Judgment

RAY, J.: This is an appeal by certificate against the judgment dated 15 December, 1965 of the Andhra Pradesh High Court dismissing the appellants suit and setting aside the decree in favour of the appellant passed by the Additional Chief Judge, City Civil Court, Hyderabad on 18 October, 1958.

2. Shah Abdul Rahim a resident of the city of Hyderabad died on 26 September, 1905 leaving behind him four sons Abdul Hai, Ghulam Nooruddin, Abdul Razak and Ghulam Ghouse Mohiuddin and two daughters Kamarunnissa Begum and Badunnissa Begum. Shah Abdul Rahim had large movable and immovable properties. The sons and the daughters entered into two agreements in the month of July, 1908 and appointed arbitrators to partition the Matrooka properties of Syed Shah Abdul Rahim. On 1 August, 1908 the arbitrators made an Award partitioning the properties. On 13 August, 1908 there was a decree in the Darul Khaza Court, Hyderabad confirming the Award of 1 August, 1908. The appellant filed the suit out of which the appeal arises on 24 July, 1941 for setting aside the decree dated 13 August, 1908 confirming the award and for partitioning certain Matrooka properties. In 1942, the suit was dismissed. An appeal was preferred to the High Court of Hyderabad. During the pendency of the appeal, Abdul Hai died in 1950 and his legal representatives were brought on the record of the suit in the month of February, 1952. The appeal filed in the year 1943 was disposed of by the High Court of Andhra Pradesh in April 1957 remanding the case to the City Civil Court Hyderabad. On 18 October, 1958 the Additional Chief Judge, City Civil Court, Hyderabad decreed the suit in favour of the appellant and cancelled the decree of the Darul Khaza Court dated 13 August, 1908. On appeal the Andhra Pradesh High Court on 15 December, 1965 set aside the decree passed by the Additional Chief Judge.

3. The undisputed facts are these: When Abdul Rahim died in 1905 Abdul Hai the eldest son was major. The appellant was a minor. There were two references to arbitration. Before the arbitrators the appellant a minor was represented by his brother Ghulam Nooruddin as the guardian. The parties to the arbitration agreements were Abdul Hai, Ghulam Nooruddin, Abdul Razak the appellant represented by his guardian Nooruddin, Qamarunnissa Begum and Badiunnisa Begum. It will appear from the award that before the arbitrators there was no dispute between the parties and the arbitrators did not think it necessary to frame any issue. Before the arbitrators the plaintiffs marked with the letter F a plan showing properties attached to the Khankah and Dargah and those properties were marked as Exhibits B-1 to B-10 and the plaintiffs relinquished their title to properties marked Exhibits B-1 to B-10 and further stated "neither at present nor in future will they have any share and right in the said property." As to properties marked B-1 to B-10 the parties stated before the arbitrators that Abdul Hai was the Sajjada Nashin of the Dargah and was in possession of the Dargah and Khankah properties.

4. The award was made a rule of court within a short time upon a plaint filed by Nooruddin, Abdul Razak the appellant represented by Nooruddin as the guardian and the two sisters Qamarunnisa Begum and Badiunnisa Begum. The defendant was Abdul Hai. The facts recited in the decree are that Syed Shah Nooruddin a pious person of Hyderabad had his Khankah situated at Nampalli. The Dargah of the said pious man was also situated in the same locality. After Syed Shah Nooruddin s death his son-in-law, Abdur Rahim became the Sajjada of the Khankah and the Dargah Shariff. The Sajjada had control over all the expenses of the Dargah and Khankah and the entire property attached to the Dargah and Khankah remained in possession of the Sajjadanasheen and all the expenses of the Dargah and Khankah were met from the income. After the death of Abdur Rahim Abdul Hai became the Sajjadanasheen and was having control over the Dargah an