1. This is an appeal from a judgment and decree of a Subordinate Judge of Arrah who was specially empowered by Governments to try suits u/s 92, Civil P.C. The suit was brought under this section by ten Mahomedans of Sasaram, with the consent of the Legal Remembrancer (who has been appointed in this province u/s 93 to exercise the powers in question), against Shah Malihuddin Ahmad, Sajjadanashin and mutwalli of the wellknown endowment of the Sasaram Khanqah. The endowment consists principally of two Imperial grants, one of 1717 from the Emperor Farrukh Siyar. and the other of 1762 from the Emperor Shah Alam. The first of these grants was, according to the plaintiffs, appropriated to purely religious purposes, and the second to charitable purpose of a secular character, set out in paras. 7 and 8 (respectively) of the plaint.
2. The plaintiffs charged the defendant with being unfit to discharge and having failed to discharge the duties of Sajjadanashin and mutwalli and being guilty of misappropriation and waste; and they prayed for: (a) his removal from the office of Sajjadanashin-mutwalli; (b) accounts; (c) settling a scheme for the management and administration of the trust properties; (d) the appointment of a fit and proper person as Sajjadanashin and mutwalli, and other reliefs of an incidental character. The defendant by his written statement claimed to be the "real beneficiary" under the grants, and denied the charges of unfitness, misconduct and maladministration made against him.
3. The learned Subordinate Judge has found that the properties belong to the Khanqah, that the Sajjadanashin is entitled to appropriate the balance of the income from the Farrukhsiyari properties after meeting the cost of the religious obligations charged on them, that by his literary attainments and mode of life, the defendant is unfit to be the Sajjadanashin of the Khanqah, that there has been gross mismanagement in the administration of the wakf estate and also misappropriation and breach of trust by the defendant, and that he is therefore liable to be removed, but not until proper steps are taken by the plaintiffs or by some duly qualified descendant of Shah Kabir Darvesh, the founder of the Khanqah, to get a suitable Sajjadanashin-mutwalli appointed from among the descendants of the founder, preferably as near a relation of the present incumbent as possible.
4. He has also settled a scheme for the administration of the trust properties, according to which the holder of the office of Sajjadanashin-mutwalli is to perform the religious duties with decorum and propriety, and pay certain allowances to some relatives, out of the income of the Farukhsiyari properties, applying the balance to his own use and the use of his family, and to administer the secular charities charged upon the Alamshahi properties under the control and supervision of the local agents appointed years ago by the Government under Regulation 19 of 1810 in respect of these properties. The suit was thus substantially decreed.
5. The defendant appealed and the plaintiffs filed cross-objections. Before filing: the printing costs however the defendant, died, and his eldest son, Shah Najihuddin, applied to be brought on the record as his legal representative. The application was allowed by Noor and Rowland, JJ., overruling the respondents'' half-hearted contention that the appeal had entirely abated on account of the death of the defendant-appellant. At the hearing of the appeal Shah Najihuddin, who Was now on record as the appellant claimed to be recognized as the Sajjadanashin-mutwalli in the place of the deceased defendant, and further claimed that the suit ought to be dismissed because it was entirely based on the alleged incapacity and misdeeds of Shah Mulihuddin, whose death since had made it unnecessary for the Court to remove him and appoint a suitable person in his place as Sajjadanashin-mutwalli of the institution.
6. This contention is entirely untenable.
In the first place, Shah Najihuddin was brought on the record at his own instance as legal representative of the defendant, "who has stepped into the shoes of the father." It was urged that "the significance of his substitution as legal representative is open to discussion," but the substitution was plainly substitution as the legal representative entitled to assail the decree of the lower Court on such grounds only as would have been available to the deceased defendant-appellant. The learned advocate for the appellant cited Sundarsan Chettiar v. Viswanadha Pandara Sannadhi AIR 1922 Mad 402 and contended that in cases such as the present falling under Rule 10, Order 22, Civil P.C., the Court has a wide discretion to allow new pleas to be raised in order to avoid multiplicity of suits.
7. The case referred to however is no authority for the proposition that a party brought on the record under Order 22, Rule 10 should be allowed to raise claims of the kind that the appellant has put forward; the new plea that was allowed to be raised in the Madras case was a pure question of law, while in the present case the appellant is really seeking to raise the validity of his succession, a controversial matter upon which there can be no pronouncement on the materials before us and evidence will have to be taken in the lower Court. As was observed by Lord Kings down in Mt. Anundmoyee Chowdhoorayan v. Sheeb Chunder Roy (1863) 9 MIA 287 in appeal the question is whether the decision of the primary Court is correct on the facts as they stood when the judgment was rendered, and no subsequent event or devolution of interest can affect that question, because to give effect to them, should justice require it, would be the office not of an appeal but of some supplementary proceeding.
8. It is true that an exception to this rule is furnished by the class of cases in which it is shown that the original relief claimed has become inappropriate by reason of a change in the circumstances or that it is necessary to base the appellate decision on the altered circumstances in order to shorten litigation or do complete justice between the parties. Before dealing with this aspect of the matter, it is convenient to refer to an attempt made by the respondents, upon Shah Malihuddin''s death, to bring on the record other heirs of the deceased Sajjadanashin and some descendants of the founder of the Khanqah, and also to an application made by Shah Nasihuddin Ahmad, brother of the late Sajjadanashin, to be brought on the record under Order 1, Rule 10 as a person having a right, on the findings of the lower Court, to be selected as the next Sajjadanashin, and interested in supporting the second ground taken by the respondents in their cross-objections, namely that the lower Court should not have restricted the appointment to
such a descendant of Shah Kabir Darvegh as may be nearest in propinquity to the defendant-appellant.
9. The respondents made their attempt in connexion with the matter of substitution in place of the late Sajjadanashin. Noor and Rowland, JJ., however ruled that Shah Najihuddin was the legal representative for the purpose of the appeal, that the addition of any descendants of Shah Kabir Darvash in order, as the respondents put it, that the decree to be passed by this Court "may be binding on all the descendants of the founder" had nothing to do with substitution in place of the deceased defendant-appellant, and that the respondents must file a formal application for the addition if they really wanted it. No formal application has since been made by the respondents. But neither they nor the appellant Shah Najihuddin objected, to Shah Najihuddin''s application. Now, it is true that the decree under appeal provides not only that a new sajjadanashin mutwalli be appointed from among the descendants of Shah Kabir Darvesh "when proper steps (for the purpose) are taken according to law," but also that
in choice of mutwalli preference shall be given to the nearness in propinquity to the present defendant, provided he be duly qualified.
