1. This was a suit under Section 92, Civil Procedure Code, for framing a scheme for the management of a certain Muhammadan Dargah which is said to have been founded as long ago as 1742 by the then Nawab of Chicacole. The defendants are distant descendants of Jaina Bibi who got possession of the property about 65 years before the institution of the suit. The 2nd defendant is said to be a sister's daughter of Jaina Bibi and the exact relationship of the 1st defendant who is also a lady is somewhat obscure. The written statement of the 2nd defendant sets out that after the death of Jaina Bibi her sister and heir, Kulsam Bibi, succeeded to the management of the Dargah as mutawalli and that on her death Kuleam Bibi appointed the husband of the 2nd. defendant, one Abdul Gaffar Sahib, as her successor in the mutawallsship. See Ex. II. The written statement proceeds to set out that this person is now in possession and management of the Dargah and that he is a necessary party to the suit. Certain issues were framed and the fifth issue runs as follows:
Did Kulsam Bibi appoint Mahomed Abdul Gaffar as mutawalli of Dargah and is he in possession of Dargah and its properties.
2. The Subordinate Judge before whom the suit originally came held it was unnecessary to decide this and certain other issues as there had been no defects in the management of the Dargah and accordingly dismissed the suit. On appeal the District Judge found that a charitable school had not been maintained in accordance with the terms of the wakf and remanded the suit to the Subordinate Judge for framing a scheme of management under Section 92 and appointing trustees, therefor.
3. Now the objection raised in second appeal and this suit was instituted in 1917 or eight years ago is that the mutawalli, the husband of the 2nd defendant is a necessary party and that that has not been considered by either of the Courts. There appears authority for the position, for instance in Vaithilingam v. Ramalingam 38 Ind. Cas. l33 : 6 L.W. 9 : (1917) M.W.N 550 and Rama Das v. Hanumantha Rao 12 Ind. Cas. 449 : 36 M. 364 : 21 M.L.J. 952 : 10. M.L.T. 356 : (1911) 2 M.W.N. 387, and the reason for those decisions appear to be this that once a scheme is framed, no private individual has any right to question it and, therefore, if a private individual who is prima fade interested in the property in question or its management is not represented or has not a chance of being so, the Court must assume that his rights have been denied him and must interfere in order that he may be made a party. For the respondents-plaintiffs it is attempted to be said that one mutawalli cannot appoint a successor and that, therefore, the husband of the 2nd defendant is in no batter position than a trespasser. That point seems to me to be open to great doubt. It is expressed as an opinion by Mr. Tyabji in his book but, on the other hand, Wilson in s 329 and Ameer Ali, Vol. 1, page 450 says that the last mutawalli has the power of nominating his successor only if the wakf has made no provision regarding the office. We do not know here that the wakf made any such provision. It is extremely unfortunate that this appeal, which has bean pending for so long in consequence of a dismissal for default and subsequent restoration, should have to be Bent down. I do not propose to send it down to the Subordinate Judge but to send it to the District Judge who decreed the framing of a scheme. Notice must be sent to Mahomed Abdul Gaffar Sahib who will be formally made a party and the District Judge will hear what he has to say and if necessary take his evidence and return a finding as to whether on that evidence there is, in his opinion, any necessity to modify the decision at which he has already arrived,
4. Time for the return of finding two months and objections seven days.
5. [In compliance of the above order the District Judge of Ganjam at Berhampore submitted the following findings].
6. This appeal has been remanded to the District Judge for adding Mahomed Abdul Gaffar Sahib as a party, for taking his evidence, and for a finding as to whether on that evidence there is any necessity to modify the decision already arrived at...I must mention, however, that it is argued on behalf of Abdul Gaffar that a suit under Section 92, Civil Procedure Code, can only be brought in the Mofussil after obtaining the sanction of the District Collector. The sanction order was not obtained as against Abdul Gaffar, although he was at that time, mutawalli. I am referred to Darves v. Jainudin 30 B. 603 : 8 Bom. L.R. 751 and Abdul Rahman v. Gassum Ebrahim 11 Ind. Cas. 726 : 36 B. 168 : 13 Bom. L.R. 583 for the position that this suit being a suit for the removal of the trustee and for a scheme, specific sanction must be obtained for the suit to lie against the trustee.
7. The argument is one that I express no opinion upon, since it should have been addressed to the High Court, which ordered, that the trustee should be added as a party to the suit.
