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Present: Bertram C.J. and De Sampayo J.MOHOMEDU v. MEERA KANDU et al.
351—U. C. Jaffna, 14,363.
Muhammadan charitable trust—Direction by founders that one of theirheirs should be appointed trustee—No direction as to hoto theheir is to be chosen.
The founders of a Muhammadan charitable trust directed thatfrom time to time one of their heirs should succeed to the officeof trustee. No direction was given as to the mode in which that,particular heir should be chosen.
Held, that under the Muhammadan law the selection should bedone by the Judge.
The appointment of the son of the last trustee was confirmed bythe Supreme Court.
T HE facts are set out in the judgment of the District Judge(G. W. Woodhouse, Esq.): —
This is an action for the recovery of the management of the mosquein the land Thettavady at Vannarponnai – within the jurisdiction ofthis Court.
Certain Sera Mudaliyar and his wife Sainambunatchia alias Sevata-umma founded the charity in 1854.
“ We shall ourselves, ” says the deed, “ take and keep the whole ofthe produce of this land and spend the same for the anniversary festivalday of our Lord Mohideen Andavar; after the life time of both of usone of our heirs Bhould take the produce of the said land ….No other persons shall have any power to alter or'change the meaningof the terms of the deed. We only have full right and power."
Now, Sera Mudaliyar hadtwo brothers,Vappu Marikkiyarand
^Tambikanni. Tambikanni issaid to . havedied, leaving ason,
UBupu, long before this deed of ebarity was executed. Vappu Marik-kiyar died in 1855, leaving a son, Sultan Abdul Cader.
It is not quite clear when Sera Mudaliyar died; but Sainambunatchiacontinued in the management after Sera Mudaliyar’s death, and didnot die till 1881; Sultan Abdul Cader predeceased her by six years(according to some witnessesby one year).So that it is nottrue
that he took up the management after Sainambunatchia’s death.
It is not unlikely, however, that since a Moorish woman could notherself attend to the affairs of the mosque, her nephew, Sultan AbdulCader, assisted her in themanagement. Itseems that the original
mosque was a temporary cadjan shed, and before Sultan Abdul Caderdied the foundations of a permanent building had been laid. Thedeed creates a perfectly valid Wakfanamah; and the donors appointed*themselves aB Mutwali (trustees). There is nothing in the Muham-madan law which prevents a woman from acting as Mutwali where-Bhe has no duty to perform which would place her in a position whichonly a man could occupy. For instance, a woman may not be ' lbs
( SOI )Sujjidah Nishen, or the superior el a religious endowment (of. ft Cal. 732).It has been held that where a woman is Mvbioali, she may disoharge theduties of her office by proxy (Macn. $3$).
It is satisfactorily proved then that on the death of Sainambunatchia,her nephew, Usupu, succeeded to the management, and it is admittedthat he remained as manager for forty-one years, until seven or eightyears ago when he died.
The defendant and added party make out that on the death ofSultan Abdul Cader, the members of the congregation of that mosqueassembled and appointed a committee of management of five persons,including the defendant and Usupu. Of the appointment of thiscommittee there is no reliable evidence. Even if such a committeewere appointed, it must be held that the committee was simply intendedto advise and assist Usupu, who was one of the heirs. By the termsof the original Wakfanamah, a committee could have no independentright in the management of the mosque or its property.
In 1899 (see D 9) defendant appears to have purchased a land forthe mosque out of the funds subscribed by the Muhammadan villages.In that deed the position of Usupu as manager is fully recognized.It was by that deed certain trustees were appointed for a specialpurpose, namely, to take care of the land .so donated and collect theprofits for the use of this mosque.
'The defendant imagines now that those trustees were appointedgenerally to manage the affairs of the mosqne.
The defendant appears to have been appointed . by Usupu to be asort of caretaker of the mosque, and defendant has done his dutywell and truly for a great many years. Even after the death of Usupnhe appears to have .carried on the affairs of the mosque to the satis-faction of the congregation. He feels now that he is in fact themanager. Those who had right to manage appear to have lefteverything to the defendant. The added ' party, who is the son ofSaltan Abdul Cader, has his lands at Pooneriyan, and only comesoccasionally to Jaffna. The plaintiff lives in Jaffna, but has hisbusiness to attend to. Neither of them appears to have taken anyactive share in the management of the mosque affairs. It does seema great pity to interfere with the management of this mosque, whichhas so far gone on so satisfactorily."
At the trial I suggested that as plaintiff and added party are bothdescendants of the original founders, they be declared joint managers,and the defendant be allowed to carry on the affairs of the mosqueunder their management, but the plaintiff would not agree to theproposal.
The question then is whether plaintiff or added party is entitled tothe management of the mosque. It is perfectly clear that neither ofthem has hitherto taken any active part in the management.
