1. This is an appeal preferred against the Decree and Judgment of the learned Subordinate Judge of Tirunelveli in O.S. No. 26 of 1948.
2. The suit was under section 92 of the Code of Civil Procedure: (1) for removing the first defendant from the trusteeship of the suit Pallivasal and from the possession and management of the trust properties; (2) for framing and settling a scheme suitable for the administration of the Pallivasal; (3) for declaring the alienations made by defendants 1 to 5 of the trust properties invalid and void and (4) for a permanent injunction restraining defendants 1 to 5 or anybody on their behalf from interfering in any manner with the trust and its management and its properties.
3. The suit Pallivasal known as the Mohideen Andavar Pallivasal is a famous Dharga in Tirunelveli District. It is said that it owes its sanctity to a great Moham-madan Fakir by name Mohideen Jelani coming and performing his penance there. The first defendant is a descendant of that Jelani.
4. In the Tirunelveli Gazetteer compiled by Mr. Pate, i.c.s. at page 360 the following description of this Dharga is given:
The mosque which is an old one (said to have been founded in 1674) is built on an ample scale, strongly suggesting in its design the plan of a Hindu temple. It has its annual festival (Qanthuri); but throughout the year, it is a popular resort of not only Muhammadans but also Hindu and Christian pilgrims. In the way usual amongst Hindus, vows are made by all classes to the Andavar, and the daily contributions in money and in models of limbs once afflicted by disease, are evidence of the frequency with which the prayers of the faithful are fulfilled. The greater number of the Andavar's devotees are Hindus, and many of the ceremonies performed in the mosque are of purely Hindu character. With Hindus, the taking of sacred ashes (vibhuthi) is an important ritual ; here only ashes of another kind (obtained from tamarind bark, ghee and flowers and called nersa are distributed by the priest (Lebbai) to all worshippers, both Muhammadans and Hindus, the latter being admitted a few feet within the mosque for the purpose on the last day of the yearly festival. Sheep and fowls are brought by all classes, just as if the Andavar were an Amman or a village deity ; the Lebbai slays them in honour of the God, and the flesh is divided between the worshippers and priest. Hindus who prefer to do so bring fruit,obtain for it the Lebbai's blessing, and then distribute it among the worshippers.
5. This Dharga is well endowed and Exhibits A-1 to A-3 are the Registers relating to the Inam grant for this Pallivasal. The Pallivasal Inarn is classified as Devadhayam and the Inam is stated to have been granted for the support of Mohideen Andavar Pallivasal. The grantor is the Nawab's Government and the grantee is mentioned as Pottalpudur Pallivasal Saiyad Sha Abdul Rahiman Khadari. The Inam is stated to be Sarvamanibham and the income as for the purpose of daily cleaning, lighting, Mouludh, Fathiha, five times Bangu and prayers, burning incense and annual Khanduri and Mohurrum festivals, Santhanakudam and Anriadhanam for Paradesis and Fakirs. In addition to the income from the lands the other sources of income of this Pallivasal are (a) what is put inside the Santhanakudam during the festivals and which amounts to a fairly small amount; (b) Hun-dial collections; (c) rentals from the shops attached to the Pallivasal and (d) miscellaneous income like hiring out of the Pallivasal elephants, etc.
6. It is in these circumstances that the plaintiffs, who are admittedly Lebbais or hereditary servants of the Pallivasal have filed this suit against the first defendant who claims to be Sajjadanashin of the suit Dharga, as he calls it, for the reliefs set out above including the removal of the first defendant whom the plaintiffs contend is not Sajjadanashin at all but only a trustee or Mutawalli of the suit mosque and its properties on the following among other grounds viz., (i) that he has been using the surplus income from the suit properties for his personal use, and not spending it for the purpose of the mosque; (2) that he has been making improper alienations against the interest of the mosque, and not for any purpose binding on the mosque; (3) that he has been asserting title to the suit properties as against the mosque; (4) that he has not been looking after the upkeep of the mosque properly; (5) that he has not been making satisfactory arrangements for the convenience of the pilgrims and visitors of the mosque ; (6) that he has not been feeding the poor people in the mosque as should be done; (7) that he has not been maintaining proper accounts; (8) that he has been wasting the income of the mosque properties in unnecessary litigation, etc., (9) that he has fenced four acres of the mosque land and built therein a bungalow for his own use and (10) that he has not been properly caring for the elephants belonging to the mosque.