8. My finding, therefore, is that there is no necessity to modify the decision already arrived at by my predecessor.
9. This second appeal was heard after the return of the finding of the lower Appellate Court and the case having stood over for consideration the Court delivered the following
10. This case is concerned with certain property which by the High Court (In Appeal No. 169 of 1911) was decided to be wakf property and not heritable; and the Court said that a proper trustee should be appointed for the same and that the framing of a scheme for the proper management of the Dargah was the proper remedy in that suit. The present is a suit under Section 92 of the Code of Civil Procedure by two persons against two ladies called Chand Bibi and Geri Bibi. The history of the Dargah is sat out in para, 3 of the plaint. It goes back to 1742 and the succession of mutawallis is traced to Meer Akbar Ali, the last male heir of the original grantee, who died somewhere about 1850 without legally nominating any body to succeed him in the mutawalliship or trusteeship. In consequence, his widow Jaina Bibi got possession and is alleged to have been negligent in managing the properties through her brothers. The plaintiffs are willing that either or both of them should be appointed trustees and allege that they are doing the duties of trustees. The prayer is for appointing one or both of these persons and for settling a scheme. Now the 1st defendant- here is the widow of one Kurban Ali who is said to have been the adopted son of Jaina Bibi and she is also a relative of the 2nd defendant who is the sister's daughter of Jaina Bibi. The 2nd defendant in her written statement pleaded that Kulsam Bibi succeeded after the death of Jaina Bibi, as mutawalli to the Dargah and that the said Kalsam Bibi appointed one Abdul Gaffar as mutawalli and that it is this man who is now in possession and management of the Dargah. She also pleaded that he was a necessary party to the suit. By issue No. 5 the question was raised, 'Did Kulsam Bibi appoint Mahomed Abdul Gaffar as mutawalli of Dargah and is he in possession of Dargah and its properties? The first Court, that of the Subordinate Judge, held that the Dargah was properly managed and that there was consequently no power to remove the mutawallis whose sex was no bar in their Managment. The Subordinate Judge recorded no finding on issue No. 5. The plaintiffs took the suit on appeal to the District Judge who was then Mr. C. V Viswanatha Sastri. He held that there was no mis-management except in one particular. The original firman setting up the Dargah in his opinion mentioned a charity school as one of the objects of the charity. He held that as a charity school is not maintained, there was mismanagement and he, therefore, framed a scheme. It is against that, that the defendants have come here in second appeal. Now the original firman was translated for the first time in this case. When the matter was sent down by me at the end of 1925 it was in Arabic and our Persian translator Mr. Hammed Hassan had already translated it for the purpose of another litigation and his translation will be found reported in full in Jagga Row Bahadur v. Gori Bibi 72 Ind. Cas. 789 : 17 L.W. 521 : (1923) M.W.N. 47 : A.I.R. 1923 Mad. 545. The translation now furnished is Ex. 24 and it recites the objects of the charity as follows: 'To perform the sacred deeds of the holy shrine, namely, spreading carpet, lighting, performing annual festivals, supplying livelihood to attendants and others that have a right with the above named.' Now Mr. Hammed Hassan has again examined this document at my request and he says that his translation in Jagga Row Bahadur v. Gori Bibi 72 Ind. Cas. 789 : 17 L.W. 521 : (1923) M.W.N. 47 : A.I.R. 1923 Mad. 545 is correct and so the passage just read from Ex. 24 ought to read thus 'by way of expenses of -farsh carpeting, bedding matting and etc.) and lighting at the anniversary and maintenance of servants, students and other men deserving help at the hands of the refuge of nobility.' He says that a charity school does not certainly appear there, but that the charity should be devoted to the aasistance of students among others. It ought to be mentioned that by the endorsement on the firman the original holder, Hajee Mahomed Sadak Saheb was empowered to maintain himself from the inam village which was appropriated to the Dargah by this firman. Abdul Gaffar says in the evidence he has now given before the second District Judge that no charity school was ever maintained and that the word 'talab really means maintenance of servants whereas the. Persian translator says it means maintenance of students. That this idea of a charity school is not new can be seen from Ex. D which is a copy of the inam statement of 1863 where the Vakil for Jaina Bibi says that the firman is for 'feeding fakirs and for maintaining a charity school' However, it seems to me that we now have a correct translation in Jagga Row Bahadur v. Gori Bibi 72 Ind. Cas. 789 : 17 L.W. 521 : (1923) M.W.N. 47 A.I.R. 1923 Mad. 545 and as Mr. Hameed Hassan himself says the object of the chartiy is as I have said.
