1. This is an appeal against the judgment and decree of the District. Judge of Dacca, dated the 2nd of January 1909.
2. The present suit was instituted by the plaintiffs, who are seven in number, against Rahim Bux Molla (defendant No. 1) and Abdulla, his son (defendant No. 2), under Section 539 of the old Civil Procedure Code, for the removal of Rahim Bux Molla from the mutwalb'ship of the mosque situated at Begum-bazar in the town of Dacca on the ground that he had otherwise mismanaged the trust properties, and that he was blind and infirm and was under the influence of his son (defendant No. 2), who was a man of bad character. It was further alleged that the defendant No. 1 and before him his father were members of the sect known as Rafa-yadain. The defendant No. 1 has now openly declared himself a Hanafite, and he has done this in consequence of certain resolutions passed at a meeting to remove him from the mutwalliship on the ground of his son's gross misconduct within the precincts of the mosque. This seems to have led to proceedings in the Criminal Courts by which the present defendants and some other Hanafites were bound down to keep the peace and prohibited from interfering with the Rafayadains in their use of the mosque. On the above allegations, the present suit was brought.
3. The defendants deny the allegations generally and allege that the defendant No. 1 was appointed a mutwalli by his father during the tatter's life-time and that his son defendant No. 2 has been helping him in the management of the trust.
4. On the above facts, the parties went to trial on the following issues:
1. Whether the plaintiffs are entitled to Sue?
2. Whether there is any cause of action 'against defendant No. 2?
3. Whether defendant No. 1 is liable to be removed owing to physical unfitness and his mismanagement and misappropriation of the wakf properties?
4. Whether new trustees should be appointed and the properties be vesited in them?
5. What scheme should be framed for the future, including the appointment of trustees, keeping of accounts etc.?
5. The decree passed by the learned District Judge is to the following effect: that
1. The defendant No. 1, Rahim Bux, be removed from the post of mutwalli of the mosque in Begum-bazar and both he and his son, Ahdulla, be prohibited henceforth from interfering with the wakf properties.
2. The future mutwallis hereafter be appointed by the District Judge and take possession of the trust properties, collect the income and manage the trust according to such directions as they may from time to time receive.
3. The mutwalli appointed is to prepare the correct list of the trust properties and keep regular accounts, and publish them in such manner as may be ordered.
4. The income is to be spent on the repairs and maintenance of the buildings, and performance of the worship, and duties connected therewith such as the payment of salaries of the officers and the servants and the supply of the necessaries.
6. The plaintiffs' allegation as to the origin of this wakf is that about 200 years ago, a gentleman of the name of Nawab Kartalah Khan, known in history as Murshid Ali Khan, was its founder. It is alleged that it was the Nawab who erected this mosque and dedicated it to the public for religious purposes, and made a wakf of some immoveable properties mentioned in the schedule annexed to the plaint. The defendant is alleged by the plaintiffs to have satisfactorily managed the properties since his appointment as mutwalli, and that only latterly he has bean mismanaging them.
7. In para. 8 of the plaint, there is a general allegation of the incapacity and unfitness of the mutwalli Rahim Bux, but specific instances are given in para, 9 of the plaint and these allegations are:
1. That the defendants have been misappropriating the income of the wakf properties.
2. That they have been neglecting the mosque altogether.
3. That they have considerably reduced the income of the trust properties by letting out some of them at a considerably low rate of rent, on receipt of large sums of money themselves.
4. That they have sold a stone tablet which was attached to the mosque and misappropriated the sale-proceeds.
5. That the defendant No. 2, with the connivance of his father, defendant No. 1, was guilty of a gross act of misconduct within the enclosure of the mosque.
8. From the evidence on the record, it is clear that the income of the properties attached to the mosque is at present between 25 and 50 rupees a month, and this appears so from the evidence of witnesses on behalf of the plaintiffs.
9. Let us now take seriatim the charges mentioned in para. 9 of the plaint and see how far those charge,? are borne out by the evidence.
