Tottenham and Ameer Ali, JJ.
1. The Advocate-General, who appeared for the appellants, contended in the first place that the plaintiff's have no right to bring this suit in respect of the Moulabagh endowment, and. that;he suit as regards both the endowments was bad, inasmuch as leave under Section 30 of the Civil Procedure Code was not obtained. He further contended that Section 539, under which the consent of the Advocate-General had been obtained in respect of both the endowments, did not apply to a contentious proceeding, and in support of the last contention he has relied upon the reasoning given in the judgment of Ayyar, J., in the case of Subbaya v. Krishna I.L.R. 14 Mad. 186, who dissented from the other Judges. No doubt, as pointed out by Ayyar, J., the wording of Section 539 is in many respects analogous to that of the English Act known as Lord Romilly's Act (52 Geo. III., Cap. 101). But it must be remembered that in Lord Romilly's Act a special and so-called summary proceeding by a petition is provided for, which has been held not to be applicable to contentious proceedings. In England there has always existed a proceeding by information of the Attorney-General, which proceeding is left untouched by Lord Romilly's Act. There is no reason to suppose that the Indian Legislature under Section 539 intended to provide for non-contentious cases leaving contentious cases wholly unprovided for. It is clear that were we to restrict Section 539 to non-contentious cases, a large number of trusts of public, charitable and religious nature not covered by Act XX of 1863 would be left wholly unprovided for. We have therefore no reason to differ from what was held by Best and Weir, JJ., in the case of Subbaya v. Krishna I.L.R. 14 Mad. 186, and are of opinion in that Section 539 is not so restricted as is contended for by the Advocate-General. Nor do we think that the present suit is bad on the ground that the provisions of Section 30 of Civil Procedure Code have not been complied with. Since the judgment in the case of Jan Ali v. Ram Nath Mundul I.L.R. 8 Cal. 32, and the case of Lutifunnissa Bibi v. Nazirun Bibi I.L.R. 1 Cal. 33, there has been a material alteration effected in the section, and we think that the reasoning in the Allahabad cases I.L.R. 5 All. 497 : I.L.R. 7 All. 178, showing that the right of worship of each worshipper in a Mahomedan mosque or religious endowment is an independent right wholly irrespective of the right of the other worshippers, is correct. We think that, having regard to the cases last referred to and the general provisions of the Mahomedan law, it is difficult to say that the present suit is bad owing to the plaintiffs not having joined in the suit the other worshippers, or not having obtained leave in accordance with the provisions of Section 30.
2. The question remains--Have the plaintiffs any such interest in the Moulabagh endowment as would entitle them to join in the present action a claim in respect of those properties
3. Mr. Hill contended that, under the terms of the wakfnama creating the endowment, the succession to the tauliat of the Moulabagh wakf follows that of the Sasseram endowment : in other words, to use the language of the District Judge, it was a subsidiary endowment to the principal one at Sasseram, and that being so, the possibility of either of the plaintiffs being appointed to the office of sajjadanashin of the khankah at Sasseram, gives them a right to maintain this suit.
4. There are two answers to this argument equally fatal to the plaintiffs' claim in respect of these properties. First, the mere possibility of an interest or the mere possibility of succession does not and cannot give a right to the plaintiffs to sue for those properties under Section 539. As we read the section, the interest must be an existing one, and not a mere contingency. Secondly, it is by no means clear from the terms of the deed of endowment that the succession to the tauliat of Moulabagh follows the succession to the office of the sajjadanashin at Sasseram. The words in the deed are as follow:
The said mutwali and his heirs and those standing in his place should themselves or by deputation of some trustworthy person perform the aforesaid duties according to their wishes, and appropriate the produce thereof for the expenses mentioned above, and in the administration and management thereof they should act according to my wishes, and keeping the attainment of eternal reward in view, they should discharge all duties, and leave none of the instructions unattended to, so that, by the continuance of these charitable acts the good reward may be attained. Therefore we give in writing these few lines in the form of a deed of endowment (wakfnama) and deed of trust (tauliatnama), that it may be of service when necessary.
5. Had the succession been given to the successive sajjadanashins of Sasseram the word 'warisan' would seem hardly necessary. The use of the word 'warisan' in the deed would lead to the inference that the donors did not contemplate a succession exclusively confined to the mode of succession followed in the Sasseram endowment. It might so happen that any one of the sajjadanashins might die leaving only a female heir, who would, in consequence of her sex, be disqualified to hold the office of sajjadanashin, and yet be perfectly competent to hold the office of mutwalli of the Moulabagh endowment.
