1. This was a suit filed under Section 539 of the Civil Procedure Code of 1882, corresponding to Section 92 of the present Code. The plaintiffs sued as persons interested in the alleged public religious trust known as Pir Khatib Sayad's Dargah in the town of Nadiad. They alleged that that Dargah was wakf property over which the first three defendants had no right of ownership; that the first defendant had mismanaged the trust property and had alienated part of it to one Chaturbhai who in turn had sold it to the fourth defendant. The plaintiffs prayed, therefore, that the first three defendants should be removed from management of the property; that new trustees should be appointed; that accounts should be taken and a scheme should be framed.
2. The principal defence offered was made by the first defendant who claimed that the property was not trust property at all but was private property belonging to himself. The learned Joint Judge by whom the suit was decided held that the suit was unmentionable in its present form, and also that the property in question was not proved to be public religious property. Upon both these grounds, therefore, he dismissed the claim. These are the grounds upon which his judgment has been attacked in this appeal and upon both points we are unable to take the view which commended itself to the learned Judge below.
3. As to the point of the form of the suit, the learned Judge relying upon Jamal Udain v. Mujtaba Husain ILR (1903) All. 631, thought that this suit could not be referred to Section 92 of the Civil Procedure Code, because the trust alleged by the plaintiffs was not admitted by the defendants. in our opinion, however, that is no reason for taking the suit outside the scope of Section 92. Jamal Uddin's case, as we understand it, is not an authority for more than it decides, and all that it decides is that a suit asking for a mere declaration that certain property is trust property does . not lie under the old Section 539. It will be seen that that proposition is incontestable if reference be made to the Sub-clauses of Section 539 which prescribe the particular purposes for which such a suit may be brought under that section, which purposes do not include the purpose of obtaining a mere declaration ; but in this present suit there are prayers which bring the case within the ambit of Section 539. We think that no difficulty is caused by the use of the words 'any alleged breach of any trust' occurring in Section 539, for we do not read those words as equivalent to any alleged breach of any admitted trust. The construction which we put upon the section in this respect has, so far as we are aware, been consistently followed in these Courts, and the case of Chinchwad Savasthan, Chintaman Balaji Dev v. Dhondo Ganesh Dev ILR (1888) 15 Bom. 612 is an illustration of that. Reference being made to p. 616 of the report, it will be seen that the defendants there pleaded that the Savasthan was not a public religious or charitable institution and that they were not the trustees but owners of the property in that suit. The same defence was also set up in the Dakore case: Manohar Ganesh Tambekar v. Lakhmiram Govindram ILR (187) 12 Bom. 247, but it was not suggested in either of these cases that the existence of that particular plea in defence took the case out of the scope of Section 539.
4. Another ground upon which the Joint Judge was of opinion that the suit was unmentionable was because the Collector's sanction was given only to one named man. Now the per-mission or sanction in question is Exhibit 6 which is entitled, and affects to be, a certificate under Section 539 of the Civil Procedure Code. It is addressed to Jafferkhan, the present first plaintiff, and the other Mahomedans, residents of Nadiad, who had applied on the 25th May 1902 for the Collector's permission. It seems to us that this document should be read as a permission to those named. individuals who made the application, to which Exhibit 6 is the Collector's reply, and we have satisfied ourselves by reference to that application that all the plaintiffs fall within this category. It seems to us that these plaintiffs, who are seeking to obtain the Court s assistance to enforce the management of the trust property, are not to be defeated because the Collector or his clerk elected to name only one of the petitioners and to refer to the others merely as the other applicants.
5. As to the presence of the fourth defendant on this record it is now admitted by Mr. Jinnah that upon the evidence now available the plaintiffs cannot contest his title to the property alienated to him by the first defendant.
6. There remain, therefore, for discussion only the Dargah and the cash allowances, and the substantial question is whether this property is or is not shown by the evidence to be public religious property. That question ought, we think, to be answered in the affirmative. The earliest documents bearing upon this question are Exhibits 56 and 70 of A.D. 1842. They are records of grants made by the State to the Manager for lighting this Dargah and to the Mali as responsible for laying flowers upon it. Then we have Exhibit 61, the Sanad of 1866 A.D., which is a grant of Rs. 3 yearly, in perpetuity, to the Pir Khatib Sayad as long as the Managers remained loyal subjects of the British Government. It is noticeable that the grant is to the Pir Khatib Sayad, for it is certain that Khatib Sayad himself had died many years before this grant. We think upon reading these three Sanads that they make it clear that these grants which were made by the State to an institution establish that that institution was not a private but a public endowment. This inference is further supported by the actual use to which the Dargah has ever since been put. The evidence shows that it has been kept open free of access to all Sunni Mahomedans for purposes of worship or devotion, and there is no suggestion that any one, on any occasion, for any reason, was ever excluded by the first defendant. His only ground for his claim of private ownership is based upon the allegation that the original Khatib Sayad was his ancestor, but that allegation he has entirely failed to substantiate. On this ground we are satisfied that this property is, as the plaintiffs claim, public religious trust. If that is so, then the only question remaining is as to the order which ought now to be passed. The first defendant has repudiated his trust and there is evidence to show that in the past he has been guilty of distinct mismanagement, though, having regard to the customs of the people in these matters, the mismanagement was not of any specially culpable kind. Upon a consideration of all the circumstances as they are disclosed by the evidence we will not remove the first defendant wholly from his office, but we think it necessary to associate with him in management some Mahomedan gentleman of respectable character. We leave it to the District Judge to appoint that associate after hearing both parties and considering whatever arguments they may adduce. We do not think it necessary in the present monetary condition of this property to direct the preparation of a scheme, but we must order that accounts of the incomings and outgoings of the Dargah be properly and regularly kept and be submitted once a year to the District Judge for audit. There will be a decree accordingly.
7. We allow the plaintiffs half their costs throughout from the first defendant. As regards the fourth defendant the appeal will be dismissed and the fourth defendant will have from the plaintiffs any separate costs which he may have incurred in this appeal.
8. As to the costs in the lower Court between the fourth defendant and the plaintiffs we make no order.