10. It also appears from the order sheet of the lower Court, which has bean brought to our notice, that the steps contemplated were being taken when an order was obtained from this Court to stay the proceedings for appointment pending the disposal of this appeal. But the suit out of which the appeal arises is a representative suit, and there is no appointment under appeal. The parties are no doubt entitled to assail the lines on which the lower Court has proposed to make the appointment, but it seems to us that the issues in appeal would be rendered unnecessarily complicated if we were to entertain the individual claim put forward by Shah Najihuddin or allow Shah Nasihuddin to come on the record.
11. Shah Nasihuddin does not appear to have done anything at all before Shah Malihuddin''s death, more than 18 months after the decree of the lower Court, and it would appear from the affidavits filed on his behalf that his real object was no more than to oppose the alleged appointment or succession of Shah Najihuddin. How far either of them is qualified for appointment is primarily a matter for the lower Court, and a matter requiring evidence that has still to be taken.
12. We therefore declined in the exercise of our discretion to allow Shah Nasihuddin to come on the record. Going back to the appellant''s contention with reference to the alteration in the situation due to the death of Shah Malihuddin, it is clear that what Shah Malihuddin''s death has rendered unnecessary is only that part of the order of the lower Court which related to his removal. As long as the rest of the decree below stands, Shah Najihuddin cannot become the Sajjadanashin except on appointment by the lower Court, and no such appointment has, as we have already shown, yet been made. His claim that he has become the Sajjadanashin in succession to Shah Malihuddin is entirely foreign to the appeal; and further, even if, standing in the shoes of Shah Malihuddin, he were to succeed in showing that the suit ought to have been entirely dismissed, it would still be impossible on the materials before us to say that he has been duly appointed Sajjadanashin. In this Court he first claimed to have succeeded
by virtue of a death-bed nomination by the last incumbent and subsequent ratification by election made by the Mahomedans of Sasaram.
13. During the trial of the suit however the defendant Malihuddin had elicited from more than one witness for the plaintiff that he had already nominated Shah Najihuddin as his successor, and as one witness put it, "made him heir apparent." There is no finding by the lower Court that the late Sajjadanashin was entitled to nominate his successor in that manner nor would it appear that the question was at all agitated below, though the full record is not before us, but only such fragmentary evidence as the parties have chosen to include in the paper books. Shah Najihuddin questions not only the nomination of the appellant and its subsequent ratification, but also Shah Najihuddin''s qualifications for the appointment. We would therefore decline to say at this stage that Shah Najihuddin has properly become the Sajjadanashin-mutwalli of the Khanqah in succession to Shah Malihuddin or to deal with the appeal except on the facts as they existed at the institution of the suit.
14. It must, of course, be recognized that Shah Malihuddin''s death has rendered his removal unnecessary, but the cause of action which necessitated the settlement of a scheme survives, as is shown by Sivagnana Desika v. Advocate-General of Madras AIR 1916 Mad 318, the very case cited for the appellant.
The substantial questions that arise in the appeal and cross-objections, as argued before us, are (1) what is the nature and extent of the interest of the Sajjadanashin-mutawalli in the Farrukhsiyari and the Alamshahi properties of the Khanqah? (2) Is a scheme for the administration of the trusts required? (3) If so, is the scheme of the lower Court on the right lines and likely to be effective; and if not, what alterations are necessary in order to make it so? It was also argued that the suit was incompetent for want of a sanction from the District Judge u/s 18, Religious Endowments Act (20 of 1863).
15. But there is no substance in this contention, as the plaintiffs were clearly entitled to proceed under the wider alternative of Section 92, Civil P.C.: see Venkataranga Charlu v. Krishnama Charlu AIR 1914 Mad 593 and
The grants of Farrukhsiyar and Shah Alam were not produced below but are available in the report of Mt. Qadira v. Shah Kubeer Oodeen Ahmud (6). The Farrukhsiyari purports to be an Inam Altamgha grant of one lakh of dams out of pargana Haveli Sasaram for the expenses of the Khanqah of Sheikh Kabir Darvesh ... to be enjoyed by him generation after generation and descendant after descendant (batasarrufu ... naslan bad nasl wo batnan bad batn). Shah Alam''s is a larger grant, also by way of Inam Altamgha, to Sheikh Qayamuddin (great-grandson of Shah Kabir Darvesh and fourth Sajjadanashin of the institution) for the expenses of travellers and comers ... (ba-jihat kharch warid sadir) to be similarly enjoyed.
16. In the case of Mt. Qadira (6) that was finally decided by the Sadar Dewani Adalat in 1824. Shah Kabiruddin (grandson of Shah Qayamuddin and sixth Sajjadanashin) succeeded against the widow and donee of Shah Shamsuddin, his father and predecessor on the prayermat (sajjada), in showing that the grants were wakf and therefore inalienable by the Sajjadanashin for the time being. In another case that was fought up to the Privy Council, Shah Kabiruddin also succeeded against a mortgagee and transferee from Shah Shamsuddin in establishing the same point: see Jewan Doss Sahoo v. Shah Kubeer-ood-Deen (1837) 2 MIA 390. Their Lordships of the Judicial Committee also held in that case that Shah Kabiruddin did not succeed to a proprietary right in the properties as heir of his father, and further, that the suit was not barred by limitation because he only became entitled to sue when he was appointed Mutwalli by Government acting under Regn. 19 of 1810. This implies that the endowment was regarded as public, for Section 16 of the Regulation lays down that the object of the Regulation is solely to provide for the due appropriation of lands granted for public purposes, agreeably to the intent of the grantor.
