1. This appeal is against an order of remand of the District Judge of Madura. It arises out of a suit by the representatives of the branch of one Syed Ismail who was the second son of one Kadir Batcha Sahib, principally against the first defendant who is the eldest son of one Hyder Ali who was the eldest son of Kadir Batcha Sahib. The suit was for an account of the plaintiff's share of the surplus income of certain properties from the year 1922 till the date of suit and for recovery of the amount found due on such account being taken. A preliminary decree for accounts was passed by the Principal Subordinate Judge of Madura. On appeal the District Judge of Madura remanded the suit for a decision by the trial Court on issues 1 and 2 and issue 4 among the additional issues before the case is sent to the commissioner for taking accounts.
2. It was not contended in the civil miscellaneous appeal that the direction that these issues should be first dealt with by the trial Court is incorrect; but it was argued that the learned District Judge should have held that the suit was bad under Section 92, Civil Procedure Code, as the requisite sanction was not obtained and that a portion of the suit claim should have been held to be barred by Limitation by the application of Article 62 or Article 120 of the Limitation Act. The trial Court held that no part of the suit claim was barred by limitation as the case fell under Section 10 of the Limitation Act and also that there was no substance in the contention based on Section 92, Civil Procedure Code. It would appear that both these points were abandoned before the learned District Judge. Mr. Panchapakesa Sastri, the appellant's counsel, however argued that these are questions of law and that he should be permitted to raise these points in this Court notwithstanding that they were given up in the lower appellate Court. As it was contended that both the points turn on the construction of a document to which I shall presently refer I permitted them to be argued.
3. Kadir Batcha Sahib executed on the 25th of August, 1913, a document which is described, as a settlement deed in respect of charity. The following sentence which occurs almost at the beginning of the settlement deed is material and may be fully set out:
I have made the properties mentioned hereunder and all their income liable from this date for the undermentioned charitable expenses, etc., and hence in accordance with the terms mentioned hereunder, as long as the sun and the moon last.
The document then goes on to provide that Kadir Batcha himself should conduct the affairs during his lifetime, that after his death they should be conducted by his eldest son Syed Hyder Ali and that after Hyder Ali's death his eldest son ' shall be the managing trustee.' It may at once be pointed that throughout the document the person concerned is described by the English word ' trustee,' the document itself being in Tamil. There is a direction that the trustee shall let out the properties, conduct all proceedings, pay the theerva and the salaries of the staff, carry out the repairs of the village house and incur the necessary expenses for lighting item No. 7. There are then a series of directions as to certain religious services which have to be carried out. Then follows the Clause whereby it is provided that the income remaining after excluding the abovementioned theerva, the expenses of stafi and charity, etc. ' shall be paid by the trustee as mentioned hereunder for the maintenance of the persons mentioned hereunder out of my family members.' Kadir Batcha had a wife, three sons and a daughter. The surplus amount is directed to be divided into six shares, the wife and the four children taking five shares and the eldest son taking the extra share as trustee. After the wife's death the surplus was to be divided into five shares, the trustee taking here again the extra share. The right to a share of the surplus income is made descendable in the several branches. If any of the settlor's issue should die without leaving any issue the persons having issue were to ' divide the proportionate amount for the share in accordance with Muhammadan Law.' There is prohibition against alienation. Patta in respect of the properties was to be obtained in the name of the trustee for the time being in his capacity as such trustee. There are other provisions which are not material for the purpose of the present discussion.
4. Kadir Batcha died in 1922 and was succeeded in the trusteeship by his eldest son Hyder Ali who acted as trustee till his death in 1942 being succeeded in his turn by his eldest son, the first defendant. The plaint prayer is that the plaintiffs' share of the surplus income from 1922 to 1942 should be directed to be paid out of the assets of Hyder Ali in the hands of his heirs and that for such share received from and after 1942 a decree should be passed against the first defendant.
5. Mr. Panchapakesa Sastri contended that in regard to the distribution of the surplus income no trust has been constituted and that Section 10 of the Limitation Act is therefore inapplicable, the period of limitation being either three or six years according as Article 62 or Article 120 is held to be applicable. He criticised the judgment of the Subordinate Judge as proceeding principally on the opening sentence which according to him has not been properly interpreted. He said that the expression ' charitable expenses, etc.' should be read as referring only to the expenses by way of taxes, litigation charges, repairs and the amounts spent for the purpose of the religious services which were enjoined, and that the expression should not be read as including the distribution of the surplus income among the several descendants of the settlor. Reliance was particularly placed on the sentence where, after referring to the expenses of charity, etc., the deed of settlement proceeds to direct the division of the surplus income into several shares among the members of the settlor's family. It was contended that the expression ' charitable expenses ' should be read as having the same meaning throughout the document, and that if it is so read the opening sentence on which considerable reliance was placed by the trial Court will not support the conclusion that a trust is constituted in respect of the distribution of the surplus also. It is doubtful whether such a strict rule of construction should or can be applied to a document of this description where the draftsman was presumably referring in a compendious way to the principal item of expenditure referring to all the other items by the vague expression, ''etc.' or its Tamil equivalent ' vagaira.' Mr. Rajagopala Ayyangar, respondents' counsel, argued that the expression must be construed according to the context.