7. The first defendant who, as already stated, claims to be the Sajjadanashin of the suit Dharga as he calls it, contends that he is the head of the institution and is entitled to the surplus income of the suit properties, that he is not liable to render accounts and is not liable to be removed, that as a matter of fact the allegations made against him are false, that he has been taking proper care of the mosque and that no scheme need be framed.
8. The learned Subordinate Judge upheld the contentions of the plaintiffs and decreed the suit as prayed for, viz., removed the first defendant and framed a scheme. It is found among other things that this first defendant has been spending roughly a sum of Rs. 2,006 per month of this Dharga's income for his own use and has been maintaining a big bungalow, put up in the compound of the Dharga, and a motor car and celebrating on a grand scale marriages of the members of his family, etc. Therefore, when this decree was passed and the first defendant was reduced to a nonentity under the scheme he found himself naturally a destitute, and he in preferring the appeal pressed for interim maintenance. This Court appears to have directed, without going into the controversy, that a sum of Rs. 250, per month be allowed as interim maintenance.
9. In view of the turn which this appeal has taken before us, namely, of the utter inability of the appellant to demonstrate to us that on the evidence on record this, is not a fit case for the framing of a scheme and the overwhelming evidence on record to the contrary; it is unnecessary to decide several matters gone into by the learned Subordinate Judge. That a scheme should be framed was not at all seriously disputed at the end. The real objection was only as regards some important details therein. We have got to see that the scheme is so framed as to preserve a true balance between preserving this first defendant as the spiritual head or as Sajjadanashin as he would like to call himself and which appellation is stoutly denied to him by the other side and hereditary, trustee of this Pallivasal with all the honours and emoluments pertaining and relevant thereto and preventing the holder of the office for the time being from abusing that position and converting it into his own private domain and starving out the Lebbais who seem to look upon him as their Public Enemy No. 1 and vice versa. Therefore the point which remains to be determined is the position occupied by the first defendant in this Pallivasal.
10. In order to determine the position of this first defendant and his predecessors-in-title, we have first of all to determine whether the suit institution is only a Dharga or Mosque or Pallivasal. It is common ground that there can be a Sajjadanasbin only for a Dharga and not for a mosque. In the Inam Register the grant is made only to Mohideen Andavar Pallivasal. The term 'Pallivasal' in Tamil means a mosque. In Exhibit A-i it is also described as Musjid or Mosque. In all prior suits - in fact the Tirunelveli Courts have been full of these suits--this institution has been found only to be a Pallivasal and the term 'Dharga' is not mentioned at all in those suits. The turn-book Exhibit B-8 and the receipt book Exhibit B-9 refer to the suit institution as Mohideen Andavar Pallivasal. This Pallivasal cannot obviously be a mistake for Dharga as pointed out by the first defendant. People know the distinction very well and this has been made clear to them in a number of ways by decisions, lexicons and standard text-books.
11. In Piran v. Abdool Karim I.L.R.(1893) Cal. 810, it is stated at page 220:
As is well known, these Dhargas are the tombs of celebrated Dervishes who in their lifetime were regarded as saints.
