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(Dost) Muhammad Khan Sahib and ors. Vs. Kadir Batcha Sahib - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad466
Appellant(Dost) Muhammad Khan Sahib and ors.
RespondentKadir Batcha Sahib
Cases ReferredT.R. Ramachandra Aiyar v. Parameswaran Unni
Excerpt:
- - 4,000 worth of properties for the benefit of the charity established by his ancestors in the mosque inellaiammankoil street, tanjore, and appoints his foster son, who is the defendant, to enjoy the trust property and apply the income to it. 360. that was a well-known case in which mr. , was distinctly of opinion that the right to worship in a temple was not equivalent to interest and refused to 'import the definition in section 15 of the religious endowments act (as wallis, c. it appears to me perfectly clear that mr. 1, by which he endowed the mosque with some property and appointed his foster son 'as the person entitled to enjoy the property endowed for charity and to carry out the charity by means of its income 'specifying in the deed the main objects for which the income of the.....odgers, j.1. in this case 4 plaintiffs muhammadans brought a suit under section 92 of the civil procedure code for the removal of the defendant from the management of mosque pallivasal in ellaiammankoil street, tanjore, and for consequential reliefs including a scheme for the management of the said mosque. the 1st plaintiff is stated in the plaint to raside at chunnambukara street, the 2nd plaintiff at kollupettai street, 3rd at attumanthai street and the fourth out of port, tanjore. 2. the appeal has been argued before us on the point of want of interest of the plain- tiffs under section 92 of the civil procedure code and also with a view to establishing certain charges set out in plaint paragraph8(f)(g)(i) and (1) in order to prove certain mismanagement in respect of the temple accounts.....
Judgment:

Odgers, J.

1. In this case 4 plaintiffs Muhammadans brought a suit under Section 92 of the Civil Procedure Code for the removal of the defendant from the management of mosque Pallivasal in Ellaiammankoil Street, Tanjore, and for consequential reliefs including a scheme for the management of the said mosque. The 1st plaintiff is stated in the plaint to raside at Chunnambukara Street, the 2nd plaintiff at Kollupettai Street, 3rd at Attumanthai Street and the fourth out of Port, Tanjore.

2. The appeal has been argued before us on the point of want of interest of the plain- tiffs under Section 92 of the Civil Procedure Code and also with a view to establishing certain charges set out in plaint paragraph8(f)(g)(i) and (1) in order to prove certain mismanagement in respect of the temple accounts and property. The learned Judge has dismissed the suit on all points and I shall proceed to deal with the first point that of interest as, in my opinion, the appeal can be disposed of on that ground.

3. The defendant in his written statement alleges that the plaintiffs are not residents of the locality, nor do they live close to the plaint mosque. They have never worshipped in the mosque nor have they any right to do so. By a stone inscription, Ex. B, appearing on the mosque it would seem that Bappu Vaidyar erected the mosque about the, year 1847 or 1848. Ex. A is a settlement deed of 1879 by one Amir Khan Sahib, grandson of the founder, in which he settles Rs. 4,000 worth of properties for the benefit of the charity established by his ancestors in the mosque inEllaiammankoil Street, Tanjore, and appoints his foster son, who is the defendant, to enjoy the trust property and apply the income to it. On the evidence the learned Judge has found that the 1st plaintiff, who is the Duffadar of the District Court of Tanjore lives far away from the plaint mosque, there being three other mosques nearer to his house and that his opportunities for attending the plaint mosque are limited to the occasions when he happens to visit his second wife when she is living in her mother's house. The 2nd plaintiff says that he attended the mosque when he went to his brother's house for meals. As there is ill-feeling between the two it is improbable that he would go to his brother's house for this purpose. He admits that he has not been to the mosque in the month of Ramzan for the past 7 or 8 years or on the 12th day of the Barawafat month, all of which are festive occasions among Muhammadans. The 3rd plaintiff is a native of some village in Pudukottah and admittedly he went for prayer to one or other of the two mosques which are near his shop and would appear to have no occasion to go to this mosque in the Ellaiammankoil Street. 4th plaintiff lives in the same street as the 3rd. He admits that he had been employed in different places in different capacities for the last 10 or 15 years and consequently he would have had no opportunity of going to this mosque for prayers. There are, further, other mosques near his house, three within half a furlong and one within a furlong. He says he used to go toEllaiammankoil Street, to collect moneys for his employer. He, however, admits that he has not for the last 2-1/2 years gone to that Street for this purpose. It is, therefore, found by the learned Judge and in fact admitted by the learned vakil for the appellants that none of these plaintiffs can be said to be habitual worshippers of the plaint mosque. Mr. P.R. Ganapathi Aiyar for the appellants contends first that every Muhammadan is entitled as such to attend any mosque for worship, and this may be at once admitted to be correct. He relies not only on this but also on the fact that the plaintiffs are residents of the locality and his contention is that these two points, i.e., right to worship and residence in the locality, taken together, would afford the interest required under Section 92, The test to be applied has been authoritatively laid down as far as we are concerned by the judgment in T.B. Rama-chandra Aiyar v. Parameswaran Unni [1919] 42 Mad. 360. That was a well-known case in which Mr. T.R. Ramachandra Aiyar claimed interest as a member of the Hindu community and thereby alleged title to institute a suit in respect of a temple in Tellicherry. In the full and instructive judgment delivered in that case by Wallis, G.J., the history of the provision of law is traced and the learned Chief Judge came to the conclusion that in order to entitle a plaintiff to sue under the section:

