Misra and Madaley, JJ.@mdashThe applicants are the trustees of the Husainabad Endowment. They applied to the District Judge, Lucknow, for fixation of their remuneration, but their prayer was refused. The Deputy Commissioner, Lucknow, who is the Adviser to the Provincial Government regarding the Endowment was unnecessarily imp leaded as opposite-party. The lower Court discharged him from the case and granted his costs against the applicants. The trustees have come up in revision. The Deputy Commissioner was again imp leaded as opposite-party, but by our order dated 29rh October, 1945 he was removed and the Advocate General representing the Endowment was brought on the record as opposite-party.
2. The Husainabad Endowment was bounded by Mohammad Ali Shah, the third King of Oudh. In 1838 he built mosque called Husainabad Mubarak. In November 1839 he deposited with the late East India Company at the Residency in Lucknow a sum of rupees 12 lacs, and by a deed of trust, dated 23rd November, 1939, assigned its interest to two specified trustees and an agent with a direction that the income there from and from the offerings and certain shops should be devoted to the payment of pensions to a number of persons and to various religious and charitable purposes including the upkeep of the mosque and the road leading to it. The trustees and the agent were the King''s own servants. Under the deed they were to hold office generation after generation and in the event of the failure of the heirs of any of these persons the British Resident was to elect a substitute from amongst the pensioners. Before his death in May 1842 King Mohammad Ali Shah had deposited a further sum amounting to rupees 24 lacs in the East India Company securities with the Resident. The securities now held by the trust are of the face value of rupees 37,87,500.
3. Certain events which occurred during the outbreak of 1857 necessitated the appointment of new superintendents, namely Nawabs Mohsinuddaula and Mumtazuddaula and an agent Sakhawatullah Khan, and the trust funds were handed over to these persons in 1860. The old trustees, however, questioned the authority of the newly appointed persons, and the Government of India had, therefore, to pass in 1878 what is known as Husainabad Endowment Act (XV of 1878); in order to stabilize statutorily the authority of the new trustees. The object and the reasons which necessitated the enactment were given in the preamble which after setting out the history of the Endowment stated.
And whereas, the said Nawab Mohtinuddaula has recently died but the said deed of gat confers no power to appoint any person to be a Superintendent in his stead ; and whereas, it is doubtful whether the aforesaid appointment of Superintendents and Agent was a regular and valid appointment, and whether there exists any person who can exercise the power of appointment conferred on the Resident of the said deed of gift; and whereas owing to the changes which have happened since the death of the said Mohammad Ali Shah, it is expedient to provide for the management of the said Endowment in manner hereinafter appearing; and whereas it is also expedient to indemnify all persons for anything done before the passing of this Act which might lawfully have been done if the said appointment of the said Nawabs and Sakhawatullah Khan had been valid, it is hereby enacted as follows.
4. The Act consisted of 14 sections. The first section empowered the Local Government to select and to appoint three trustees out of six persons who were to be nominated by the pensioners and the descendants of the that King residing at Lucknow. The subsequent sections provided for tilling up of vacancies, for appointment in default of nominations and for devolution of property etc. As regards management Section 7 laid down that
The trustees for the time being under this Act shall, for the purpose of the Endowment, have the entire management of the property and affair of the Endowment and shall be responsible for the due conduct of step affairs.
In the event of any difference of opinion among the trustees, the decision of the majority of them shall prevail, and such majority may, on behalf of themselves and their co-trustee, execute all such assurances as may be requisite for carrying into effect any lease or other disposition of any property of the Endowment.
5. By Section 8 the trustees were allowed to appoint a Secretary with the previous sanction of the Local Government on a salary of "not less than Rs. 100 per mensem", and Section 9 authorized the Local Government to make the appointment of trustees without nominations in case the pensioners etc, failed to submit the names in accordance with Section 1 Section 10 conferred the power on the Government to dismiss the Secretary, and Section 11, provided that payment to the trustees would discharge the liabilities of third persons to the trust. Section 12 indemnified the trustees thus
The said trustees shall be chargeable only with such monies and securities as they respectively actually receive, and shall not be answerable the one for the other of them, nor for any banker, broker or other person in whose hands any of the property of the Endowment may be placed ; nor for the insufficiency or deficiency of any securities nor otherwise for any loss or misapplication of the said property, unless the same is occasioned by or through their own willful neglect or default and they may reimburse themselves out of the said property all expenses properly inured in or about the execution of their trust.
6. Section 13 conferred on the Government the power to call for accounts and information and Section 14 validated certain past actions of the officers and of other persons.
7. It will be observed that neither the enactment nor the deed of trust on which it was founded referred to remuneration of the trustees. In 1881 the Lieutenant Governor of N.W.P. and Oudh decided to grant Rs. 250 per month the senior trustee, Rs. 225 to second trustee and Rs. 200 to the third as "carriage allowance" which was later designated as "honorarium". The trustees continued to draw these sums monthly till 1941. In that year the Government "were advised that the allowances were contrary to the Act and to the intentions of the founder and were, therefore, illegal. The trustees were thereupon informed towards the end of March 1941 that
taking of salaries including carriage allowance is contrary to Section 12 of the Husainabad Act of 1878 which allows trustees to be reimbursed only their Out of pocket expenses.