12. In Khawaja Muhammad Hamid v. Mian Mahmud I.L.R.(1893) Cal. 810, it is stated at page 151 that on the death of a dervish he is often reversed as a saint and his humble takia or abode grows into a Khankah and his dharga or tomb into a rausah or shrine. In the Oxford Dictionary, Vol. III, Part III, page 725, 'dharga' is defined as a place of religious resort and prayer and also as a shrine of a saint. In the Tamil Lexicon, Vol. III Part I, page 760, column 1 'dharga' is defined as 'shrine of a Muhammadan saint.' Ganapathi Ayyar in his text book on 'Endowments' 2nd Edition (1918), Chapter XVI, at page 415, has observed that a dharga is a tomb of a dervish who was regarded during his lifetime as a saint. Babu Ram Verma in his Mahomedan Law (Second Edition), at page 471, defines a Dharga as follows:
Dharga literally means a threshold. It is usually applied to the shrine or tomb of a Muslim saint. Dharga generally includes a group of buildings of which the tomb is the nucleus.
13. Fyzee in his 'Outlines of Muhammadan Law' (2nd Edition) page 277, has the following to say about a Dharga:
In Persian and Urdu, the word Dharga means a threshold. In India it is a term applied to a shrine or the tomb of a Muslim saint j and is therefore a place of resort and prayer. (In Kashmir it is generally called a zXyarat, abbreviated form of ziyaratgah or place of visit.)
A recent Bombay decision Mahomed Oostnan v. Essaq Sale Mahomed I.L.R. (1938) Bom. 184, discusses the law relating to Dhargas exhaustively. The origin of Dharga is discussed and it is laid down that a Dar-Gah is a respectful term applied to the shrine of a Muslim saint in India. In spite of the Prophet's disapproval of building tombs, great reverence is paid alljover India to such tombs. The word Dharga often includes a group of buildings of which the tomb is the nucelus.
14. In the instant case in the suit Pallivasal Mohideen Andavar has not been buried in order to make it into a Dharga where there must be a tomb in which the saint is buried. In fact this was only a place where that great man during his wanderings came and did penance. It is admitted that the sanctum sanctorum in the suit Pallivasal is the place in which Mohideen Andavar prayed or did penance. The first defendant admits in the box that in this building there are a flight of steps for calling prayers (Vangu) and that in a Dharga such a flight of steps will not be there. The learned Subordinate Judge who inspected the suit Pallivasal at the instance of both parties found this flight of steps and its existence. Though the first defendant stated that there would be no Mehrab in a Pallivasal, there is actually one as found by the learned Subordinate Judge in his inspection. It was found to be similar to the one which was found in the Tholugai or prayer Pallivasal or mosque situated just by the side of the suit Pallivasal. This Mehrab is an important pointer showing whether the place is a tomb or mosque. In a Dharga there will be no Mehrab and in a mosque there must be a Mehrab, because it points the direction towards which the Faithful must turn and pray, that is to say, towards Mecca. There is also evidence on the side of the plaintiffs that originally there was only the suit Pallivasal where prayers were carried on and that subsequently that being found not convenient, the adjoining prayer Pallivasal came into existence. Then again as per the accounts filed by the first defendant and as per the admissions of the first defendant himself, the Leb-bais of the suit institution were being paid for Vangu (call for prayers) both previously and even now. It is common ground that there can be no Vangu in a Dharga but that can be only in a mosque. Therefore, the learned Subordinate Judge was fully justified on this analysis of the evidence in holding that the suit institution is a mosque and not a Dharga.
15. On that conclusion we have to consider whether the first defendant is Sajjadanashin or not. It is significant that the first defendant's father and his grandfather did not claim in any of the prior suits or describe themselves as Sajjadanashins. Even in the Inam Statement the ancestor of the first defendant has only signed as Inamdar and not as Sajjadanashin. Therefore, we have to find out, from a description in standard text-books on Muhammadan Law, what the office of Sajjadanashin is in order to decide whether the first defendant and his predecessors fulfil that rule.
