1. The 1st question for consideration in this case is obviously the nature of the original grant which it is common ground was made by the Nawab of the Carnatic in 1798; and 1 have no hesitation in agreeing with my lord the Chief. Justice that it was of the nature of a public trust for the benefit of a mosque founded, endowed and dedicated for public worship. In the absence of the parvana, we have to look to the record in the Inam Register, Ex. A, and to the evidence of user. Both are strongly in plaintiff's favour. I attach no importance to the statement of D. W. 3 that the mosque is not called a Jamma Masjid in the face of the evidence that it has always been used for public worship. Ex. A shows clearly that the inam was a religious endowment for the establishment and up-keep of a mosque and various services therein, and that the persons named in columns 16-20 as ' present holders' are so treated as managers of the masjid and not in their individual capacity.
2. Indeed the only ground on which the public character of the. trust has been seriously attacked is the fact that it was treated by the British Government as resumable, and that under Mahomedan Law a wakf must be unconditional. No authority has been quoted which as far as I can see, supports the contention that in the case of a grant by the ruling power the condition of power of resumption in case the trust is not carried out, impairs the public character of the trust. We have been referred to a passage at p. 526 of Vol. I of Ameer Ali's Mahomedan Law which says :
If a person were to create a wakf and make a condition that the property should return to him in case of necessity, the condition would be valid and the wakf would be void, the transaction taking effect as a mere hubs or settlement; when the need arises the property would revert to the owner.' This has reference to a totally different state of things. A contingency of reversion to the owner, in case the latter needs the property, obviously implies, only a temporary settlement, which can be annulled although all its other conditions are rigorously complied with. In Kuttayan v. Mammanna Ravuthan I.L.R. (1911) M. 681 the only case to which we were referred as being in appellant's favour, there was no question of resumability, but of the existence of outstanding private rights in the alleged wakf property. In Sikkandur Rowthan v. The Secretary of State for India (1916) 5 L.W. 402 a very similar case to the present, Srinivasa Aiyangar, J., and myself held that land forming the subject of a public trust was resumable by Government on failure to perform the conditions of the trust.
3. I would therefore reject this contention and may add that in any case it could not be applied to a grant by the British Government while there is no evidence attaching a specific condition of resumability to the original grant by the Nawab. The earliest evidence is the entry in the Inam Register, Ex. A dated 1861.
4. It only remains to consider the nature and effect of the proceeding of Government in 1893 by way of resumption. There appears to have been considerable argument before the Divisional Bench as to whether the original grant was of the lands themselves as held by the Chief Justice or only of the assessment, thereon. Before us the learned Vakil for appellants did not contest the view taken by the Chief Justice on this point, but was content to argue his case on the hypothesis that the lands themselves constituted the grant.
5. But if this be so, appellant's case is hopeless, whichever view be taken of the extent of the interest resumed by Government. If, as both the learned Judges of the Divisional Bench held, Government only resumed its right to collect full assessment on the land then the remaining interest in the land remained as much the subject of the trust as ever.,If on the other hand, it be held that Government took back all that it had granted (i.e., the ryots' interest as well as its own right of collecting assessment) and made a re-grant of the ryots' interest to the trustees in their individual capacity, then the principle embodied in Section 88 of the Trusts Act comes into effect. There can be no question that by such a transaction the trustees would gain for themselves a very valuable proprietary interest in the property which interest previously appertained to the trust. This interest would have been acquired by the simple process of neglecting their duty as trustees, whereby Government was driven to resume the inam. In such circumstances the advantage they gained must be held by them for the benefit of the trust. It is argued that the trust had ceased to exist but this cannot be the case, Apart from the cultivable lands which formed the endowment of the mosque there is the mosque itself and the site on which it stands which latter also formed part of the original grant. It cannot be seriously suggested that the site of the mosque was assessed and, with the mosque upon it, regranted to the defaulting trustees for their private use. There is certainly no evidence to prove that such was the case and as long as the mosque and the site remained unaffected the trust cannot be said to be extinguished. 1 would dismiss the appeal with costs.
Kumaraswami Sastri, J.
