Brett and Sharfuddin, JJ.
1. This is an appeal from the judgment of the District Judge of Cuttack, dated the 6th November 1903, requiring the present appellant, Syed Mahomed Athar, as custodian of a public endowment under the provisions of Act XX of 1863, to execute within two months from the 7th November 1903, a personal bond in the sum of Rs. 3,000 and to furnish two sureties in the sum of Rs. 1,500 each for faithfully discharging the duties of his office, and rendering to the Committee appointed under the Act a full and true account of the receipts and disbursements up to date, and directing that he be dismissed from his office if, within 6 months from the above date, he should fail to furnish the accounts.
2. The suit was instituted under Section 14 of Act XX of 1863 for the removal of the defendant (present appellant), Syed Mahomed Athar, from his office of Daroga in connection with the endowment of Kadam Rasool (foot prints of the Prophet) on the ground of manifest misfeasance, breach of trust and neglect of duty in the management of the above named endowment. A long list of such acts of misconduct oh the part of the appellant is given in the plaint.
3. It appears that, on the application of five men, namely, Sultan Khan, Saif Ali, Abdul Aziz, Ramjan Khan and Mithoo Mea, the District Judge of Cuttack on the 27th July 1899 and 8th August 1899, appointed, under Section 10 of the Act, a Committee to supervise the management of the endowed properties. Syed Mahomed Athar then appealed to this Court questioning the power of the District Judge to appoint this Committee; hut the appeal was dismissed on the 6th January, 1903.
4. It also appears that, afterwards on the application of Ramjan Khan and others, the District Judge of Cuttack gave them leave under Section 18 of Act XX of 1863, on the 30th August, 1900, to bring a suit against the present appellant under Section 14 of the same Act; and the present suit was instituted by them on the 5th December 1900.
5. The plaintiff's case is that the endowment of Kadam Rasool is an ancient and public one. This Kadam Rasool was first located at a place called Jobra in the town of Cuttack and it then had only fifty batis of land endowed for the madad mash of a Mutawalli and repairs of the walls and chupperbandi. It was subsequently removed to its present site in the heart of the town when 140 additional batis were appropriated to it for the repairs of the buildings and fateha (recitation of the opening chapter of the Quoran for the benefit of the soul of the departed); and a Daroga was appointed to look after the endowment on its new and more extensive footing. Forty batis of land apart from the large grant were given as an endowment for the remuneration of the Daroga. The total number of batis described above as thus forming the endowment amounted to 230. And all these lands have been under the management of the appellant since his appointment as Daroga. There were also Khadims (servitors) attached to the institution.
6. The plaint further alleges that, the families of the Mutawalli and the Khadims having become extinct, the present Daroga (appellant) failed to report their deaths to the District Judge, or to have others appointed to fill up the vacancies; on the contrary, having found that no new Committee was appointed or proposed to be appointed by the local Mahomedan community, he commenced to misappropriate the endowed property. He sold some of the endowment lands and, on receipt of handsome salamis, let out,others on perpetual or long-term leases for nominal rents.
7. The plaint proceeds to allege that in 1864 a Committee of three gentlemen was appointed by Government under Act XX of 1863 to supervise the management of the endowed properties, and the present appellant, as Daroga, used regularly to submit his accounts to this Committee. But the members of this Committee having died one after another, the present appellant finding that there was no one to supervise his management of the endowed properties began to sell, mortgage and otherwise deal with them contrary to the trust, and in spite of the fact that a new Committee was appointed by the District Judge in 1899, as described above, he has continued to abuse his position.