16. The Right Honourable Syed Ameer Ali in his 'Mahommedan Law,' Vol. 1, pages 443, 444, states:
Such superiors in India are called Sajjadanashins. (Sqjjada is the carpet on which prayers are offered; and JVashin is the person seated thereon). The Sajjadanashin is not only a Mutawalli but also a spiritual preceptor. He is the curator of the Dharga where his ancestor lies buried, and in him is supposed to continue the spiritual line (Silsila). These Dhargas are the tombs of celebrated dervishes, who, in their lifetime, were regarded as saints. Some of these men had established Khankahs where they lived, and their disciples congregated. Many of them never rose to the importance of a Khankah, and when they died their mausoleum become shrines or Dhargas. These dervishes professed esoteric doctrines and distinct systems of initiation. They were either Sufis or the disciples of Mian Roushan Bayezid, who flourished about the time of Akbar and who had founded an ' independent esoteric brotherhood,' in which the chief occupied a peculiarly distinctive position. They called themselves Fakirs on the hypothesis that they had abjured the world, and were humble servitors, of God; but their followers were honoured with the title of Shah or king. Herklot gives a detailed account of the different brotherhoods and the rules of initiation in force among them. The preceptor is called the Pir--the disciple, the Murid. On the death of the Pir his successor assumes the privilege of initiating the disciples into the mysteries of Dervishism or Sufism. The relationship which exists between a Pir and his Murids, as I understand the theory and practice of Dervishim, was a spiritual and personal one.
Accordingly, the appointment of a child of tender years as Sajjadanashin would seem to be opposed to the constitution of the office. There is one instance, however, in which a boy of nine or ten years of age was appointed a Sajjadanashin by the last holder of the office, the work of initiation, etc., during his minority, being entrusted to a disciple or Khalifa (vice-regent.) In this case the office was hereditary in the family and apparently there was no other member qualified to perform the spiritual duties. ' The appointment of a Sajjadanashin of a Dharga must, to a large extent, however, be regulated by the practice followed in the particular Dharga or neighbouring Dhargas'. Herklet describes the custom in vogue in the Dhargas existing in Southern India. And, so far as I am aware, this is consistent, with the practice prevailing in other parts of India, viz., that upon the death of the last incumbent, generally on the day of what is called the Sium or Teja ceremony (performed on the third day after his decease), the Faqirs and Murids of the Dharga, assisted by the heads of neighbouring Dhargas, instal a competent person on the Gaddi ; generally the person chosen is the son of the deceased, or somebody nominated by him for his nomination is supposed to carry the guarantee that the nominee knows the precepts which he is to communicate to the disciples. In some instances the nomination takes the ' shape of a formal installation by the electoral body, so to speak, during the lifetime of the incumbent. But in every case the person installed is supposed to be competent to initiate the Murids into the mysteries of the Tariqat (The Holy Path).
17. A brief reference may be made to the other standard text-books on Muhammadan Law. In R.K. Wilson's 'Anglo-Muhammadan Law' (5th Edition) at page 357, it is stated:
A female may be tin: Mutawalli of an endowment, and so may a non-Muhammadan; but if die endowment be for the purpose of divine worship, neither females nor non-Muhammadans are competent to hold the office of Sajjadanashin, or spiritual superior.
