CHIYYAMU Vs. BAPPU ALIAS MUHAMMAD
LAWS(KER)-1967-9-7
HIGH COURT OF KERALA
Decided on September 07,1967

CHIYYAMU Appellant
VERSUS
BAPPU ALIAS MUHAMMAD Respondents

JUDGEMENT

- (1.) THIS is an appeal against the decision of Velu Pillai j. in second appeal confirming the decision of the Subordinate Judge, who himself reversed the decision of the Munsiff. The short question to be considered is the interpretation of a wakf deed (Ex. Al) regarding the management of the wakf.
(2.) THE wakif, Ummathumma, directed that the wakf property would be managed by herself during her lifetime, after her death by her son, kunhu, after his death by her daughter, Kathija Umma, and after her death by the senior most males among Kathija's children. It was also provided that if any of the aforesaid persons committed default in the management, the then-anandiravans would have the right to take possession and manage the wakf " (paragraph 4 of Ex. A-1 ). Ummathumma had four children; but at the 'time of the wakf only one son. Kunhu, and one daughter, Kathija, were alive. Kathija had four sons, kunhu Moidu, Kammali, Moidunni and the second respondent (the first defendant ). THE first respondent (the second defendant) is the son of Kunhu. Two of the sons of Kathija married two daughters of Kunhu; and the appellant (the plaintiff) is the son of Kunhu Moidu and a daughter of Kunhu. THE allegation in the plaint was that the second respondent, who was entitled to manage the wakf, was hot managing properly and bad allowed the first respondent to take possession of the property and claim it as his own. THE appellant also claimed that he, as the next anandiravan, was entitled to recover possession of the property from the first respondent and manage the same. THE second respondent remained ex parte; and we may also point out that he died pending this appeal. The Subordinate Judge and Velu Pillai J. are of opinion that the term 'makkal' means only children in the first generation of kathija and not her descendants generally. It is common knowledge that 'makkal' is used generally to connote children in the first generation of a parent; and that the word used to denote descendants generally is 'santhanam' or 'santhathi'. It is also common knowledge that these words are used at least occasionally without strictly keeping up this distinction. Gundert, of course, gives the meaning of the word 'makkal' as 'makan' (son) and 'makal' (daughter ). Still, as already stated, too strict an interpretation should not be placed on these terms forgetting the other recitals in a document or the circumstances. 'makkal', in our opinion, is equivalent to 'children' in English; and 'children' in English, though the word is generally used to indicate only descendants in the first generation, is also used to mean descendants generally or offspring (vide any dictionary in the English language ). It may also be instructive to note that the term 'putra', though generally used to mean male children of the next one generation alone of a parent, as distinct from'poutra' and 'prapoutra', the term means male descendants in general as well. Bearing these in mind, we shall examine the provisions of the document and the circumstances under which the document was executed. There cannot be any doubt that the purpose of interpreting a document is to bring out the intention of the executant as it can be reasonably gathered from the language used. Ummathumma mentioned by name her two living children and then said that after the death of Kathija, the daughter, the seniormost males among her children should manage. If the expression used were "the seniormost male among the 'makkal' ". it may probably be safely concluded that the wakif meant only the next one generation of Kathija. But the use of the plural 'males' indicates that she must have meant not one generation alone, but more. Again, the other provision (Paragraph 4 of Ex. A-1) also throws some light regarding the intention of the wakif. In the event of mismanagement or improper management, power is given to the then-anandiravans to assume management. One word used is 'anandiravanmar' and not the expression 'the next person entitled to manage'; and the other word used is 'annannu'. These also indicate that a line of descendants and a continuity in management were contemplated. This again is only in reasonable consonance with the intention of the wakif that the wakf should be managed for all time by persons nominated by her. There is ho reason to think that when she constituted the wakf and also made provision for its management, she intended the provision to be effective only for two generations and not thereafter. We are therefore of opinion that by the expression the 'senior most males among the 'makkal' of Kathija' ummathumma meant the senior most male descendants of Kathija.
(3.) IN the result, the decision in second appeal confirming the decision of the Subordinate Judge is set aside; and the decision of the Munsiff is restored. The first respondent (the second defendant), who has been resisting the claim of the appellant right through and who has himself no right to manage, will pay the costs of the appellant throughout. Allowed.;


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