he must have a clear interest in the particular trust over and above that which millions of his countrymen may be said to have by virtue of their religion.

4. The learned Chief Justice after referring to the amendment of the section which originally contained the words ' direct interest ' was of opinion that even after the amendment the words ; Interest in trust ' must still in Lord Eldon's words mean ' a clear interest ' that is to say, a present and substantial and not a remote and fictitious or purely illusory interest and further that interest if the provision is not to be altogether illusory, must arise from some special relation in which the plaintiff' stands to the endowment' in question as compared with the whole body of religious community throughout India.

5. On a difference of opinion between the learned Chief Justice and Kumaraswami Sastri, J., who took ; the view that the right of worship in a particular temple is sufficient interest under the section, the case was referred to three learned Judges of this Court one of whom was Abdur Rahim, J. Had this learned Judge said in his judgment anything particularly applicable to mosques as distinguished from temples it would in my view have carried great weight. He agreed with Kumaraswami Sastri J., and held with him that the section gave the right to institute actions to secure proper administration of temples and mosques to all persons who have a right of attendance and worship at these religious foundations. The majority of the Court, however, Oldfield and Coutts-Trotter, JJ., held otherwise and agreed with the judgment of the Chief Justice. Oldfield, J., in the course of his judgment said:

Proof of residence in the neighbourhood of the institution will 'no doubt be one way of establishing possession of an interest, not by any .analogy with the rights of parishioners in England, but. on the simpler ground that those who live near to the institution will be most likely to take advantage of its benefits.

6. It would', therefore, seem that the test of locality is only to be applied in relation to actual user of the temple or mosque by the inhabitants residing close to it. Coutts-Trotter, J., was distinctly of opinion that the right to worship in a temple was not equivalent to interest and refused to 'import the definition in Section 15 of the Religious Endowments Act (as Wallis, C.J., had refused to do before) in order to interpret the meaning of Section 92, Civil Procedure Code. The learned Judge continued:

In so far as the decided cases suggest a limitation, the limitation suggested is that of living in the neighbourhood of the institution in question and habitually resorting thereto for purposes of worship.

