No substantial question of law involved in the case.

This is a petition for leave to appeal to the Supreme Court from the judgment and decree of this Court in Appeal Suit No. 138 of 1961, to which one of us was a party which reversed the judgment and decree of the City Civil Court in O.S. No. 2292 of 1959.

This petition arises out of a suit filed by the first respondent herein for a declaration that he was entitled along with the petitioner herein to manage the wakf properties created by one Magdoom Mohamed Maraicayar, the maternal uncle of the petitioner herein. The founder of the said wakf, Magdoom Mohamed Maraicayar created a wakf alal aulad or family wakf by a registered deed dated 27th August, 1924, appointing himself as the first Muthawalli, and after his lifetime, appointing the father of the first respondent and the father of the petitioner as joint Muthawall is. The deed also provided that if one of the Muthawallis died, the other should function, singly. It further provided according to the first defendant, that, after the death of the two joint Muthawallis, the eldest of the male issues of the aforesaid Muthawallis should alone be Muthawalli. The contention of the petitioner was that, after the death of the two aforesaid Muthawallis, viz., the father of the petitioner and the father of the first respondent, he alone was entitled to be the Muthawalli, as he was the eldest of the male issues. The trial Court dismissed the suit of the first respondent and declared that he could not claim to be the joint Muthawalli along with the petitioner. But, on appeal, the said decision was reversed, and it was declared that the first respondent was entitled to act along with the petitioner, as joint Muthawalli in respect of the wakf properties created by Magdoom Mohamed Maraicayar. It is against this judgment and decree, that the first defendant has preferred this petition for leave to appeal to the Supreme Court.

Learned Counsel for the petitioner contended that he was entitled to a certificate, as the judgment of this Court was one of reversal of that of the Court below and as the pecuniary value of the subject-matter of the dispute both in the Court below and in appeal was above Rs. 20,000, as given by the first respondent herein. If the value of the subject-matter in dispute between the parties was capable of determination and if it was then determined at Rs. 20,000 by the first respondent, this argument of learned Counsel for the petitioner would have force. The petitioner would then be entitled to grant of leave as a matter of right under Article 133 of the Constitution. But the real question that arises for determination is, what is the subject-matter in dispute between the parties in action. The first respondent filed a suit for declaration that he was entitled to act along with the petitioner as joint Muthawalli. It is difficult to estimate the pecuniary" value of the joint right of a Muthawalliship in a wakf.

Cases have frequently arise in Courts, in which the subject-matter of the dispute between the parties is the trusteeship, in which the question arose whether the trusteeship as such was capable of valuation. In Balarami Reddi v. Shaik Masthan Sahib1, a Division Bench of this Court consisting of Govinda Menon and Basheer Ahmed Sayeed, JJ., held as follows:

“ Where a wakf in question related to property worth admittedly more than Rs. 50,000 but the question decided in the Second Appeal was with respect to the trusteeship of the mosque and the subject. matter of the appeal to the Supreme Court is whether the plaintiff has the right to function as trustee it cannot be said that the subject-matter of the suit is capable of valuation and as such section 110 (1) of the Civil Procedure Code and Article 133 (1) (a) of the Constitution cannot in strict terms apply. Though there was an ancillary prayer for recovery of possession of properties and sums of money on a rendition of accounts and a prayer for a permanent injunction restraining the defendant and his men fro