S.R. Pandian, J. - (1.) The plaintiff in Original Suit No. 8 of 1971 on the file of the Subordinate Judge's Court, Nagapattinam is the appellant herein. He filed the suit for a declaration that he is the sole trustee of the Haja Abdul Hameed Charities founded by the Wakf deed dated, 28th March 1927 and for possession and management of the said properties and for other reliefs, on the following allegations.
(2.) The suit properties and other items were declared and dedicated as Wakf properties by the owner and founder there of namely, one Haja Abdul Hameed Sahib, son of Haja Sultan Abdul Kadar of Nagore by a registered wakf deed, dated 28th March, 1927 which is marked as exhibit A -1. By and under the said deed, the founder had dedicated the schedule mentioned properties absolutely to the Wakf and for the performance of the charities detailed in extenso in exhibit A -1. The settler had two sons and a daughter and his younger brother living at the time of the execution of the wakf. The settlor constituted himself as trustee for life and after his death his two sons ere to be trustees in the order of seniority and after their life -time their male heirs are to be trustees successively from generation to generation and in default of their male heirs, their female heirs are to be such trustees. If both the sons should have no male or female heirs, then, his daughter's male heirs and in their absence her female heirs should be the trustees. If the daughter also should leave no male or female heirs, then the son or daughter of the settlor's younger brother Haja Mohideen Sahib and on failure of son or daughter to the said Haja Mohideen Sahib, the nearest male heirs of the founder and on default of male heirs, the nearest female heirs of the founder should be the trustees. Among the male heirs or female heirs either of the founder or of his two sons or of his daughter, or the founder's nearest male or female heir, the eldest among them should be the sole trustee. Similarly on default of male heirs, the eldest of the female heirs should to the sole trustee. The trustee should render accounts of the income end expresses of the properties and distribute the balance of the income after performing the charities among all the male and the female heirs according to their personal law, namely, Mohammedan law. As I have referred to above, the founder had two sons they being (i) Haja Peer Mohammed Sahib, aged 21 years, (ii) Haja Sultan Abdul Kadar who was a minor aged about 10 years and a daughter Ummachi Ghani allas Pathima Joharan Beevi and his wife Thangachi Nachiyar alias Sheikh Ali Nachiyar and his younger brother Haja Mohideen Sahib living at the time of the execution of the Wakf deed in 1927. The founder was acting as the sole trustee and performing the charities and he died in 1945. His elder son, Peer Mohammed Sahib and his daughter Ummachi Ghani had also predeceased him without any issues. Therefore, his younger son Haja Suhan Abdul Kadar became the trustee on his father's death and acted so till 1948 when he died issueless. It is net in dispute that the founder's younger brother Haja Mohideen Sahib had left neither son nor daughter, but had left only his daughter's daughter, by name Syed Sultan Beevi, a minor. A suit in Original Suit No. 28 of 1950 was filed, on her behalf by her next friend before the District Court, Nagapattinam claiming trusteeship on the basis that she was the next trustee against Thangachi Nachiyar alias Sheikh Ali Nachiyar, the mother of the last male trustee. On the death of Haja Abdul Kadar, his mother the above said Thangachi Nachiyar assumed management of the said trustee as its sole heir and was in possession and management of the charities. The suit in Original Suit No. 28 of 1950 was dismissed on 22nd October, 1951. Though an appeal was preferred to this Court in Appeal Suit No. 665 of 1952, she did not press her claim finally. Therefore, the said Thangachi Nachiyar was acting as trustee for a considerable length of time till she died in August, 1969. The plaintiff, in this action, is the senior -most heir of the founder's family and has become entitled to the trusteeship on the death of Thangachi Nachiyar and on from 26th June, 1969. The first defendant is not related either to the founder or his sons. The first defendant is the younger sister's son of Thangachi Nachiyar and, therefore, he is in no way entitled to the trusteeship and he has been living with the said Thangachi Nachiyar during her last days in the management of her affairs. By reason of such circumstances, the first defendant is stated to have unlawfully got into possession of the lands and house property belonging to the charities and he continues to be in unlawful possession thereof, putting forth a false claim that he is the trustee of the suit charities. The plaintiff though tried to get at the management through mediators, he did not succeed. Thereupon, the plaintiff gave a notice to the first defendant through his lawyer on 2nd February, 1970 under exhibit A -2 demanding the first defendant to surrender possession and to render accounts. The first defendant replied under exhibit A -3 stating that he is the lawful trustee of the suit charities by virtue of a compromise entered into in Appeal Suit No. 665 of 1952 in Civil Miscellaneous Petition No. 151 of 1957. The plaintiff would say that he was not a ware of any such compromise and the said compromise will not bind him. Further, he would contend that exhibit A -1 prohibits any kind of transfer of trusteeship right. The alleged compromise is against the clear terms of Sec. 60 of the Wakf's Act XXIX of 1954. Further he would state that the first defendant was not a party to Original Suit No. 28 of 1950 or to the appeal in Appeal Suit No. 665 of 1952. At any rate, the compromise, even if true, will amount to transfer of trusteeship rights which is specifically prohibited under the Wakf deed, exhibit A -1, and it is invalid in law. Hence the plaintiff would say that he is entitled to have a declaration as prayed for. The plaintiff states that he is the eldest male heir of the founder's family. According to him the last male legal heir and trustee was Haja Sultan Abdul Kadar who was the second son of the founder. On a true and correct interpretation of the terms of exhibit A -1, only the male heir of Sultan Abdul Kadar are entitled to be trustees. There is no other nearer male heir than the plaintiff. The first defendant's mother is still alive and, therefore, he cannot claim to be the heir of either the original founder or his son.
(3.) There are 17 items of charities enjoined to be performed from out of the income of the trust properties. The average net income from the 10 acres 99 cents of nanja lands will be more than 250 kalams per annum. The income from the 4 Durga Panghus will be not less than Rs. 2,400 per annum He would say that the first defendant is not spending even one -tenth of the income for charities and is not performing the charities as mentioned in exhibit A -1. Hence the first defendant is liable to render an recount for the income realised by him from the date of the death of Thangachi Nachiyar, i.e., from 28th June, 1969. He would allege that the first defendant has realised more than 250 kalams of paddy from the lands and has also realised an income of Rs. 75 per month by illegally letting the wakf house. The second defendant has been added as a party in order that a binding decision as to who is the lawful trustee may be rendered in its presence. The third defendant is the Wakf Board represented by its Secretary and it is added as a party as requested under the provisions of the Wakf Act. The fourth defendant Rabiyat Bivi has been added on her application made in Interlocutory Application No. 257 of 1971 by order, dated 23rd September, 1971. She is only the younger sister of the founder's wife according to the plaintiff and she is an unnecessary party. On the above allegations, the suit was instituted by the plaintiff.;