7. On that one can be asked : 'What is your definition of neighbourhood What is your definition of habitual resorting The learned judge confessed that no universally applicable formula in answer to these questions could be discovered. All that can be done is to say that the interest required by the statute must 'be clear, present and substantial and not a remote and fictitious or purely illusory interest or an existing interest and not a mere contingency. Beyond that the learned Judge was of opinion that the question was a pure question of fact, and must be left to the Court to decide on a consideration of the particular circumstances of each case. The latest case in the Privy Council, Vaidyanatha Ayyar v. Swaminatha Ayyar A.I.R. 1924 P.C. 221, does not touch the present matter. It seems to me unnecessary in the light of the judgment of the majority of Judges in T.R. Ramachandra Aiyar v. Parameswaran Unni [1919] 42 Mad. 360 to examine the earlier cases on the subject, and applying that case to the facts of this ease as previously set out it appears to me that it cannot be said that plaintiffs had anything but an illusory or fictitious interest in this mosque. They either did not worship there at all or worshipped on such rare occasions and such long intervals that they cannot be said to have a real or clear interest as required by the decision. It appears to me perfectly clear that Mr. P.R. Ganapathi Aiyar's suggestion is that the residents of the same town have the requisite interest even if they do not worship at the particular temple or mosque in question. It is, however, clear on the decision in T.R. Ramachandra Aiyar v. Parameswaran Unni [1919] 42 Mad. 360 that so long as they have the right to do so, they must be shown to have some interest over and above the rest of the residents of the locality of their own community who are entitled as members of that community to take part in the worship conducted in the institution. This the plaintiffs are not shown to possess. We are referred to one decision in Garuda Sanyasayya v. Nerella Murthenna : (1918)35MLJ661 where the point arose but is dismissed in three lines of the judgment. It was a case of choultry and the learned Judges held that as the plaintiffs were residents in the locality in which the choultry was situated, and were members of the community for whose benefit the charity was founded was sufficient to give them interest to instr tute a suit for its management. Wallis, C: J., was one of the Judges who decided that case which was prior to this decision in T.R. Ramchandra Aiyar v. Parameswaran Unni [1919] 42 Mad. 360. In my opinion, therefore, the learned Judge in this case was right in dismissing the suit on the point of want of interest in the plaintiffs.

8. It is unnecessary in the view I take on this point to discuss the question of the charges. But I may add that having carefully considered the matter I should, if necessary, be of opinion that none of the charges have been established against the defendant. On all these grounds, therefore, it appears to me that the appeal must be dismissed with costs.

Madhavan Nair, J.

9. This appeal by the plaintiffs arises in a suit instituted by them under Section 92, of the Civil P.C., in which they prayed for the removal of the defendant from the management of the plaint musjid (mosque) and its endowments, for the appointment of new trustees, for the taking of accounts and for a scheme for the proper management of the mosque. The plaint mosque is situated in Ellaiainmankoil Street Tanjore, and was founded by Bappu Vaidyar in Hijiri 1243 (1847-1848). On the 1st of November 1879, Amir Khan Sahib, the grandson of Bappu Vaidyar, and last of the family of the original founder, made a settlement, Ex. 1, by which he endowed the mosque with some property and appointed his foster son ' as the person entitled to enjoy the property endowed for charity and to carry out the charity by means of its income ' specifying in the deed the main objects for which the income of the properties was to be utilized. The plaintiffs alleged in their plaint that they resided close to the mosque and were interested in it and in the trusts relating thereto, that the defendant was not the de jure or rightful trustee, that he had committed various breaches of trust and that in consequence, be should be removed from the management of the mosque and its properties. The defendant in his written statement, pointed out that the plaintiffs were not residents of the locality, that they had no interest in the plaint mosque as contemplated by Section 92, of the Civil P.C., that he was 'not only the de facto but the de jure trustee also' and that he was not guilty of any of the breaches of trust specified in the plaint. Various issues were framed by the Subordinate Judge dealing with the allegations in the pleadings, but the appellants confined their arguments only to the finding of the Subordinate Judge as regards five issues, these being:

Issue 1. Whether the plaintiffs have sufficient interest in the plaint mosque, and is the suit sustainable ?

Issue 2. Whether the defendant is not a de jure trustee.

Issue 5. Whether item 3 of Schedule A of the plaipt ever belonged to the trust.

Issue 8. Whether the defendant has committed all or any of the breaches of the trust alleged in the plaint, and is he liable to be removed from the trustee ship, and

Issue 9. Whether a scheme is necessary and, if so, on what terms.

10. The learned Subordinate Judge found against the plaintiffs on all the3e issues and, in consequence, dismissed the plaintiff's suit.

