Present : Bertram C.J. and De Sampayo J.  1923.

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 wag 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 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.

" 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 Mohideen Andavar; after the life time of both of as 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, Yappu 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 Muhammadan 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, at the superior of a religious endowment (of. 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 Sainambunatchia, 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 villages. 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