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Dost Muhammad Khan and anr. Vs. Hassarath Kibulae Sayyad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1927Mad599
AppellantDost Muhammad Khan and anr.
RespondentHassarath Kibulae Sayyad
Cases ReferredCajee Syed Ali Md. Sheriff v. Kadir Ali Shah
Excerpt:
.....it is distinctly stated that of the three parvanas which were referred to in connexion with the original grant of the village, none of them was forthcoming at the time and the contest in appeal was restricted to the british paravana of 1779. on the other hand, we have the cases in arunachalam chetty v. while their lordships do not doubt that such a report would not displace actual and authentic evidence in individual cases, yet the board, when such is not available, cannot fail to attach the utmost importance as part of the history of the property, to the information set forth in the inam register. 7. and in the latter case, also in the privy council, it is stated that the original grant is the best evidence of the terms on which the land was held and it is on the true construction of..........the suit is maintenable under it?4. and(2) what is the nature of the interest acquired by the original grantee for the suit properties and whether, if it be found a personal grant to him in fee simple, the plaintiff's suit is maintainable?5. the subordinate judge examined in great detail the documents set out on the side of the plaintiffs beginning, with the record of revenue proceedings by the inam commissioner. the inam registers which for the reason set out are not available to us contain references to the institution as a thakkal and ex. c, which is an extract from the inam register of dalvapalayam village 1862 contains the following recitals. 'for the support of the darga and mosque at dalvapalayam now efficiently kept up.' ex. e. is a similar extract from the inam register of.....
Judgment:

1. In the hearing of this appeal we have been much handicapped by the fact that the appellant has printed none of the documents or other evidence on which he relies, so that the examination of evidence has been impossible and we have had to be guided solely by the remarks of the learned Judge in his judgment.

2. The suit is brought under Section 92, Civil P. C., for a declaration that the defendant is not the rightful trustee of a certain Makhan and that a scheme be framed for the proper management of the Makhan and its affairs. As a good deal turns upon the nature of this institution, as far as it can be made out from the meagre materials at the disposal, it must be noted that the plaintiffs in para. 3 refer to it as the 'Ashraf Shah Sahib Makhan or mosque or darga at Dalvapalayam,' which they assert is a public religious and charitable trust and that among its endowments are three villages of Dalvapalayam, Vuluthur and Chakkrapalli granted by the then Rajah of the District for the support of the mosque. These three villages were granted by the Maharajah of Tanjore in the year which seems somewhat uncertain in the grant but it is said to be 1757 and it is set out in the learned Subordinate Judge's judgment at p. 35. It evidences the giving for darnaj (charity) as nazzar (present or gift) to Hassarath Ashraf Shah Sahib the villages and gardens set out below and continues: 'In all, villages three including-the garden have been given as 'nazzar' (gift or present).' This grant was confirmed by the Nabob Wallajah in 1774 as set out in para. 12 of the judgment:

The said cusbah and others should be left for the office or dignity of the said Shah, so that utilising the incomes thereof for his own expenses he should engage in worshipping God and in praying for the durability of the State till eternity.

3. The defendant contends that on these documents the grantee has a fee simple and that no trust is constituted, though the performance of certain ceremonies have been undertaken by the successive holders out of respect for the founder, Only the 1st and 2nd issues were tried in the case which were:

(1) Whether the suit properties are trust properties of the nature described in Section 92 Civil P. C., and whether the suit is maintenable under it?

4. And

(2) What is the nature of the interest acquired by the original grantee for the suit properties and whether, if it be found a personal grant to him in fee simple, the plaintiff's suit is maintainable?

5. The Subordinate Judge examined in great detail the documents set out on the side of the plaintiffs beginning, with the record of Revenue Proceedings by the Inam Commissioner. The Inam Registers which for the reason set out are not available to us contain references to the institution as a Thakkal and Ex. C, which is an extract from the Inam Register of Dalvapalayam village 1862 contains the following recitals. 'For the support of the darga and mosque at Dalvapalayam now efficiently kept up.' Ex. E. is a similar extract from the Inam Register of Vuluthur village and contains the recital 'for the support of darga and mosque now efficiently kept up.' Ex. G, a similar extract from the Registsr of Chakkrapathi village, 1855, recites:

the sikka does not state the object for which the grant was made. It bestows on Ashraf Shah the three villages of which this is one as Nazzar. The income from the Inam is appropriated since the grant was made to the expenses of a mosque in Dalvapalayam, another of the three villages.