17. In 1871 Shah Kabiruddin''s nephew, Shah Mohiuddin, who claimed to have been appointed Sajjadanashin by Shah Kabiruddin, succeeded in retaining the office against an attack made by one Shah Ahmad Husain claiming as a descendant of Shah Kabir Darvesh but found disqualified as descended in the female line. In 1884 Shah Mohiuddin sued the Secretary of State for India in Council for the recovery of possession of the properties of the Khanqah which, he claimed, was a religious establishment more of the nature of a family institution than a public endowment," and charged with charities of a "private and religious" character subject to the control of the Sajjadanashin himself and not of any local Agents under Regulation 19 of 1810.
18. The defence was that the endowment was purely secular and therefore subject to the control and supervision of Government under Regn. 19 of 1810 with a power of dismissal which had been lawfully exercised. The Subordinate Judge who tried the suit decreed to the plaintiff uncontrolled possession as Sajjadanashin of the Farrukhsiyari properties and also possession of the Alamshahi properties subject to the supervision of the Board of Revenue and its local Agents in respect of the secular charities to which these properties were appropriated (Ex. 23). The Secretary of State appealed to the High Court, but succeeded only on the question of costs (Ex. 23-a).
19. The character of the property public or private (family), religious or secular, was directly in issue in the suit, and the learned Judges, Wilson and Porter, JJ., referred to the grants and the history of the properties, and came to the conclusion that though the grants were wakf connected with a religious establishment, namely the Khanqah, it did not follow that the trusts were purely religious trusts.
In the case of an old trust, said their Lordshipa when the original instrument of dedication is indefinite, we think it clear that the best guide to the construction of the trusts is long continued usage. As to these trusts it is plain on the evidence that to some extent, they have in practice always been religious; worship has been carried on; religious feasts and festivals have been celebrated; the Koran has been read and taught; the Sajjadanashin as the chief officer of religion in connexion with the foundation, has, with his family, been maintained; faqirs visiting the place have been fed and housed. On the other hand, we think it clear that other forms of charity have been administered which cannot be called religious. The expenditure upon ''comers and goers'' has apparently never been limited to the members of one creed, but all who chose to come have been entertained, as far as the evidence enables us to go, we find expenditure upon Hindus as well as Mahomedans. The Madrassa supported from the trust has apparently long been an English teaching school, and a dispensary is maintained. No objection is shown ever to have been made by anybody to the application of the trust funds to these purposes before the filing of the plaint in this case. Moreover an examination of the history of these properties and of the mode in which they have been dealt with from time to time shows, we think, that the properties in Seh. B (i.e. the Alamshahi properties) have been appropriated to the secular trusts. We think it also appears, though not perhaps quite so clearly, that the remaining properties have been appropriated to religious purposes.
20. What had happened was that in 1836 Government had failed in a resumption suit in respect of the Farrukhsiyari properties, but in 1837 they had obtained a decree for resumption under the Resumption regulation in respect of the Alamshahi properties. In 1840 however they waived the right to assess the Alamshahi lands to revenue and allowed them to continue in the old hands as lakheraj but with an express statement that the endowment was not a religious but simply a charitable institution for the benefit of the needy of all creeds: see p. 287 of the paper book of that appeal; and in 1842 they decided that though the institution was subject to the control of the local agents under the provisions of Regn. 19 of 1810 and that it was consequently within the power of Government to institute such inquiries and to frame such regulations as it may deem necessary for the due administration of its funds, the Alamshai properties should be given up to the public for the charitable purposes of the institution, the management of the sajjadanashin being subjected to careful check by regular inspection of accounts etc. while the Farrukhsiyari properties were 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
without any obligation to furnish any account of the income or the mode in which it is expended.
21. The learned Judges were accordingly disposed to think, in the case of one filling such an office as sajjadanashin, that the Farrukhsiyari properties were assigned prima facie for a religious purpose. They pointed out further that the arrangement was accepted by the then sajjadanashin, and that things seemed to have continued on this footing till 1849, when the Government withdrew from all interference with the Sasaram endowment but reserving its right to intervene "in case of abuse or misappropriation of the trust" (see p. 291 of the paper-book of the case).
In 1865, two years after the passing of Act 20 of 1863, the Board of Revenue examined the Collector''s view that the endowments were partly religious and partly secular, and came to the conclusion that the Sasaram endowments were purely secular and were not affected by that Act.
22. But no attempt was made by either side to interfere with the existing arrangements, and until his removal by Government in 1875 the sajjadanashin provided for religious worship, religious observances and religious teaching as well as for the maintenance of himself and his family out of the income of the Farrukhsiyari properties, without submitting or being required to submit accounts, while the income from the Alamshahi properties was applied to secular purposes, and regular accounts submitted. Though the suit was not a representative suit, the decision throws much light on the question how recognized usage has moulded the application of the income from the endowed properties.
23. We next come to a litigation in which the rights and doings of the same sajjadanashin, and the character of the endowed properties also, were considered in a representative suit u/s 539 (now Section 92), Civil P.C. This began with a suit brought in 1890, by two grandsons of a brother of the sajjadanaahin''s father against Shah Mohiuddin (and his son). The prayers included the removal of the sajjadanashin on the ground of misconduct and misappropriation, and the appointment of plaintiff 1 (Shah Sayiduddin Ahmad) instead, and the settlement of a scheme for the management of the endowment. The suit was decreed by the District Judge of Shahabad, and the sajjadanashin (and his son) appealed to the High Court. The decision of their Lordships Tottenham and Ameer Ali, JJ., is partly reported in Indian Law Reports 20 Calcutta, 810, and has been fully exhibited in the present case (Ex. A.) We have also had the advantage, with the consent of the parties of referring to the paper-books of that appeal and the appeal heard by Wilson and Porter, JJ. in 1886.
24. The issues actually framed made no direct reference to the character of the properties and the nature of the defendant''s interest in them, but these points were necessarily involved in the third issue framed, viz.:
Are the allegations of misconduct and misappropriation made by the plaintiffs true and, if so, do they constitute valid grounds for the removal of defendant 1 from the post of sajjadanashin of the Sasaram endowment....
It appears from the judgment that one of the contentions on behalf of the plaintiffs-respondents was that the Government had no power to make the distinction they made in 1840 between the Farrukhsiyari and the Alamshahi properties, assigning the former to the sajjadanashin, so long as he may be continued in charge of the wakf, as his personal remuneration for the duties performed, and thus widening or varying the purposes of the original grant.
