Paternal uncle if excludes nephews in the matter of inheritance of Lebbaiship.

These two second appeals arise out of Original Suit No. 16 of 1959 on the file of the District Munsif’s Court, Ambasamudram, and relate to the rights of the Lebbais in a Pallivasal or mosque called Mohideen Andavar Pallivasal at Pottalputhur in Tirunelveli District. There were prior litigations on this question and as a result of these litigations it may be taken as settled that one Vakka Mahudu Meethi Lebbai, which may be abbreviated as V. M. Meethi Lebbai, was entitled to perform the duties of Lebbai in the Tamil month of Thai (roughly 15th January to 15th February) once in two years and got the emoluments therefor. He died in 1948. The plaintiff, V. M. Umar Lebbai, is one of his sons. Two other sons of V. M. Meethi Lebbai, namely, Vakka Meethi Lebbai and Vakka Ahmad Lebbai, had died before V. M. Meethi Lebbai but leaving sons Defendant 6, Vakka Mahudu Meethi Lebbai (junior) is the son of the deceased Vakka Meethi Lebbai, and minor defendants 7 and 8, namely, Mahudu Meethin and Asan Mohideen are the sons of Vakka Ahmad Lebbai. The following pedigree will explain the relationship Upon the death of V. M. Meethi Lebbai, the plaintiff claimed to have succeeded to his rights of Lebbaiship to the exclusion of defendants 6, 7 and 8. This claim was based on the footing of the ordinary rules of inheritance in Mohammadan Law, the females, however, being excluded on the ground that females are incompetent to perform the duties of Lebbai. Under the ordinary rules of inheritance of Sunni Law, the uncle (plaintiff) would exclude the nephews (defendants 6, 7 and 8). Defendants 6, 7 and 8 however, resisted this claim contending that the Lebbaiship right devolved on them as well, as representing their deceased fathers, that is, defendant 6 claimed as representing his father Vakka Meethi Lebbai, and defendants 7 and 8 claimed as representing their father Vakka Ahmad Lebbai. The share which they claimed was on the basis of the rule of per stirpes and not per capita. In other words, taking the share of the common ancestor V. M. Meethi Lebbai as 1/24 of the total emoluments of the body of Lebbais, defendants 6 to 8 contended that the plaintiff would be entitled to one-third of that, defendant 6 to another third and defendants 7 and 8 together to another third, the shares being on the basis of V. M. Meethi Lebbai having three sons. A per capita claim would, however, mean four claimants, the plaintiff being entitled to one-fourth, defendant 6, to one-fourth, defendant 7, to one-fourth and defendant 8, to one-fourth of the 1/24 share of the common ancestor V. M. Meethi Lebbai. The basis of the contention of defendants 6 to 8 is that the law of wakf would apply to the enjoyment of the income of the Pallivasal by its servants and that the law of inheritance of a wakf is different from the regular rule of inheritance in Sunni Law in that succession to the income of a wakf would be by all the male lineal descendants of the common ancestor, each division being per stirpes and not per capita, the nearer descendant excluding his own lineal descendants. This will be explained further in due course. It is sufficient to say at this stage that the contention of defendants 6 to 8 is that if the rule of inheritance to wakf property is applied, they will be entitled to the same shares as their fathers would have had, if alive on the date of the death of V. M. Meethi Lebbai. This is one of the main points in controversy between the parties.

In Appeal Suit No. 221 of 1951 of this Court, Govinda Menon and Ramaswami JJ., framed a scheme in respect of this mosque inter alia regulating the rights of the Lebbais. As a result of the scheme, the second defendant in the suit Syed Shah Abdul Latiff Mohideen Kadir Sahib briefly referred to as Mohideen Kadir is functioning as swami-cum-mutawalli of the mosque and a managing committee is administering the affairs of the mosque. That managing committee is the first defendant in the present suit, Original Suit No. 16 of