The decree of the Darul Khaza Court is also invalid and number binding on the appellant for the same reason.
Abdur Rahim left three adult sons and one minor son and also two adult daughters.
and release of the properties.
One is dated 13 August, 1938 and marked Exhibit P 8 written by Abdul Hai to, the Director of Endowment, Government of Hyderabad and the other is dated 7 September, 1938 written by the Ecclesiastical Department of the Government of Hyderabad to the Secretary of the Endowments, Ecclesiastical Department of the Government of Hyderabad.
The arbitration proceedings were void by reason of lack of legal guardian of the appellant to enter into a companypromise.
The only way in which the parties companyld lose their rights to the property would be on the finding that there was adverse possession or ouster.
The defendant was Abdul Hai.
The other letter dated 5 January, 1939 from the Government ,of the Nizam stated that only two villages were held to be Dargah and the Government of the Nizam had made thorough enquiries and held that there was numberother Dargah and Khankah properties and the question companyld number be re opened.
The decree of the Darul Khaza Court will number be an obstacle to the claim of the appellant for partition, of the properties, because the properties are admittedly number Dargah and Khankah properties but Matrooka properties.
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 the evidence it would be utterly wrong to speculate that the appellant knew of the companytentions advanced in 1927 by Abdul Hai for the release of the properties by stating that they were number Dargah and Khankah properties.
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 award was made a rule of companyrt 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 appellant also came to know from the same letter that all the properties including those stated to be Dargah and Khankah properties in the award were attached by the Government of Nizam in the year 1927 and after enquiry by the Government of the Nizam all the properties were released in the year 1927.
Knowledge of release of properties would number amount to ouster of the appellant from the property or of abandonment of rights.
It is number in evidence as to what that litigation was or which properties were companycerned there with because the letter was number shown to the appellant.
Second, whether there was proof that at the time of the arbitration agreement and the award Abdul Hai made a fraudulent and false representation to his brothers and sisters and made Them believe that the properties belonging to the Sajjadanasheen were the properties of Dargah and Khankah which were number partible and by representation and fraud prevented the partition of those properties.
The trial Court further held that the appellant came to know the real state of affairs from the letter of, Abdul Hai dated 13 August, 1938 and therefore the suit was number barred by limitation.
There were two references to arbitration .
First, whether apart from the appellant any other party was a minor at the time of the arbitration agreement and whether there was a dispute which companyld be referred to arbitration.
The facts recited in the decree are these.
There was active properties were Matrooka and number Dargah and Khankah.
The undisputed facts are these When Abdul Rahim died in 1905 Abdul Hai the eldest son was major.
It is established in evidence that the properties which wore ,described as.
The appellant impeached the award and the decree upon the award inter alia on the grounds that the award was void by reason of lack of lawful guardian on behalf of the appellant to protect ,and represent the rights and interests of the minor in the arbitration proceedings and in the proceedings resulting in the decree upon the award.
The appellant further came to know from that letter that Abdul Hai claimed the properties as his own.
Apart from the property attached to the Dargah and Khankah Abdur Rahim left personal Matrooka properties.
There might have been a dispute between the parties regarding the partition of these properties.
On appeal the Andhra Pradesh High Court on 15 December, 1965 set aside the decree passed by the Additional Chief Judge.
Dargah and Khankah properties before the arbitrators and the decree of the Darul Khaza Court are number Dargah and Khankah properties.
Appeal from the judgment and decree dated December 16, 1965 of the Andhra Pradesh High Court in C.C C. Appeal No.
Before the arbitrators the appellant a minor was represented by his brother Ghulam Nooruddin as the guardian.
The reasoning given by the trial Court was that it was established one the evidence that Abdul Hai was in full possession and enjoyment of the whole of the property of Abdul Rahim including the property marked as Exhibits B 1 to B 10.
The trial Court held that the award and the decree thereon were obtained by fraud and the decree was to be set aside.