25. The learned Judges held on this that it seemed
too late to consider whether the Government had or had not the power to lay down a rule which the High Court adopted in so many words in their judgment in the year 1886. Even had the Government acted ultra vires the long course of practice would, in out opinion, be a sufficient justification on the part of the defendant in not Tendering any account in respect of the unexpended portion of the income arising from the Farrukhsiyati properties.
Another contention advanced on behalf of the plaintiffs was that the sajjadanashin was guilty of a breach of trust in appropriating for his own purposes more than 1/l0th of the income from these properties as he had admittedly done. Tottenham and Ameer Ali, JJ., overruled the contention; they were of opinion, in view of "the nature of the institution, the character of the grant and the sajjadanashin''s position," that the rule of l/10th does not apply:
The grant no doubt is to the Khanqah", said the learned Judges, "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 ownselves. 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 khanqah, 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.
26. Their Lordships then dealt with the specific charges made by the plaintiffs against the Sajjadanashin and held that these failed signally. They also found that there was no ground for holding that plaintiff 1 was a fit person for the office of the Sajjadanashin in whom "the spiritual line of his ancestor, the founder of the institution, is continued." The appeal was therefore allowed and the suit dismissed. Their Lordships, however proceeded, in the exercise of their discretion under the Mahomedan law, to give certain directions in view of the facts that the management of the endowments had to a certain extent become disorganized, large arrears had become due, and the defendant had not been able to disburse the charities as regularly as was desirable in the endowment.
27. They directed the District Judge to appoint a muntazim (co-adjutor or manager) on a salary of not more than Rs. 200 a month, to be distributed equally over the Farrukhsiyari and the Alamshahi properties for a period not exceeding five years. This manager was, among other things, to frame a scheme for the repairs of the buildings connected with the endowment in consultation with the Sajjadanashin and to see it carried out, and the Sajjadanashin was afterwards to have the buildings repaired at least every five years to prevent dilapidation. Every item of expenditure was to be entered in the roznamcha, and regular accounts were to be kept in respect of both the Farrukhsiyari and the Alamshahi properties. The learned Judges did not consider it necessary to make rules in connection with the performance of the religious ceremonies out of the Farrukhsiyari properties, for these ceremonies must to a large extent vary from time to time and depend upon the discretion of the Sajjadanashin.
28. So long as they are performed with decorum and propriety, it would be difficult for a Court to control and regulate their performance. Besides the usual Mussalman festivals and ceremonies, they are chiefly services in honour of the deceased ancestors of the defendants and the plaintiffs. The customary expenditure in the Imambarah and in the maintenance and lodgment of the students dependent on the A properties (i.e. the Farrukhsiyari properties) are capable of examination, and they ought to be entered regularly and correctly in the jamakharach books. As pointed out by Government, considerable latitude must be given to the discretion of the Sajjadanashin regarding the administration of the A trust; so long as it is properly exercised without any breach of the ordinary rules and customs existing in the family, and regular accounts are kept, there ought to be no interference with his discretion.
29. As regards the B properties (i.e. the Alamshahi properties) their Lordships held that
the approval of the budget and the scrutiny of the accounts lie with the Revenue Authorities and the local agents, appointed with care and discrimination, who, if they would only bring tact and judgment to the discharge of their duties, would be able to exercise an effective supervision over the disbursements.
The judgment concluded with the direction
that the Sajjadanashin and the manager for the time being, and the Sajjadanashin thereafter namely, after the expiry of five years, do furnish to the District Court accounts of the receipts and disbursements every half year, and a yearly report of the working of the endowment and the condition of the buildings.
These materials--and we have not been referred to anything that goes beyond them--amply support the finding of the lower Court that the properties in suit are not the personal properties of the defendant but appertain to the endowment of the Khanqah. It has been urged on behalf of the appellant that sufficient attention has not been paid to the fact that the Khanqah itself belonged to Shah Kabir Darvesh who had founded it, and that the Subordinate Judge is in error when he observes that the defendant has such rights in the properties as the mutawalli of the wakf estate has under the provisions of Mahomedan Law. "The khanqah however though founded by the ancestor of the Sajjadanashin, can plainly not be regarded, especially in relation to the properties in suit, as other than a public institution nor do we understand the learned advocate really to urge that it is private. The lower Court has also not failed to recognize the fact that the Sajjadanashin "has a large discretion vested in him regarding the administration of the Farrukhsiyari trust" and is entitled to appropriate to his own use the surplus income from the Farrukhsiyari properties after meeting the expenses pointed out in Ex. A.
30. It is therefore immaterial that at one place in his judgment (see p. 171 of the paper book, Parts 1 and 2), the learned Subordinate Judge has somewhat loosely spoken of the Sajjadanashin having such rights in the property as the mutawalli in wakf estate. The firmans of 1717 and 1762 speak of leaving the dams "ba-tasarrufu" or "ba-tasarruf an-ha," and the exact meaning of these expressions has been the subject of some controversy before us, though the learned advocates of both sides finally agreed that the expressions meant that the income was left at the disposal of the grantee; in Qadira''s case they were taken to mean "in his possession" and "in his children''s possession," but in Jewun Doss Sahoo''s case (1837) 2 MIA 390, their Lordships took them to mean that the dams were to be relinquished to the grantee for him to manage and control," while Tottenham and Ameer Ali, JJ., in 1893, read them as meaning "to be enjoyed by him."
31. Nothing however now turns on the exact meaning of the expression or expressions (or on the somewhat doubtful grammar of the context in which the second expression occurs), having regard to the fact that, as Wilson and Porter, JJ., pointed out
the original instrument of dedication being indefinite, the best guide to the construction of the trust is long continued usage.
The sajjadanashin had no interest in the properties, for they are wakf; but he has a distinct beneficial interest in the income arising from them, as was laid down by Tottenham and Ameer Ali, JJ., being entitled to take by way of remuneration the balance of the rents and profits of the Farrukh siyari properties after defraying the costs of religious ceremonies etc.