10. The first charge relates to the misappropriation of the income of the wakf properties. This charge is attempted to be supported principally by two facts, namely, first that, the defendant No. 1 executed a document-in favour of one Sheikh Khorban, borrowing a sum of Rs. 75 and gave two letters, Exhibits II(A) and II(B), to two of the tenants under the wakf directing them to pay Rs. 2-8 and Rs. 2-12 respectively month by month to Sheikh Khorban as part-payments of the debt secured by a deed, which, however, is not on the record. A trace of that deed is to be found in Exhibit T, which is a registered kabala executed by Sheikh Khorban in favour of Munshi Abdul Ahmed on the 19th October 1905. By this deed (Exhibit I), Sheikh Khorban conveyed his right to realize the sum advanced by him, to Munshi Abdul Ahmed. In this deed, mention is made that the sum of Rs. 75 was lent to the defendants but it does not appear for what purpose this money was borrowed. It may be open to surmise that the money was borrowed for the use of the trust as two tenants under the wakf were required to make monthly payments. Sbeikh Khorban has not been examined in this case. Abdul Ahmed has been examined but he simply proves Exhibit I.
11. Peer Bux, witness No. 3 for the plaintiffs, was, at one time, a servant under Rahim Bux, defendant No. 1, oh a salary of annas eight a month. He says that Rahim Bux had borrowed a sum of Rs. 75 from Khorban, and had asked him to realize the amount from two tenants under the wakf although the money was borrowed for his private purposes. He also says that Rahim Bux took a miras of his homestead, thereby intending to imply that the money was borrowed for that purpose. Rahim Bux, the defendant No. 1, has been examined in this case and he says that the miras was taken not by him but his wife, and witness No. 6 for the plaintiff, who is the writer of the bond, says that the miras patla was executed two years after payment. The money, therefore, could cot have been borrowed to obtain the miras patta. Peer Bux was examined previously as a witness on the 26th of June 1896 in Suit No. 84 of 1896 and in his deposition, he then said:' I used to write the jama-khurch of the plaintiff; (attests Exhibits 2, 3, 4, 5, 6, 7 and 8): whenever any sum was realized, I entered it then and there.' By comparing the above statement with that he now makes, it will be clear that no reliance can be placed on him. He now says: 'They (meaning the Exhibits referred to above) were all written on the same day, as there was a suit with a tenant.' It has been contended that this witness was not questioned in cross-examination as to his previous statement but we find him saying in cross-examination: 'I gave evidence, I forgot if I said I used to keep account for Rahim Bux.' It is clear, therefore, that his attention was directed to his previous statement. 'We are not prepared to accept the evidence of this witness as reliable.
12. The second fact is that it is alleged that the defendant No. 1 sold certain door frames belonging to the wakf properties and misappropriated the price. The witness, who comes forward to prove this fact, is witness No. 6 for the plaintiffs. He says that Rahim Bux, defendant No. 1, sold the door frames. He does not say who was the purchaser and when they were sold. Then, again, we find that with regard to these door frames, not a single question was asked the defendant No. 1 while he was under cross-examination.
13. As to the second charge, i.e., the complaint of neglect in looking after the mosque, we find that, as a matter of fact, owing to the dispute between the two sects, the defendants were ordered under Section 107 of the Criminal Procedure Code to keep the peace for one year. This order was passed on the 4th of July 1907, and the present suit was instituted on the 2nd of February 1908. It is not improbable that the dispute, which had been going on from before the said order, was the real cause of the want of supervision of the needs of the mosque by the defendants. It also appears from the deposition of Alla Buksh Sirkar, witness No. 2 for the plaintiffs, that there was an order, under Section 144 of the Criminal Procedure Code, directing defendant No. 1 not to enter the mosque or to repair it. This may or may not be so, but there can be no doubt, that the impression created by the order passed under Section 107 was that the defendant No. 1 was not to go near the mosque. The proceedings under Section 107 do not appear to have been contested by defendant No. 1 and others; as we find from the above order (Exhibit 6), the accused in that case expressed their willingness to execute personal recognizance to keep the peaca. From the evidence on the record, also it appears that the defendants have been greatly hampered by the disputes in managing the wakf properties properly and looking after the interests of the mosque. It, therefore, seems to us that this charge of neglect on the part of the defendants has not been proved and if there has been any neglect, it was due to the opposition of the members of the Rafayadain class.
14. The third charge is that defendants are responsible for a reduction of the income of the trust properties. Witness No. 1 for the plaintiff is an Honorary Magistrate and he says that the rent of the shops would be 40 or 50 rupees a month and this could be increased and he also says that there, is some land attached to the mosque, about half a bigha, but admits that it could not be utilized. We have already said before that the income of the trust properties is very small and it is threfore, not surprising that the shops attached to the wakf cannot be kept in good repair owing to the smallness of the income. It is proved by the evidence of witness No. 2 for the plaintiff that subscriptions had to be raised for repairs. We are, therefore, of opinion not that the income has bean reduced through any neglect on the part of the defendants but the income could not be raised owing to their inability to execute repairs in consequence of want of funds.