11. The first question to be considered is whether the plaintiffs or any of them have the ' interest ' in the trust within the meaning of Section 92 of the Civil P.C., entitling them to maintain the suit. As the decision of this question will to some extent depend upon the facts of the case, it is necessary to state in some detail the evidence bearing oh it and my conclusion thereon, before dealing with the cases relied on by the appellants' learned vakil. The 1st plaintiff, who is examined as the 10th witness for the plaintiff, has been in Government service since 1883, and since 1890 he is employed in the District Court of Tanjore as a duffadar. His place of residence since 1902 is Chunnambukara Street which is five or six furlongs off from the plaint mosque situated in Ellaiammankoil Street. He states that his grandfather had a house opposite to the mosque and he lived in it for thirty years and has then gone often and offered prayers in the mosque. The latter, statement is not supported by independent evidence. His grandfather's house has been sold to the defendants' brother. He married in 1891 his second wife who has a house inEllaiammankoil Street. When she lived with her mother for seven or eight years on account of her quarrel with big first wife, he states that he used to visit her and then he used to go to this mosque in the .morning on Sundays and in the evening on other days. He admits that there are two mosques within about two furlongs from his house. As duffadar he states that he has to be in Court at 10.30 a. m., and until such time as the District Judge sits and that while on duty in Court he used to make prayers-only if he had time. Although according to their religion the Muhammadans have to offer prayer five times a day, the evidence shows that it is not necessary to-make these prayers in the mosque as they may be offered at any place where they happen to be at the time. Though this witness says that he has been offering prayers in his mosque regularly, the evidence of the defendant is that this witness has never gone to the plaint mosque for offering prayers. It is to be noticed that there are mosques which are nearer to his present place of residence than the plaint mosque. The evidence in the case seems to suggest that, though he may have offered prayers in this mosque, he might have done so only on those occasions when he happened to visit his second wife when she lived in her mother's house. It may be noticed that he has till now instituted four scheme suits and he does not appear to be a man of means.

12. The 2nd plaintiff is examined as the plaintiffs' first witness. He has been living in Pambatti or Kalapathi Street, outside the Port away from the masjid for the past 7 or 8 years. Previous to that, it is true, he lived in Suryappa Lane about one and a half furlong from this mosque but he does not seem to have been a regular worshipper in the mosque. He states that he used to go to the plaint mosque, for prayer once in two or three days for the past 7 or 8 years. It is difficult to believe that he speaks the truth when he makes this statement. He admits that there is in the street, in which he lives a masjid about a hundred yards off from his house, and there are also other mosques nearer to his house. No special reason is assigned for his gating to the plaint mosque for worship than to the mosques nearer to his residence. He states he has shop in the Ayyankadi near the mosque, that his brother lives in the fourth house from the plaint mosque and that he used to go to his brother's house from his shop for meals. It is suggested in the evidence of D.W. 2, his brother, that there is ill-feeling between the two brothers, and it is hardly likely that he would have taken meals in his brother's house. This witness admits that he has not gone into the masjid during the past 7 or 8 years in the month of Ramzan or on the twelfth day of the Barafat month-both important festive occasions in the Muhammadan mosque. On the defendants' side it is stated that this witness used to go very rarely to the plaint mosque for offering prayers. The witness states that he has not been on speaking terms with the defendant in this case for the past ten or twelve years owing to ill feeling. It appears to me from this evidence that this witness might have only occasionally visited the mosque for offering prayers.

13. The 3rd and 4th plaintiffs are examined as the 8th and 9th witnesses for the plaintiffs. Their evidence is not of much importance. P.W. 8, a native of Pudu-kottah, is a trader and lives near Panr batti Kara Street, in which there is a mosque and near which also there is another one. He admits that he used to offer prayers there. He has no dealings in Ellaiammankoil Street, in which the plaint mosque is situated and his occasions to go there are few. He does not remember how many years ago he went to the plaint mosque first. P.W. 9, also, like the other witnesses, says that he offered prayers in this mosque, but it is extremely doubtful if he has so done except very rarely. He lives away from the mosque and has been employed in different places which would suggest that he would have had no opportunity to go to this mosque. There are mosques near his place of residence. He states that he went inside this mosque one and a half or two years ago.

