1. The suit out of which this appeal has arisen was instituted under the provisions of Section 92 of the Civil Procedure Code with reference to a takia (spelt in these proceedings as Thaikal). The origin of the institution dates bask to the seventeenth century. The only account we have as to how it came to be founded is that given in a Persian inscription, Exhibit KKK. That shows that three men, named Taj Firaque Shah, Yar Shah and Hidayat Shah, came from Upper India and settled at Tiruvalur in the Tanjore District. These' fakirs or sufis as presumably they were so, died one after another and their tombs apparently became objects of Veneration and received endowments from time to time, from different rulers. One of the grants which is available was made by a Mahratta Prince of Tanjore in 1770 granting about 22 velies of land to the takia which is Called Tas Prakasha Takia; the other grants are not available. But we have got the tenor of them described in the Inam Register and the Inam Settlements.
2. The principal question in this case is what was the nature and scope of these grants, whether it was intended as contended for by the respondent that the income from the properties, after defraying the expenses of the maintenance of the tomb and certain ceremonies and observances, was to be appropriated by the person in charge of the takia for the time being, or whether the properties form a public, religious and charitable trust and if so, whether the 1st defendant is entitled to any part of the profits and what is the extent of his rights. There cannot be the least doubt upon the series of documents proved in the case, that the properties in dispute were endowed entirely and solely for the benefit of the takia. The grant by the Mahratta Prince of Tanjore is to the takia. In Exhibit EE, the Inam Register of 1809, the donee is described as the takia, the grantee is spoken of as the religious endowment, the whole village is granted as inam to the takia and the person then in charge one Nida Shah Fakir is described as the manager. In another register which relates to lands in Kanakarapattu, Chidambaram Taluk, Exhibit DDDD, the donee is described as the religious institution, the inam is stated to be for the support of the durgah, that is the takia in question, and the person in charge is called trustee and the order of the Inam Commissioner is that the inam is confirmed to the trustee for the time being. Then it is pointed out that the person in charge had not applied the trust property as he should have but what was to be done by way of remedy was left for the revenue and judicial authorities to decide. We have also several title-deeds granted by the Inam Commissioner; they are issued to the manager for the time being Of the durgah and it is stated that the manager for the time being must hold the property for the takia and for the purpose of feeding the fakirs annually in the village. Exhibit G, which is a statement made before the Inam Commissioner by Nida Shah in 1864, describes the inam as Dharmadayam or charitable endowment and from that statement it appears that a rest house was maintained in connection with the charity. Exhibit F is another extract from the Inam Register. There also the endowment is described as a religious endowment in support of the takia and Nida Shah Fakir, in charge of it is called the manager and the inam is confirmed and continued for the benefit, of the take Similarly in Exhibits EEEE, GGGG, these inam lands are stated to be held for the expenses of the takia, and were confirmed and continued in the name of the takia. This description of the inam lands is continued in various other documents that came into existence from time to time down to a very recent date for instance in Exhibit XX which is a sale-deed of some lands purchased by Nazir Ali the 1st defendant he is described as Audinakartha or trustee. See also Exhibit XXII. There have been various litigations between the 1st defendant and some rival claimants for the position held by him and in those suits also the 1st defendant described himself as the trustee of the durgah. For instance in Exhibit WWWW, a written statement filed in a suit of 1885 the 1st defendant calls himself a trustee 'on behalf of the said trust' and then we have leases in which the 1st defendant's position is defined as of a trustee. There are also other documents of a similar nature in which the properties are described, as being the endowment of this durgah or takia-and are treated as trust properties. On the other hand, there are two or three documents to which the 1st defendant was a party in which some lands belonging to the endowment are stated to belong to him as Audinakartha or manager of the takia. In some other documents of a very recent date some of the lands in dispute are stated to be in the enjoyment of the 1st defendant, but even in these documents he is described as holding the lands as Audinakartha, trustee or manager. The evidence, therefore, conclusively shows that the properties in dispute form a public, religious and charitable trust and this is the conclusion arrived at by the learned Trial Judge.