8. The case for the defendant appellant is that one of his ancestors, Syed Hassan Ali, originally brought the Kadam Rasool to Jobra, and that a later ancestor named Syed Golam Taha, removed it to its present site. The then ruler of Orissa, Nawab Shojauddin Mahomed Khan, then made a grant of 105 batis and odd of land to Syed Golam Taha and his heirs for their support, for their offering flowers to the Kadam Rasool, for fateha, for repairs and for other similar purposes; and that since then Golam Taha and his heirs have been in possession as proprietors. The office of Daroga has been hereditary, and neither the ruling power nor any other authority has power to appoint or to dismiss the Daroga. The defendant in his written statements admits that a Committee was appointed in 1864, but contends that the appointment was ultra vires on the ground that the institution of Kadam Rasool with the endowed properties attached to it had never vested in Government at the time of the passing of Act XX of 1863, as contemplated by Section 3 of the Act; and that, under these circumstancs, the permission to institute this suit granted under Section 18 of the Act was illegal. The defendant further gives a total denial in his written statements to the different acts of misconduct ascribed to him in the plaint.
9. There were eight issues framed by the lower Court, but we find it stated in the judgment of that Court that 'when the case had come to the stage of argument in June last (1903), the pleader for the defence proposed to rest his case on the issues of law alone, chiefly issue No. 2, which runs thus:--Does Act XX of 1863 apply to the Kadam Rasool endowment? And the issues of fact were not argued at all.'
10. The District Judge has found as a matter of law that Act XX of 1863 has full application to this endowment. He has also found that the appellant has committed extensive misfeasance and breach of trust in respect of the properties by improper alienation of lands, by depriving servants of their jagir lands, by utilizing the stones of the enclosure walls for building his private residence, and by misappropriating monies raised by subscription for repairs to the mosque, and also that he has grossly neglected his other duties.
11. One of the objections raised before us to the competency of this suit has been that the permission was accorded to Ramjan Khan, Syed Manzar Ali, and Sultan Khan, but that the suit was instituted by Ramjan Khan, Abdul Wahed and Mithoo Mea; Syed Manzar Ali and Sultan Khan having been allowed to withdraw, and that hence out of the three plaintiffs two were persons to whom leave had not been accorded, and that the present suit is therefore defective.
12. We find, however, that Ramjan Khan took the leading part in the suit, that he appears to be the first plaintiff, and that, in the sanction accorded under Section 18 of the Act, his name appears as one of the petitioners. We may observe that the objection now raised is taken for the first time in this Court, that no issue was framed with regard to it, and there is nothing in the judgment of the lower Court to show that, at any stage of the case, any such objection was ever taken; on the contrary, the defendant's pleader himself in the lower Court proposed to rest his case chiefly on issue No. 2. The District Judge was the officer who gave the leave under Section 18 of the Act, and, as he also entertained the suit, he must be taken to have thereby tacitly given permission to the two new men to become plaintiffs along with Ramjan Khan. Besides, Section 14 of the Act lays down 'any person or persons interested in any mosque &c.;, &c.;, may, without joining as plaintiff with other person interested therein, sue before the Civil Court, the trustee, manager &c.;, &c.;' From this, it appears to us that Ramjan Khan alone could have brought the present suit, and, as Section 18 of the Act thereby requires that an application should be made for leave to institute a suit before a suit can be instituted, we hold that the provisions of the law have been completely satisfied.
13. The next point raised before us by the appellant's counsel is that Section 3 of the Act has no application inasmuch as the endowed properties had not vested in Government before the passing of the Act in question, and that the proper course for the plaintiffs to have followed was to have instituted a suit under Section 539, Code of Civil Procedure, after taking the consent in writing of the Advocate-General as required by that Section.
14. The preamble to Act XX of 1863 very dearly defines the objects of the Act, that it was enacted for the purpose of relieving Boards of Revenue and Local Agents from the duties imposed on them by Reg. XIX of 1810, and Section 3 of the Act lays down that the provisions of this Act will apply to all cases ' of every mosque, temple or other religious establishment to which the provisions of either of the Regulations specified in the preamble to this Act are applicable and the nomination of the trustee, manager or Superintendent whereof at the time of the passing of this Act is vested in or may be exercised by the Government or any public officer; or in which the nomination of such trustee, manager or superintendent shall be subject to the confirmation of the Government or any public officer, the Local Government shall as soon as possible after the passing of this Act make special provisions as hereinafter provided.' From this, it is clear that what Section 3 requires is that, in order that any action may be taken under this Act, it is necessary that the provisions of the Regulations specified in the preamble should be applicable to the endowment which is the subject of the suit, and that the nomination of trustees &c.; should either be vested in or be exerciseable by the Government at the time of the passing of the Act.