11. Now this second appeal come before me as long ago as 7th December, 1925, and it was then objected that Abdul Gaffar was a necessary party (a point which it will be remembered was taken in the written statement of the 2nd defendant), and that it would be only fair that he should bore-presented; because if he were not, the scheme framed in his absence would bind him in spite of the fact that this objection had been taken. So, to avoid as far as possible adding to the very great delay that had already taken place in this case I directed the District Judge to make Gaffar a party and asked him to take his evidence in order to see whether it would cause him (the District Judge) to change his previous view, Mr. Viswanatha Sastri has left the District, as I should say the service, by the time this got down to the District Judge of Berhampore again and Mr. Newsam was in charge. Mr. Newsam has now considered the matter afresh and supports Mr. Viswanatha Sastri's opinion on three grounds, viz, 1. That the grant was originally for the up keep of the Dargah It must be so treated and I may state incidentally that it was not argued before me that this was really a gift to the mutawalli burdened with a trust for the upkeep of the Dargah, Now it will be seen from the original firman that the value of this village was in 1742 about 720 per annum. It has now gone up as one would except and the valuation is about Rs. 1,500 or Rs. 2,000 a year Now the learned Judge has found that only Rs. 250 or about that, is in fact spent on this Dargh, Abdul Gaffar is in possession of half the village and the ladies-defendants Nos. 1 and 2 are in possession of the other half Abdul Gaffar spends this comparatively small amount on the charity and apparently the ladies spend nothing; so that they have an income of something like Rs. 1,250 to Rs. 1,750 for themselves every year from this trust fund. The question is whether that is the proper way to administer this charity and whether that is what the original founder meant.
12. With regard to the charity school, Mr. Newsam says he does not attach great importance to that. Ha says the original grant certainly contemplates charity to students and other deserving men; but it does not seem to him that the original grant contemplated the maintenance of charity school.
13. The third reason that he finds to support the previous District Judge's view is that the mutawalli family have claimed partition of this property as if it ware their own family property. The High Court dealt with this claim in Appeal No. 169 of 1911 as I pointed out at the commencement of this judgment. I have heard objections at some length to this finding which if accepted is sufficient to dismiss this appeal. It is said that the joinder of Abdul Gaffar as defendant necessitates a fresh sanction to validate the suit under Section 92 of the Code Civil Procedure. I confess to some [surprise that this point has been put forward now as it certainly was not put forward when it was urged that Abdul Gaffar should be joined. I was pressed to bring him on record but no mention was then made that an objection of this sort would be taken. However, it has been taken and must be considered. That Abdul Gaffar knew all about the proceedings is perfectly obvious. His wife is the 2nd defendant. In cross-examination in this suit Gaffar says that he was instructing the Vakils on behalf of his wife. So he has practically been a party all through. Secondly, no fresh sanction on the authorities would be needed if the scope of the suit is not enlarged. Compare Vaithilingam v. Ramalingam Pillai 38 Ind. Cas. l33 : 6 L.W. 9 : (1917) M.W.N 550, Gopala Krishnier v. Ganapathy Aiyar 58 Ind. Cas. 124 : 12 L.W. 772 : (1920) M.W.N. 478 and Mandoori Purga Mallikharjanavara Prasada Rao v. Gudipudi Gopala Charlu 97 Ind. Cas. 462 : 24 L.W. 419 : (1926) M.W.N. 626 : A.I.R. 1926 Mad. 970. It seems to me that the scope of the suit is not enlarged. The plaintiffs asked that one or both of them should be appointed trustees but the main prayer is for settling a scheme for this Dargah. It has been said that subsequent to this suit other people have tried to obtain sanction to file a suit against certain persons including this Abdul Gaffar. We do not know exactly what the allegations were and what the reasons were for refusing the sanction except the the Collector prima facie found no evidence of mis-management. That leads me to the second of these objections, vis., that there is no mis management. Now Mr. Newsam finds three grounds of mis-management as I have said on two of which he lays great stress, namely, that the bulk of the endowment is devoted to the unkeep not of the Dargah but of individuals and secondly that these are acting with regard to this inam as if it were their own private property; in fact they apparently have done so for many years since 1911. Farther there is the fact that; assistance to students is not provided. Now there hag been litigation over the charities at least since 1905 and probably before but that is the earliest record we have in these proceedings of suits with regard to this Dargah. The trust property has now become comparatively valuable and trustees obviously appropriate by far the larger portion of the income of this Dargah to themselves and further they have purported to treat the property as their own, though of course as I pointed out, there is a clause for maintenance. But I do not think the clause for maintenance is properly administered when the trust has so small a proportion of the income expended on it as in this case in proportion to the amount that the trustees take for themselves. I am of opinion therefore that the trust is not being carried out in accordance with the wishes of the founder as expressed in the fireman and there does not seem to me to be any likelihood that it will be so administered so long as it is in private hands. Giving the best consideration I can to the matter, I, therefore, come to the conclusion in agreement with both the District Judges that a scheme is necessary and this second appeal must, therefore, be dismissed with costs., of the 1st respondent including the costs incurred for the finding.