15. As to the fourth charge regarding the removal of the stone tablet, there is scarcely any evidence to support it and the finding of the lower Court is to the following effect: 'The stone tablet showing the origin of the foundation and the list of properties comprising the endowment has been removed. Some of the witnesses saw it a few years ago, and it appeared to me when I saw the spot that some tablet had formerly been attached over the main entrance. It is admitted some portion of the original endowment has been lost but it is not clear who is to blame for it on this account. It is true proper steps were taken to preserve what is left.' We have also gone through the record and find that the charge of removal and sale of stone tablet by the defendant is not proved.
16. The fifth and the last charge is that the defendant No. 2, with the connivance of defendant No. 1, introduced a prostitute into the precincts of the mosque. The evidence on this point is very conflicting as to the place where the prostitute was taken. It is not probable that a blind old man of about 80 years of age would connive at such misconduct on the part of his son. Besides, there is no evidence that if the defendant No. 2 was guilty of this misconduct, his father knew it. We think, therefore, that this charge is not proved. As, however, in a certain meeting of the Muhammadans, the son was found to be a man of bad conduct, his father defendant No. 1 should not allow him to take any part in the management of the trust. It seems to us that the real origin of the dissatisfaction with the defendant No 1 was that though originally he was a member of the Rafayadain sect, he suddenly renounced that sect and became a Hanafite, the members of the other sect who had been using the mosque took offence and wanted to remove him from the office of mutwalli. The grounds put forward, were that he was blind, infirm and old and that his son, defendant No. 2, had taken advantage of the blindness of his father, and had mismanaged the properties of the wakf.
17. On behalf of the respondents, it has been contended further that the defendant No. 1 is not keeping proper accounts now of the funds of the wakf, though he did so in previous years and it is argued that this is in itself a sufficient reason for removal, The learned Counsel, who has argued this point before us, is, no doubt, right that ordinarily it is one of the essential and most important duties of a trustee to keep a proper account of the trust funds in his charge and that his failure to perform this duty would afford good ground for his removal. But it must be remembered that in. the case of this mosque in Begumbazar, the income is very small, the recurring ordinary items of expenditure are few and they swallow up the greater part of the income and that as the defendant No. 1 is unable to write himself, he would have had to incur the additional expense of employing a writer for the purpose of keeping the accounts. This, indeed, seems the reason why the accounts have been discontinued. We have already noticed that the expenses for anything like extensive repairs to the buildings have been met by subscription. For all these reasons, we do not think that in the present case, the omission to keep regular accounts should be taken to be a sufficient ground for the dismissal of defendant No. 1.
18. Lastly, it has not been contended that, the defendant No. 1 having renounced his faith in the tenets of the Rafa-yadain community and the mosque having been previously appropriated for the use of that community, he should be removed from the mutwalliship, The mosque was dedicated by the founder some 200 years ago for public religious purposes. The Hanafites and the Rafa-yadains are both Muhammadans and every member of the two communities has got a right to go to the mosque and offer his prayer in his own way provided he does not disturb the worship or the members of the other community in the mosque. The mere circumstance that the defendant has become a Hanafite, in itself, is not a sufficient cause for his discharge from the office of mutwtllship, if he has not rendered himself liable to be removed by waste or mismanagement of the trust properties. We find that this has not been proved against him and accordingly hold that sufficient cause has not been made out for his removal.
19. It is, however, clear that the defendant No. 1 on account of old age and infirmity is incapable of managing the mosque and its properties without assistance, and that his son defendant No. 2 is not a fit person to assist him in the management. In setting aside the judgment and decree of the lower Court, we direct that the suit, so far as it prays for the dismissal of defendant No 1 from the office of mutwalli, be dismissed. At the same time, we direct that defendant No. 2 be forbidden to interfere any further in the management of the mosque and its property and the defendant No. 1 do, within one month from the return of the record to the lower Court, select a fit and proper person to be approved by the District Judge to assist him in the management of the mosque and its properties and in discharging the duties of mutwalli. As the suit fails in its main object, we direct that the defendant No. 1 do recover his costs from the plaintiffs in this and in the lower Court. Record to be sent down without delay.