15. There is no doubt, and it is admitted, that, in 1864, the Local Government appointed a Committee of three members under Section 7 of the Act, and this appointment is a clear indication of the fact that this endowment was under the management of the Board of Revenue before the passing of the Act of 1863; and in the case of Bibee Kuneez Fatima v. Bibee Saheba Jan (1867) 8 W.R. 313, it was held that the fact that an endowment had come under the management of the Board of Revenue was sufficient to characterise it as a public endowment and as one falling within the operations of this Act. In the case of Sheoratan Kunwari v. Ram Pargash (1886) I.L.R. 18 All. 227, following the decisions of this Court in the cases of Ganes Sing v. Ram Gopal Sing (1870) 5 B.L.R. App. 55 and Dhurrum Singh v. Kissen Singh (1881) I.L.R. 7 Calc. 767 it was held that the operation of Section 14 of Act XX of 1863 extends even to the endowments which come into existence after the passing of the Act. The Local Government by appointing a Committee in 1864 openly asserted its rights of control under the Act, and this right, as it would appear from the judgment of the Lower Court, was never questioned by the appellant. Our conclusion, therefore, is that all endowments which were affected by Reg. XIX of 1810, whether they come under the Board of Revenue or not, fall within the purview of Act XX of 1863. And this view has also been taken by the Madras High Court in the case of Saturluri Seetaramanuja Charyulu v. Nanduri Seetapati (1902) I.L.R. 26 Mad. 166.
16. The case for the defendant appellant, however, is that this endowment is a private endowment and, as such, it is not affected by Act XX of 1863, and in support of this view, our attention has been drawn to the word madad mash which occurs in the firmans exhibited in this case. It has been argued that madad mash means maintenance and support, and that the use of the words indicates that the endowments were made to Syed Golam Taha for his and his heirs' support and maintenance. The expression madad mash has been defined in Mitra's Tagore Law Lectures (1885) on the Land Law of Bengal as follows:--'Madad mash grants are not uncommon in Bengal. They were made for religious purposes, and as such, are inalienable. The grants were in perpetuity. The distinction between madad mash and grants of a similar nature known by other names is very little except as to origin and use of the lands; but whatever the origin, the Regulations of 1793 have done away with all distinctions.' From the different firmans appearing in the evidence, it appears that the grants of endowments therein mentioned were for the purpose among others of the performance of the fateha of the five holy personages (Mahomed, Ali, Fatema, Hassan and Hossain), and also as madad mash, and for meeting the expenses on account of travelling and of wayfarers (vide Ex. B). Again Ex. C, F, G, and H, show that the dedication was as Nasar Dargah and for the performance of fateha subject to the condition of discharging the duties of Kazi and of defraying the expenses of the mosque, gardens, house &c.;
17. The defendant appellant, Syed Mahomed Athar, was examined in the lower Court as a witness for the plaintiffs. In his evidence, he said that the items of expenditure included monies spent on the fateha, on the ceremony of Burah Wafat Fateha (Prophet Fateha). He also said that there was a mosque attached to the institution and that some money used to be spent during the days of the Mohurrum, that the Kadam Rasool was a public place, and that anybody could go there without asking his permission. All these circumstances go to prove that the institution of Kadam Rasool with the properties attached to it is a religious and public endowment. This being so, all the members of the Mahomedan community and specially those residing in Cuttack have a sufficient interest in the institution of the suit within the meaning of the Act to entitle them to institute the suit.
