1. This is an appeal preferred against the decree and judgment of the learned Subordinate Judge of Tanjore in O. S. No. 65 of 1948.
2. The facts are:--One Ibrahim Sahib constructed a mosque out of his private property on a site purchased by him in the East Rampart Street, Tanjore. He also constructed a 'Chinna Alia Koil' and a Musafar Khana and founded a Thaikkal with the tomb of a saint at Pasupathikoil, Papanasam taluk. On 11-3-1889 and 11-7-1914 this Ibrahim Sahib made a trust deed and a will which have been analysed by a Bench of this Court con-sisting of King and Krishnaswami Ayyangar, JJ. in Mohideen Bivi v. Kaboor Sahib, A. S. No 417 of 1953 (Mad) (A).
3. This will has been described by Krishnaswaini Ayyangar J. as an ill-drafted document expressing the intention of the testator in somewhat crude language and thereby affording material for Most of the contentions relating to this will. The learned Judge held that from a careful reading of the various clauses there was no doubt that the testator intended the whole of his property to be devoted to the charitable purposes named by him, that the management of the property was to be with the Ibrahim Sahib during his lifetime and thereafter it was to be with Ibrahim Sahib's cousin Mahomed Hussair, Sahib who died in 1923 and his brother-in-law Gaffoor Sahib, to whom this Ibrahim Sahib seems to have been greatly attached, under the orders of his childless second wife Habibsa Bivi.
Provision is also made for the residence and support of Gaffoor Sahib, the brother-in-law, and Mahomed Hussain Sahib, the cousin, and for the maintenance expenses of his junior paternal uncle's daughter-in-law Jira Bibi. In regard to Gaffoor Sahib he directed that his wife Habibsa Bivi should select a bride and celebrate the marriage and in case he wanted to live apart, to purchase for him a house for Rs. 300 and give him besides by way of maintenance 3 kalams of paddy per month. Similar provision was also made in favour of Mahomed Hussain Sahib. For Jira Bivi he provided two kalams of paddy for maintenance and Rs. 2/- for expenses in cash per month. In regard to his wife he apparently thought that the managers should provide for his wife andmerely left an injunction that they should con-duct themselves agreeably to her good views. In regard to both Mahomed Hussain Sahib and Gaffoor Sahib, this Ibrahim Sahib has stated that they shall as his Aurasa sons conduct the said chanties founded by him and that they shall take the same amount of interest for the purpose ft prudent and effective management of the properties and that is all. Thus, the will in-short devoted the income to the performance of the charities ar.d provision for these four persons. The managers ' were prohibited from alienating the properties in any manner whatsoever.
4. This Ibrahim Sahib died in 1916 and disputes arose between his wife Habibsa Bivi and her brother Gaffoor Sahib and Mahomed Hussain Sahib, the other Mutawalli,
5. O. S. 213 of 1920 was filed by this Habibsa Bivi in the District Munsif's Court, Tiruval-yaru, asking for a declaration that she was the sole trustee and that she had dismissed the two Mutawallis. This Habibsa Bivi got a declaration to that effect. She died in 1923. By this time the other trustees were dead and Gaffoor Sahib had arrogated himself as the sole trustee and started making alienations and misappropriating large funds which ought to have been devoted to the performance of the charities. Mahomed Hussain's wife and children filed O. S. 53 of 1932 in the Sub Court, Tanjore, for recovery of possession of the endowments.
But during the course of the trial they withdrew their claim to the Mutawalliship as Gaffoor claimed that under the original appointment of Mutawalliship he had become solely entitled to that office by reason of the death of Mahomed Hussain Sahib. The Court by its judgment dated 23-9-3933 held that the trusts were absolute subject to payment of allowances mentioned therein and that Gafloor was the sole Mutawalli and dismissed the suit- This was confirmed by the High Court in A. S. 417 of 1933 referred-to above.
6. In that suit there, was no decision as to who was entitled to the Mutawalliship after the death of the two original named persons Gaffoor Sahib and Mahomed Hussain sahib. During the pendency of the appeal in the High-Court Gaffoor Sahib executed a will dated 20-7-1933 wherein he propounded a scheme for the administration of the trust and directed that his wife's and his own relations should be the Mutawallis. In that will he gave power to his wife to appoint others. Sub-sequently to the execution of the will he leases out the properties for low rentals.
Abdul Subhan Sahib, the 4th defendant in the instant suit, filed O. P. No. 7 of 1943 in the District Court, West Tanjore, against Gaffoor Sahib. But the Court dismissed that petition holding that It would not go into the acts of the alleged mismanagement and as one of the two original Mutawallis was functioning, there was no need to appoint another, Gaffoor Sahib died on 21-4-1946.
