SHAIK MASTHAN SAHIB Vs. PALAYANI BALARAMI REDDI
LAWS(MAD)-1952-11-24
HIGH COURT OF MADRAS
Decided on November 21,1952

Shaik Masthan Sahib Appellant
VERSUS
Palayani Balarami Reddi Respondents

JUDGEMENT

Subba Rao, J. - (1.) LEARNED counsel appearing for the parties in the second appeal agree that this appeal may be posted before a Bench of two Judges. The only ground for the joint request is that the value of the property involved in the second appeal is more than Rs. 50,000. If the appeal is heard by a single Judge and leave to prefer the Letters Patent appeal is refused they an afraid that they will not have an opportunity to take up the matter to the Supreme Court. The relevant rule of the Appellate Side Rules is rule (I) Chapter I, Part II which reads thus: "The following matters may be heard and determined by one Judge; provided that the Judge before whom the matter is posted for hearing may at any time, adjourn it for hearing and determination by a Bench of two Judges: The rule does not lay down the circumstances under which a single judge is empowered to post the case before a Bench of two Judges. Therefore, a single Judge may, in his discretion refuse to post a case before a Bench if in his opinion the value of the subject -matter of the appeal is not a relevant circumstance for posting it before a Bench. But it is represented to me that under the Standing Orders of the High Court a second : appeal involving a subject -matter of the value of more than Rs. 10,000 will have to be posted before a Bench of two Judges. Rule 183 of the :Standing Orders says: "All second appeals from decrees in which appeals may lie to the Privy Council by reason of me amount of value of the subject -matter (Section 110. C. P. C.) shall be posted before a Bench or two Judges. When on examining a second appeal the Appeal examiner has reason to be -have that the second appeal is one of this kind, he wilt make the necessary note on the docket sheet fortifying himself, if necessary, by making ' a reference to the appellant or his advocate and bring the second appeal to the notice of the Deputy Registrar and of the posting clerk." The Standing Order is inconsistent with Rule (1) : of Chapter I Part II of the Appellate Side rules. When a rule of the Appellate Side rules which has statutory force says that all second appeals shall be posted before a single Judge, I cannot hold that the office can and shall post a second appeal under certain circumstances before a Bench. It is, therefore, necessary, if it is held that second appeals involving a subject -matter of the value of wore than Rs. 10,000 shall be posted before a Bench of two Judges, that the Appellate Side rule should suitably be amended. In this case, I direct this second appeal to be posted before a Bench of two Judges in exercise of my discretion under Rule (1) of Chapter I of Part II of the Appellate side rules. JUDGMENT Basheer Ahmed Sayeed, J.
(2.) THE plaintiff is the appellant in this second appeal, which is preferred against the judgment and decree of the learned Principal Subordinate Judge, Nellore, in A. S. No. 215 Of 1947 against O. S. No. 301 of 1938 on the 01e of the District Munsif's Court of Kavall The plaintiff brought the suit against the -respondent in the District Munsif's Court of Kavali for a declaration that the deed dated 12 -12 -1933, executed by Rahamatullah Saheb in favour of the respondent was null and void, for a declaration that the appellant was the validly appointed trustee of the "Mohideenia Mosque" In the village of Damaramadugu, Kovur taluk, Nellore district, for a direction against the respondent to deliver to the appellant possession of all the properties included in the schedules to the plaint as well as all the account books and vouchers and receipts etc. and other effects and things belonging to the said Mosque, for a direction that the respondent should handover the management of the mosque to the appellant, for an injunction restraining the respondent or his agents or servants or employees from interfering with the appellant in the management of the mosque or of the properties thereof, for an account to be rendered by the respondent to the appellant for the income derived or ought to have been derived from the properties described in the schedules to the plaint from 1 -1 -1933 up to date and to pay the balance of the amounts that may be found to be due by the respondent to the appellant on such accounts being taken and also for the appointment of a receiver for the properties of the "Mohideenia Mosque" pending the disposal of the suit.
(3.) THE respondent contested the suit on various grounds. In his written statement, the respondent admitted the execution deed Ex, III in favour of his wife by Rahamatulla Sahib and the appointment of Rahamtullah Sahib in 1923 as trustee, but contended that the appellant was not appoint ed a hereditary trustee, under the deed dated 1 -5 -1926, that at the time the deed was executed, the appellant was a minor and the appointment was therefore invalid. The respondent further contended that the appellant did not take charge and did not function as a hereditary trustee and that even otherwise, the appellant had been properly removed from the office under powers validly reserved in that behalf of the late Rahamatullah Sahib, the founder of the trust. The further points taken by the respondent in his written statement were that the appellant was not a member of the committee referred to in the plaint and that the late Rahamatulla Sahib did not acknowledge the appellant's rights as a trustee of the mosque and that the appellant did not continue to be a trustee after the notice issued by the committee dated 6 -5 -1933, that the document dated 12 -12 -1933 which was executed in favour of the respondent himself was a valid document and an operative one and that there was no fraud or collusion in respect thereof and that the respondent was the proper person appointed and entitled to be the trustee of the mosque. 4a. The learned District Munsif, after framing the necessary issues on the pleadings, and after taking into consideration the oral and documentary evidence adduced in the case, dismissed the suit of the appellant holding that the appointment of the appellant as a hereditary trustee by the late Rahamatullah Sahib under the deed dated 1 -5 -1926 was not true nor valid, that though the appellant acted as a trustee for some time the question of his removal from the trusteeship did not arise for consideration in view of his finding that he was not validly appointed as trustee and that the question as to whether the respondent was truly and validly appointed a trustee also did not arise. Similarly, the learned District Munsif thought that there was no need to give any finding on the question as to whether the suit was barred by -limitation or whether the respondent was liable to render an account of the properties in his management from 1 -1 -1933 as alleged by the appellant. The main ground on which the suit would appear to have bean dismissed was that the appointment of the appellant at a time when he was a minor was void though he might have acted as a trustee for some time. The learned District Munsif held that he was not clothed with the legal character of a trustee and did not have any rights as a trustee.;


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