6. Again, from the nature of the ceremonies provided for by the wakfnama of 1833, it would seem that the Moulabagh endowment is a Shiah rather than a Sunni institution, and it may so happen that any one of the sajjadanashins of the khankah, which in the main is a Sunni institution, might not feel inclined to carry out to the full extent the ceremonies usually performed in a Shiah institution. This circumstance also indicates the difficulty of regarding the Sasseram and Moulabagh endowments as so intimately connected as to give to any person interested in one an interest in the other. We think that the plaintiffs have not succeeded in showing that they possess any interest in the Moulabagh endowment such as would entitle them to join in this action a claim as against it. The suit, therefore, in so far as it refers to the Moulabagh properties, must stand dismissed, and consequently we express no opinion on the merits of the various allegations made, in the course of the trial, regarding the management of that trust.
7. We now come to the Sasseram endowment. As promised already, the endowment owes its origin virtually of the grant made by the Emperor Farrukhsyar in 1817.
8. In the year 1836 the British Government brought a suit for the resumption and assessment of the Farrukhsyari properties, which was dismissed in June 1836. About the same time another suit was brought for the resumption of the Alam Shahi properties. The Government was successful in this suit, and a decree was made in its favour on the 27th of February 1837. At this time Shah Kabiruddin was the sajjadanashin of the endowment, and accordingly on the 24th of November 1840 a letter was written by the Secretary to the Government of Bengal to the Secretary to the Board of Revenue regarding the disposal of the resumed lands. Paragraph 3 of that letter is to the effect that the Government waives its right under the resumption decree to the resumed lands, and the lands are allowed to remain as before attached to the endowment.
9. On the 22nd February 1842 there was a further communication from the Government of Bengal to the Board of Revenue in respect of this endowment. Paragraphs 4 and 5 of that letter are important and have a material bearing on the present case. They are as follows:
His Lordship agrees with the majority of the Board, upon a full reconsideration of the case and of all the documents submitted, that this institution is subject to the control of the local agents under the provisions of Regulation XIX of 1810, and that it is consequently within the power of Government to institute such enquiries and to frame such regulations as it may deem necessary for the due administration of its funds,' and accordingly it is pleased to direct that no time be lost in carrying the orders of the 24th November 1840 into effect.
As a supplement to those orders His Lordship further directs that those portions of the lands which appertain to the valid grants unresumed by the resumption Courts be assigned to the sajjadanashin, so long as he may be allowed to continue in charge of the wakf, as his personal remuneration for the duties performed. No enquiry need be made at present into the extent and assets of these lands, and no account need be rendered by the sajjadanashin of the income derived from them or to the mode in which that is expended. But a distinct list of the villages so assigned must be kept on record.
10. Apparently from that time until his death Kabiruddin managed the properties in accordance with the views expressed in the letter of February 1842. Apparently also the Government drew a broad line of distinction between the two sets of properties, and that distinction was clearly recognized in the judgment of the First Court in the suit of 1884 as well as in the judgment of the High Court on appeal.
11. Mr. Hill contended that the Government had no power to make that distinction or to lay down any such rule as is contained in paragraph 4 of that letter, because, he said, not having resumed the properties covered by the Farrukhsyari grant, it had no power to widen or vary the purposes pointed out in the original trust, and that the defendant was guilty of breach of trust in not submitting any account of the income accruing from the Farrukhsyari properties and in taking what remained after the performance of the purely religious trusts.
12. From the year 1842 up to the year 1875, when the Government ousted the defendant, no question seems to have been raised as to the competency of the Government to lay down the rule in question. The High Court followed that rule, and in directing the restoration of the properties to the defendant, gave their directions in accordance therewith.
It would thus appear, 'said the learned Judges, 'that in 1842 the sajjadanashin, Shah Kabiruddin Ahmed had the management of the khankah properties subject, so far as the resumed properties were concerned, to the control of the local agents and the Board under Regulation XIX of 1810, but as regards the unresumed properties he was allowed to enjoy the income thereof without rendering accounts.' And again 'on the 2nd March 1849, on the recommendation of the Board, the control of the Local Authorities on the part of Government over the Sasseram endowment was withdrawn : Government at the same time reserved the right of interference at any future time in case of abuse or misappropriation of the trust. The whole of the endowment property appears, then, to have been made over to the sajjadanashin and to have remained in his uncontrolled possession for 15 or 16 years.
And in page 164 of the paper-book the following words are found:
From these papers it would appear that the plaintiff only submitted accounts with reference to the property in Schedule B and that he all along treated the other properties as they were ordered to be treated under paragraph 4 of Government letter, dated 22nd February 1842.
13. Matters thus continued until 1875, when the defendant was ousted from possession. It seems to us too late to consider whether the Government had or had not the power to lay down a rule which the High Court stated and adopted in so many words in their judgment of the year 1886. Even had the Government acted ultra vires, the long course of practice would, in our opinion, be a sufficient justification on the part of the defendant in not rendering any account in respect of the unexpended portion of the income arising from the Farrukhsyari properties.