6. I am of opinion that the decision of the Chief Justice ought to be affirmed. There can be little doubt from the inam title-deed that the inam was granted by Nawab Azim Jah in Fasli (1208) (1798) for the purpose of erecting a Musjid, for keeping a light burning every night, for reading the Namas and Fatehas every Friday, for performing the annual ceremony (of the Nawab whose coffin rested on the spot where the Musjid was to be built on its way from Madras to Trichinopoly) and for feeding the Fakirs. It does not appear that it was the intention of the grantor that the trustee should obtain any personal benefit or that he should appropriate any portion of the income of the lands. The land is classed as a religious endowment in the inam register and this is, as pointed out in Muhammad Jafar v. Muhammad Ibrahim I.L.R. (1900) M. 243 strong evidence that the property was subject to a public trust. The persons in possession are described as managers of the Musjid. The 1st defendant and his witnesses in their evidence state that the lands were manyam lands assigned to the mosque. I see no reason to hold that the mosque is not a public mosque and that the grant of the inam was to the grantees personally as a service inam. It is conceded before us that the grant was of both the melwaram and kudiwaram of the land. In the absence of evidence as to what was actually granted the recent decision of the Privy Council in Suryanarayana v. Potanna (1918) I.L.R. 41 M. 1012. (P.C.) is to the effect that in grants by Native Rulers there is no presumption that only the melwaram was granted.
7. It is also clear that a mosque was built and that the trusts were carried out till at least 1861 as the remark in column 8 of the inam register is to the effect that the conditions were all regularly fulfilled. It also appears that the trusteeship was hereditary. As to what happened between 1861 and 1893 (the date of resumption by Government) the evidence is not clear. The probabilities are that, having got the recognition of the British Government during the inam settlement proceedings, the trustees gradually neglected their duties and treated the inams as their private property.
8. In 1893 an enquiry was held and in consequence of it full assessment was levied on the lands. Ex. VI shows that a total tirvah of Rs. 123-8-0 was levied on the lands which are said to consist of 2 acres 99 cents of punjah and 16 acres 70 cents of nanjah. It is argued that the levying of this assessment had the effect of putting an end to the trusts, and the grant of the lands as the private and absolute property of the grantees. I do not think this consequence follows. All that the Government did was to levy the full assessment on lands which were free from it. The kudiwaram rights on the lands were not affected and as the grant in inam was of both varams it is difficult to see how the levying of the assessment can put an end to the trust. At the most all that can be said is that by levying full assessment the income of the trust properties was reduced by the amount of the tirvah levied. Reference was made by the appellant's vakil to Unide Rajah Raji Bommarauzi Bahadur v. Pemmasami Venkatadry Naidu (1858) 7 M.I.A. 128. In this case the inam was a service inam and the grant seems to have been of the melwaram in return for services. The levying of the assessment had therefore the effect of putting an end to the tenure. In the present case the grant in inam was of both the warams and I cannot from the mere fact of the levying of full assessment and the grant of a patta to,the trustees, hold that there was a resumption of both the warams by the Government which extinguished the trust and a regrant to trustees of an absolute estate freed from all obligations. The case in Punniah v. Kotamma I.L.R. (1916) M. 939 is distinguishable as the resumption was assumed to be of both the warams.
9. It has been argued that no valid wakf was ever created as the lands were resumable at the option of the grantor if the trusts were not performed by the grantees of the inam. Reference has been made to Ameer Ali's Mahomedan Law, Vol. I, page 526. The original grant is not produced and no satisfactory explanation has been given for its non-production. That such a document existed appears from the inam register which refers to 'documents in Persian with Parvana.' There is therefore nothing to show that a right of resumption existed in the original grant constituting the wakf. I doubt very much if the limitations which would apply to grants by private individuals would apply to trusts created by sovereign rulers but assuming it is so there is nothing to show that there were any terms or conditons in the Parvanah issued by the Nawab of the Carnatic which are repugnant to Mahomedan Law. What the British Government did in 1861 was to confirm the grant. A clause was added that the inam would be 'continued so long as the conditions of the grant are regularly fulfilled,' but this clause cannot render a valid wakf already created invalid nor can the inam proceedings of 1861 be taken to amount to the creation of a new wakf. Assuming it to be so the trust would be one created by the British Government and the law as to wakfs would not apply to trusts created by a non-Mahomedan State. I am also of opinion that Section 2 of the Crown Grants Act, Act XV of 1895, which provides that all provisions restricting conditions and limitations contained in grants by the Crown shall take effect according to their tenor notwithstanding any rule of law to the contrary will validate the grant as the Act is retrospective.
