T. Ramaprasada Rao, J.
1. The defendant in O.S. No. 36 of 1968 on the file of the Court of the Subordinate Judge of Nagapattinam is the appellant. Under Exhibit A-1 , dated 16th December, 1904, Sikkandar Rowther, the common ancestor of the parties before us, executed a deed of Wakf endowing considerable agricultural properties, both Nanja and Punja of an extent of about 179.17 acres for the purpose of performance of certain charities and incidentally directing themuthavalis functioning under the Wakf deed to divide 6/16 of the net income after expending for the charities amongst his own descendants. The balance of 10/16th share of the net income was to be spent towards the performance of moulooth on a prescribed date at a prescribed place at which the prescribed quantity of rice pulav should be cooked for distribution among the poor, the relatives and the friends. Similarly, a moulooih for the distribution of food to all Muslims and miskins present at the Nagore Andavar Vasal should be prepared and so distributed. Besides the agricultural properties, premises No. 35, Therupalli Street,Including certain moveables were endowed for the purpose of perforirance of the obligations under the trust. Under Exhibit A-2, a friend of Sikkandar Rowther, by name Vanjoor, Madar Sahib, executed another Wakf deed on 27th June, 1914, thus creating an accretion to the original Wakf. The purposes, however, are to a similar effect excepting for the fact that briyani rice of a particular quantity should be cooked and distributed to the poor and the relatives of Sikkandar Rowther on every anniversary of his. Under Exhibit A-1 Sikkandar Rowther appointed himself as the first trustee and gave directions as to the succession of trustees. He left behind him three sons, two daughters and provided for the trusteeship devolving on one of his male descendants, who is capable of properly managing the endowment. There is a provision for removal of an incapable trustee or a trustee, who has become unfit to hold the office. One Bava Mohideen assumed such management of trusteeship in or about 1915, According to the plaintiffs in the action, who claimed to be interested in the trust as descendants of Sikkandar Rowther, Bava Mohideen was not managing the affairs of the trust properly. A suit O.S. No. 188 of 1934 was filed in the Court of the District Munsif, Nagapattinam, against the said Bava Mohideen complaining about such mismanagement. But the contesting and the interested parties settled their differences and under an agreement, dated 26th March, 1934 it, was agreed that Bava Mohideen, Haleeth Rowther, one other son of Sikkandar Rowther and Mohammad Ghouse, the daughter's son of Sikkandar Rowther, should look after the Wakf by turns. Soon after Haleeth Rowther died. Again troubles arose. The difference had to be referred to the arbitration of the village headman, one Mohammad Kasim, who gave an award on 2nd February, 1941. In connection with the award, there were two litigations, one was filed by Mohammad Ghouse, the daughter's son of Sikkandar Rowther for passing a decree in terms of the award. One Maimoon Sharif a Beevi, daughter of Haleeth Rowther, who is the second respondent herein, was also a party in that suit. It is unnecessary to refer to the other parties in that action and the other connected litigations. The second litigation objecting to the award passed by Mohammad Kasim was filed by Bava Mohideen himself under O.P. No. 72 of 1943: The suit filed by Mohammad Ghouse (O.S. No. 18 of 1941) was decreed and Bava Mohideen's petition to set aside the award was dismissed. The Wakf apparently was satisfactorily functioning under the terms of the award and in relation to the management of its properties till Bava Mohideen died on 30th March, 1953. We may state that between 1943 and 1953 Bava Mohideen, one of the sons of Sikkandar Rowther, was in joint management along with Mohammed Ghouse, the appellant herein during that period. After the death of Bava Mohideen, Mohammad Ghouse became the sole trustee. Thereafter disputes arose between the descendants of Sikkandar Rowther and a spate of litigation started.