14. My conclusion from the summary of the evidence given above is that, though the plaintiffs may be said to reside in the neighbourhood of the mosque, they are not habitual worshippers in it, nor are they in any manner specially interested in the mosque, though as Muhammadans they, like the others, have admittedly a right to offer prayers there ; there are mosques nearer their places of residence which makes it unlikely that they would have gone to this mosque for worship frequently, The evidence also suggests that the plaintiffs, in instituting this suit, are not actuated by considerations relating to the improvement in the administration of the mosque and its properties.

15. In these circumstances, the question of law to be considered is whether the plaintiffs have the interest in the trust contemplated by Section 92 of the Civil Procedure Code. What is the nature of that ' interest ' has been elaborately considered in the Letters Patent Appeal in T.R. Ramachandra Aiyar v.Parameswaran Unni [1919] 42 Mad. 360. In that case a suit was instituted under Section 92 of the Civil Procedure Code for the removal of the trustees of a temple at Tellicherry and for other reliefs. One of the plaintiffs was Mr. T.R. Ramachandra Aiyar. His interest in the trust entitling him to institute the suit was not based on the fact that he had worshipped in that temple once or twice when he went to Tellicherry in his professional capacity some 8 or 10 years ago, nor upon the fact that he was the President of the Dharma Rakshana Sabha, but solely upon his right which he, as a Hindu, has of worshipping in every Hindu temple throughout India. It was there held that the mere right of a Hindu plaintiff to worship in a temple is not such an interest in the trust as to entitle him to sue under Section 92. It was argued that every Hindu temple must be presumed to be dedicated for the use of all Hindus, and that each of the individuals has, therefore, an interest in the trust of every Hindu temple. This argument was overruled by Wallis, C.J. who after an exhaustive examination of the history of the section and of the case-law relating to it held that interest in the trust must be ' a clear interest,' that is to say, ' a present and substantial and not a remote or fictitious or purely illusory interest,' and also that:

that interest if the provision is not to be altogether illusory must arise from special relation in which the plaintiff stands to the endowment in question as compared with the whole body of religious community throughout India.

16. His Lordship also expressed the view that

the bare possibility however remote, that a Hindu might desire to resort to a particular temple gives him an interest in the trust appears to defeat the object with which the Legislature inserted these words in the section.

17. The majority of the learned Judges who heard the Letters Patent appeal on a difference of opinion between the learned Chief Justice and Kumaraswami Sastri, J., accepted the opinion of the learned Chief Justice. As his judgment shows, the observations therein on the question before me apply with equal force to the case of the Muhammadans worshipping in Muhammadan mosques also. In Vyidyanatha Ayyar v. Swaminatha Ayyar A.I.R. 1924 P.C. 221 their Lordships of the Privy Council expressed approval of the opinion of Wallis, C.J., already quoted. In that case the suit under Section 92, Civil Procedure Code, related to a chattram and its properties, and one of the questions for decision was whether the plaintiffs had the interest in the trust contemplated by that section. On that point their Lordships were of opinion that:

the fact that the plaintiffs are descendants, although only in female lines of the founder of the chattram, gave them an interest in the proper administration of the trust sufficient to enable them to maintain this suit although they themselves may never find it necessary to use the chattram as a rest house or to obtain food there.

18. Mr. Ganapathi Aiyar does not call into question the correctness of the decision in T.R. Ramachandra Aiyar v. Parameswarau Unni [1919] 42 Mad. 360, but argues that the ease is an authority for the proposition that, if the plaintiffs reside in the neighbourhood of the suit institution such residence coupled with their admitted right to worship therein, necessarily gives them the interest entitling them to institute the suit under Section 92, Civil Procedure Code. In support of this argument reference is made to certain passages in the 'judgment of Oldfield, J., and also of Coutts Trotter, J., but on examination it will be found that these passages do not lend any support to the argument advanced by the learned vakil. Oldfield, J., states, that

proof of residence in the neighbourhood of the institution will no doubt be one way of establishing possession of interest, not by any analogy with the rights of parishioners in England, but on the simpler ground that those who live near to the institution will be most likely to take advantage of its benefits.