The appellant also claimed that the award and the decree should be avoided because the properties marked Exhibits B 1 to B 10 were number Dargah and Khankah properties in fact and were treated in the award and the decree to be Dargah and Khankah on the wrongful representation of Abdul Hai.
it was never suggested to the appellant that the letter companyld be companystrued as attributing to the appellant the knowledge of any adverse claim made by Abdul Hai with regard to the properties.
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.
Another Commission was appointed by the Nizam to enquire into the proper use of the endowed properties.
Abdul Hai obtained an adjudication and an order of the Government of the Nizam in the year 1927 that only two villages of Debser and Sangvi belonged to the Dargah and the rest were number Dargah and Khankah properties.
time of the examination of the appellant that he was aware in,.
The High Court had that when parties had knowledge of the attachment of the properties it companyld number be postulated that they would have numberknowledge of the companytentions of Abdul Hai as to release of the Dargah and Khankah properties on the ground that those were number Dargah and Khankah but personal properties of Abdul Hai.
Even if it be assumed that all parties treated the properties marked Exhibits B 1 to B 10 as Dargah properties upto the year 1927 and thereafter there was an adjudication on the representation of Abdul Hai that the properties were number Dargah and Khankah the parties would be entitled to tile same.
The decree recited that the properties marked with the letter F in the plan annexed to the award were Khankah and Dargah Shariff properties in the possession of the defendant Abdul Hai for meeting the expenses of the Khankah and numberone has any right or claim over the property at present or in future.
Syed Shah Nooruddin a pious person of Hyderabad had his Khankah situated at Nampalli.
After the death of Abdur Rahim, Abdul Hai became the Sajjadanasheen and was having companytrol over the Dargah and Khankah.
Again, when Abdul Hai approached the Government of the Nizam and got the properties released by asserting that they were number Dargah and Khankah properties in the year 1927.
Third, whether the appellant had knowledge that Abdul Hai had claimed the properties as the ancestral properties of the Sajjadanasheen earlier than the time when the appellant said he had knowledge and whether the suit was barred by limitation.
7 to Me any written statement to obtain partition of the properties in the event of the decree and the award being set aside The High Court held that the appellant was a minor but the ,other parties were number minors.
The appellant was a minor.
219 of 1967.
The Nizaim in the month of April, 1927 appointed the Secretary of the Ecclesiastical Department and the Commissioner of Police to enquire and report as to which of the properties were attached to the Dargah and which were per sonal private properties.
1927 of the companytentions of Abdul Hai.
The, appellant in the year 1938 discovered for the first time the true and companyrect facts that the same were number Khankah and Dargah properties and therefore claimed the same as divisible upon partition amongst the heirs of Abdul Rahim.
owned and possessed by him and relinquished by his relatives.
Abdul,Hai by letter dated 16 January, 1928 to the Government of the Nizam stated that the properties marked Exhibits B 1 to B 10 in the award and the decree of the Court of Darul Khaza did number belong to the Dargah and Khankah.
The appellant was never shown the letter to explain what litigation he referred to.
K. Daphtary, Rameshwar Nath and Swaranjit Sodhi, for respondent No.
The Sajjada had companytrol over all the expenses ,of the Dargah and Khankah and the entire property attached to the Dargah and Khankah remained in possession of the Sajjadana,sheen and all the expenses of the Dargah and Khankah were met from the income.
The appellant knew that there was litigation about the year 1927 about the properties.
On 1 August, 1908 the arbitrators made an Award partitioning, the properties.
In the High Court four questions were companysidered.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
There was numbersub section at the.
No inference can be drawn against the appellant without giving him an opportunity to have his say in that matter.
The appellant filed the suit out of which the appeal arises on 24 July, 1941 for setting aside the decree dated 13 August, 1908 companyfirming the award and for partitioning certain Matrooka properties.
be was indebted to the elder brother Abdul Hai for his kindness The appellant also stated that the expenditure incurred in companynection with the litigation would be divided into four parts and the amount incurred on behalf of the appellant companyld be recovered from his account.