32. As regards the scale on which these ceremonies are to be performed, he cannot be tied down to any scale, though he is bound to perform them with decorum and propriety. All this was settled in 1893, and it has not been shown to us that either the public or the sajjadanashin is entitled to go beyond it, to say nothing of the fact that no materials were produced on which the matter could be reopened. It is further clear that the sajjadanashin is also bound to maintain the khanqah buildings in a state of good repair:
If a muttawali with funds in his hands neglects to repair the wakf premises and allows it to fall into disrepair, it amounts to a breach of trust, for if he knowingly and intentionally causes damage or loss to the wakf, or if he misdeals with the trust property he must be removed from his office (Ameer Ali''s Mahomedan Law, part 1, 4th Edn., p. 462);
and it has not been suggested that the rule is inapplicable to those muttawalis who are also Sajjadanashin.
33. The balance of the income which was referred to by Government in 1842 as the sajjadanashin''s remuneration would seem by custom to have become subject to allowances to members of the family of the sajjadanashin for the time being. The learned Subordinate Judge says that it was admitted that the defendant was bound to pay allowances to his near relations; but sufficient materials were apparently not produced before him to enable a pronouncement on "the degree of propinquity to which these allowances should be paid." Nor have we been referred to any such materials. It is moreover primarily a private matter between the sajjadanashin and his relatives, and thus a matter on which no definite pronouncement is called for in these proceedings, though it would appear that the original Farrukhsiyari grant, speaking as it did not of the sajjadanashin''s disposal or enjoyment "generation after generation and descendant after descendant," has been interpreted to imply the maintenance not only of the sajjadanashin himself but also of his family or relatives.
34. The learned advocate for the respondents has contended that the Firman of Farrukhsiyar makes no provision for the remuneration of the Sajjadanashin as such and that he cannot be entitled to take whatever he may make into a surplus. But, as we have already indicated, the trust must be construed in the light of long-continued usage, and it is now, in our opinion, not open to the public, in view of the decision of the High Court in 1893 (Ex. A), to question the right of the Sajjadanashin to the surplus.
The respondents have urged that the objects of the trust should be properly settled. But so far as this means the fixing of allowances for the members of the family of the Sajjadanashin (see in particular para. 48 of the plaint), our attention has not been drawn to any materials on which it can be held that any members of the Sajjadanashin''s family are entitled as a matter of right to any particular allowances; and as regards the performance of the religious ceremonies connected with the Khanqah, it cannot be and has not been disputed before us that the Sajjadanashin has and must have a discretion in the matter, subject to his performing the ceremonies with decorum and propriety, as was held in 1893.
35. A further definition of the objects of the trust, so far as the Farrukhsiyari properties are concerned, therefore, seems impossible on the materials produced in the case.
As regards the Alamshahi properties, the original grant was for the support of travellers (bajihad kharch warid sadir), but has now become charged by custom which the secular charities referred to in the High Court judgments of 1886 and 1893. It has been urged on behalf of the appellant that the Sajjadanashin is entitled, if not to the surplus of the income from these properties, at least to 1-10 of the income, as his remuneration. This kind of contention was raised in connection with the Farrukhsiyari properties in 1893, when Tottenham and Ameer Ali, JJ., held that the rule of l-10th of the income does not apply to cases where the mutawalli or Sajjadanashin has beneficial interest in the income of the endowed properties. The Firmans do not either of them speak of the maintenance or remuneration of the grantee, and the Kazi has ordinarily no power to fix allowance not provided for by the waqf.
36. The idea of remuneration was apparently started in or about 1842 (though a parwana of 1765 spoke of the Sajjadanashin''s necessary expenses), but Government do not appear at that time to have meant remuneration for the administration of the Farrukhsiyari properties only and not for the work of administering the entire trust. No remuneration moreover can now be allowed without regard to the practice of the Khanqah for nearly a century. One Sajjadanashin after another seems to have been content to treat the surplus income from the Farrukhsiyari properties as his remuneration in respect of the administration of both the religious and the secular trusts ever since the secular charities became charged upon the Alamshahi properties of the endowment and the surplus from the other properties was left at his disposal as his remuneration.
37. No Sajjadanashin is shown to have since then taken, or even claimed, anything out of the income of these Alamshahi properties for himself or his family. The rule of 1-10th also, where it applies at all, only means the customary allowance not; exceeding l-10th of the income of the endowment, as appears from the Durrul. Mukhtar and the Radd-ul-Muktar quoted at p. 469 by Ameer Ali; that distinguished author concludes that
the customary remuneration would be the standard for fixing the allowance of the mutawalli, but generally speaking it should not exceed 1-10th of the income.
The appellant''s contention that he is entitled to l-10th of the income from the Alamshahi properties therefore fails for more than one reason. The secular charities which have become attached to these properties are, unlike the religious charges attaching to the Farrukh siyari properties, not such as from the nature of things to make it impossible to spend the entire income upon them.
38. Government who waived their rights to assess revenue on these properties and were not unmindful of the question of remuneration ought also perhaps to have a say in the matter (as they can hardly do in these proceedings) before any part of the income is diverted to remunerating the Sajjadanashin or any other purposes of a non-charitable character. It seems to us therefore that notwithstanding the similarity in the language of the grants of Farrukhsiyar and Shah Alam, the history of the institution since the forties of the last century makes it impossible to recognize any beneficial interest of the Sajjadanashin in the usufruct of the Alamshahi properties which is not covered by the surplus from the Farrukhsiyari properties.
39. The directions given by Tottenham and Ameer Ali, JJ., in 1893 seem to have allowed for the Sajjadanashin''s entire beneficial interest in the two public trusts by allowing him to appropriate the surplus from the Farrukhsiyari properties only, and in our opinion it is no longer open to the appellant to urge that the Sajjadanashin ought, in addition, to be allowed to appropriate something from the income of the Alamshahi properties as remuneration for the task of administering them. The findings of the lower Court regarding the nature and extent of the Sajjadanashin''s interest in the Farrukhsiyari and the Alamshahi properties must therefore be substantially affirmed.
40. As regards the necessity of a scheme for the administration of the trusts, it has been urged on behalf of the appellant that the defendant (who was found unfit and guilty of gross mismanagement and misappropriation and breach of trust) being dead, it is unnecessary to frame a scheme at all, having regard to the scheme (as the appellant would call it) or directions given by Tottenham and Ameer Ali, JJ., in 1893. Those directions were however given in an appeal arising out of a suit which prayed for the settlement of a scheme, among other reliefs, and which was dismissed by the learned Judges. It is not disputed that the directions have failed to secure the due administration of the trusts by the defendant, and the question is whether they failed merely by reason of the late Sajjadanashin''s personal incapacity and misdeeds, or whether the machinery provided was also defective.
