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2019 (6) TMI 1344 - HC - Indian LawsDishonor of Cheque - Complaint by Power of Attorney Holder who have no knowledge of facts - whether respondent is a ‘wakf’ or not - Scope of Affidavit filed with complaints - Maintainability of summon orders - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- The affidavits appear to prima facie fulfil the parameters of observations in para 8 of the said verdict (A.K.K. NAMBIAR VERSUS U.O.I. [1969 (10) TMI 79 - SUPREME COURT]) in the circumstances put forth. However, the same does not suffice to bring forth the maintainability of the complaints as of date. The trustees are joint owners of the trust property and a Trust does not have a legal existence of its own and no single trustee can sue in the name of the Trust and all trustees must be impleaded in the suit and the trustees execute a power of attorney empowering one of them to represent all and cannot do so by passing a resolution and that all trustees should join the suit. It is thus indicated that Rabea Begum, Executant No.3 died on 5th October, 1949 and Hakim Mohammad Said, Executant No.2 was declared an evacuee and his share was taken possession of by the Custodian of Evacuee Property and thus Mr. Hakim Abdul Hameed, Executant No.1 became the sole surviving Wakif-Mutawalli and all rights, powers and duties of Wakif Mutawalli conferred by the Deed thus vested in him and it was mentioned thereby that he would be construed to mean the sole surviving Wakif-Mutawalli in relation to the all rights, powers and duties provided for the Wakif Mutawallis in the Wakf Deed as it has been submitted through the submissions made on behalf of the petitioner and which have not been refuted on behalf of the respondent that even the said Shri Hakim Abdul Hameed who executed the Power of Attorney in favour of Javed Akhtar has since expired, there is nothing that has been put forth on the record by the respondent to indicate that there is any other Chief Mutawalli that has been appointed apart from the factum that it has already been laid down by this Court that the respondent is not a Wakf. Petition not maintainable and the summoning orders are thus quashed.
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