14. The defendant is charged in the plaint with having misappropriated the Rs. 20,000 paid to him by Government; but, as will be seen later, he never received any portion of this sum. Nor is the allegation correct that he appointed his son as manager on a salary of Rs. 50 from the Alam Shahi properties to the detriment of the trust, for, as a matter of fact, the appointment was made by the local agents.
15. But it has been strongly urged by the learned Counsel for the plaintiff's, that, as mutwalli, the defendant was not entitled to more than one-tenth of the income, and that as he has admittedly taken more, he is guilty of a breach of trust. And this view has been accepted and endorsed by the Judge in the Court below; and it forms one of the grounds upon which he has directed the defendant's removal from his office of sajjadanashin. In our opinion, even had the rule of one-tenth relied upon by the plaintiffs referred to an endowment of the kind in question, the rule laid down by Government, affirmed by the High Court, and acted upon for a number of years, would have furnished a sufficient defence against removal on the ground of breach of trust. It may furnish a ground for admonition but not for dismissal.
16. The rule of the Mahomedan Law that the remuneration of a mutwalli should not exceed one-tenth of the income, does not seem to us to have been rightly apprehended in the Court below. It relates, as we understand it, to such managers or mutwallis as have no beneficial interest in the usufruct of the endowed properties or are strangers to the endowment.
17. For example, where a wakf is created and no mutwalli is appointed or no provision is made for his allowance, the Kazi is directed, in making the appointment or in fixing the allowance, not to allow the stipend to exceed one-tenth of the rents and profits of the wakf properties. But this provision does not and cannot apply, from the nature of the institution and the position of the sajjadanashin in relation to it, to the endowment in dispute. In considering this question, we have to bear in mind the character of the person to whom the grant was made, the nature of the institution of which he was the founder, and the rites and ceremonies connected therewith.
18. Richardson defines a khankah, sometimes also called a khanjah, to mean a monastery or religious structure built for the Eastern Sufis, or dervishes. Meninski defines it thus: 'domus propter Deum extructa in usum sophorum aut religiosorum, coenobium,' And in the Burhan (a Persian dictionary of great repute,) and the Majalis-ul-Aarifin (a work describing the tenets of the Sufis) it is defined as a place where dervishes and other seekers after truth congregate for religious instruction and devotional exercises. These khankahs exist in all parts of India and, so far as can be gathered from the works relating to them, have come into existence under the following circumstances : A dervish or a Sufi of particular sanctity has settled in some locality; so long as he has not attained sufficient importance, his place of abode is called a takia or astana, according to his position in public estimation. His pious life and teachings attract public notice, disciples gather round him, and a place is constructed for their lodgment, and the humble takia grows into a khankah. After his death his grave becomes a shrine and an object of pilgrimage, not only for his disciples, but for people of distant parts, both Hindus and Mahomedans. The process of development indicated here is observable in the very khankah which forms the subject of dispute in the present case. As has been pointed out in the case of Piran Bibi v. Abdul Karim I.L.R. 19 Cal. 203, these dervishes professed esoteric doctrines and distinct systems of initiation. They are mostly Sufis or Eastern mystics. Some of them were followers of Mian Roushan Bayezid, who flourished about the time of the Emperor Akbar, and who had founded an independent esoteric brotherhood, in many respects differing from the Sufis, in which she Chief or Pir occupied a peculiarly distinctive position. So long as he lived the founder himself was the sajjadanashin, 'the one seated 6n the prayer mat;' in other words, the Chief or Superior. After his death some one among his heirs, indicated by him as qualified to initiate the murids into the mysteries of the tarikat or holy path, succeeds him in his; office of sajjadanashin. He is not only a mutwalli but also a spiritual preceptor, and in him is supposed to continue the spiritual line (silsilla). There are abundant indications on this record that this is exactly the case with the khankah of Sasseram. Shah Kabir was, at his title shows, a dervish, and from the evidence of the defendant it is clear that the doctrines supposed to be inculcated by these men are, as he calls it, of tassawuf or sufuism. We have dwelt so far on the character of the institution, in order to show how materially it is connected with the personality of the sajjadanashin or Superior. He is an integral part of the institution and the central figure, so to speak, therein. Its existence depends on his personality. This is evident from the very terms of the grant in question--
That one lakh of dams, which is tantamount to Rs. 1,197 of Imperial coin, shall remain a grant from Purgana Haveli, Sasseram, in the Province of Behar for the expenses of the khankah of Sheik Kahir Dervish, from the season of the rabi 'Yuntil' (year of horse) as inam, as per specification given. It is required that the highborn, noble and illustrious the noble amirs, the clerks of affairs;, the jagirdars and kuraris of present and future times, shall leave those dams to be enjoyed by him generation after generation and descendant after descendant, and consider it in every respect and by all means us an item of the remission and exemption.
