1923.

BERTRAM
C.J.

Goonewardene v. Goonewardene

I cannot adopt this proposition. It is quite true that evidence has been given by the plaintiff of that arrangement and that he has been cross-examined; and it is suggested that, if he had not diplomatically withdrawn from the case, the defendant would have been allowed, when called upon for his evidence, to have put forward his whole case with regard to that arrangement; that he must take responsibility therefore for all the facts not being before the arbitrators, and that the arbitrators must be considered as having given a definite judgment on the issue which they had rejected.

As I have said, I am not able to adopt this proposition. As the case stands, the finding on this issue is of an ex parte nature. It is based solely upon the examination and cross-examination of the plaintiff. It is said that the plaintiff ought to have gone on to the end, and that, if he had gone on to the end, the whole case would have been presented. I do not think that this accurately states the facts. Why was the plaintiff cross-examined with regard to this arrangement? Why did the arbitrators not rule out any question sought to be asked in cross-examination on this issue? The explanation appears to be this: The plaintiff claimed an account, not only on the ground of co-ownership which would have been quite sufficient, but also on the ground of a special agreement by which the defendant was made the agent of the two brothers.

Mr. Samarawickreme says, that though this evidence was irrelevant to the issue of co-ownership, it was relevant to the other question of agency, and that in this way both sides should have presented their case with regard to the defendant's claim to an equitable right based upon a trust. I do not think that this is sound. It would not have helped the defendant to have succeeded on this issue of agency. There was another issue in the case, issue No. 5, which was: "Did the mills and the residing house belong to the defendant solely"? The arbitrators had deliberately shut out the defendant's issue in which he asked them to determine whether he was entitled to a declaration that the mills and the residing house belonged to him entirely from December, 1918. He was precluded, therefore, by that decision from setting up his equitable rights, and the issue No. 5 would necessarily have gone against him. I do not think that, the fact that the arbitrators would probably have listened to him if he had stated his case with regard to the supposed trust in order to determine whether or not there was an agreement between the brothers which made the defendant the manager of the property, in any way cures the misconduct which the arbitrators have unfortunately committed. The truth is that the defendant might well have retired from the arbitration at the time when this issue was rejected. He would have been well advised to do so. The fact that some evidence of

a one-sided nature was given, between the time that he might have withdrawn and the time that he actually withdrew, does not, I think, affect the question.

Mr. Samarawickreme has pressed upon us one other consideration, namely, that the trust alleged in the defendant's statement was on the face of it a trust to which effect could not be given in law, even though it was proved. He contended that the principle that the law will not allow Ordinance No. 7 of 1840 to be used as a protection against fraud in cases where a person obtains property in his own name, subject to a trust and claims to hold it free from that trust, applies only to cases in which a trust results from the circumstances, and does not apply to an express trust. I have nothing to add to what I have said on this question in the case of Nanayakkara v. Andris1 and also in Ranasinghe v. Fernando.2

Mr. Samarawickreme made one further point. He contended that, with regard to this particular form of misconduct, our only power was to remit the matter to the arbitrators under section 690 of the Civil Procedure Code. I do not consider that sections 690 and 691 of the Civil Procedure Code are mutually exhaustive. I think the Court has a discretion whether it will set aside the award, or whether it will remit the award for re-consideration. In the present case, the arbitrators having made up their minds on a partial statement of facts, I do not think they would be free to consider the whole matter if the defendant placed his whole case before them.

In deciding as I do, I do not wish to say that I have formed the opinion that a trust has been established in this case. It is quite possible that had the whole matter been fully gone into, the claim that a trust existed would have been rejected. There is obviously much to be said on both sides. With regard to the present appeal, it must, in my opinion, be dismissed, with costs.

GARVIN J.-I agree.

1923.

BERTRAM

C.J.

Goonewardene v. Goone

wardene

Appeal dismissed.

1 (1921) 23 N. L. R. 193.

2 (1922) 24 N. L. R. 170.

1923.

Present: Bertram C.J. and De Sampayo J.

MOHOMEDU v. MEERA KANDU et al.

351-D. C. Jaffna, 14,353.

Muhammadan charitable trust-Direction by founders that one of their heirs should be appointed trustee-No direction as to how the heir is to be chosen.

The founders of a Muhammadan charitable trust directed that from time to time one of their heirs should succeed to the office of 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 be done by the Judge.

The appointment of the son of the last trustee was confirmed by the Supreme Court.

THE

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 mosque in the land Thettavady at Vannarponnai within the jurisdiction of this Court.

Certain Sera Mudaliyar and his wife Sainambunatchia alias Sevataumma founded the charity in 1854.

66

We shall ourselves," says the deed, "take and keep the whole of the produce of this land and spend the same for the anniversary festival day of our Lord Mohiedeen Andavar; after the lifetime of both of us one of our heirs should take the produce of the said land No other persons shall have any power to alter or change the meaning of the terms of the deed. We only have full right and power."

Now, Sera Mudaliyar had two brothers, Vappu Marikkiyar and Tambikanni. Tambikanni is said to have died, leaving a son, Usupu, long before this deed of charity was executed. Vappu Marikkiyar died in 1855, leaving a son, Sultan Abdul Cader.

It is not quite clear when Sera Mudaliyar died; but Sainambunatchia continued in the management after Sera Mudaliyar's death, and did not die till 1881; Sultan Abdul Cader predeceased her by six years (according to some witnesses by one year). So that it is not true that he took up the management after Sainambunatchia's death.