18. Mulla in his Principles of 'Mohomedan Law' (13th Edition) at page 204, after giving a similar description as that of Ameer AH proceeds to state:
The status of Sajjadanashin is higher than that of a mutawalli. He is the head of the institution and has a right to exercise supervision over the mutawalli's management. But the Sajjadanashin may also be a mutawalli and in that case, with reference to the wakf property he is in no better position than a mutawalli. He has no power to borrow money for the purpose of carrying out the objects of the trust but he may like a mutawalli borrow money and incur debt, with the sanction of the Court, for the preservation of the wakf property. The Court may remove a Sajjadanashin for misconduct and when framing a scheme may separate the offices of Sajjadanashin and mutawalli
19. Tyabji in his 'Muhammadan Law' (3rd Edition) at page 535 has the following instructive note on the pretensions of persons who seek to describe themselves as Sajjadanashins and about their removal:
Sahib-E Sajjada, Gaddinishin, are variants. See sections 11-B. 458 (7-A) n., Secretary of State v. Mohiuddin Ahmed I.L.R.(1900) Cal. 674, Piran v. Abdool Karim I.L.R.(1891) Cal. 203, Zoolekha Bi v. Syed Zunul Abedin (1904) 6 Bom. L.R. 1058, Munnavaru B. Section v. Mir Mahapalli I.L.R.(1918) Mad. 1033, Syed Sha Md. Kazitn v. Syed Abi Saghir I.L.R.(1931) Pat. 288. Removal of Sajjadanashin, ib. 347. Sajjada Shah v. Shaw Habit 53 Ind. Cas. 677, section 491. Illus. 3. (So called Sajjadanashin, without any disciples (680); 'ceremonies to secure homage of ignorant Muslims of neighbourhood (679); judgment of Abdur Rahim, J., very instructive ; as report not easily available, full statement given ; grant in 1776 of two villages to holy man, Hazrat Khaja Rahmatulla for feeding poor ; eight other villages transferred for nominal price, to be dedicated for poor and mosque ; tomb of grantee (founder) gained considerable sanctity, so as to overshadow mosque. There could be little doubt that pious founder himself would have been much surprised at the way his original objects were getting transformed; no doubt main intention by endowment to maintain mosque built by founder, in efficient condition, as house of prayer, so that religion of Islam might spread. Extent to which original objects which Khaja Sahib had in view, obscured in sixties appeared from prominence acquired by performance of urs and fatihas at tomb as feature of institution'.'That, it is needless to point out, could not have been within the contemplation of the founder himself. When we come to more recent times, we find that the so-called sajjadanashin for the time being began to treat the wakf properties as if they were his private properties. Only some of the religious ceremonies were kept up, which no doubt served to secure the homage of the ignorant Muslims of the neighbourhood for the holder of the office and his family... The mismanagement and misappropriation became more and more flagrantcoming to a head...' Consequently appellant's removal directed by High Court 'from the headship of the institution to which office the designation of sajjadanashin or rather sajjada was erroneously attached.' The High Court sent down issues whether functions of sajjadanashin in any way of a spiritual nature and distinct from those of ordinary mutawalli and found that functions of the so-called sajjadanashin's office were not of spiritual or religious nature in any sense and that they had no disciples and no doctrines of Sufism or anything else to teach. AH that they had to do was to conduct the annual urs and to offer fatihas at tombs and none of these could be said to be functions incapable of being performed by other Mohamadans. Cf. Mahomed Oosman v. Essacq I.L.R. (1938) Bom. 184 Rahim, J., concludes: 'Wholly superfluous to retain the office of the so called sajjadanashin in addition to that of of a trustee or mutawalli. The term sajjadanashin is an absolute misnomer in connection with this institution, though this is not the only instance in which I have found the word wholly misapplied in this presidency; see for instance Dost Muhammmad Khan v. Nazir Ali Sahib 42 Ind.Cas. 474. The attempt made by the defendant who has been guilty of every conceivable act of mismanagement in connection with the trust, to bolster up his position on the strength of the designation of sajjadanashin is utterly wanting in bona fides. His evidence in support of his pretensions is transparently false.