41. The learned Judges directed (to take an instance) that a manager be entertained for not more than five years; we see however from the order sheet of District Judge that there was a manager as late as 1908 (see order No. 2 of 14th February 1908 in Ex. 2), who was presumably paid equally from the A and the B properties. They also directed that the Sajjadanashin and the manager for the time being should furnish to the District Court accounts of the receipts and disbursements every half year; we find from the order just referred to that the Sajjadanashin''s manager had not submitted accounts for the last seven years.
42. The fragmentary order sheet that has been printed shows not only repeated defaults by the Sajjadanashin, but also the powerlessness of the District Judge to enforce the directions, so much so that he had to enquire from the High Court what steps, if any, could be taken by him against the Sajjadanashin and was informed in reply that it was difficult for the Court to give any instruction in a matter which might come up before it judicially (see the Registrar''s letter No. 1612 dated 11th April 1927 in reply to the District Judge''s letter No. 447 of 26th March 1927 in accordance with order No. 123 of 24th March 1927 in his order sheet, Ex. 2). The Sajjadanashin was no doubt guilty of a breach of trust in failing to comply with the direction of Tottenham and Ameer Ali, JJ., but not until some interested party sued tinder Section 92. Civil P.C., or adopted some equally cumbrous method of bringing home to the Sajjadanashin his liability, could the position have been materially improved by any action that the District Judge was apparently empowered to take, the revenue authorities being disinclined to act presumably because the matter was in the hands of the civil Court.
43. Further, even if accounts had been submitted in due time by the Sajjadanashin or his manager (the lower Court makes an amazing understatement in saying that the accounts were submitted "not quite promptly") the District Judge had no means whatever of checking them effectively and ensuring the due preservation of the Khanqah buildings. As regards the Alamshahi charities, there were the Local Agents appointed by the revenue authorities, but it appears from those portions of their proceedings that have been included in the paper books that they were utterly powerless to exercise any effective supervision and that the Sajjadanashin would not even let them find out the actual income of the properties; the Alamshahi buildings fell into a dilapidated condition, notwithstanding the fact that the Local Agents pointed out to him that the sum provided in his budget
is quite insufficient for the repairs to the estate buildings that are in a tottering condition.
44. The learned advocate for the appellant has urged that there is nothing to show that the Sajjadanashin did not spend on the repairs the sums budgeted for, but this contention overlooks the fact that it was the Sajiadanashin himself that was responsible for framing the budget, and after his wilful failure to produce his accounts, clearly he cannot be heard to say that it was impossible for him to find more money for the purpose. The powers of the Local Agents do not seem to have been very clear. It was decided by the revenue authorities in 1889 that the Local Agents were not to interfere with the "managing trustee" (as they called him) in matters of detail, that the Sajjadanashin was to submit each year a budget to be approved by the Board of Revenue, that audit of his accounts was to be made quarterly by the Board of Local Agents presided over by the Sub-divisional Officer, and that the Local Agents were to address the Sajjadanashin through their President with a view to the removal of any abuses that might come to their notice: see the letters of the Commissioner of Patna and the Board of Revenue at pp. 225 and 236 of the Paper Book of 1891-93.
45. The decision of 1893 must have made the revenue authorities even less willing than before to interfere, and the Local Agents'' resolution of March 1914, that unless the Sajjadanashin complied with their request to furnish certain details of expenditure, they would be under the necessity of drawing the attention of the Board of Revenue to the matter, could not have produced much effect on the Sajjadanashin. The quarterly scrutiny of the Local Agnets could not but prove ineffective in such circumstances, and that ''such was the case is clearly shown by the uncontroverted specific allegations regarding budget matters dealt with by the lower Court in connexion with the secular Madrasa.
46. It may be that on occasion the Local Agents did or tried to do more than they had a right to. But the lower Court could find no excuse at all for the repeated and deliberate failure of the Sajjadanashin to comply with the reasonable requisitions of the Local Agents in the matter of discovering the real annual income of the Alamshahi properties; and while the Local Agents could not effectively bring the Sajjadanashin to book except by means of a suit, which would require the provision of considerable funds from their own resources or from public subscriptions, the Sajjadanashin had the undisclosed portion of the income of the trust estate at his disposal (besides the surplus constituting his remuneration) for spending not merely on such luxuries as gramophone records worth Rs. 837-14-0 but also on more than one malicious suit against the Sub-divisional Magistrate who was the President of the Local Agents.
47. The Sajjadanashin did not choose to produce his full accounts even during the trial of the suit; and it is clear that unless the failure was explained away, he would certainly have been removed from his office if he had survived. As Malihuddin is dead, we are no longer concerned with his individual misdeeds in their personal aspect and it is in fact on this ground that only fragments of the evidence in the case have been printed, the result being that all concerned have to take the finding of the lower Court much as they are. It has however been pointed out that the learned Subordinate Judge has on occasion failed to make obvious inferences against the defendant, e.g., when he declines to disbelieve the entries of expenditure shown in the defendant''s papers though he has found that money due to Irshad Hussain, a muharrir in charge of feeding travellers, was paid to him "long after the amount was shown to have been paid to him in the cash book," and though he apparently believed that food was not cooked for as many students at the Madrasa as figured in the accounts and though he was not satisfied that there was no actual misappropriation in connexion with indigent allowances and pauper burials.
The learned Subordinate Judge has nevertheless found enough, and more than enough, to show that the directions given by Tottenham and Ameer Ali, JJ., have entirely failed to secure the due administration of the trusts for want of effective machinery, and that such machinery must, if possible, be devised for the purpose, or the Sajjadanashin mutwalli could go on for a long time committing breaches of trust with practical impunity.
