1. This is a defendants' First Appeal against the judgment dated 10-12-1947, of Sri C. C. Coari, District Judge, of Cuttack in a suit brought under Section 92, Civil P.C., by 3 Mahommedans representing the public for the reliefs of removing the defendants from the mutwalliship of the endowment alleged to be a public endowment and of settling a scheme for the management of the affairs of the alleged endowment. Defendants 2 and 3 are minors represented by their father defendant 1. The grounds for removal of the defendants from the mutwalliship and for settlement of a scheme are that the defendants have committed several acts of maladministration and mismanagement of the affairs of the mosque and the properties attached to it with an area of 10.25 acres of land which were also endowed to the mosque.
2. The defence, in short, is that the ancestors of the defendants had constructed the mosque and another nearer ancestor of the defendants also made an endowment of the aforesaid 10.25 acres of land to the mosque; the mosque being a private endowment, the suit, as such, is not maintainable; and that they are not liable to be removed nor are they liable to render accounts.
3. Ex. A is a wakfnama executed by Rahemudad, Khan, ancestor of defendants, on 28-10-1891 in respect of the aforesaid 10.25 acres of land in favour of the mosque. Relying upon the recitals in Ex.. A, the learned Court below has found that it is Dost Muhammad, an ancestor of the defendants,, who was the founder of the mosque, and that Rahemudad Khan, another nearer ancestor of the defendants, also had endowed this 10.25 acres of land to the mosque. The learned Court below has rightly concentrated his attention at the first instance on the question whether the mosque itself is a public institution or merely a private mosque constructed by the forefathers of the defendants. In addition to his reliance upon the evidence adduced on behalf of the plaintiffs, the learned Court below was much impressed with the evidence adduced on behalf of the defendants to the effect that previously the villagers of 5 adjoining villages used to collect to say their prayers in this mosque; and some years ago the villagers of 2 villages had constructed their own mosque and the villagers of another village are now constructing a mosque; & on ceremonial occasions Mahommedan public of 2 or 3 villages assembled in this mosque to say their prayers.
It has to be observed also that the mosque is not constructed in the founder's house. Another important piece of evidence in this connexion is Ex. 4 of the year 1925, which is a registered deed of ekararnama executed by Mahamamd Ali Khan, husband of Majidunnisa in favour of Mahommedan public at large. We get it from the recitals of this document that the mosque till then was located in a Kutcha house, and the executant being unable to bear the expenses of reconstructing the mosque into a Pucca one allowed the Mahommedan public at large to rebuild the mosque at their own expenses and agreed in the document itself that the public at large would be entitled to manage the affairs of the mosque. The evidence also is very clear that it is the Mahommedan public at large who made the mosque Pueca at their expenses' by raising subscriptions from the public.
The books of account (Exs. 5 and 6) have been tendered in evidence to clarify how the subscriptions were collected and how the expenses were met for reconstructing the mosque. Prom this convincing piece of evidence the learned Court below was right in coming to the conclusion that in fact the mosque, in question, was a public institution, and further that the endowment of ten acres and twenty-five decimals of land was a real Wakfnama in favour of this public institution. Relying upon the two decisions of their Lordships of the Privy Council reported in -- 'Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar', AIR 1922 PC 123 (A) and--'Abdur Rahim v. Naraya Das', AIR 1923 PC 44 (2) (B), the learned Court below has rightly come to the conclusion that once the Wakf is validly created, the properties vest in the Almighty.
4. Indeed the defendants are denying the public rights of the institution and of the properties and asserting their own. Furthermore they deny of being guilty of not having kept any accounts at all. But the learned Court below, finding that defendants 2 and 3 are minors, has disallowed the prayer of the plaintiffs for removal of the Mutwallis, but he has passed a decree for settling a scheme for the purpose of administration of the trust and has invited the parties to submit their own respective schemes. We do not find any reason to disagreewith this view of the learned Court below. But weshould observe that on a careful reading of Ex. A(Wakfnama) of the year 1891 by which Rahemudad Khan has endowed the properties in favour of the mosque, we are clearly of opinion that by the terms 'the usufruct of the property would meet the necessary expenses of annual thatching and repairs', the original author of the endowment never meant that the heavy expenses of the costly festivities of the Mahommedan public would also be met out of the usufruct.
We construe the necessary expenses, as indicated by the executant, to mean 'the annual repairs, the daily lighting of the mosque and the expenses of Pesh Imam.' The executant also intended to rnake provision for the maintenance of the Mutwallis from out of the balance of the usufruct after defraying the expenses essential for the upkeep of the institution. , This he manifestly meant by way of paying the remuneration of the Mutwallis. We would, therefore, direct the learned District Judge, while settling the scheme, to bear in mind that he .should make some provision for the remuneration of the Mutwallis from the balance of the usufruct after defraying the necessary expenses, such as, daily lighting, annual repairs and the costs for engaging a Pesh imam. He should also consider that if the costs for maintaining the Pesh Imam will become too heavy to leave sufficient balance towards the remuneration of the Mutwallis, he should direct the public to contribute by way Of subscriptions towards some portion of the expenses for the maintenance of Pesh Imam. With these observations, therefore, we dismiss the appeal but without costs.
5. I agree.