2. Jamila Ammal, one of the descendants of Bava Mohideen, filed a suit against Mohammad Ghouse for rendition of accounts and for payment of her share in the net income of the properties as per the deed of trust. This suit had a chequered career and it is still pending in the Subordinate Gourt. Mohammad Ghouse, the appellant, in turn filed a suit against some of the descendants of the common ancestor for recovery of possession of the trust properties in their possession. This is reported to have been decreed in 1975. Thereafter, two suits were filed by respondents 1 and 2 against the appellant for an account of the trust monies and for other reliefs. They are O.S. No. 66 of 1965 and O.S. No. 5 of 1969. It is reported, however, that both have been dismissed for default. The present suit by respondents 1 and 2, who are the daughter's daughter's son and the son's daughter of late Sikkandar Rowther, is a suit for declaration that Mohammad Ghouse, the appellant herein, who is also a daughter's son of the ancestor, is not a fit ajid proper person to be a trustee of the Wakf properties and for removing him from trusteeship from the Sikkandar Rowther Wakf and for framing a scheme for the proper management of the same.
3. The defendant raised various contentions. He would say that the trust created by Sikkandar Rowther, is different from the trust created by Vanjoor Madar Sahib and a common suit in relation to both would amount to misjoinder. of causes of action. After referring to the litigations summarised by us, the defendant would say that in the course of his administration, he had been obstructed in various ways, by the plaintiffs and other descendants of Sikkandar Rowther. He complains of malversation of trust funds by the plaintiffs and would add that he had been performing the obligations under the trust as prescribed in the Wakf deed and explains the reason as to why he could not pay the beneficiaries under the trust as directed. Since the trust properties were affected by adverse seasonal conditions and, particularly, during the cyclone in 1952, he had to advance large sums of money for the preservation of the trust properties and would claim that as on date of the suit, large sums are yet to be recouped by him from the trust and it was in those circumstances, payment to the beneficiaries were not feasible. He would also take up the legal contention that the main issue in the case revolves upon the non-distribution of the net income to the beneficiaries and that by itself would not be a ground for filing the present suit either under Section 92 of the Civil Procedure Code, or under the provisions of the Wakf Act. He claims that the real income got from the lands has been shown from tirae to time in the return sent to the Wakf Board and they are all reflected in his regularly kept accounts. The suit is neither bonafide nor filed in the interests of the trust and the relief for removal of the appellant as Muthavalli is a misconceived remedy, which is asked or by the plaintiffs-respondents. On the above pleadings, the following issues were framed for trial:
1. Is the suit bad for want of consent of the Advocate-General under Section 92 of Civil Procedure Code?
2. Is the suit bad for misjoinder of causes of action for the reasons stated in paragraph 9 of the written statement?
3. Is the suit unsustainable for the reasons stated in paragraphs 4 and 5 of the written statement?
4. Is the Judgment in O.S. No. 18 of 1941 of this Court and the appeal therefrom binding on the plaintiffs?
5. Has the defendant failed to perform the charities prescribed under the Trust deed properly or at all and is he liable to be removed for that reason from trusteeship?
6. Is the defendant guilty of mismanagement, malversation of trust funds or other misconduct as alleged in the plaint and is he liable to be rem oved from trusteeship for that reason?
7. Is the framing of a scheme necessary for any of the reasons set out in the plaint?
8. Have the plaintiffs no interest in the Trust created by Vanjoor Madar Sahib and are they not entitled to file the suit in respect thereof?
9. Has the suit not been instituted in the interest of the Trust and is it unsustainable for that reason?
10. Is the consent of the Wakf Board not valid?
11. To what relief, if any, are the plaintiffs entitled?
Additional Issues framed on 25th September, 1970.
1. Is a single suit brought for framing of a scheme for the two wakfs contained in the two deeds of 16th December, 1904 and 27th June, 1914 maintainable?
2. Is the suit under Section 92, Civil Procedure Code sustainable with reference to the 6/16th share of the income dis;txibutable among the beneficiaries?
3. Whether the suit is barred by time?
4. Though many of the above issues have been framed, the primary question which arises for consideration in this case, is, whether the plaintiffs have come to Court as disinterested persons or persons championing their own cause as the ultiirate beneficiaries, who are 'benefited in the distribution of 6/16th share of the net income from the Wakf amongst the descendants of Sikkandar Rowther. Secondly, the question is whether the defendant's conduct and his course of administration is such as to show that he had irade himself unfit to be a trustee, and he ought to be removed from the trusteeship of the Wakf. Thirdly, whether an occasion has been made out for the framing of a scheme, as it is alleged that the Wakf has been improperly managed.