6. So that there is a reference in the Inam Registers to this institution as a mosque. On the other hand, the defendant adduced evidence to show that there was no mosque at Dalavapalayam and that the word 'thakkal' had been wrongly translated as mosque, and further that the prior holders of the Inam had dealt with the property as if it was their own. It will be observed, as the learned Judge points out, that in the original grants or rather the original grant and in its confirmation there is no reference whatever to a mosque, and the learned vakil for the appellant has admitted that the import of these documents is at least doubtful as instituting a trust. For my own part, I may say that it seems to me that on these documents a trust is certainly not constituted and that the expression 'For Danraj' means, as the learned Judge construes it, given out of a motive of charity or benevolence. It is, however, contended that on the extracts which I have set out above from the Inam Registers, one of two things is proved, either that the Inam Commissioners constituted this institution as a trust property by their decisions, or second that the consciousness of the subsequent holders after the first must be taken to evidence that they were dealing with trust property and that they were respecting the obligation in the nature of a trust laid upon their consciences with respect to this endowment. With regard to the first of the propositions it is said that the British Government was not bound to recognise any grant or gift made to an institution of this sort by the previous Indian rulers and in support of this a case in Secy. of State v. Bai Rajbai [1915] 39 Bom. 625 is quoted. This is a somewhat peculaiar case and a question arose as to what was the tenure of certain villages which were in the possession of a family of Kasbatis in Gujarat at the time when the British Government assumed ascendency in that district, and it was held that the only legal right that these kasbatis could have as against the British Government was that which the Government by agreement, or legislation chose to confer upon them and that as Government had never conferred upon the appellant the proprietary right or ownership of the villages claimed by her they were never under a legal obligation to grant any lease of the village and the granting or withholding of such a lease rested entirely on their discretion. The case Karunakara Menon v. Secy. of State [1891] 14 Mad. 431 was also relied on. But there it is distinctly stated that of the three Parvanas which were referred to in connexion with the original grant of the village, none of them was forthcoming at the time and the contest in appeal was restricted to the British Paravana of 1779. On the other hand, we have the cases in Arunachalam Chetty v. Venkatachalapathi Garuswamigal [1920] 43 Mad. 253 and the Secy. of State v. Srinivasachariar A. I. R. 1921 P. C. 1 In the former of these cases the importance of the Inam Registers was insisted on, because the officials made enquiry on the spot, heard the evidence and examined documents.

While their Lordships do not doubt that such a report would not displace actual and authentic evidence in individual cases, yet the Board, when such is not available, cannot fail to attach the utmost importance as part of the history of the property, to the information set forth in the Inam Register.

7. And in the latter case, also in the Privy Council, it is stated that the original grant is the best evidence of the terms on which the land was held and it is on the true construction of the terms so evidenced that the right of the plaintiffs must be based and in support of the proposition that subsequent events showed that the shrotriemdars acquired in one way or another an interest in the land of the village that entitled them to work the quarries free; their Lordships say at p. 430:

Had these materials stood alone they might well have been urged as suggesting an inference that the original grant was in terms that supported the plaintiffs' claim as to what passed under it. But in the clear light afforded by Ex. 1 (that is to say, the original grant) they lose their evidentiary value and leave the terms as shown by that Exhibit in no degree obscured.

8. It seems to me then that these cases come to this: if you have not got the original grant then the entries in the Inam Register may well be referred to as evidencing the history of the property in question and the terms on which it is held, but that where you have, as here, the original grants (and their genuineness is not disputed) we must be guided by their terms and by them alone. It is improbable, as the Subordinate Judge points ont, that the Revenue Officers were under the impression that the whole or the bulk of the income was applied to the ceremonies and charities. This circumstance, coupled with the misnomer given to the Thakkal as mosque, led to the inference that the villages in question were settled in favour of a mosque. The Subordinate Judge examined the evidence closely and came to the conclusion that there was no mosque at Dalavapalayam (paragraph 24.)

9. With regard to the second proposition set out above that we must take the subsequent conduct of the holder, it was never raised in the plaint or put before the learned Subordinate Judge. This contention as put before us was to the effect that the second holder had made a dedication of this property for trust purposes. Another contention was that the defendant is estopped by various admissions he is said to have made in suits and pleadings. Only one has been attempted to be established before us and that is a suit in which these villages were apparently involved. I say 'apparently' because it is probable that the judgment which has been brought to our notice does concern them and possibly this property also. It has, I think, never been made an exhibit in this case and as it was not exhibited it has not been printed for us to refer to. I have carefully considered the judgment of the Sadar Adaulat reported in Cajee Syed Ali Md. Sheriff v. Kadir Ali Shah [1850] SAd. 80.

10. It seems to me to refer only to possession of these properties. The Sadar Adaulat agreeing with the Civil Judge held that the appellant's claim to be Makhandar of the mosque, as he is called there, could not be supported, and they held that the Civil Judge was wrong in the order he made as to possession, that is to say, as to the removal of the respondent from the management of the affairs of the mosque, as he had been put in possession by the Collector under the orders of the Provincial Court and no appeal had been taken from those orders. This judgment certainly does seem to amount to a declaration that there is any trust. The word'trust' is not used throughout the judgment. Then it is said that there must at least be a trust as to the amounts spent in charity. The learned Subordinate Judge has found that a certain amount of paddy and cash have habitually been devoted to the purposes of ceremonies and charity. The words set out from the original grant, Ex. I, seem to me to only express what may be called a pious hope that the successive holders will do so, and it has not been contended before us that those words in themselves constituted a trust. It seems to me that if there is no original trust and if, as I hold, there is no evidence that the second or any other holder made a dedication of any part of this property for trust purposes and there is certainly no evidence in writing about it, it cannot be said that because out of reverence and so on, the various successive holders have chosen to devote what may almost be called a customary part of this income for purposes of charity, that that has impressed on the part of the income so devoted the character of a legal trust. Putting it at the highest it seems to me that it could only amount to an individual declaration of trust with regard to that portion by each successive holder which would certainly not bind his successor entitled to the entire income of these villages. I might also state that this question was never raised in this suit. Lastly it was argued that it was a grant to an office-holder who was the founder and that therefore that would constitute a trust. That was never raised in the plaint and has not even been taken in the grounds of appeal to this Court. I therefore think one is justified in refusing to consider it, even if it were tenable, in the light of my observations with regard to the other points taken. For all these reasons I am of opinion that there is no trust either as to the funds generally or to any part of the funds. I think the Subordinate Judge was right in the conclusion he came to on Issues 1 and 2.

11. The result is that the appeal must be dismissed with costs.

Jackson, J.

12. I agree.


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