18. It was further contended, that the office of Daroga is hereditary, and that, therefore, the present appellant who has succeeded to the office by inheritance cannot be removed from it. We think that, for the operation of this Act, it is immaterial whether the office of the trustee or manager is hereditary or not and that, in either case, a trustee or manager, who misconducts himself and acts contrary to the object of the endowment, can be dealt with under the provisions of this Act. In support of this view, the lower Court has relied upon the authority of the case of Fakurudin Sahib v. Ackeni Sahib (1880) I.L.R. 2 Mad. 197, wherein it has been held that Section 14 of the Act empowers the Civil Court to remove a trustee for misfeasance, breach of trust, and neglect of duty, and it makes no distinction between trustees whether hereditary or selected. In the course of argument much stress has been laid on the report of the Mahomedan Law Officer, Ex. H, dated 16th March 1857. That Officer, however, appears to us to have gone beyond the question which was referred to him for enquiry and report It appears, that during the minority of the present appellant, his guardian carried on the management of the endowed property, and that, on a complaint to the authorities of the time against the conduct of this guardian, the Mahomedan Law Officer was asked to enquire and report. In that enquiry, it was not necessary for this Officer to discuss whether the office of Daroga was hereditary or not, nor what was the title of the Daroga to the endowed properties. We are of opinion that the report of the Mahomedan Law Officer is no evidence of title at all. It is not a judgment, and, at best, this report is an expression of his opinion on the question whether the office of Daroga was hereditary, and on his title to the endowed properties. It is possible that since the time when the Kadam Rasool was located at Jobra, the office of the Daroga may have been confined to the family of the original founder; but that, in our opinion, is no ground to convert a public endowed property into one of a private nature. We also agree with the Judges of the Madras High Court in the view taken by them in the case of Fakurudin Sahib v. Ackeni Sahib (1880) I.L.R. 2 Mad. 197 quoted above.
19. For the above reasons, we hold that the endowment of the property from its very beginning has been of a public and religious nature, and that, as such, the provisions of Act XX of 1863 fully apply to it, and also that the present Daroga (appellant) can be removed from his office by the District Court if he is found to have acted contrary to the trust or to have abused it.
20. The next question to be decided is, whether the present Daroga has been proved to have been guilty of acts that would justify the Civil Court to interfere either to remove him altogether or lay on him such stringent conditions as would save the property from any further spoliation. Although it is not necessary for us to enter into this question at length, as the defendant through his pleader proposed to the lower Court to abide by its decision chiefly on issue No. 2 still we have gone through the evidence and we find that he has been diverting the income of the endowed properties to his own private use and has most grossly neglected the performance of ceremonies required to be observed before.
21. We think, as we have stated, that the District Judge has, under the circumstances, erred in his order rather on the side of leniency. In consideration of the fact that the office of Daroga has all along been held by members of the family of the defendant, the Judge has not, as he might have, removed the defendant from office altogether; but in order to ensure better management of the endowment in the future, he has ordered the defendant to execute within two months from the date of the order a bond with two sureties in the sum of Rs. 1,500 each, undertaken to render within 6 months accounts up to date, of all receipts and disbursements, and has directed that, on his failure to carry out this order, he will stand dismissed. The legality of this order has also been questioned by the appellant. We agree, however, with the decision of the Madras High Court in the case of Natesa v. Ganapati (1890) I.L.R. 14 Mad. 103, and hold that the order is legal.
22. It has been pointed out to us that the order for accounts imposes on the defendant a burden which it will be very difficult, if not impossible, for him to discharge, as it requires the preparation of accounts covering a period of fifty years. In our opinion, the objection is not without weight. We find that the defendant was a minor when he was appointed as Daroga, and he cannot reasonably be expected to furnish detailed accounts for the period of his minority. In upholding the decree, we, therefore, amend it by ordering the appellant to render to the Committee a general statement of account from the date when he attained majority up to the year 1897, that is, three years before the institution of the suit. In this statement, he must set out the endowed properties which came into his hands when he assumed charge, and describe how they have been dealt with since, and specify the properties at present in his possession. From 1897 and up to the date of this decree, he must furnish a detailed statement of receipts and disbursements. On his failure to give the bond with securities within two months and to comply with this order directing him to render accounts within 6 months, he will be dismissed from his office as Daroga. The respondent is, however, entitled to his costs.