19. I have no doubt that by this statement the learned Judge did not mean to lay down as a proposition of law that residence in the locality, coupled with the admitted right to worship in a temple or mosque, means possession of an interest within the meaning of Section 92. The context makes it clear that, according to the learned Judge's view, the proof of residence in the neighbourhood will be one of important facts to be cosnidered in an inquiry regarding the question whether a plaintiff who has a right to worship possesses the interest in the trust contemplated by the section. The same is the view of Coutts-Trotter, J., also. It seems to me that to a very large extent the question as to whether any particular person has or has not an interest within the meaning of Section 92, Civil Procedure Code, is mainly a question of fact to be decided on a consideration of the circumstances of each case. The question was so treated in Gopala Krishnier v. Ganapathi Aiyar [1920] 12 L.W. 772; for the learned Judge, Sadasiva Aiyar who delivered the judgment states thus:

The first question argued in the appeal is whether the plaintiffs have got the necessary substantial interest to institute the suit having regard to the Full Bench decision in T.R. Ramachandra Aiyar v. Parameswaran Unni [1919] 42 Mad. 360 On the evidence taken on remand I am clearly of opinion that the plaintiffs have got such a substantial interest.

20. The decision in Garuda Sanyasayya v. Nerella Murthenna : (1918)35MLJ661 also does not support the position taken up by the appellants. Dealing with the question whether the plaintiffs have the interest to institute the suit underS.92, Wallis, C.J., and Seshagiri Aiyar, J., state:

They are residents of the locality in which the choultry is situated and are members of the community for whose benefit the charity was founded. In our opinion these facts give them sufficient interest to institute the suit.

21. It is clear that residence in the locality is to be treated only as a question of fact from which an inference may be drawn regarding the question whether a plaintiff who has a right to worship in a temple or mosque has or has not an interest to institute the suit. The other decisions quoted to us need not be discussed as all of them have been elaborately considered by the learned Chief Justice in T.R. Ramachandra Aiyar v. Parameswaran Unni [1919] 42 Mad. 360 in dealing with the history of Section 92 of the Civil Procedure Code. I think that the facts of the case clearly show that though the plaintiffs reside in the neighbourhood, they really have no present and substantial interest in the suit mosque ; their interest in it is only fictitious or illusory. Being Muhammadans they are no doubt entitled to worship in the mosque, but they are only occasional worshippers and, in my opinion, do not possess the ' interest ' entitling them to institute the suit under Section 92, Civil Procedure Code, as explained in T.R. Ramachandra Aiyar v. Parameswaran Unni [1919] 42 Mad. 360.

22. The question raised by Issue 2 is whether the defendant is not a de jure trustee. The learned Subordinate Judge found on this issue against the plaintiffs. The case for the appellants on this issue, presented before us by their vakil is somewhat different from the one raised by them in their plaint and considered by the learned Subordinate Judge. Paragraph 7 of the plaint states:

The defendant was appointed by the said Amir Khan Sahib to be a person entitled to keep the enjoyment of the properties endowed for the charity and to conduct the charities out of the income of the same. The defendant is not appointed to be the trustee of the masjid (assuming such appointment could be validly made) but he has been the de facto trustee of the masjid ever since the arrangement evidenced by the said document and ever since Amir Khan Sahib's death.

No doubt the question as regards the validity of his appointment as trustee is referred to by the defendant in the written statement but the case raised by the plaintiffs (as may be seen from the paragraph quoted) is this : namely, that Amir Khan Sahib did not appoint the defendant as trustee of the masjid but only appointed him ' to keep the enjoyment of the properties endowed for the charity and to conduct the charities out of the income,' thereby drawing a distinction between a ' trustee of the mesque ' and a ' manager' of the properties. This argument was overruled by the Sub-ordinats Judge and has not been availed of before us by the learned vakil as obviously Ex. 1, the deed of settlement, does not support it and there is no other evidence to justify it. What has been argued before us is this: namely, that Amir Khan Sahib had no power to aqpoint the defendant as his successor. It is true that as foster-son the defendant is not-entitled to lay any hereditary claim to the trusteeship, but Amir Khan Sahib was himself a Muthavalli and it is a well known principle of Muhammadan Law that, in the absence of rules laid down by the founder of the mosque, the Muthavalli for the time being may validly appoint a successor to himself. The present defendant was so appointed in 1879 and, in my opinion, he is a validly appointed trustee.