48. The estate has been in the hands of a receiver since the institution of this appeal, and there are thus materials on the record of the appeal showing that the late Sajjadanashin had nearly brought the administration of the trusts to a stand-still. It may be that there is some force in the appellant''s contention that the fitness of the late Sajjadanashin, being a Sufi, ought not to be judged by the more puritanical standard of Islam and that he ought not to be condemned for indulging in gramophone music and abstaining from prayers; but it is beyond question that it is grave misconduct even in a Sufi Sajjadanashin-mutawalli who spends money so freely on gramophone records so as to fail to pay in time the road cess due on the trust properties, with the result that on one occasion he was arrested in pursuance of a warrant for the realisation of road cess and on another occasion a property was sold for the same.
49. The lower Court has not said whether these defaults related to the Farrukhsiyari properties or to the Alamshahi properties. If the former be the case, there was no means of preventing the Sajjadanashin from committing the defaults, the District Judge being powerless to enforce even the submission of accounts; if the latter, the Local Agents (who could hardly be expected to institute a suit) were no less helpless in getting the Sajjadanashin to attend to his duties. The essence of the matter is that the scheme of 1893, as the appellant would call it, left the Sajjadanashin without any practical control in respect of the application of the income from the Farrukhsiyari properties, though he was formally required to submit half-yearly accounts and a yearly report to the District Court, and that this has resulted, notwithstanding the efforts of several District Judges, in the Sajjadanashin neglecting the care of the Khanqah buildings, and increasing his own personal expenses, which stood at Rs. 3,084 in 1907-08, to Rs. 9,000 in 1923-24, while performing the religious rites and ceremonies (which it was his privilege as a descendant of Shah Kabir Darvesh to perform) on a reduced scale for no reason whatever that can be seen except that there was no practical means of controlling him.
50. The directions given by Tottenham and Ameer Ali, JJ., in 1893 regarding the Alamshahi properties have proved equally ineffective, notwithstanding the efforts of the local agents presided over by the non-denominational holder of the office of Sub-divisional Magistrate with his tenure limited to a few years at the most. We have therefore no hesitation in saying that notwithstanding the directions of 1893 and the death of the last Sajjadanashin a scheme is required for the administration of the Khanqah trusts. As regards the details of the scheme decreed by the lower Court, the first contention before us that requires notice is the objection of the respondents that the appointment of Sajjadanashin should not be confined to the descendants of Shah Kabir Darvesh but should be open to an outsider if no suitable person is found among those descendants, and that at any rate it should not be restricted to
such a descendant of Shah Kabir Darvesh as may be nearest in propinquity to the defendant appellant.
51. The learned advocate points out that succession to the office has not been strictly hereditary in the past and that Mahomedan law is strongly against attaching any right of inheritance to a public endowment or office. The office of a Sajjadanashin however stands on a special footing:
He is not only a mutawalli but also a spiritual preceptor, and in him is supposed to continue the spiritual line (silsilal.)
This supposed continuity of the spiritual tradition must obviously be taken into account and, speaking generally, is much more likely to be secured by the selection of a properly qualified descendant of the founder than of a stranger of the family. The same consideration applies to the preference given by the lower Court to "nearness in propinquity" to the last holder. The observation of the lower Court that under the Firmans, as well as according to the long established usage prevailing in the Khanqah, it is clear that a stranger cannot be appointed to the office has not been assailed; but the learned advocate for the respondents has laid stress on the wide power of the Court, in dealing with public, religious or charitable trusts, to depart even from the intentions of the founder on questions of management), which must be governed by circumstances and varied if necessary in the best interest of the institution.
52. It appeared during the arguments that what the plaintiffs really desire is that the appointment should be thrown open to all Muslims without much regard to the question whether they have any connexion with this institution. In our opinion there is no warrant for doing so in the circumstances of this case. It is at the same time clear that the appointment should be open to a stranger if it be found that no suitable descendant of Shah Kabir Darvesh is available, and that if this be added to the scheme, it might possibly save a suit u/s 92. Preference ought however to be given to descendants of the founder and among them to those "nearest in propinquity" to the last incumbent, provided that such persons are duly qualified.
53. It has been contended on behalf of the appellant that the learned Subordinate Judge has adopted an unnecessarily high standard of puritanism and education for the office of Sajjadanashin. The decree mentions no standard; but the learned Subordinate Judge was apparently (judging from his observations regarding the fitness of Shah Malihuddin, inclined to hold that a properly qualified Sajjadanashin must have a working knowledge of Arabic or Persian, these being the languages in which are generally written books on Suffism, the philosophy the traditions of which form the raison d''ette of a Darvesh''s Khanqah. There was in our opinion no error in this. Tottenham and Ameer Ali, JJ., in 1893 observed that the first plaintiff in that suit was disqualified on the ground among others that admittedly he had no knowledge of Arabic. As to Puritanism of living, it is true that religions are in one sense matters of in difference to the Sufi; but he does regard them as serving to lead to realities and considers Islam as among those which are more advantageous for this purpose than others (see Hughes'' Dictionary of Islam, 1885, sub nomine Sufi). The institution with which we are dealing is moreover in the main a Sanni institution, and there is no reason why the Sajiadanashin of such an institution should be at liberty to give offence to the Sunni community by attending nauch parties (and worse) of flouting prayers and refraining from spiritual exercises, as the late Sajjadanashin is found to have done.
54. We next come to that part of the scheme which relates to the Farrukhsiyari properties. There is no dispute before us as regards the religious purposes attaching to this part of the trust. The appellant demurs to the allowances to relatives which the lower Court has directed the Sajjadanashin as a part of the scheme to pay. The learned Advocate points out that the lower Court itself refused to pass any order regarding the arrears of these allowances on the ground that there has been no judicial order that the defendant is bound to pay them. It is argued that on this very ground no allowance should have been included in the scheme, when it is admitted that the Sajjadanashin was and is entitled to exercise his discretion as regards the application of the income from the Farrukhsiyari properties and to take the surplus. The learned Subordinate Judge seems however to have proceeded on the admission made before him, apparently at the trial (notwithstanding the denial in the written statement and in the examination in chief of the defendant), that the defendant was bound to pay allowances to his near relations.
55. The death of the defendant has now altered the situation; and it has not been shown that a new Sajjadanashin is bound to pay allowances to his predecessor''s relatives. The allowances to the individuals named in the scheme must therefore be left out, such relations as may now claim to be entitled to any allowances being at liberty to adopt appropriate proceedings for enforcing their private rights.