5. The defendant in his written stated ment has brought out that it is the private interest of the beneficiaries as a whole and the plaintiffs in particular, which have pronrpted them to come to Court for his removal. It is not in dispute that the manner in which the net income has to be distributed amongst the descendants is still the subject-matter of adjudication in Courts of law and that it is impossible for any trustee, under the present circumstances, to take upon himself the responsibility of any such distribution pending such final adjudication. The appellant would put to the forefront that it is the present dissatisfaction which is lurking in the minds of the beneficiaries that is responsible ior the present suit. He complains that one of the plaintiffs is occupying one of the trust properties and they are obstructing him in the matter of the normal performance of the moulooth at the scheduled place. The defendant has also taken steps for evicting the plaintiffs from the Wakf properties and in conclusion would say that the suit is not at all bona fide and has not been filed in the interests of the trust at all and that it is only due to malice and ill-will against the defendant that the present action has been initiated.
6. Though the consent of the Wakf Board has been obtained under Section 55(2) of the Wakf Act, yet the principle running in the vein of this process contemplated in, suits filed under Section 92 Civil Procedure Code, and under Section 55 of the Wakf Act of 1954 govern the present situation. From an overall appreciation of a given situation, it should be made clear that if a suit under Section 55(2) of the Wakf Act has been filed, then it should be for the vindication of a public right. Even then, the action should not be camouflaged with such a request or relief. It must be a genuine desire on the part of the litigant to expose public rights. It is in this view that the Supreme Court said in Parmatmartand Saraswati v. Ramji Tripatki : 1SCR790 , that it is not every suit claiming the reliefs specified in the Section that can be brought under the Section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights and in deciding whether a suit falls within Section 92, the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. Further, in cases like this, it is very necessary to substantiate fully the allegations as to the breach of trust or compel the Court reasonably to give a direction to the trustees in management to properly administer the trust. If either or both of the above requirements are not fully made out, then the very basis of the suit under Section 55 of the Wakf Act or under Section 92 of the Civil Procedure Code, would fail. The Supreme Court made it clear in the very same decision as above that even if all other ingredients of a suit under Section 92, Civil Procedure Code, are made out, if it should be brought out that the plaintiffs are not suing to vindicate the right of the public, but are seeking for a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested in such circumstances, the suit would be outside the scope of Section 92, Civil Procedure Code. Yet again the law is clear that the mere fact that some mismanagement has resulted through the misconduct of the trustees is not a ground to-modify a scheme which contains provisions, which if properly worked out are sufficient to protect the interest of the trust, vide Venkatamma Ghetty v. Tkiruvengadathan Chetty (1915) 28 I.C. 479 : A.I.R. 1916 Mad. 530. Even on the third) point posed by us for consideration the plaintiffs have to establish the necessity for re-framing a scheme but cannot rest content by alleging that the trust has been mismanaged. It is in the background of the above well laid principles, we should consider next as to what are the grounds on which a trustee of a public trust could be removed. We could do no better than to quote from Mulla on the Principles of Mohamedan Law (Sixteenth Edition at page 215). The learned author says:
A mutawalli may be removed by the Court on proof of misfeasance or breach of trust, or if it is found that he is otherwise unfit to hold the office, though the founder may have expressly directed that he should not be removed in any case.
What exactly has been urged by the plaintiffs in the instant case is that no proper accounts have been maintained, that the moulooth has not been performed properly, that the distribution of the net income to the descendants has not been properly made and that a reserve has not been maintained as directed in the trust. In so far as the above grounds of attack are concerned, the lower Court found that the moulooth was performed properly and the non-distribution of the net income to the descendants could not be made, since the High Courtis in seisin of the matter and while the proceedings are thus pending the plaintiffs cannot ask for a paral, Jel relief in the present suit and the defendant cannot be charged for non-payment of their share of the income and that cannot form a ground for removing him from trusteeship.
7. The only other surviving grounds of attack are whether the accusation of the alleged improper maintenance of accounts is true and whether the defendant as trustee failed in his obligation in not keeping a reserve amount, for the purpose of ultimate distribution of the net income to the sharers as directed. The plaintiffs' case is that for a considerable length of timer the beneficiaries had not been paid, and that he had been consistently appropriating a major part of the income towards the moneys advanced by him, for the preservation and upkeep of the trust. This, according to the plaintiffs, is an act, which savours of mismanagement and has to be taken into consideration by the Court to find out whether he should be removed from trusteeship.
