1. This is an appeal by certain objectors to an application originally filed under Section 7 of Act 14 of 1920. The applicant alleged that Mt. Haji Begam had dedicated certain property and prescribed a certain line of mutwallis and the applicant was the mutwalli of the trust property, lie asked for numerous directions to be given to him by the Court in his administration of the trust property. His main point was that the income of the trust property had been reduced considerably and that there should be proportionate reduction under all heads, lie also wanted a declaration in favour of his sons that they were equally entitled to certain allowances.
2. The application was opposed by certain beneficiaries under the deed of trust who denied the pedigree set up by the applicant, denied the fact that the applicant was a trustee, denied that the income had been in any way reduced, denied that the applicant's sons were entitled to any allowances and also denied the jurisdiction of the District Judge to entertain the application on the ground inter alia, that the trust was not a public trust at all.
3. The learned Judge has disposed of the matter without allowing the parties to produce any evidence and without going into the points which were in controversy. He has not held that the applicant is entitled under the deed of trust to be the mutwalli, but inasmuch as he is in possession of the trust property he has assumed that he is a mutwalli. He has not gone into the question whether the pedigree set up by the applicant or that set up by the objectors was correct, nor has he considered the question whether the income has in point of fact been at all reduced. He has found in favour of the objectors that the wakf was not a public trust, but was a private trust, although part of the income, at any rate, was fixed for religious and charitable purposes. He has not considered whether on that ground the wakf should be considered as partly public and partly private. He has treated the application as if it were not made under Act 14 of 1920, but were a mere petition to him in his capacity as the Judge of the principal civil Court of original jurisdiction, who has taken the place of the Qazi under the Mahomedan law, for directions and has considered that he has jurisdiction to give such directions to a trustee. Perhaps, this part of the view taken by him, cannot be seriously challenged.
4. Without trying the case and without giving any opportunity to the parties to substantiate their respective cases, the learned Judge has merely expressed an opinion, on a pure question of law in the following words:
In case of decrease, of income, all the expenses provided for by the waqf should be proportionately reduced.
5. In support of this view he has relied on a passage in Mr. Amir Ali's Mahomedan Law, p. 381, based on the authority of Ruddul Muhtar Vol. 3, p. 670, viz., that in case of decrease of income-from the wakf property all the expenses fixed by the wakf should be proportionately reduced. This opinion has been expressed without reference to the terms of the particular deed of trust in question.
6. It seems to us that there has been a material irregularity in exercising jurisdiction in this case. The learned Judge should not have expressed a without allowing the parties to produce evidence. Even if it be assumed that the applicant as a dc facto trustee had a locus standi to approach the District Judge, the learned Judge should not have expressed, his opinion in a general way, but should have based it on the terms of the particular deed. We do not think that the learned Judge meant to lay down that all the items of expenditure and all allowances and maintenances mentioned in the deed stand on the same rooting and they must all be reduced proportionately. Of course, where in the deed itself there is priority given to some items and they have to be met in the first instance and the others have to be mot out of the balance in hand, it will be impossible to say that the items in all such groups stand on the same footing. The learned Judge has not examined the terms of the document and it seems prima facie that the general proposition of law as stated by him would not be applicable to the terms of this particular document where the items of expenditure have been classified into groups with priorities.
7. On the whole we are of opinion that the best course is to set aside the order of the District Judge and send the case back to him for disposal according to law. The order of the Court below cannot be treated as a decree and under no provision of the law can it be regarded as an appealable order. Accordingly no appeal lies to us. But as there has been a material irregularity in the exercise of jurisdiction and a case has certainly been decided, we have jurisdiction to interfere on the revisional side. The applicants may have the costs of this revision from the respondent who will recoup himself out of the income of the trust property, treating the same as part of the legitimate expenses of management.