7. Then the 4th defendant herein filed O. P. 55 of 1945 impleading defendants 1 to 3 herein and prayed among other things that as there was no Mutawalli, a new one to manage the properties may be appointed. The first defendant herein, Asha Bivi who is the wife of Gaffoor Sahib, con-tended that Gaffoor Sahib had power to appoint a successor. The parties entered into a temporary arrangement by which this Asha Bivi was allowed to be in sole charge of the day to day administration of the trust and defendants 2 and 3 herein were to be auxiliary trustees. There was to be a Board of Trustees consisting of these defendantsand Mr. Ahmed Batcha, Advocate, Tanjore. In O. P. 7/47 the District Judge Ordered on 24-3-1941 that the accounts should be audited.
The Board of Trustees were directed to investigate and take necessary action regarding the unauthorised encumbrances made by Gaffoor Sahib. It is in these circumstances that three Mo-hammadans, describing themselves as Interested in the trust, have come forward with the present suit O. S. 65 of 1948, after obtaining the sanction of the Advocate-General under Rule 92 of the Code of Civil Procedure asking that a scheme may be framed as the first defendant assisted by the defendants 2 arid 3 was considering herself as the sole person entitled to administer the trust, that the building were In a state of disrepair, that there was gross mismanagement, that defendants 11 and 12 were alienees, that defendants 13 and 14 claimed to be lessees, that defendants 4 to 10 are the agnatic members of the family of the founder Ibrahim Sahib and that the 15th defendant claims that she has got rights in the suit properties.
8. The contentions of the defendants are reflected in the following issues which were framed in the case:
1. Whether the trust mentioned in the plaint is partly a private trust as contended by defendants 1 to 3?
2. If so, whether this suit under Section 92 of the Code of Civil Procedure is not maintainable?
3. Whether the appointment of defendants 1 to 3 by Gafoor Sahib to be in management of the trust is true and valid?
4. Whether any scheme should be framed?
5. Whether defendants 4 to 10 or anybody else should be appointed as Mutawallis and what other provisions should be made?
6. To what reliefs are plaintiffs entitled?
9. The learned Subordinate Judge found the issue in favour of the plaintiffs and against the defendants and framed a scheme. Hence this appeal by the defeated Asha Bivi and two others.
10. Subsequent to these proceedings one Basheer John sought to file a suit in the pauper form for a 'declaration that the suit trust is a private trust in which no scheme could be framed under Section 92 of the Code of Civil Procedure and that the decree obtained in O. S. 65 of 1948, the suit filed by his father and two others for framing a scheme, should be set aside as his contentions were not properly put forth by his mother, who acted as his guardian in that suit. The learned Subordinate Judge of Tanjore dismissed the petition (O. P. No. 20 of 1953) under Order XXXIII, Rule 5 (d) of the Code of Civil Procedure, with costs. We need not also point out that its further fate, if any, will be governed by the disposal of this appeal.
11. The short points for determination in this appeal are: Whether Ibrahim Sahib created a private trust of the entire properties to be devoted to the charities specified by him or whether he had merely charged the properties with, the performance of certain charities, the surplus being bequeathed to Mahomed Hussain Sahib and Gaffoor Sahib and their legal representatives and a scheme can be framed for such a trust; and secondly, whether there is any valid objection to any part of the scheme framed by the learned Subordinate Judge..
12. point 1:--The nature of the trust created by Ibrahim Sahib has been conclusively decided by. a Bench of this Court in A. S. No. 417 of 1933. In those proceedings all the persons or representatives of the persons provided for as Mutawallis and beneficiaries under the trust were represented and it was held that on a careful reading of the various clauses there can be no doubt that the testator intended the whole of his properties to be devoted to the charitable purposes named by him. Therefore, this trust is a private trust dedicating the entire properties to the charities specified and not, a case of properties being charged with the performance of certain charities and the' surplus being bequeathed' to the beneficiaries.
13. On this conclusion it follows that a suit of this nature can be filed. In Narayanaswami Naidu v. Balasundaram Naidu : AIR1953Mad750 , decided by one of US and Ramaswami Gounder, JJ. it was held :
'A suit for removing the trustee of a private trust and for the framing of a scheme is maintainable. It is open to any member of the trustee's family when his rights are impugned to seek redress in a Court of Law even in the Case of private trusts. The public or the intended beneficiaries have no manner of right at all. Either in principle or in precedent there is no Justification far a Court to refuse to frame a scheme in the matter of a private trust when a suit is brought by a member of the family.
In the case of private charities the Court can interfere to see that no breaches of trust are created. So far as the members of the family are concerned it is a civil right which is infringed and under Section 9 of the Code of Civil Procedure they are entitled to seek redress in a court for the purpose of remedying the mischief.' See also Nanhoobeg v. Gulam Hussain, AIR 1951 Nag 394 (C). (See also Sir R. K. Wilson Anglo-Muhammadan Law, Fifth Edition (Thacker Spink & Co.) P. 365) )
Therefore, the present suit is maintainable.
