Major portion of usufructs are utilised for pious, religious and charitable purposes.

(P.R. SHIVAKUMAR, J).

O.S.A.No.244 of 2005 is directed against the order of the learned single Judge of this Court dated 29.06.2005 made in O.A.No.1749 of 2005 in C.S.No.66 of 2005. O.S.A.No.60 of 2007 is directed against the common order dated 29.01.2007 by another learned single Judge of this Court made in O.A.No.78 of 2005 and O.A.No.1748 of 2005 in C.S.No.66 of 2005. As both the appeals have arisen out of orders passed in the original applications in one and the same civil suit, for the sake of convenience and with the consent of the parties, both appeals are taken up for disposal by this common judgment.

2. The brief facts leading to the filing of these appeals are as follows:

i) One Hajee Ebrahim Sait executed a wakf deed on 30.11.1923. Under the said deed, three items of immovable properties, all situated in Bangalore and belonging to the said Hajee Ebrahim Sait, were endowed as a wakf-alal-aulad. In clause 12 of the said wakfnama, it has been provided that a sum of Rs.1,770/-out of the annual income derived from the endowed properties shall be spent for various pious and charitable purposes mentioned in the wakf deed. Clause 13 of the deed provides that the surplus income shall be divided among the members of the family of the wakif and their descendants equally for ever until their posterity becomes extinct and that in the event of such extinction, the surplus income shall be spent for the benefit of poor Mohammedans at Bangalore or Madras (Chennai), preference being given to the bringing up and maintenance of Muslim orphans and widows. As per the wakf deed the wakif (Hajee Ebrahim Sait) remained as founder Muthavalli till his death and thereafter his son Mohamed Musa Sait became the Muthavalli in accordance with the line of devolution of Muthavalliship provided in the wakf deed. The succession to the office of Muthavalli from Mohamed Musa Sait shall be to his lenial male descendants subject to a rider that the Muthavalli for the time being shall have the right to nominate a successor from among the descendants of Mohamed Musa Sait in accordance with the mode of succession to the office of Muthavalli prescribed in the deed. In case the Muthavalli passes away without nominating his successor, the deed provides that the beneficiaries in the family of Mohamed Musa Sait shall nominate a successor to the office of Muthavalli with the majority of such beneficiaries supporting such nomination. Clause 19 of the wakfnama provides that the Muthavalli shall be removable from office by the Court for breach of trust or misconduct on the complaint of two or more beneficiaries.

ii) In 1993 Mr. Avais Musvee was the Muthavalli. During his Muthavalliship, a suit in C.S. No.1127 of 1993 came to be filed on the original side of this Court by the beneficiaries. The said suit ended in a compromise and Mr. Fuaad Musvee, the first appellant/first defendant herein was appointed as Muthavalli in the place of Avais Musvee by the judgment and decree of this Court dated 210. 1994.

iii) Now, the respondents herein, being four of the beneficiaries of the wakf, have approached this Court on the Original Side with the present suit C.S.No.66 of 2005 alleging breach of trust, mismanagement, failure to maintain and submit proper accounts and use of the wakf property for his personal gain by the first appellant and praying for his removal as Muthavalli. The reliefs, prayed for in the suit are:-

1) to direct the removal of the first defendant from the office of Muthavalli of the second defendant Wakf in accordance with the provisions of Clause 19 of the Wakf deed;

2) to grant a permanent injunction restraining the first defendant from acting as Muthavalli of the second defendant; and

3) to appoint the plaintiffs viz, Mr. M. Shuaib Musvee, Mr. M. Najm Musvee, Mr. Md. Hussain Sait, Mr. Basheer Sait as the Muthavallis of the second defendant until a suitable person is duly appointed as Muthavalli.

iv) Pending disposal of the civil suit, the respon