8. They accordingly suspended taking the honorarium, and on 17th November, 1942, presented an application to the District Judge asking him (1) to sanction the long established practice of the taking of remuneration and (2) to sanction an increase of 20 per cent in the existing scale from the 1st January, 1943. The maintained that under the Mohammadan Law the Qazi has the power to grant adequate recompense for the trustees'' services upto a maximum of 1/10th of the income of the trust, and since the District Judge represented the Qazi, they invoked his jurisdiction in that capacity. The lower Court, however took the view that Mohammadan Law did not apply, that the trustees were governed by Act XV of 1876 which was self-contained and that Section 12 did not empower them to take any other benefit out of the trust funds except the expenses properly incurred by them in connection with the trust. Accordingly the learned District judge rejected the application. Dissatisfied with the aforesaid order, the trustees have come up in revision.
9. The principal controversy at the bar relates to the question whether it is permissible to sanction anything in the way of remuneration to the trustees in spite of the fact that neither the Act nor the trust deed provides for it. It is conceded on behalf of the Advocate General that under the Mohammadan Law if no provision is made by the founder for the remuneration of a Mutwalli, the principal Court of Civil jurisdiction which exercises the functions of a Qazi in British India may grant a sum not exceeding one-tenth of the income of the trust property for his services. The proposition, we may observe, is supported by the decision in Mohiuddin v. Sayiuddin (1893) 20 Cat. 810. See in this connection also Amir Ali''s Mohammadan Law, Fourth Edition, page 469. We will assume, therefore, that initially the trustees had the right to obtain remuneration under the Mohammadan Law by recourse to the District Judge. The question about which the parties are at variance and which falls to be considered is whether Act XV of 1878 took away that right either expressly or by necessary implication. On this point Section 7 which deals with management is completely silent, and Section 12 when it speaks of the power of the trustees to debit the trust funds in respect of their out of pocket expenses can scarcely be regarded as laying down a prohibition that they should not claim any recompense for the services which they were to render. Rights whether private or public cannot be taken away or hampered by implications from the language employed in a statute unless as observed by Fry, J. in Corporation of Yarmouth v. Summons (1878) 10 Chancery Division 518 at p. 527,
the legislature clearly and distinctly authorize the doing or a thing which is physically inconsistent with the continuance of an existing right.
10. Reference in this connection may be made to a passage in the address of Lord Westbury in Walsh v. The Secretary of State for India (1863) 10 H.L.C. 367 wherein the noble Lord observed as follows
This result follows of necessity consistently with every rule by which these Acts of Parliament ought to be interpreted, especially the rule that they should be so interpreted as in no respect to interfere with are prejudice a clear private right or title unless that private right or title is taken away per directed.
11. The provisions of Section 12 as its language declares were intended amongst other things to indemnify the trustees for debiting the trust funds with monies which they might spend from their own pockets on account of the trust. We must guard against speculating as to the intention of the legislature in respect of remuneration for it is a cardinal rule of interpretation of statutes that we must import neither anything more nor anything less that what the language clearly indicates. The Act is obviously neither self-contained nor exhaustive, since it leaves out clearly matters for which guidance has to be sought elsewhere. Nothing for example is said regarding persons to whom pensions were to be granted or regarding the charitable or religious objects for which monies could be spent. No provision is made about the collection or disposal of the shop- rents or the income from the religious offerings or about the procedure to be followed at the meeting of the trust and so on. These matters were left exactly as they were before, and we conceive that the right of the trustees to obtain fixation of remuneration was left also in tact. Indeed if it was desired that the trustees should act honor airily, such intendment could not have been left to be inferred merely from omission to provide for the remuneration or from the fact that provision was made to enable the trustees to debit the trust funds with monies spent by them from their own pockets. On the principle of interpretation to which we have referred earlier we must decline to extend the statute to meet a case for which provision has clearly and undoubtedly not been made.
12. The duties which the trustees have to discharge entail considerable care and attention. The annual income of the trust, the administration of which the applicants have to superintend, is no less than Rs. 1,80,000. It was in recognition of the work involved that the trustees were granted allowances in 1881 and have continued to draw them for nearly 60 years without objection from any quarter. Obviously we cannot expect the applicants to take a lasting interest in the affairs of the endowment if they are to get nothing for their services. We are clear, therefore, that the amounts which they have been receiving in the past should be continued to them. The claim for enhancement, however, is not justified. The mere fact that Mohammedan Law authorized a maxi mum limit of 1/10th of the income can hardly warrant an increase. The sums mentioned above represent in our judgment a reasonable return for the duties which the applicants have to perform. The temporary rise in prices should not, we feel, be allowed to influence remuneration which is intended to be more or less permanent.
13. Before we close this judgment we ought to add that a preliminary objection to the hearing of the revision application was taken on behalf of the trust. The objection was founded on an assertion that the Qazi under the Mohammedan Law cannot be considered to be subordinate to this Court and the judgment of the District Judge, therefore, cannot be revised by recourse to Section 115, Code of Civil Procedure. There is abundant authority for the proposition that the principal Court of original civil jurisdiction under the British Government in India is vested generally speaking with the powers exercised by the Qazi under the Mohammedan Law vide Harballav Prasad Ghowdhury v. Jagballav Prasad Chowdhury 4 and the cases cited therein. The Court of the District Judge/is subordinate to this Court, and there cannot be any doubt that the applicants at entitled to the benefits of Sectiou 115.
14. The result of what has been said above is that we allow the application, set aside the order of the Court below except in so far as it relates to the costs of the Deputy Commissioner and sanction remuneration according to the practice so for prevailing namely Rs. 250 par month for the senior most trustee, Rs. 225 for the second trustee and Rs. 200 for the third. in the circumstances of the case we pass no orders as to the applicants'' costs.