It ia plain that at Sainambunatchia Ta death the management passedtoUsupu.According to the Muhammadan law, ■ Usupuwasthe
nearest relation of the original donors. It is true that there wastheaddedparty, but he wasthe grand-nephew;- whereas Usupuwas
a nephew and was entitled to take before the added party. Forty-nine yearsago no doubt addedparty was an infant in arms,butI do
notthink that was the reasonwhy he was passed over. Ifthatwere
so, when he came of age some twenty years ago he would have takenhis place with Usupn as manager.
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After Uaupu’s death the management appears to have been inabeyance. -I am of opinion that Usnpvjs son, the . plaintiff, wouldsucceed his fatherain the management.
On the issues I find—
The added party is not an heir of the original founders; evert
if he was, he is not entitled to the management in preference* to -Usupu and his heirs.
(81 The defendant assisted in the management of – the mosque, buthe did so under the management 6f Usupu. He has also-managed after Usupu ’a death, but under no particularperson. But the fact – that he . assisted in the managementgives him no greater right than those given by the deed I>3.
'Damages were agreed at Bs. 20 per annum. Enter decree for theplaintiff as prayed for against defendant and added party Bs. 20damages per annum from date of institution of action, and costs.
The deed in question was as follows:—
We, £. Sera Mudaliyar and wife Sinampunatchia -of Vannarposmaihave executed deed of charity for and in the name of 'our Tjord Ktfthard‘ Mohideen Andavar,to wit, land belonging toubby rightof purchase:
and possession, situated at Vannarponnai. Registered in the Thombo. . . . called Thettavady, in extent 4f lachams varagu culture, withhouse, portico,well,palmyras, and cultivated plants:andbounded
…. We,SeraMudaliyar and Seynsmpunatchia, .havegranted
as charity donation for dhd in the holy name of the said Mohideen-Andavar; we shallourselves take and keep the-whole ofthe produce
of this land and spend the same for the anniversary festival day. of"our said Lord Mohideen Andavar. After the lifetime /of both of usone of ohr heirs should take the produce ol the said land; and that-chthe house andfences,and cleanthe water of the well, and bydrawing
the whole waterand the dirt inthe bottom, outside the well, and repair
the houses, and with the remaining incomeofthe said.land, after
meeting the 6aidexpenses, should performandconductthe festival
day's expenses of the said Mohideen Andavar Avergal.
Attested by A. A. Marikair
Dated November 10, 1854.^ in Arabic (Seal.)
E. W. Jay award ene (with him Abdul Coder), for the appellant.—
The added party, appellant, is the son of Sultan Abdul Cader whohad managed the property for very many years. Sultan AbdulCader was the son of Vappu Marikkar who was the elder of the twobrothers of the founder of the mosque. The respondent is thegrandson of the younger brother. On the finding of the DistrictJudge, it is clbar that neither appellant nor respondent managedthe mosque.' Under the circumstances, the appellant representingthe elder brother should be preferred.
Balannghat» (with him J. Joseph), for the respondents, not calledupon.
March 12, 1928. Bbbtram C.J.—
In this case it is impossible to give a judgment based on strictlegal rights. The instrument of trust is of too vague a characterto be enforced as between two contending parties resting theirclaim upon it. The Judge has made what in all the circumstancesof the case is a reasonable order, and one which accords with theintention of the original founders. The founders directed thatfrom time to time one of their heirs should succeed -to the officeof* trustee of the foundation. No direction was given as to themode in which that particular heir should be chosen, and I thinkthat in such a case it would be in accordance with the Muhammadanlaw that, if there was no other more definite way of selecting theparticular heir, this should be done by the Judge. In this casethe learned Judge has discharged a function which, according tothe view I have suggested, would have been discharged by theJudge of a religious Court. He has based his selection upon thefact that for many years Usupu acted unchallenged as trustee of thefoundation, and he considers that on the death of Usupu, the mostappropriate person to be appointed to discharge the duties of trusteewas the son of Usupu. The defendant in the action had no status.He was not one of the heirs of the original founders. Much to hisregret, therefore, the learned Judge felt bound to displace him, 'and considered that the son of Usupu, if ho asserted his claims,ought to be appointed as trustee. The defendant, Meerakandu,has not appealed'. The appeal is brought by the added-defendant.who asserts that Meerakandu was in fact his own nominee or repre-sentative. The learned Judge has disbelieved this. His opinionon that point is a finding of fact, and' we caimot disturb it. Itseems to me, therefore, that, whatever be the strict law of thematter, the learned Judge has made his order, and the presentappellant has no status to disturb it. He cannot show a betterright in himself than the person whom the District Judge hasappointed trustee. If the congregation of this mosque wantmatters to be put upon a strict legal footing, their course is toapply for a scheme under section 102 of the Trusts Ordinance.With regard to the present appeal, in my opinion it should bedismissed, with costs.
De Sampayo J.—I agree.
MOHOMEDU v. MEERA KANDU et al