6. However that may be, it seems to me that the question that has now arisen should be decided on a reading of the entire document with a view to ascertain the intention of the settlor without undue emphasis on any particular expression occurring in any portion of it. The provision that the properties dealt with by the deed should be entered in the name of the trustee for the time being in his capacity as trustee and the prohibition against alienation leave no room for doubt that the properties are vested in trust in the successive trustees. It cannot again be doubted--and in fact it has not been denied--that there is a trust created in respect of religious services which are detailed in the earlier part of the document. It is also clear that the only person who is entitled to collect rents and profits is the trustee in whom the properties themselves are vested. The appellants' contention would involve the conclusion that so far as the surplus is concerned the several sharers are the owners while the properties themselves and the amounts which have to be spent on the religious services are vested in the trustee who is the legal owner. It is sufficient to say that such transference of ownership at that stage is hardly likely and could not have been intended. Moreover, it will be noticed that the surplus itself is directed to be paid by the ' trustee ' thereby indicating a trust even at that stage. Some reference was made to the Clause which provides that in the event of the death of one of the settlor's children without issue the persons having issue shall divide the proportionate amount of the share. This can only mean that the right to receive that share devolves in the manner indicated and not that the recipients are thereby constituted legal owners. In other portions of the document a division of the surplus is either directed in the passive voice or the trustee himself is asked to distribute the surplus in the specified shares to the several persons named as being entitled to receive it. It was said that the surplus was a contingent one, that there may in fact be no surplus in certain years and also that division of the surplus is contemplated every year. These were referred to as indicative of an ownership of the surplus by the settlor's descendants. These circumstances however seem to me to be in no way indicative of such ownership or to be inconsistent with the existence of a trust in regard to the surplus if and when there is one. It is well known that among Muhammadans the maintenance of one's own descendants is regarded as a charitable or quasi-charitable object as is apparent from the conception of a wakf and legislation in regard to wakfs. The description of all the properties mentioned in the document as charitable need not therefore evoke any comment or cause any surprise; but this apart, on a fair reading of the entire document I have no hesitation in coming to the conclusion that a trust was constituted not only in regard to the religious services but also in regard to the distribution of the surplus among the descendants of the settlor, the trusteeship being descendable in the manner laid down in the deed.
7. The question whether there is or is not a trust in regard to the relevant portion of the disposition is one to which the answer depends on the construction of the document whereby the disposition is made, and the decisions bearing on the construction of other documents cannot be of any great help. On behalf of the appellants reliance was placed on Hussain Ali v. Baquir Ali : AIR1946Mad116 and The Secretary of State for India in Council v. Guru Proshad Dhur : AIR1946Mad116 . In the former case, the sale proceeds of a certain casuarina plantation were handed over by the person who sold the property to the defendant with the consent of the majority of the heirs with instructions to the defendant to distribute the money among the heirs in accordance with their respective interests. It was pointed out that the person who handed over the money to the defendant was not its owner. There could therefore be no transfer of ownership by such person to the defendant. Reliance was also placed on the fact that there was no document declaratory of the alleged trust as contemplated by Section 5 of the Trust Act, 1882. The defendant had no legal title to the money and there was therefore no express trust within the meaning of Section 10 of the Limitation Act which requires that the property should be vested in the defendant or his predecessor-in-interest in trust for a specific purpose. This case, in my opinion, presents no analogy whatever. In The Secretary of State for India in Council v. Guru Proshad Dhur I.L.R. (1892) Cal. 51, the Government held certain surplus sale proceeds realised at a revenue sale. Under Section 31 of Act XI of 1859 the Collector was to hold the residue, if any, in deposit ' on account of the late recorded proprietor.' The question was whether an express trust was thereby constituted. It was held by a majority of Judges that there was no such trust, the relevant words of Section 31 being construed as in no way depriving the proprietor of the ownership of the residue and vesting the same in the Government. It is unnecessary to examine the several reasons given by the learned Judges for arriving at this conclusion. As Ghose, J., observes, there was no fiduciary relationship between the Government and the late proprietor as it could not be said that any confidence was reposed in the former by the latter. The dissenting Judge, Pigot, J., held that there was a trust basing his judgment principally on the analogy of a mortgagee's power of sale. I am unable to deduce from the decision in The Secretary of State for India in Council v. Guru Proshad Dhur I.L.R. (1892) Cal. 51 any general principle which can be of help in the construction of the document before me.
8. The decisions in Syud Shah Alleh Ahmed v. Mst. Bibee Nuseebun (1874) 21 W.R. 415 and Mahomedsa v. Khadirsa : AIR1927Bom398 were concerned with documents more or less in similar terms as the document in this case. In both there was first a direction for the expenses to be incurred on certain religious purposes and following this there was a direction that the surplus of the remainder should go to and be applied for the benefit of certain persons. It was held that there was a trust as much in respect of the latter part of the disposition as in respect of the former. In Mahomedsa v. Khadirsa A.I.R. 1927 Bom. 398, it was pointed out by a quotation from the decision of the Privy Council in Khaw Sim Tek v. Chuah Hoot Cnoh Neoh (1921) L.R. 49 IndAp 37 : 25 Bom. L.R. 121 (P.C.) that a specific purpose includes ' a purpose which, from the specified terms, can be certainly affirmed.' Applying this test there is no reason to doubt that the distribution of the surplus in named proportions is a specific purpose; nor can there be any doubt that the property and the income are vested in the trustee. I have therefore to overrule the contention of the appellants' counsel that Section 10 of the Limitation Act is not applicable.
9. The argument regarding the bar under Section 92, Civil Procedure Code, can be shortly dealt with. The account that is asked for does not relate to the charities which were directed by the settlor. The plaintiffs are seeking to enforce their private right in the surplus which remains after the charitable purposes are met. No account is asked for in respect of those purposes. The bar under Section 92 does not therefore arise.
10. In the result I agree with the judgment of the learned Subordinate Judge wihch in these two respects was not challenged in the lower appellate Court and dismiss the appeal with costs of the plaintiffs-respondents.