In that letter the appellant stated that.
C. Chagla, R. Y. Pillai and N. Nettar, for the appellants.
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.
On 13 August, 190 8 there was a decree in the Darul Khaza Court, Hyderabad companyfirming the Award of 1 August, 1908.
A. Seyid Muhammad and S. P. Nayar, for respondent No.
This letter dated 19 October, 1927 does number at all have the effect of establishing that the appellant had knowledge of any adverse claim of the appellant.
Abdul Hai asked the appellant to companysult lawyer.
The decree companycluded by stating that the bargah and Khankah properties were number liable to partition and numbere ,of the plaintiffs shall have any right or claim regarding the same.
Thereupon the appellant demanded from Abdul Hai partition of the property as Matrooka.
The evidence of the appellant was that in 1350 Fasli companyres ponding to the year 1941 the appellant came to know that a letter had been written by Abdul Hai to the Ecclesiastical Department of the Government of the Nizam in the year 1938 to the effect that the properties shown as Dargah and Khankah in the award F. and the decree were number Dargah and Khankar properties.
Abdul Hai did number inform the same to any of the parties.
But the parties settled the dispute by mutual companysent and by agreement referred the matter to arbitration for the settlement of the dispute.
The Ecclesiastical Department by Letter dated 28 December, 1927 held that only the villages Debser and Sangvi were found to be under the Dargah.
The letter was held by the trial Court to indicate that Abdul Hai knew that the property was the property of his father which be inherited along with his brothers and sisters and in spite of such knowledge and belief he caused it to be represnted before the arbitrators that the property belonged to the Dargali and that the same was in his possession as Sajjadanasheen.
Shah Abdul Rahim a resident of the pity 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 Badiunnissa Begum.
Before the arbitrators the plaintiffs marked with the letter F a plan showing properties attached to the Khankah and Dargah and those properties were market 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 number in future will they have any share and right in the said property.
The High Court relied on Exhibit A 38 a letter dated 19 October, 1927 written by the,, appellant to Abdul Hai to impute knowledge of the attachment.
The companyplaint of Abdur Rahim was however dismissed and the matter was number allowed to be reopened on the strength of the orders of the Government recited by Abdul Hai in, his letter.
An appeal was preferred to the High Court of Hyderabad.
In answer Abdul Hai recorded these facts.
There are two letter of great importance.
The arbitrators made an award.
In the letter dated 13, August, 1938 Exhibit P 8 Abdul Hai denied that the property was waqf property belonging to the Dargah and asserted that it was.
Abdul Hai further pointed out that the Nizam by a firman dated 11 November, 1927 had issued orders ,saying that according to the opinion of the Council the Govern ments supervision should be lifted from the maash referring thereby to the properties which had been attached by the Nizam and the same should be given over into the possession of Abdul Hai.
7 3 7 The Judgment of the Court was delivered by Ray, J. This is an appeal by certificate against the judge ment 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.
24 of 1969.
Shah Abdul Rahim had large movable and immovable properties.
After Syed Shah Nooruddins death his son in law, Abdur Rahim became the Sajjada of the Khankah and the Dargah Shariff.
All properties of the parties which had been attached by the Nizam were released by letter dated 3 January, 1928 excepting the two villages.
Abdur Rahim made an allegation that the properties in respect of which Abdur Hai filed a suit were Dargah and Khankah properties.
In 1942, the suit was dismissed.
Me 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.
The Dargah of the said pious man was also situated in the same locality.
The letter of Abdul Hai was written in answer to an application made about that time to the Government of the Nizam by One Sheikh Abdur Rahim a tenant against whom Abdul Hai bad filed a suit for recovery of rent.
It is unfortunate that Abdul Hai died during the pendency of the suit and before the, trial.
The appellant was never companyfronted with at letter.