8. At this stage, it would be necessary to scrutinise the evidence let in this case and find out whether there has been a malversation of trust funds or other such allied misconduct on the part of the trustees. The defendant has produced his accounts as also the various documents such as lease-deeds executed by him to show, what probably would be the income from the trust. Exhibits B-8 to B-51 are the ledgers and the daybooks from 1948 to 1970. They were before the Court. The allegation of the plaintiffs, which gained favour with the trial Court that, there was sufficient and surplus income is based upon no evidence at all. The extent of the land dedicated in the wakf is about 155.13 acres of Nanja and 29.13 acres of Punja. There are also about three shops and two buildings and a garden which are annexed to the Wakf. A single crop was raised on an extent of about 155 acres and a double crop on an extent of 25 acres. This is seen from Exhibits A-9 to A-14, which are adangal extracts for faslis 1375 and 1376. Curiously enough the learned Judge surmised that the rental income would be on the average at 5 Kalams per Ma and that the total yield would be at least 2500 Kalams. The learned Judge rightly scrutinised the ledger Exhibit B-23 and he makes no commert on the income from the lands as entered therein. But from a reasoning, which as we characterised, is not based upon any acceptable evidence, he would assess the income and take the recitals as to the expenses in the ledgers and arrive at the conclusion, that there should be a saving of at least Rs. 7,000 to Rs. 8,000. He would not, as already stated, reject the accounts. No Commissioner was appointed to go into the accounts and report as to whether they were regularly and properly maintained. According to the books of account, the defendant claims that the income was not sufficient to meet the expenses and the debts payable by the Wakf. The learned Judge takes up the accounts and hears arguments on them. He notes the criticism made by the plaintiffs on the said accounts. According to the' plaintiffs the account books, though old, and regularly written up, are said to be got up one and sedulously written up on. He does not give a definite finding that the entries in the accounts are spurious. As a matter of fact, the lower Court did not advert itself to the accounts, as it ought to have done; but makes certain general observations against the conduct of the defendant. The learned Judge would also admit at one stage, that when the accounts are scrutinised in detail and when the entries are checked itemwar, it would be possible to find put whether the defendant had misappropriated or committed breach of trust. He does not however venture or cause such a checking of the accounts to be made. He would accept the contention that a probe into the accounts is absolutely necessary. He categorically finds even on such cursory examination of the accounts that in the instant case misappropriation has not been actually proved. The Wakf Board does not criticise the accounts or characterise them as having been got up or spurious. The defendant has been consistently pleading that he advanced monies to the trust frorr time to time and has been preserving the Wakf properties from being damaged by floods etc., and it is due to such adjustment of the debts from and out of the income from the properties, the defendant could not make out a surplus or create a reserve as contemplated in the trust deed. Moreover, he could not make a distribution of such an available surplus even if any, since the manner of distribution is yet to be settled by the Courts of law. The finding of the learn ed Judge that though the trustee did not pay the beneficiaries he should have set apart and segregated a certain amount for payment to the beneficiaries, is an uncharitable remark, since the case of the defendant that there Was no such available surplus for distribution because of the debts of the Wakf and these accounts have not been scrutinised and adjudicated' upon by the Court below. The account books filed into Court from 1948 to 1970 have not been looked into and examined in a manner known to law. The learned Judge himself admits that the defendant may not be liable for non-payment of the income to the beneficiaries in the present suit as matters stand. In such a nebulous and uncertain state of affairs, the contradictory findings of the Court below that even though misappropriation has not been proved, there are circumstances which throw suspicion on the conduct of the defendant and the accounts maintained by him appears to be unjustified and is not based on acceptable evidence. This is not a case in which the Court categorically finds that the defendant was encumbering the trust properties by systematically incurring expenses beyond the limits of its income. There is no express finding either that the continuance of the defendant as trustee would endanger the interest of the institution. As was pointed out by our Court in Zamindar of Kalahasti v. Ganapathi Iyer (1918) M.W.N. 555 : 48 IND.CAS. 897 : A.I.R. 918 Mad. 56:
It is not however every mistake or neglect of duty or inaccuracy of conduct that will induce a Court to remove a trustee. The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of proper capacity to execute the duties of the office or a want of reasonable fidelity.