10. There can be little doubt that full assessment was levied by the Government because the then trustees did not carry out the trust. Assuming that there was a regrant of both the warams to such trustees the case will fall under Section 88 of the Trusts Act. Having regard to the Standing Orders of the Board of Revenue the grant in cases where inams are resumed, is, as pointed out by Spencer, J., ordinarily to the persons in possession and the patta was issued to the trustees because they were in possession of the lands. I agree with the Chief Justice that the Government can hardly have intended to reward the defaulting trustees by conferring on them an estate free from the trust. The Government had waived its right to levy assessment on condition that certain trusts were performed and on failure by the trustees it levied full assessment. The patta was issued to the trustees because they were in possession as trustees and not because of any special claims they had apart from the trust. The trustees who were bound to carry out the trusts therefore gained an advantage by their breach of trust and they must hold the land for the benefit of the trust.
11. I would dismiss the appeal with costs.
12. The first question for our decision in this case is whether the plaint mosque is a trust created for public purposes within the meaning of Section 92 Civil Procedure Code.
13. The nature of a trust has to be judged primarily from the terms of the deed of endowment creating it. But in the present case the parvanah by which the trust was created is not produced. The appellants pretend that they have lost it but I am unable to believe it. I am inclined to think it is kept back as its production would work against their interests and therefore every presumption should be drawn against them on the question at issue.
14. In the absence of the original deed of trust we have to fait back upon what appears in the extract from the Inam register of 1861, Ex. A and on the usage in the institution. Ex. A shows that the grant was made in Fasli 1208 or A.D. 1798 by the order of the then Nawab of Carnatic for the purpose of building a Musjid on the spot where the coffin of Nawab Wallajah rested on its way to Trichinopoly for keeping a light in it, and for reading Namas and Fatehas on every Friday, for performing the annual ceremony of the Nawab's death, and for feeding fakirs who pass by. No doubt the object so Stated and the fact that the inam was to be continued only so long as the conditions were fulfilled are in favour of the appellants' argument that the inam is a service inam. But the inam is not described as a service inam in the deed but it is stated to be a ''religious endowment' and the lands are said to be enjoyed by the persons then in possession as ' Managers of the Masjid.' These circumstances rather support the contention that the endowment is a public one. I am, however, not prepared to go as far as my learned brothers that they are conclusive of the question at issue. It seems to me that no definite inference can safely be drawn from Ex. A by itself as to the character of the trust.
15. But I consider the matter is put beyond doubt by the usage in the institution as proved by the evidence in the case. Several witnesses speak to the mosque being open to the Mahomedan public for worship. The 1st defendant himself had to admit that 'the people had a right to worship in the mosque.' He seems to have also been fined once for interfering with public worship in it, see Exs. B and B 1. It is also proved that there is a Peshi Imam and Katib and a Muazzin for the mosque. P.W. 1 swears that he is the holder of the 1st two offices and P.W. 3 claims to be the Muazzin. The 1st defendant admits the existence of these offices though he claims to hold them himself. P.W. 1 also swears that he was in the habit of preaching a Katib from the 'Inimbar' or pulpit regularly to congregations of Mahomedans. In these circumstances it seems to me idle to say that the mosque is not a public one. I therefore agree that the finding arrived at by the District Judge and supported by his Lordship the Chief Justice and by my learned brothers now, that the mosque is a public trust should be adopted. As pointed out by the learned Chief Justice this view is supported by the ruling in Sikkanda Rowthan v. The Secretary of State for India (1016) 5 L.W. 402 where under similar circumstances a similar inference was drawn.
16. It was next contended by the appellant's vakil that as the grant was confirmed and continued by the British Government by Ex A, only subject to the conditions of the grant being fulfilled, it became an invalid wakf, as under the Mahomedan Law the grantor cannot retain any interest in a valid wakf; and reliance was placed on Ameer Ali's Mahomedan Law, Vol. I page 526. This argument is clearly fallacious. In the first place the Government was creating no new trust at all by Ex, A. They simply confirmed the previous grant, imposing certain conditions, as they were entitled to do, as the ruling power in the land. In doing so, they did not act as the representatives of the Nawab who was the original grantor nor did they purport to make a new grant themselves. In the second place, if we take it that they did make a new grant obviously the Mahomedan Law of wakf cannot apply to it. In any case therefore the objection is futile.