23. Issue 5 raised the question, whether item 3 of Schedule A of the plaint ever belonged to the trust (After discussing evidence his Lordship proceeded.) In my opinion, there is no reliable evidence on the plaintiff's side to show that these two shops belonged to the mosque. In view of the admitted facts of the case and Ex. 1, I am satisfied that the learned Subordinate Junge has arrived at a correct; conclusion on this issue.

Issue 8 relates to the question, whether the defendant has committed all or any of the breaches of trust alleged in the plaint and is the liable to be removed from the trusteeship.

24. In the plaint fourteen specific breaches of trust are alleged against the defendant, but the learned vakil for the appellants in his arguments before us has confined his attention mainly to charge (1), namely, that ' no proper accounts are maintained by the defendant.' Even here he did not deal with all the various circumstances discussed by the learned Subordinate Judge under this head. He has limited his arguments mainly to a consideration of the income and expenditure of the mosque and the general irregularities in the keeping of accounts by the defendant. (His Lordship then scrutinized the evidence and concluded.) The important facts to be noticed are that no specific misappropriation by the defendant of the trust funds has been pointed out, that it has not been shown to us that there is any clear false entry in the-accounts or that there has been a failure on the part of the defendant to enter any item of income in them. The correctness of the entries regarding the expenditure has not been challenged. In his reply in examination by the Court the defendant states that he does not use the trust funds for his private purposes. The correctness of this statement has not been disputed. Though the account book has not been kept in an ideal manner the defendant has not misappropriated any of the funds of the trust and has not written up false accounts. He has admittedly spent large funds of his own for the purposes of the trust. In these circumstances, I do not think that the irregularities pointed out are sufficient to remove the defendant from the management of the trust.

25. The next charge of breach of trust that has been pressed against the defendant is that he has broken the direction in Ex. 1, the settlement deed, to give in the name of Muhammad Nabi a feast in the month of Ramzan, and this involves an allegation that the defendant has altered the direction contained in the settlement deed to suit his own purposes. If this charge is found to be true that by itself will be enough to remove any trustee. This is not mentioned as a specific charge of breach of trust against the defendant in the items (a) to (n) mentioned in paragraph 8 of the plaint, bub it has been dealt with by the lower Court in its judgment, paragraphs 37 and 38 and it has also been argued before us. Ex. 1 contains the following directions:

Out of the income derived from that property (1) the musjid should be lighted every day ; (2) extra lights should be kept there on festive days ; (3) a kathile should be nominated to recite vedam Koran in the musjid on monthly pay ; (4) feeding should be arranged for in the name of Muhammad Nabi in the Ramzan month and (5) one or two persons should be fed every day ;

26. The plaintiff's case is that the word ' Ramzan' which really is the month referred to in Ex. 1, has been altered into 'Rabbisani' by the defendant and that as a matter of fact he has not been complying with the real direction contained in Ex. 1 to feed the Muhammadans in the month of Ramzan. The defendant's case is that he has really made no alteration in Ex. 1, that in the month of Ramzan all Muhammadans fast during daytime ; that no feast can be given during that month and that the feeding referred to in Ex. 1 relates to feeding in the month of Rabbisani. As regards the alteration, the Volume containing this document was sent for from the Registrar's office by the Subordinate Judge and in that, it was found that the word written is 'Ramzan' and 'Rabbisani.' Ex. A, the registration copy of Ex. 1 also contains the word 'Ramzan.' It must be said that there is an alteration in Ex. 1 regarding the month. Whoever made the altera-tion, I am not satisfied that the was the defendant who made it. If the plaintiffs wanted to charge the defendant with the express alteration of this document in one of its important particulars they should have done so in the plaint, which would have given the defendant an opportunity to meet it. The charges with regard to feeding mentioned in the plaint are Clauses (f) and (g) namely:

(f) No food is given by the defendant to any person daily and no public feeding made by the defendant in Bamzan or any other occasion : (g) nothing is done in Rmzan month either according to Muhananaadan religion and custom or according to the terms of the deed of 1879.