In the absence of such continuous, dis-honest, designed and motivated activities of a trustee, which would impair the corpus of the trust, and shake its foundation, it would be difficult for this Court and particularly, due to the wavering findings of the Court below, to agree with it that the plaintiffs have made out a case for removal of the trustee.
9. It is in the light of such evidence let in this case that we should now take up the contention of Mr. Ahmed Meeran, who harped upon the alleged mismanagement of the defendant in the light of the non-distribution of the 6/16th part of the net income to the descendants of the donor. Though the account books are in Court, the plain tiffs did not request for a scrutiny of those accounts; but they did not go anywhere near it for the purpose of aprobe to find that a case of misappropriation or malversation has been made out. Arguments are built on bare suspicion and not established facts. A person can only produce the accounts maintained by him and if the opponent wants to surcharge the other on such accounts, he should make out a case by a deep study and a scrutiny of such accounts, but should not rest contert by criticising them without even looking into them. Mr. Meeran repeats the argument urged by the plaintiffs in the lower Court and would say that the plaintiffs did make out a case for removal of the trustee. His accent was on the non-distribution of the net income to the descendants. Apart from the fact that such an assertion is indicative of the private interest of the plaintiffs for which purpose no suit either under Section 92, Civil Procedure Code, or under Section 55 of the Wakf Act is maintainable, the plaintiffs have not even established reasonably that their apprehension about the accounts is justified. The role played by the plaintiff's is that they accused the defendant. They do not go into the accounts. They do not prompt the Court to find that the expenses incurred by the trustee are not justified. They also conceded that the manner of distribution of the available surplus if any, is still to be adjudicated upon by this Court. But yet they would seek for a removal of the trustee on vague, uncertain and unproved allegations.
10. Reliance is placed upon a decision m Section Veeraraghava v. V. Parthasarathy : AIR1925Mad1070 . There, the Full Bench of our Court laid down a salutary principle for removal of trustees and the Bench held thus:
Once a person accepts an office of trustee-ship the one governing consideration in his mind, the ruling motive for all actions, the one principle by reference to which all his acts should be determined, is the interest of the institution and that alone. Persons who, though holding a fiduciary positions allow their actions to be prompted by any other considerations, motives, principles are as much guilty of breach of trust as persons who may be found actually guilty of misappropriating property belonging to the trust. Even though the evidence in a case against the trustees may not be sufficient to warrant, generally speaking, their removal from office on the ground of misconduct or negligence, still their removal may be ordered if, in the opinion of the Court, such removal is necessary i.e. the interests of the trust to be administered.
It is, therefore, clear that in the absence of objective evidence about malversation or misfeasance on the part of the trustee, the subjective satisfaction of the Court without even a full probe into the evidence on the conduct of the trustee cannot go a long way to prompt the Court to remove him, as the primordial consideration in such circumstances is the interests of the institution. The plaintiffs have miserably failed to let any evidence touching upon the motive of the defendant is the matter of the administration of the trust property, as he is doing. We have to say that in this case no case has been made out by the plaintiffs for the removal of the defendant on the ground that the interests of the trust and its administration so requires.
11. We have already referred to the conflicting observations made by the court below, which has not definitely stated and found that the defendant's actions as trustee and in relation to the Wakf are such that the Court is reasonably prompted to remove him from the trust. We do not find, in the instani case any proof of such misconduct which throws light upon the misconduct o the trustee in the administration of the trust. We have already referred to the deciskn in Venkatarama Chetty v. Thiruvengadathan Chetty (1915) Ind.Cas. 479 : A.I.R. 1916 Mad. 530 and observed that mere mismanagement, is not enough to modify a scheme. Further, in the view that we hold that the plaintiffs did not make out a case of mismanagement or misconduct on the part of the defendant, and that no clear and acceptable evidence has been let in to bring out that the interests of the institution require the removal of the defendant, the plaintiffs' case fails in this behalf. As it is not necessary, therefore5 to modify the scherre, as the defendant is prima facie conducting himself in accordance with the scheme and the wakf deed, we do not feel justified in accepting the alternative prayer of the plaintiffs for the modification of the scheme as well.
12. In the result, the judgment and decree of the trial Court are set aside, the suit is dismissed and the appeal is allowed with costs.