14. Point 2:--In regard to the scheme, neither side was able to place before us any valid and tenable objection to any of the provisions regarding the terms of the scheme and concerning which the court has complete discretion-Mahomed Ismail Arif v. Ahmad Moolla Dawood, 43 Ind App 127; AIR 1910 PC 132 (D). The only point emphasised on the side of the appellants was that the first defendant should not be removed from the Board of Mutawallis as urged by the opposite side in this appeal and the objection on the part of the respondents are twofold via., that the first defendant should be removed on account of the misfeasance and malfeasance as Mutawalli in the past; and secondly, that in accordance with the Mohamedan Daw the provision in the scheme that the other two trustees shall be appointed by the Court by calling for applications from Muslim residents of Tanjore and the most suitable among them will be appointed and that the claims of defendants 4 to 10 will be considered along with other applications, should not have been made arid that the members of the founder's family should have been given preferential right.
In regard to the removal of the first defendant who is equally a member of the founder's family (see below) we are not prepared to accede to the request because in these proceedings the misfeasance and malfeasance of this first defendant have not been gone into and it would be improper to condemn her unheard. On the other hand, the proper procedure is to relegate this question to separate proceedings and also give a direction that this first defendant will not participate in the proceedings of the Board of Trustees when, steps are being taken to launch proceedings against this trustee for misfeasance and malfea-sauce or to question the transactions entered into by her and which are held to be detrimental to the trust.
The other trustees will be at liberty to takeall steps necessary for getting aside the transactions entered into by the first defendant.
15. Turning to the claim for preferential right in regard to the appointment of Mutawallis claimed by defendants 4 to 10, it is based upon the following passage from Mulla's Mahomedan Law (14th edition) page, 190:
'In making the appointment the Court will have regard to the following rules :
(i) the court should not disregard the directions of the founder except for the manifest benefit of the endowment: Khajeh Salimullah v. Abdul Khair, ILR 37 Cal 263 (E);
(ii) the Court should not appoint a stranger, so long as there is any member of the founder's family in existence qualified to hold the office: Advocate General v. Fatima, 9 Bom HC 19 (P). In re Mahomed Haji Haroon Kadwani, ILR 59 Bom 424: : AIR1935Bom254 (G);
(iii) Where there is a contest between a lineal descendant of the founder and one who is not a lineal descendant, the court is not bound to appoint the lineal descendant but has a discretion in the matter, and may in the exercise of that discretion appoint the other claimant to be muta-walli: Shahar Banoo v. Aga Mahomed, ILR 34 Cal 118 (H).'
16. The propositions laid down above, as summarized from the decisions, are equally applicable in the case of Hindu trust also: Gopal Lal v. Purna Chandra, 48 Ind App 100: AIR 1922 PC 253 (I). It is but fair that subject to the paramount interests of the trust, which require qualified persons of integrity to be appointed as trustees, preference, as far as possible, should be giver, other things being equal, to the founder's wishes except when they are not to the manifest benefit of the trust ILR 37 Cal 263 (E), and the claims of the members of the family who have naturally an interest in perpetuating the trust and working for its advancement.
This does not mean that we have to introduce the hereditary principle which is most often a curse to Hindu endowments. In fact Tyabji in his Mahomedan Law (3rd Edition) page 624, (Para 492 (c) ) states:
'In appointing a Miltawalli, the Court prefers a member of the family of the wakif to other, (*) but not necessarily the eldest member; (**) nor is a stranger disqualified' (***).
'In the matter of appointing Mutawallis, the District Judge has all the power which the Qazis had in ancient times; Mohiuddin v. Aminuddin : AIR1924Cal441 Jamila Khatun v. Abdul Jam, 49 Ind Cas 799: AIR 1919 Cal 615 (K). It is a power in the nature of a trust and stands onthe same ground as the Law for appointing new trustees in England: Satish Chandra Mullick v. Ashrufuddin Ahmad, 8 CLJ 196 (L). See K. P. Sakeena's Muslim Law as Administered in India and Pakistan (3rd Edn,), page 265.
'Generally speaking, in the case of a wakf or trust created for specified individuals or a determinate body of individuals, the Kazi whose place in the British Indian system is taken by the civil court has, in carrying the trust into execution, to give effect, so far as possible, to the express wishes of the founder. With respect, however, to public religious and charitable trusts, of which a public mosque is a common and well-known example, the Kazi's discretion is very wide.
He may not depart from the intentions of the founder or from any rule fixed by him as to the objects of the benefaction but as regards management, which must be governed by circumstances, ho has complete discretion. The Court has general power of superintendence over it. He may defer to the wishes of the founder, so far as they are conformable to changed conditions and circumstances, but the primary duty is to consider the interests of the general body of the public for whose benefit the trust is created.