20. Babu Ram Verma in his 'Mahomedan Law' (Second Edition) at pages 469 to 471, states:
The head of a Khangah is known as Sajjadanashin (literally meaning, a person who sits on the Sajjada or prayermat) : Maule Shah v. Ghane Shah 'ajibuddin v. Amir Hasan : AIR1934Pat443 '. The first Sajjadanashin is generally the founder and after his death the spiritual line is continued by the succession of Sajjadanashins by virtue of the directions of the founder or by a valid custom and in some places by election Syed Shah v. Syed Abi : AIR1932Pat238 Ghulam Rasul v. Qutabuddin A.I.R. 1942 Lah.142, Ghulam Muhammad v. Abdul Rashid A.I.R. 1933 Lah. 905, Ali Shah v. Fateh Muhammad A.I.R. 1935 Lah. 657, Ismailmiya v. Wahdani I.L.R.(1911) 36 Bom. 308 Ali Muhammad v. Ali Akbar A.I.R. 1924 L. 382 and Maule Shah v. Ghane Shah . Where practice shows a rule of nomination by the incumbent of his successor, succession by the law of primogeniture is not presumed solely from the fact that the previous Sajjadanashin were usually the eldest sons: Muhammad v. Muhammad Hamid 38 Ind. Cas. 387. A person does not become a Sajjadanashin by earning a livelihood from offerings at a tomb by Pir Muridi : Zinnat Bivi v. Emna 40 Ind. Cas. 240. A Court should, in appointing a Sajjadanashin, take account of the spiritual tradition and appoint, if possible a descendant of the founder : Najibuddin v. Amir Hasan : AIR1934Pat443 . The Sajjadanashin and the Ahadims (Servitors) of a Dharga may be entitled to share in the offerings made at the tomb. The right to offerings cannot be so transferred by a Sajjadanashin as to bind his successors. The right is attached to his office and can last only as long as he holds the office : Altaf Hussain v. Ali Razul .
21. Fyzee in his 'Outlines of Mahomedan Law' 2nd Edn., at page 276, states:
The religious head of a khanMah is called a Sajjadanashin (literally, one who sits at the head of prayer-carpet). He is essentially a spiritual preceptor; he may - and generally is - the mutawalli of wakf property, thus, the secular office of a mutawalli must be distinguished from the spiritual status of Sajjadanashin.
The special feature of the office of a Sajjadanashin is that the original founder has the right to nominate his successor, who, in turn, enjoys the same right. Thus a chain of preceptors (called a silsila comes into being, and the followers, known as murids pay homage not only to the founder butalso to the whole line, including the present link, called Pir murshid. Theoretically the most illustrious disciple is to be installed as heir-apparent, but, according to custom, in the majority of cases the office becomes hereditary. In one case the Sajjadanashin was found to be so worthless that he was removed from the mutawalliship, but was allowed to retain the spiritual office (Sajjadanashin) which was considered to be hereditary.' see Syed Shah Muhammad Kazim v. Syed Abi Saghir I.L.R.(1931) Pat. 288 ; Ghulam Mohammad v. Abdul Rashid I.L.R.(1933) Lah. 558 and Mohamed Oosman v. Essaq Salemahomed I.L.R. (1938) Bom. 184.
22. Saksena in his 'Muslim Law as Administered in India and Pakistan' (Third Edition) defines the rights and powers of a Sajjadanashin, at page 545, as follow:
A person may hold both the offices of a mutawalli and a Sajjadanashin, but the Court in framing the scheme under section 92 of the Civil Procedure Code may separate the two offices. He should give all facilities to the devotees to peform their spiritual rites at the shrine at all reasonable hours. An new Sajjadanashin cannot be appointed by the Court, nor can he be ordered to furnish accounts. An injunction cannot be issued restraining him from alienating the property. He has full power of disposition over the income of the waqf property, unless he spends money in Wicked living or on objects alien to his office. But it does not mean that the whole usufruct of a hhankah is at his disposal. The costs of religious ceremonies, etc., must be defrayed first. At some shrines, the members of the founder's family also, other than the Sajjadanashin, can share the surplus offerings which remain after payment of expenses. It is the duty of a Sajjadanashin to maintain accounts to show that he was rightly and properly spending money of the way/property upon expenses in connection with the object of the waqf. It is the duty of the Sajjadanashin to apply the income of the waqf properties for the purposes of endowment. He has ordinarily full powers of disposition over anysurplus income. In the exercise of that power he may, and no doubt it is very desirable thathc should, provide for the needs of indigent members of the family. It may even be said that he is under amoral obligation to do so. But legally the disposition of the money is in his hands, subject to the terms of grants under which the property is held and to any proved