It is not unlikely, however, that since a Moorish woman could not herself attend to the affairs of the mosque, her nephew, Sultan Abdul Cader, assisted her in the management. It seems that the original mosque was a temporary cadjan shed, and before Sultan Abdul Cader died the foundations of a permanent building had been laid. The deed creates a perfectly valid Wakfanamah; and the donors appointed themselves as Mutwali (trustees). There is nothing in the Muham madan law which prevents a woman from acting as Mutwali where she has no duty to perform which would place her in a position which only a man could occupy. For instance, a woman may not be the

Sujjidah Nishen, or the superior of a religious endowment (cf. 8. Cal. 732). It has been held that where a woman is Mutwali, she may discharge the duties of her office by proxy (Macn. 333).

It is satisfactorily proved then that on the death of Sa na mbunatchia, her nephew, Usupu, succeeded to the management, and it is admitted that he remained as manager for forty-one years, until seven or eight years ago when he died.

The defendant and added party make out that on the death of Sultan Abdul Cader, the members of the congregation of that mosque assembled and appointed a committee of management of five persons, including the defendant and Usupu. Of the appointment of this committee there is no reliable evidence. Even if such a committee were appointed, it must be held that the committee was simply intended to advise and assist Usupu, who was one of the heirs. By the terms of the original Wakfanamah, a committee could have no independent right in the management of the mosque or its property.

In 1899 (see D 3) defendant appears to have purchased a land for the mosque out of the funds subscribed by the Muhammadan villagers. In that deed the position of Usupu as manager is fully recognized. It was by that deed certain trustees were appointed for a special purpose, namely, to take care of the land so donated and collect the profits for the use of this mosque.

The defendant imagines now that those trustees were appointed generally to manage the affairs of the mosque.

The defendant appears to have been appointed by Usupu to be a sort of caretaker of the mosque, and defendant has done his duty well and truly for a great many years. Even after the death of Usupu he appears to have carried on the affairs of the mosque to the satisfaction of the congregation. He feels now that he is in fact the manager. Those who had right to manage appear to have left overything to the defendant. The added party, who is the son of Sultan Abdul Cader, has his lands at Pooneriyan, and only comes occasionally to Jaffna. The plaintiff lives in Jaffna, but has his business to attend to. Neither of them appears to have taken any active share in the management of the mosque affairs. It does seem a great pity to interfere with the management of this mosque, which has so far gone on so satisfactorily.

At the trial I suggested that as plaintiff and added party are both descendants of the original founders, they be declared joint managers, and the defendant be allowed to carry on the affairs of the mosque under their management, but the plaintiff would not agree to the proposal.

The question then is whether plaintiff or added party is entitled to the management of the mosque. It is perfectly clear that neither of them has hitherto taken any active part in the management.

It is plain that at Saina mbunatchia's death the management passed to Usupu. According to the Muhammadan law, Usupu was the nearest relation of the original donors. It is true that there was the added party, but he was the grand-nephew, whereas Usupu was a nephew and was entitled to take before the added party. Fortynine years ago no doubt added party was an infant in arms, but I do not think that was the reason why he was passed over. If that were so, when he came of age some twenty years ago he would have taken his place with Usupu as manager.

1923. Mohomedu

v. Meera Kandu

1923. Mohomedu v. Meera Kandu

After Usupu's death the management appears to have been in abeyance. I am of opinion that Usupu's son, the plaintiff, would succeed his father in the management.

On the issues I find

(1) The added party is not an heir of the original founders; even if he was, he is not entitled to the management in preference to Usupu and his heirs.

(2) No.

(3) The defendant assisted in the management of the mosque, but he did so under the management of Usupu. He has also managed after Usupu's death, but under no particular person. But the fact that he assisted in the management gives him no greater right than those given by the deed D 3. (4) No.

Damages were agreed at Rs. 20 per annum. Enter decree for the plaintiff as prayed for against defendant and added party Rs. 20 damages per annum from date of institution of action, and costs.

The deed in question was as follows:

We, K. Sera Mudaliyar and wife Seiyna mpunatchia of Vannarponnai, have executed deed of charity for and in the name of our Lord Kuthard Mohideen Andavar, to wit, land belonging to us by right of purchase and possession, situated at Vannarponnai. Registered in the Thombo

called Thetta vady, in extent 4§ lachams varagu culture, with house, portico, well, palmyras, and cultivated plants; and bounded We, Sera Mudaliyar and Seynampunatchia, have granted as charity donation for and in the holy name of the said Mohideen Andavar; we shall ourselves take and keep the whole of the produce of this land and spend the same for the anniversary festival day of our said Lord Mohideen Anda var. After the lifetime of both of us one of our heirs should take the produce of the said land, and thatch the house and fences, and clean the water of the well, and by drawing the whole water and the dirt in the bottom, outside the well, and repair the houses, and with the remaining income of the said land, after meeting the said expenses, should perform' and conduct the festival day's expenses of the said Mohideen Anda var Avergal.

Dated November 10, 1854.

Attested by A. A. MARIKAIR in Arabic (Seal).

E. W. Jayawardene (with him Abdul Cader), for the appellant.The added party, appellant, is the son of Sultan Abdul Cader who had managed the property for very many years. Sultan Abdul Cader was the son of Vappu Marikar who was the elder of the two brothers of the founder of the mosque. The respondent is the grandson of the younger brother. On the finding of the District Judge, it is clear that neither appellant nor respondent managed the mosque. Under the circumstances, the appellant representing the elder brother should be preferred.

Balasingham (with him J. Joseph), for the respondents, not called

upon.