19. The grant no doubt is to the khankah, but the enjoyment is given to the dervish and his descendants, generation after generation. The works they have to perform, and the disciples they have to maintain, are all part and parcel of their own selves. The Urs, the Fatehas, etc., are of their deceased ancestors. It was this view which was practically enunciated by the Government in its letter of the year 1842, and substantially reiterated by the High Court in its judgment. Again, from the nature of things it would be impossible to spend more than a certain amount for the various religious purposes which, admittedly, ought to be performed in the khankah, the imambara and the masjid, or in respect of the students who live there. There is no provision for accumulation, and in the absence of any sufficient evidence to show that the rites and ceremonies have not been properly performed, there is nothing in the Mahomedan Law which warrants our saying that in taking the balance of the income for his maintenance and the maintenance of his family and relatives, the defendant committed a breach of trust such as would justify his removal.
20. It was stated that the defendant starved the religious trusts in order to live in affluence. The fact of his living in affluence seems to us beside the question. If the defendant wilfully neglected to perform the duties which were incumbent on him, and misappropriated the amounts which ought to have been spent in the performance of those ceremonies; if he starved the students or turned any of them out for the purpose of increasing his own allowance, in that case no doubt the question of malversation would arise. But, as we said before, though there is a general allegation that the Urs and Fatehas, etc., are not performed, and other religious duties are neglected, the evidence on this point is meagre, unsatisfactory and unreliable. No respectable Mahomedan of Sasseram, no member of the family, who undoubtedly were in a position to speak to the performance or non-performance of these ceremonies, has been called. The two men who have spoken to the non-performance of the Urs have contradicted themselves so materially, and their evidence is so vague, that little reliance can be placed upon it. The plaintiff, who was exceptionally in a position to depose to these facts, has carefully abstained from giving his evidence. On the other hand, there are a number of witnesses who speak to the due performance of those religious ceremonies. From the Farrukhsyari grant, a few students who learn by rote the Koran are maintained. This appears to have been the case for some years past. Other branches of learning are taught in the inadrassa, which is supported with the income of the Alam Shahi properties, None of the Koran readers are called to say that they are starved, and there is no evidence that any one of them was wilfully turned out with the object of appropriating so much of the money as used to be spent on him. Taking into consideration the nature of the institution, the character of the grant, and the sajjadanashin's position, we are clearly of opinion that the rule of one-tenth does not apply to this endowment; and having regard to the total absence of any reliable or satisfactory evidence that any of the religious ceremonies, have been neglected or 'starved,' it is impossible for us to say that the defendant was not justified in appropriating for his own maintenance and that of his family the balance of the income of the Farrukhsyari properties. When the Government was in possession of these properties an allowance of Rs. 100 seems to have been made for the performance of these ceremonies. There is no evidence that the sum spent by the defendant, which is considerably more, is insufficient. So far, therefore, as this particular charge is concerned, we must hold against the plaintiff.
21. (After dealing with the evidence on the other charges made against the defendant, and finding they were not proved, the judgment continued):
Therefore, so far as the specific charges attempted to be established to make a case for the removal of the trustee are concerned, they, in our opinion, have failed signally. Even if this Court was in a position to remove the defendant from his position as sajjadanashin, independently of his secular duties as mutwalli, there does not appear to us to be any evidence tending to show that the lower Court was right in appointing the plaintiff in his place as sajjadanashin. As we have already noticed, the office of sajjadanashin is that of a spiritual preceptor, and as such, no doubt, he is in charge of the properties connected with the institution of which he is the Superior. He has certain spiritual duties to perform. In him the spiritual line of his ancestor, the founder of the institution, is continued. He teaches his murids the doctrines which are supposed to be communicated to the disciples of the saint. Besides knowing the tenets and rules of his religion, he has presumably to know something of those doctrines and the rules of initiation. There is no evidence in this case that the plaintiff is a murid of the present sajjadanashin, or of any other person competent to teach him those doctrines'. There is no evidence that he has any knowledge such as would qualify him to make murids or disciples. Admittedly he has no knowledge of Arabic. No ground is shown in the Lower Court's judgment, or upon the evidence, for holding that the plaintiff is a fit person for the office of sajjadanashin. And his capacity to manage the properties has been discounted by the Judge, as he has associated with him a manager. On the whole, therefore, we think that the plaintiff's case for the removal of the trustee and for his own appointment in the place of the latter has failed, and the suit must therefore be dismissed with costs. * * * * * * *