj;jpw;F gpd; nkw;go K:thpd;Mz;thhpRfs; nkw;fz;l mwf;fl;lisia fpuak;goelj;jntz;oaJ vd;W fz;Ls;sJ/ mjd;goghh;j;jhy; nc&f; khUg;gpd; Kjy; kfdhd 1k;gpujpthjpf;Fk; mfkJ jht[j; kiuf;fhahpd; K:j;jkfDf;Fk; mthpd;; je;ij fhykhfpa gpd;mw';fhtyuhf ,Uf;Fk; ghj;jpak; te;JtpLfpwJvd;gJ bjspthf bjhpfpwJ/19/thjp jug;g[ mwpthh;e;j tHf;Fiu"h; jd;thjj;jpd; thjpapd; ;Ma[Sf;Fgpdddh;; jhd; Kjy;gpujpthjpf;nfh my;yJ mfkJ jht[j; kuf;fhah; https://hcservices.ecourts.gov.in/hcservices/ kfDf;nfh mw';fhtyh;ghj;jpak; tUk; vd;gJVw;fj;jf;fjy;y/ vdnt. th/rh?M/1/2,uz;ila[k;ftdkhf ghprPypj;J ghh;;j;jjpy; th/rh?M/1Mtzj;jpd;go thjpf;F vt;tpj chpika[k;bfhLf;fg;gltpy;iy vd;W ,e;ePjpkd;wk;jPh;khdpf;fpwJ/ th/rh/M/2;d;go thjpf;Fkl;Lk;jhd; mw';fhtyh; chpikbfhLf;fg;gl;Ls;ssjhf fUj ,ayhJ/ vdntth/rh/M/1.2y; fz;Ls;s brhj;Jf;fs; midj;Jnk,!;yhkpa mwf;fl;lis brhj;Jf;fs; vd;Wk;jhth Kjy; ,dr;brhj;J 1/6/35 njjpapl;lMtzj;jpd;go mwf;fl;lisf;fhfxJf;fg;gl;ljhf fUJfpnwd;/ vdnt thjp nkw;gomwf;fl;lisf;F mw';fhtyh; my;y vd;Wk; Kjy;mwfl;lisgo 1k; gpujpthjpjhd; mw';ffhtyh;vd;Wk;. 2k; ;mwf;fl;lisg;go thjp; kl;Lk;mw';fhtyh; my;y vd;Wk; nkw;fz;lvGtpdhf;fSf;F thjpf;F vjpuhft[k; 1k;gpujpthjpf;F Mjuthf[tk; tpil mspf;fpnwd;/@13.The above findings, in my view, are contrary to theclauses contained in Ex.A2 as extracted above and therefore I aminclined to interfere with the judgment of the trial court inthis regard.14.While upholding the conclusion of the trial court thatinsofar as the properties contained in Ex.A1, theplaintiff/revision petitioner has no right at all to manage andadminister the same, I am setting aside the findings of the trialcourt that the eldest male descendants of Mohammed Sheik Maroofand Ahmed Dawood are also entitled to be joint Muthawallis alongwith the plaintiff. It is made very clear that as long as theplaintiff/revision petitioner is alive, he alone is the soleMuthawalli of the properties contained in Ex.A2. If some of theproperties mentioned in Ex.A1 were also mentioned in A2, theplaintiff/revision petitioner would be the sole Muthawalli toadminister those properties also. The 1st defendant or any onefor that matter should not interfere with theplaintiff's/revision petitioner's administration and managementof the trust properties contained in Ex.A2. https://hcservices.ecourts.gov.in/hcservices/

15.In the result, the Civil Revision Petitions are partlyallowed in the above terms. No costs. C.M.P.No.5892/2001 isclosed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sksTo1. The Principal Subordinate Judge,Cuddalore.2. The Section Officer,VR Section, High Court, Madras.1 cc to Mr.R. Yashod Vardhan, Advocate, sr. 243492 ccs to Mr.R. Subramanian, Advocate, sr. 24575C.R.Ps.(NPD)562 & 563/02.PV (CO)kk 19/4