3. That being the character of the properties, it seems to follow as a matter of course that the income is to be devoted solely to the benefit of the institution. But the Subordinate Judge has come to the conclusion that the 1st defendant the manager for the time being sajjada nashin as he chooses to call himself in these proceedings, though as a matter of fact that designation did not appear anywhere before the institution of the suit, is entitled to what he calls the surplus after meeting certain expenses. He does not find what are the necessary and proper expenses and if they are fixed, the result of his conclusion seems to be that it is left entirely to the discretion of the 1st defendant or any one else who may hold that office to spend as much or as little as he chooses for the benefit of the durgah and appropriate to himself the rest of the income, His conclusion in this respect seems to be based entirely upon the analogy of mutts and of other institutions referred to in Some decided cases relating to khankahs principally the Khankah of Sasseram. What the character of this particular durgah or takia is and to what objects the income derived from the properties is to be devoted must necessarily depend upon the nature of the grant in this case. It would only be misleading to proceed upon the analogy other institutions may bear resemblance to the observances of this institution. In the case in Mohiuddin v. Sayiduddin 10 Ind. Dec. 545 one of the objects, of the grant was the maintenance of the sajjada, nashin and his successors from generation to. generation. In this case there is not a single word to be found in the various title-deeds, Inam Register or grants which suggests that the grant was intended to benefit the man who might be in charge for the time being whether he is called trustee, manager or Audinakartha or Sajjada Nashin. Then in the present case there is no evidence that the man in charge of the; institution has any religious doctrines to teach and in fact the evidence of the 1st defendant and the other evidence in the case strongly suggest the inference that the institution cannot in any sense be said to be intended for the promulgation of any particular esoteric doctrines of Sufism or any other religious order; All that appears is that a fakir has the charge of the durgah, and it is also probable that he nominated his successor and for that purpose, has a disciple also. The 1st defendant was nominated in that way by his predecessor-in-title and we think the Subordinate Judge is right in finding that the governance of this durgah has been in the hands of a succession of fakirs, the holder for the time being of the office nominating his successor. It also appears that there are other institutions (6 or 7 of them are named in these proceedings) of a similar nature though we have no evidence as to whether they are connected with the teaching of any particular doctrine esoteric or otherwise and what was the nature of the grant in those cases. The learned Vakil for the respondent has pressed upon us the argument that because it is called takia, that is, a place where the fakirs, gather round the tomb of a reputed saint, it must necessarily imply that any grant made to the, takia was really intended for the benefit of the holder of the office the head of the institution, for the time being. None of the cases relating to khankahs or durgahs to which we have been referred Jay down any such proposition whatever.
4. On behalf of the respondent it was also attempted to support the judgment of the Subordinate Judge on this point by a reference to the rulings relating to mutts. It has, no doubt, been held in Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami 14 M. L. J. 105., and by a Full Bench of this Court in Kailasam Pillay v. Nataraja Tambiran 5 Ind. Cas. 4: 19 M. L. J. 778., that the head of a mutt does not occupy the position of a trustee with reference to the properties belonging to the mutt. But since the date of those decisions their Lordships of the Privy Council in Ram Parkash Das v. Anand Das 33 Ind. Cas. 583: 14 A. L. J. 621: (1916) 1 M. W. N. 406: 3 L. W. 556 have stated in clear terms that the madathipathi or the head of the mutt holds the endowed properties as trust properties and the decision in a recent case in this Court by Justice Sadasiva Aiyar in Baluswami Aiyer v. Venkitaswamy Naicken 40 Ind. Cas. 581. has been based on this view of the law. Whatever that may be the question in this case has to be decided entirely according to Muhammadan Law according to which the intentions of the donor govern entirely the application and destination of the endowed property. We have, therefore, no hesitation in reversing the finding of the Subordinate Judge where he holds that the 1st defendant is entitled to the surplus left after meeting such expenses in connection with the durgah or takia and, he is entitled to, reasonable remuneration: pr maintenance. That is a very different position from holding that he is entitled, to spend whatever he chooses on the institution and appropriate, the rest of the, income to himself. The next question that arises is whether the 1st defendant should be removed from his office. It appears that throughout he baa taken up a view of his rights which is really inconsistent with the true nature of the trust. It is quite true at the same time that his predecessors-in-office had also acted in a similar way. It may also be that the managers of other similar institutions have confused their own right to remuneration as managers with proprietary rights. The Subordinate Judge has exonerated the 1st defendant from the charges of misconduct. He finds that it was not proved that he dishonestly misappropriated any portion of the trust property or its income. No doubt this finding proceeds, at least partly, upon the basis that the 1st defendant in his opinion is entitled to what he calls surplus. Having regard, however, to what appears to be the usage of the institution and the fact that ordinary observances in connection with-it, that is to say, certain ceremonies such as fatihas, kanduries, lighting of the lamps and other duties of like character have been always performed by a fakir, we do not think that any useful purpose will be served by removing the 1st defendant altogether from the charge of the durgah though he should not be allowed to retain the office of trustee.