27. These charges are met by the defendant in his written statement. The charge with which I am now dealing viz., that the defendant has altered a direction contained in Ex. 1 seems to have been suggested and that only very very faintly, in the course of the examination of the defendant. The evidence on this point that has been referred to by the learned vakil for the appellants is what is spoken to by the defendant on the last day of his examination (3rd September, 1921) which commenced on the 13th July 1921. When he was recalled on the 3rd of September 1921, he stated thus:

I produced in Court the two copies shown me. My vakil asked me to search and find them out if available. The two copies referred to are Exs. XIX and XIX (a),. I got them from my record. They have been in my custody for the past 40 years. I filed Ex. I once before the Tashildar and once on another occasion in the Tanjore Munsif's Court. I also filed it in the Zilla Court : obtained succession certificate. Sivabiran Pillai, who wrote Ex.1, died 8 years ago 1 filed Ex. 1 in Courts and offices only after it was registered.

28. In another place in the evidence given by the defendant we find at p. 52 that he states.

In Ex. 1 it is written as Rabbijan.

29. No other evidence has been brought to our notice regarding this alteration. If the plaintiffs wanted to charge the defendant with the alteration in the settlement deed, they should in the first place, have stated it as a specific charge in the plaint itself and really cross-examined the defendant regarding the same. On the other hand, we find that no such thing has been done. The defendant, while he was in the witness box, was not asked any question by the plaintiff directly as to how the alteration in Ex. 1, which was in his possession was brought about. The document came into his possession from Amir Khan. The evidence is to the effect that feeding on a large scale is generally given in the month of Rabbisani. Amir Kkan himself could have, therefore, made this alteration after, the registration of the document and probably it was such an altered document that came into the possession of the defendant. There is absolutely no motive for the defendant to make this alteration. In the absence of clear evidence to show that the defendant has altered Ex. 1, we cannot infer that the alteration complained of was brought about by him. As regards feeding in the month of Rabbisani, I am satisfied from the evidence that the defendant had complied with the provisions of Ex. 1. Though the 2nd plaintiff says that feeding should be done in this mosque in the month of Ramzan he has to admit that feeding is done in other mosques in the month of Rabbisani. It is generally admitted that all Muham-madans fast during day time in Ramzan and during nights they take kanji. The 1st plaintiff states that Amir Khan fed people in the month of Ramzan, but he does not know whether the defendant did as a trustee or in his private capacity or out of what funds, and he also states that according to Muhammadan religion people are fed in the month of Rabbisani.

30. The evidence on this point is dealt with at great length by the Subordinate Judge in para 38 of his judgment. I do not think it necessary to pursue this point any further, as it is not the case of the plaintiff that the defendant did not feed people in the month of Rabbi' sani : (see P.W. 10's, i.e., 1st plaintiff's evidence, p. 34). The evidence of the defendant that feeding is generally done in the month of Rabbisani and that he has been so feeding'the Muhammadans has been believed by the Subordinate Judge. Charges (f) and (j), though referred to, have not been specially pressed before us by the learned vakil for the appellants for there is abundant evidence that kanji water was distributed to. all the devotees who go to the mosque in the evening during the month of Ramzan. On a consideration of the evidence in the case, I am not satisfied that the defendant's continuance in the office, which he has held ever since 1879, is incompatible with the interests of the institution and that he should be removed from its management.

31. It was suggested that, even if there is no case made out for removing the defendant from the management of the mosque, we should frame a scheme for its management. In view of the evidence in the ease that has been put before us we do not think that we are called upon to formulate any scheme.

32. In the result, the appeal fails and must be dismissed with costs.


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