custom of the institution. Mohammed Noor, J., of the Patna High Court has held that provision for a Sajjadanashin is not a provision for the man but for the institution. A khankah cannot exist and continue without a Sajjadanashin. In other systems, the personal expenditure of the head of such an institution has been curtailed to almost nothing by enjoining celibacy, as for instance, in the case of Christian monasteries or Hindu mutts or sangats. But Islam prohibits celibacy, and a saint with family is the rule rather than an exception. In these circumstances, devotees and adherents of hhankahs have always made provisions for maintenance of the Sajjadanashin and his family, so that he may devote all his time to imparting religious and spiritual instructions to his disciples and be free from secular cares. A Sajjadanashin is an integral part of the institution and the central figure so to speak therein. Its existence depends on his personality.. In him is supposed to continue the spiritual line. Therefore, provision for his maintenance and that of his descendants is a provision for him as the head of the institution. It is a trust and not a personal grant. 'Khawja Muhammad v. Hamid A.I,R, 1928 Lah. 778; Vidya Varuthi v. Baluswam (1922) 41 M.L.J. 346 : I.L.R. Mad. 831 : 48 I.A. 302 : A.I.R. 1922 P.C. 123 ; uhammad Hamid v. Nine Muhammad ; Zooleka Bibi v. Abdein 6 Bom. L.R. 1058; Eldrus v. Eldrus : AIR1937Bom217 .
23. Then, in regard to the removal of a Sajjadanashin Saksena points out that there are conflicting views that a Sajjadanashin can be removed for misconduct, though there is a contrary opinion as well that such misconduct has to be judged with such modifications as may be required as in the case of heads of other Muslim or Hindu institutions. It is for instance a grave misconduct when the Sajjadanashin spends money on gramophone records while making default in payment of the road cess dues : Majiuddin v. Amir Hassan : AIR1934Pat443 . He would be also guilty of breach of duties, if he neglects to repair waqf property notwithstanding funds in his hands (Ibid).
24. This is all the information that can be gathered from the standard text-books and case-law regarding the origin, rights and powers and succession to the office and the removal of Sajjadanashins,
25. Bearing this analysis in mind, if we examine the facts of this case we find that the first defendant cannot be described as a Sajjadanashin of this Pottalpudur Mohideen Andavar Pallivasal, which is certainly not a Dharga. But at the same time on account of certain duties performed by him which may even be opposed to the strict tenets of Islam, viz., like officiating at the Santhanakudam and taking the offerings placed inside it, this first defendant is something more than a Mutawalli and something less than a Sajjadanashin and he can be legitimately described as the Swami (a fitting Tamil epithet, to the application of which to the first defendant the plaintiffs Lebbais are agreeable) and Mutawalli of the suit Pallivasal. This first defendant is claiming to be described as Sajjadanashin for the first time in order to attract to himself the privileges of that office, viz., absolute disposition of property, non-accountability, etc., set out above. It is further made clear that this Swami-cam-Mutawalliship of this first defendant is hereditary within the limits already set out above and it is on that footing that we shall proceed to examine the scheme framed by the learned Subordinate Judge and modify it suitably.
26. The scheme framed by the learned Subordinate Judge suffers from two inherent defects which ought to be remedied. First of all, the hereditary Swami-cwm-Muta-walliship of this first defendant has been reduced to that of a zero under the scheme; and secondly, the servants of the suit Pallivasal, viz., the plaintiffs Lebbais associated with the management equally with the first defendant. In regard to the first, reducing the position of the office of the first defendant to that of a zero and putting in an all-powerful Commissioner under a shadowy Managing Committee will only introduce more complications and will effect no improvement. It would be opposed also to the spirit of Muhammadan Law which we are bound to apply as far as possible in this case. In regard to the second, where is the point in putting on the Committee two warring elements like Swami-cwm-Mutawalli and the Lebbais together, as this would only enable them to carry on inside the Committee the strife which they had been waging outside. The Lebbais (servants) had never had any hand in the management of this Pallivasal and were only entitled to certain definite perquisites and had to work under the disciplinary jurisdiction of the Swami-ram-Mutawalli, the first defendant. Therefore, these two defects must be rectified in any scheme framed by us.