5. The Subordinate Judge, however, has framed a scheme which does not at all appear to be adequate or satisfactory. He has not ascertained what the income is to the properties which belong to the trust, what are the expenses under particular heads or what ought to be the remuneration of a person in charge of the durgah.
6. He did not call upon the 1st defendant-to render an account of his previous management. Here again he so acted on the basis of his finding that the 1st defendant had a right to what is called the surplus. The 1st defendant is undoubtedly bound to render accounts. But we have carefully considered whether we should make such an order. It does riot appear that the 1st defendant has any property or means of his own and we are not satisfied that if we ordered accounts to be taken of his management any benefit would result to the trust. We do not suggest that he has in fact misappropriated any of the trust properties, at any rate we have not been able to come to any such conclusion. And its it is extremely doubtful that if we ordered accounts to be taken during the period of his management whether it would be of any benefit whatever to the estate and as probably it would only burden the trust state with further costs, we refrain from passing any such order. We might mention that Mr. Ganapathi Iyer, who appears on behalf of the appellant (plaintiff) very properly having regard to the circumstances of the case, has not pressed for accounts.
7. But the scheme framed by the Subordinate Judge is of little use as it stands. The decree we propose is that it be declared first of all that the properties in dispute form a public, religious and charitable trust for the benefit of the Pao Prak Shah Durgah or Takia, that the 1st defendant has no proprietary interest in the same and is not entitled to any surplus that may be left after defraying the proper and necessary expenses. One of the objects of the trust is the relief of the indigent poor and having regard also to the other acts of charity to be performed it cannot be said that these would not absorb the entire income. What the income is of the properties belonging to the trust should be ascertained; as also the expenses for the performance of the various ceremonies mentioned in the judgment, that is to say, the, fathia ceremony, kanduri, the feeding of the jama fakirs, lighting of the tomb, repairing of the tomb and other buildings connected with them. If any surplus is left, that will go towards the relief of the indigent poor. See Ramanadan Chettiar v. Vava Levvai Marakayar 39 Ind. Cas. 235: 15 A. L. J. 189: (1907) M. W. N. 180 19 Bom. L. R. 401
8. We think it necessary having regard to the history of the institution that a person or persons other than the 1st defendant should be appointed trustee or trustees from the locality where many Muhammadans of position are available and the Subordinate Judge will select proper and fit persons for the trusteeship. The 1st defendant should remain in charge and care of the durgah and perform the necessary ceremonies and charities and other duties connected with it under the control and supervision of the trustees. The trustees shall be primarily responsible for the management and well being of the institution and the endowments. The Additional Temporary Subordinate Judge of Tanjore will also provide for a proper remuneration for the 1st defendant and his successors in-office will also determine what other establishment, if any, is to be maintained. There will be a preliminary decree in accordance with the above declarations and directions. The Temporary Subordinate Judge of Tanjore will frame a scheme of management after making the necessary enquiries. The appellant and the respondent will be at liberty to apply to this Court for such amendments and modifications of the scheme as may be necessary. The costs of the appellants in this Court and the Court below will come out of the estate. The respondent will bear his own costs.
9. The memorandum of objection is dismissed with costs.