Decided on September 02,1964



- (1.) O. S. 603 of 1957 from which this second appeal arises was by the plaintiff first respondent here, representing a mosque, for partition of the suit properties. They belonged in jenmom to Chozhiyath tarwad, which gave a usufructuary mortgage to Peeru Rawther by Ext. A9 in the year 1878. Peeru Rawther had three sons arid grandchildren by them. Vellakutty, the first son, had two sons Kather and Peeru, and they assigned their right in Ext. A 9 by Ext. A 2 in the year 1920 to Appavu, the eldest son of Veeran, the second son of Peeru Rawther. Defendants 1 to 6 are the brothers and sisters of Appavu and defendants 7 and 8 are the children of their deceased sister Ameena Umma. The mosque took an assignment of the interest of the third son of Peeru Rawther from his widow and children by Ext. A 3, in the year 1936. On the 11th June, 1950, the mosque took an assignment of the jenmom right itself from the tarwad by Ext. A 4 and on the 25th June, 1950, it also took an assignment of Ext. A 2 from Appavu by Ext. A 5. The contentions of defendants 1 to 4, who are the appellants in this second appeal are, that the plaintiff had no right to sue on behalf of the mosque and that the right under Ext. A 2 belonged to defendants 1 to 8 and to Appavu in common, and therefore Ext. A 5 was not valid so far as it related to the interests of defendants 1 to 8. The Munsiff held, that Ext. A 2 enured to the benefit of defendants 1 to 8 as well, but dismissed the suit on the ground that the plaintiff was not competent to sue on behalf of the mosque. In appeal, the District Judge differed from the Munsiff on both these points and gave a decree for partition in favour of the plaintiff.
(2.) In second appeal, I am satisfied that the view of the District Judge, that the plaintiff is competent to represent the mosque, is correct and has to be maintained. The mosque is a public trust and as held in Achayi v. Chittanjoorkavu Devaswom, 1959 KLT 587 , the de facto trustee or manager is competent to file a suit on behalf of the trust. The evidence in this case, particularly Exts. A 3 to A 5, has shown that the plaintiff was in de facto management of the affairs of the mosque, but the Munsiff thought that the election of the plaintiff as the President of the Managing Committee was not with due notice to all the members of the village. As rightly observed by the District Judge, it is sufficient if the plaintiff was in actual management. I agree that the plaintiff was competent to sue on behalf of the mosque.
(3.) The second question is whether the acquisition under Ext. A 2 enured to the benefit of defendants 1 to 8 also. Pw. 1 the plaintiff has admitted, that Appavu was senior to defendants 1 to 8. From the age of the first defendant given by him as Dw. 1, except Appavu, the others were all minors at the time Ext. A 2 was taken. Pw. 1 further admitted, that after the death of Veeran, Appavu was managing the properties till he fell out with the defendants, and that he did not know when this happened, and could not say whether this was in the year 1931. Defendants 1 to 4 had a case of oral partition in that year of their common properties, by which the suit properties fell to the share of defendants 1 to 8, but this case has been negatived by the two courts. Pw. 1 also said that he took Ext. A 2 on the basis that there was a partition of Veeran's properties between Appavu and the defendants. Dw. 1 the first defendant deposed, that his father's properties were all managed by Appavu, that the common properties fetched an income of 400 parahs of paddy annually and that after the death of their father, Appavu has been in management. Thus the evidence of both Pw. 1 and Dw. 1 has served to establish, that there were common properties, which after the death of Veeran were being managed by Appavu. Defendants 1 to 8 may be deemed to be jointly in possession through Appavu, the managing member. In Mariamma v. Charaghan 1959 KLT 1050 a division bench of this court had occasion to consider, whether the acquisition made by a managing member in a Christian family may be held to belong to the members in their respective shares, and it was held that though the presumption with respect to acquisitions made by the manager of a Hindu family is not applicable to acquisitions by the senior member of a Christian family, "it can be proved, that there was an implied agreement between all the members of the family that the members carrying on the management should carry on for the benefit of all the members and on the understanding that all the sharers shall be entitled to the properties acquired during the course of the management". The decision of the Calcutta High Court in Aminaddin Munshi v. Tajaddin AIR 1932 Calcutta 538 which related to a Mahomedan family was relied on. In that case the bench observed thus: "They (the members of the family) were possessing these properties in common and in jointness...Under those circumstances it seems to us that the burden of proof would lie on defendant 1 for establishing that the properties which were acquired during the jointness of the family and which are shown to stand in the name of defendant 1 do not really belong to the joint family. Defendant 1 on the evidence occupies the position of a managing member; he is in the relationship of a fiduciary character to the other members of his family and has certain obligations to discharge with reference to the other members of the family." The proposition as founded on Aminaddin Munshi v. Tajaddin AIR 1932 Calcutta 538 is stated thus, in Mulla's Principles of Mahomedan Law, 14th Edition, Para.57 at page 54: "But if during the continuance of the family, properties are acquired in the name of the managing member of the family, and it is proved that they are possessed by all the members jointly, the presumption is that they are the properties of the family, and not the separate properties of the member in whose name they stand." The Mysore High Court has accepted the same view in C. Krishnamurthy Setty v. Abdul Khadar AIR 1956 Mysore 14.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.