27. The emoluments of this Swami-cwm-Mutawalli, first defendant, and the Lebbais must also be made clear. There is no trouble between these two sets of people over spiritual affairs and the root-cause of trouble between them is as regards the sharings of the offerings. In regard to this Swami-cum-Mutawalli (first defendant), out of the five heads of income, he and his sucessors-in-title will be entitled to all the moneys placed inside the Santhanakudam during the festival and which amounts to a small amount, to an one-fourth share out of the hundial collections, both at the time of the Kanthuri and in ordinary times, five kottahs of paddy per month out of the income from the lands, to be taken yearly or half-yearly, and one-fourth of the income derived from the shops and the hiring out of the elephants, etc., (miscellaneous income). The first defendant will be further entitled to perform as before out of the Pallivasal income the fatikas, urs, poor feeding and other religious ceremonies. In regard to the Lebbais, they would be entitled to an one-fourth share out of the hundial collections both at the time of the Kanthuri and in ordinary times and an one-fourth share under all other heads of income except the Santhanakudam and lands. (Vide Exhibit B-6).
28. Having delimited these controversial points we frame the following scheme:
1. The suit institution shall be known as Pottalpudur Mohideen Andavar Pallivasal.
2. This institution shall be managed by a Managing Committee of three persons consisting of this first defendant, the hereditary Swami-ram-Mutawalli as the President and two other respectable Muslim gentlemen knowing Tamil to be appointed by the Subordinate Judge of Tirunelveli for a period of five years at a time after suitable publicity. The Managing Committee shall notify within fifteen days after a vacancy arises the Subordinate Judge of Tirunelveli so that necessary steps might be taken to fill up the vacancy without delay.
3. The Managing Committee shall appoint an Executive Manager on such terms as shall be decided upon by the Managing Committee, subject to the approval of the Subordinate Judge of Tirunelveli.
4. This Executive Manager shall work under the disciplinary jurisdiction of the Managing Committee and shall be responsible to them and only in the case of his removal for misconduct the approval of the Subordinate Judge of Tirunelveli shall be sought.
5. This Executive Manager will be in charge of the funds and accounts of the suit Pallivasal and shall carry on the day-to-day management exercising control and supervision over the Lebbais subject to such directions and instructions given to him from time to time by the Managing Committee. The Executive Manager may employ suitable staff sanctioned by the Managing Committee. The Managing Committee will, however, have final superintendence over all the affairs of the Pallivasal.
6. The lands and shops belonging to the suit Pallivasal shall be leased out for periods not exceeding five years at a time either by private treaty or by public auction, whichever is more advantageous to the institution, by the Managing Committee who in doing so should take all reasonable steps for ensuring the punctual and regular payment of the lease amounts.
7. The Managing Committee shall open a bank account with a Scheduled Bank and keep the balance of the amount in the bank and may either operate on it by any one of themselves or through the Executive Manager authorised by them in this behalf.
8. Every year the Managing Committee shall prepare a budget in April showing the anticipated income and expenditure and adhere to the budget as far as possible and send a copy of it to the Subordinate Judge of Tirunelveli for information and keep a copy of it open in the Pallivasal for the information of the Muslim devotees.
9. The Managing Committee shall get their accounts audited yearly by a qualified auditor.
10. The Managing Committee shall have power, subject to the approval of the Subordinate Judge of Tirunelveli to devote a portion of the surplus income of the Trust for the higher educational advancement and medical facilities of both sexes of the Muslim community and
11. The Managing Committee shall frame their own rules for the conduct of the business
29. In the result this appeal is allowed in part and the decree and judgment of the learned Subordinate Judge are modified accordingly. The costs of the appellant and the plaintiff respondent in this appeal and in the lower Court will come out of the estate.