The main legal point established in the judgment is that the cancellation of the settlement deed and subsequent sales of properties indicated no valid Wakf was created, and the plaintiffs' conduct showed lack of clean hands.

JUDGMENT :

N. SATHISH KUMAR, J.

PRAYER: Appeal Suit filed under Section 96 of C.P.C. 1908, against the judgment and decree passed in O.S. No. 448 of 1986 dated 24.04.1990, by the learned V Additional Subordinate Judge, Trichy.

1. This Appeal Suit has been remanded by the Hon'ble Apex Court in Civil Appeal No. 20036 of 2017, on the ground that the High Court reversed the decree passed by the trial Court only on the ground that no issue as to the vesting of the property in wakf has been framed by the trial Court. After remanding, this matter has been heard afresh.

2. For the sake of convenience, the parties are referred to herein, as per their own ranking before the trial Court.

3. The brief facts leading to the filing of this Appeal Suit are as follows:

(i) The suit property is a house property originally belonged to one Hyder Masthan Saheb, the paternal grandfather of the plaintiffs, the first defendant and the father of the defendants 2 and 3. The said Hyder Masthan Saheb had three wives. The first wife was Khatoonbi, the second wife was Zaithoonbi and the third wife was Azeeza Bi. The 5th defendant is the son of Hyder Masthan Saheb born through the first wife. The fourth defendant is the daughter of the fifth defendant and granddaughter of Hyder Masthan Saheb. The said Hyder Masthan Saheb had a son and daughter viz. Shahul Hameed and Raheemunnisa, through the second wife, but Raheemunnisa died in an unmarried state. The plaintiffs and the first defendant are the sons of Shahul Hameed. The defendants 2 and 3 are the sons of Hyder Masthan Saheb through the third wife, Azeeza Bi.

(ii) The said Hyder Masthan Saheb, by a deed of settlement dated 11.10.1946, settled the suit properties and other properties in favour of his descendants. The suit properties were in possession and enjoyment of Hyder Masthan Saheb, during his life time and after his life time, in the occupation of his descendants. It is the further contention of the plaintiffs that as per the settlement deed, the father of the plaintiffs, first defendant and defendants 2 and 3 and their male heirs have to reside in the suit property and perform the obligations imposed on them in the settlement deed.

(iii) It is also stated in the settlement deed that suit property should not be either alienated or even given on lease on any condition. As per the settlement deed, possession was taken by the plaintiffs' father Shahul Hameed and his cousins viz. defendants 2 and 3. They were in possession and enjoyment of the property as a legal male descendants of Hyder Masthan Saheb. Further, as per the settlement deed, they have no right of alienation, but they can only live in the property and they cannot even lease it out. It is also stipulated in the settlement deed that after the life time of the plaintiffs' father and the defendants 2 and 3, their male descendants are also entitled to live in the property from generation to generation. The intention of the settlor was to keep the property intact without any dissipation.

(iv) The plaintiffs' father died in the year 1975. The plaintiffs and defendants 2 and 3 were living in the same property. In the year 1975, the plaintiffs and first defendant were minors. It appears that on 20.05.1975, the plaintiffs' father Shahul Hameed, his wife Mahrunnisa and the mother of the defendants 2 and 3 viz. Azeeza Bi said to have executed a sale deed in respect of the property in favour of the fourth defendant. The fourth defendant, who is the granddaughter of Hyder Masthan Saheb through the first wife, has also aware of the execution of the settlement deed. Besides, she has also aware of the defect in title. Just to purchase litigation, she seems to have purchased the suit property for a consideration of Rs. 30,000/-.

(v) According to the plaintiffs, the sale deed is not a genuine transaction. At any event, it will not affect the rights of the plaintiffs and the first defendant. The plaintiffs came to know about the said settlement deed only recently. In the