He may in his judicial discretion vary any rule of management which he may find either not practicable or not in the best interests of the institution. The court may appoint or remove a Mutawalli in a proper case. The court should refuse to appoint a person nominated by the wakif if such person has repudiated the wakf. The discretion of the court cannot be ousted by any agreement between the parties about the office of Mutawalli in the case of wakf partly for private and partly for religious or charitable purposes.
The Court in appointing a Mutawalli shall have regard to the following facts: -- (1) Directions of the founder should not be disregarded except for the manifest benefit of the wakf. If, however, the duties of the Mutawalli so require, the court may appoint a male in preference to a female, even though the wakif does not make such a limitation and lays down that the Muttawallis are to be appointed from among the lineal descendants.
The Court may even appoint a person of a different sect as a Mutawalli. (2) The Court should not ordinarily appoint a stranger if any members of the founder's family exist and are qualified to hold the office but the court is not necessarily found to appoint a lineal descendant in preference to one who is not a lineal descendant. (See Babu Ram Verma's Mahomedan Law (Second Edition), pages 491 and 492).
'The law distinctly lays down that so long as a fit and proper person can be found among the members of the wakifs family or among his relatives, the Judge should not appoint a stranger. Original Arabic authorities relied upon Rt. Hon'ble Syed Ameer Ali's Mahommedan Law (4th Edition), Vol. I, page 453.
'But the Court should select by preference a member of the founder's family, if there be any fit person possessing that qualification': Sir R. K. Wilson's Anglo-Muhammadan Law (Fifth Edition) page 355 (Thacker Spink and Co.)
A. A. A. Fyzee in his Outlines of Muhammadan Law (Second Edition), page 268 states;
'The Court's discretion, in Islamic law, is very wide and may be said to be analogous to thepowers of the Chancery Court superintending a trustee's actions. Mr. Ameer Ali, in delivering the Judgment of the Privy Council in 43 Ind App 127: AIR 1916 PC 132 (D), cites an ancient authority as laying down that 'were the wakif (the founder) to make a condition that the King or Kazi should not interfere in the management of the wakf, still the Kazi will have his superintendence over it, for his supervision is above every thing.'
In British Indian System the place of Kazi is taken by the Civil Court. In appointing a Mutawalli, other things, being equal, the Court would show a preference towards a member of the founder's family but this is a matter within the discretion of the Court, and not a matter of right for the relative concerned.'
17. In this case it Is unnecessary to discuss this matter further because the respondents agree that this Court may modify the sentence reproduced above as follows viz., that while the trustees shall be appointed by Court by calling for applications from qualified Muslim residents. of Tanjore, the claims of applicants from the founder's family, if in existence, will be considered along with those applications, and other things being equal, their claims will be given preference and that in the first instance this Court itself may appoint defendants 8 and 10.
The term 'family' will be construed in the sense of 'family as used in Section 3(a) of the Mussalman Wakf Validating Act, 1913,. which was intended to be used in a very large and extensive sense. The policy of that Act was to validate the creation of a wakf in perpetuity in favour of persons who happened to be the members of a family according to the popular acceptance of that term.
Technically the word 'family' may be taken to mean the collective body of persons who live in one house and under one head or manager; and includes within its fold a household consisting of parents, children and servants and as the case may be, lodgers or boarders. Under the Mussalman Wakf Validating Act, it is intended to be used in a broad and popular sense.
Popularly however the term indicates persons descended from one common progenitor and having a common lineage. It will take in both agnates and cognates and relations by blood or marriage. The nephews of the settlor are in this sense the members of his family. Similarly daughters-in-law, the son. Of a half-brother or the son of a half-sister: Ismail Haji v. Umar Abdulla, AIR 1942 Bom 155 (M); Md Azam Khan v. Hamid Shah, AIR 1947 All 137 (N); Rahmanul Hasan v. Zahurul Hasan, AIR 1647 All 281 (O); Mt. Musharraf Begam v. Mt. Sikandar Jehan : AIR1928All516 Imdad Ali v. Ashiq Ali AIR1929 Oudh 25 (Q); Ghazanfar Husain v Mt. Ahmadi Bibi : AIR1930All169 Abdul Nabi v. Mazharali, AIR 1930 Bind 318 (S).
18. In the result, the decree and judgment of the lower Court, subject to the modification mentioned above, will stand confirmed and the appeal will stand dismissed and the memorandum of cross-objections also, subject to the above modifications, will stand dismissed. Inasmuch as the parties have come to court not Pro bono publico but to advance their own selfish interests, each side will bear its own costs throughout. Each of the trustees will function as a managing trustee for a period of 2 years in rotation. The first managing trustee will be one other than the 1st defendant.