Hugh Walmsley, J.
1. This appeal is directed against a decree which purports to have been passed under the provisions of the Religious Endowments Act (XX of 1863).
2. In the City of Murshidabad there is a wakf estate known as Basant Ali Khan's endowment estate. Under the Act, the' management of this endowment is vested in a manager under the supervision of a Committee of three members. At the beginning of the present year the three members were Syed Faizuddin Ali, Syed Abdul Hussain and Mirza Yahia Sheraji. On January 23rd, however, Syed Abdul Hussain died, and a vacancy was created on the Committee. Under Section 10 of the Act it was the duty of the two remaining members to take steps to elect a new member within three months of the vacancy occurring. One of the members appears to have issued notice about an election, but on an application by some of the interested persons the learned Judge held that the notice must be issued by both members and that a notice by one alone was not valid. No election, therefore, was held on that notice. Then two interested persons Khurshed Mirza and Sarfaraz Ali Begg filed a plaint, with the District Judge's permission, against the two remaining members as defendants, and in this plaint the prayers were (a) that the Court should direct the defendants to take proper steps for the holding of an election,' and fix a date within which the notices should be issued, and (b) that the Court should remove one or both of the members in case of default. Mirza Yahia Sheraji professed that he was anxious to comply with the rules but that he was thwarted by his colleague. Syed Faizuddin said that an election could not be held until the register of electors had been revised.
3. The learned Judge heard arguments and on March 28th, he delivered judgment: he held that the plaintiffs had a cause of action, that there was nothing objectionable in the form of the suit, that the permission to sue had been given in accordance with law, and that the register of electors could not be revised until after the vacancy had been filled up and he ordered the defendants jointly to issue proper notices for an election by April 22nd.
4. No appeal was preferred against this decree and it was in fact obeyed. Notices were issued by the defendants fixing April 18th as the date of the election, and an election was held on that date. There were two candidates, and one of them, Mahomed Yusuf Saheb, received 27 votes and the other only two. The result was reported to the Judge by Mirza Yahia Sheraji who pointed out that his colleague had not attended the election.
5. Then on April 27th Sayed Faizuddin presented a petition to the Judge objecting to the validity of the election. It was ordered that the petition should be considered at the final hearing of the case. On May 2nd the learned Judge heard arguments, and on the 4th he delivered judgment: he held that the register of electors was incomplete and defective, that an election held under the supervision of only one member of the Committee was invalid and that, the plaintiffs had failed to prove the defendants guilty of any misconduct, and on these findings he dismissed the suit with costs to the defendant Syed Faizuddin. This is the judgment which is attacked in the appeal.
6. Other proceedings followed. Two new 'interested persons' Syed Kader Ali and Syed Ishfaq Ali on May 13th moved the Judge to appoint some one to fill the vacancy. Notices of this application were served on Sayed Faizuddin and Mirza Yahia Sheraji, On June 13th the latter objected that Mahomed Yusuf Saheb had been duly elected, while Kader Ali and Sarfaraz Ali asked for an adjournment. The learned Judge, however on the same day, appointed Syed Mehedi Ali to be a member of the Committee in place of the deceased Syed Abdul Hossain. This is the order which forms the subject of a rule issued by us at the instance of Khurshed Mirza and Mirza Yahia Sheraji. To this narrative of the facts, I must add one more detail, and this that Mahomed Yusuf Saheb was not made a party to the proceedings after the election held on April 18th.
7. The contention of the plaintiffs is that their suit was decided on March 28th when the learned Judge directed the defendants to issue notices. This contention seems to me to admit of no answer. The plaintiffs' cause of action was default on the part of the surviving members to take steps to hold an election, and when the defendants were ordered to issue notices by April 22nd the plaintiffs had obtained ail that they sought, and the suit was at an end. The cause of action with which the Judge was dealing in his second judgment was something that had happened after the delivery of his first judgment. Moreover the person who considered himself aggrieved was not either of the plaintiffs but one of the defendants, and the proceedings were really carried on at his instance, and at this stage of the case Mahomed Yusuf Saheb was not made a party although the validity of his election was being discussed.
8. For these reasons I hold that the learned Judge's decision of May 4th was wrong: he should have refused to entertain Syed Faizuddin's petition on the ground that the suit was at an end. The appeal is, therefore, allowed and the judgment and decree of May 4th are set aside.
9. It follows as a corollary that the Rule must be made absolute for with the judgment of May 4th set aside there is no vacancy for the Judge to till, until the election of April 18th is cancelled by proceedings taken in accordance with law.
10. There remains the question of costs. I think it will be enough to order Faizuddin to bear the costs of the plaintiffs in the suit and in the appeal, in other respects leaving the parties to pay their own costs.
11. The hearing fee in the appeal is fixed at three gold mohurs.
12. I agree.