17. It was finally contended by the appellants' vakil that the resumption proceedings in 1893 put an end to the inam in question and as the lands were granted to his clients' prede-cessor-in-title on an ordinary ryotwari patta they became his private property. On this question the learned Chief Justice and Spencer, J., have taken different views, the former holding that it did not affect the trust and the latter that it did. I am inclined to agree with the view of his Lordship the Chief Justice.
18. It is admitted before us that the lands themselves formed the inam and not merely the revenue payable on it. As the note of the fact in the Inam Register Ex, A, states that the 'whole inam has been resumed.' I am not able to adopt the suggestion that the resumption was only of the melwaram right and that the kudiwaram still remained as it was before. But even taking that the lands themselves were resumed, I think it really makes no difference to the result of the case.
19. If the Government had granted the lands to a stranger without expressly providing for the trust to attach to them, it may be they would have become the ordinary private ryotwari property of the grantee. But the grant in this case was to the Muttawallis themselves and apparently on the ground that they were such Muttawallis. In such a case it seems to me a fair inference to draw that the Government intended that the lands should be held under the same conditions as before subject to the one exception that full assessment was to be paid. In fact the considerations mentioned by Spencer, J., regarding resumption in the case of ancient grants show that where the Government merely levy full assessment they do not intend to interfere with the existing rights; and therefore where they purport to resume the land and re-grant it to the same trustee on full assessment, it is clearly right to hold that they intended by their re-grant that the lands should be held subject to the same rights as before resumption.
20. The case of Punniah v. Kottamma I.L.R. (1916) M 939 relied on by the appellant's vakil does not seem to me to be in point here. In that case both parties were agreed that the charitable trust had come to an end by the resumption proceedings; in fact the claim was for a share on the footing that the property had become private property. In such a case the learned Judges held that the re-grant to a person who happened to be one of the trustees did not lead to a presumption that it was given to him because he was a trustee or that he took it jointly for himself and the other trustees; for if that was the intention of the Government the grant would have been to all the trustees. Whether this view be correct or not it is not in conflict with the view that where the grant is not inconsistent with an intention to preserve the trust such intention may be presumed.
21. I agree with the view taken in Sikkandar Rowthan v. The Secretary of State for India (1916) 5 L.W. 402 which is followed by the learned Chief Justice in this case that where lands have been dedicated for the support of a public mosque their resumption and re-grant to the trustees on full assessment do not free them from the trust.
22. I am prepared to support my conclusion in his case on another ground as well. It is proved here that it was entirely due to the failure of the Muttawallis to perform their duties properly that led to the in am being resumed and the lands being re-granted on full assessment. In these circumstances I am of opinion that, even though the resumption proceedings be taken to have resulted in freeing the lands from the trust in the hands of the Government, the trust re-attached to them when they were given back to the muttawallis on the principle underlying Section 88 of the Indian Trusts Act, though that Act does not directly apply to public religious endowments. Otherwise as the learned Chief Justice remarks 'we would in effect be rewarding the defaulting Muttawallis for their breach of duty.' Section 88 embodies a principle which is of general application that if a trustee avails himself of his character as such to gain an advantage thereby he must hold it for the beneficiaries. It is quite clear in this case that it was by taking advantage of their position as Muttawallis and failing to do their duty as such, that they led the Government to resume the lands and re-grant them to them. They cannot be allowed to take advantage of their own default and to treat the lands as private property in their hands.
23. I therefore find on the 1st issue that the Wallajah Musjid of Villupuram is a public religious institution to which Section 92 Civil Procedure Code applies and on issues 2 and 4 that the lands are trust properties belonging to Musjid and that defendants are accountable for the income, The amount decreed by the lower court has not been seriously disputed before us,
24. I agree with the learned Chief Justice that the decree of the District Judge should be modified as he proposes as it is not right to exclude the defendants and all their descendants from filling the office of trustee forever. Adopting that modification which has already been incorporated in the decree of this Court, I agree in dismissing the appeal to us with costs.