The scheme of the lower Court does not provide for any control at all over the Sajjadanashin in respect of the Farrukhsiyari part of the endowment, with which we are now dealing. As to the religious ceremonies, it was pointed out by Tottenham and Ameer Ali, JJ., that so long as they are performed with decorum and propriety, it would be difficult for a Court to control or regulate their performance. But they also pointed out that the customary expenditure in the Imambarah and on the maintenance and lodgment of the students is capable of examination.
56. It seems to us that the District Judge ought to be placed in a position to exercise general control as regards this part of the trust, and also as regards the keeping of the Khanqah buildings in good repair. Several methods of control have been discussed before us. One important thing to bear in mind is the fact that the revenue authorities, under the impression that the entire endowment was purely secular, declined to apply Act 20 of 1863 to this institution, and yet confining themselves to the Alamshahi properties, directed their local agents under Regn. 19 of 1810 not to interfere with "the managing trustee" in matter of details. For the purpose of exercising such control as he may find necessary, having regard to the character and history of the institution, the District Judge should, in our opinion, have power to get the Sajjadanashin''s accounts of these properties audited at such intervals as he may think fit. The cost of the audit should be met out of what may conveniently be called the Sajjadanashin''s surplus, being that large part of the income of these properties which he would be otherwise entitled to keep, in accordance with the established usage, as his remuneration for the work of administering the entire trust, and constituting his beneficial interest in the trust income.
57. It should be open to the District Judge on receipt of the audit report to give such directions to the Sajjadanashin as he may consider necessary.
It should also be open to the District Judge whenever he finds it necessary to obtain a report from any suitable person to be nominated by him regarding the condition of the buildings, and to pass orders on it for the Sajjadanashin to carry out. The costs of such reports should also be charged to the Sajjadanashin''s surplus. As regards an effective mode of ensuring the Sajjadanashin''s obedience to orders or directions, it seems to us, upon a consideration of all the views that have been so elaborately placed before us, that the best course would be to empower the District Judge, as a part of the scheme, whenever he may consider it necessary to appoint a manager answerable to him (and not to the Sajjadanashin, to make the collections, instead of the Sajjadanashin, though the net income must of course go to the Sajjadanashin. The salary and allowances of the manager should be fixed by the District Judge, whenever an appointment becomes necessary, and should be paid out of the Sajjadanashin''s surplus; and such management should only terminate on the Sajjadanashin satisfying the District Judge that orders and directions will in future be properly attended to.
58. While the plaintiffs ask for an effective scheme, and no scheme can be called effective unless the District Judge (or Court) framing it can enforce it, it has been urged on behalf of the appellant that the Court has no power in framing a scheme u/s 92 to include an arrangement which in effect amounts to the removal, however temporary, of the sajjadanashin-mutawalli; and the reasoning of the Pull Bench in Veeraraghavachariar v. Advocate General of Madras AIR 1927 Mad 1073 has been referred to in support. It was held in that case that leave reserved in a scheme u/s 92(1), Civil P.C., to apply is ultra vires if the reservation be in respect of a relief which will come within the section. The decision however also recognizes that a different view prevails in these parts, and refers to Umeshananda Datta Jha v. Ravaneshwar Prasad Singh (1913) 17 IC 969 and Muhammad Waheb Hussain v. Abbas Hussain AIR 1923 Pat 420. The case before the Pull Bench moreover was one of liberty to apply for modifications of the scheme and was not one in which it was sought to carry out the scheme as it stood in respect of the appointment or removal of a trustee by the Court.
59. This was pointed out in the later Madras case of Sivaram Dubai v. Rajagopala Misra AIR 1930 Mad 918, where it was held that a provision. in a decree framing u/s 92, Civil P.C., a scheme for the future management of a charitable trust to the effect that the Court which passed the decree was to fill future (and not then existing) vacancies amongst the trustees is not within the rule laid down in the decision from Veeraraghavachariar v. Advocate-General of Madras AIR 1927 Mad 1073 and is not ultra vires.
In the recent case of the Maulanagar khanqah, an institution similar to the Sasaram khanqah, Noor and Scroope, JJ., directed that the scheme to be framed u/s 92 should include a provision for a joint Sajjadanashin and manager or a separate Sajjadanashin and a separate manager on a vacancy arising in the office of Sajjadanashin: see Shah Muhummad Kazim v. Abi Saghir AIR 1932 Pat 83, a provision implying appointment to and removal; from one office or the other.
60. It is true that the removal of a trustee or the appointment of a new trustee are among the reliefs mentioned in Section 92(1), Civil P.C., but to hold that they cannot be included, for future contingencies in a scheme settled under the section would mean that though the Code gives the Court power to settle a scheme, it withholds from the Court any power to enforce it in those cases which the scheme is to be carried out under its supervision, for obviously the Court itself cannot sue under the section. In our opinion, there is nothing in Section 92 to prevent the inclusion in a scheme framed under that section of a provision empowering the Court in specified contingencies to reduce the powers of the managing trustee or Sajjadanashin mutwalli, temporarily or otherwise, or even to remove him altogether, though it is not necessary in the present case to provide for his complete removal in a summary way, a suit under the section being still open to the public interested.
61. Turning now to the Alamshahi properties, there is no dispute before us as regards the charities specified in the scheme of the lower Courts. The provision however that the objects may be varied by the mutawalli subject to the approval of the local agents is open to exception from more than one point of view; there is no reason why the Sajjadanashin should be placed in a position of such subordination to the local agents, and no reason also why the Court should abdicate its functions. The scheme should therefore provide for liberty to the Sajjadanashin to apply to the Court which may thereupon consult the local agents. The scheme of the lower Court as regards the local agents is in parts vague and requires amendment. It provides for instance that the Board of Local Agents shall exercise control and supervisions over the administration of Alamshahi properties. The expression "control and supervisions" is vague, and it is vagueness of this kind that seems to have led to so much trouble in the last 50 years or so. The scheme further provides that the Board
shall have the right to satisfy itself that the true income of the Alamshahi properties is shown in the accounts, and it is also entitled to see to the application of the said income. It shall be entitled to satisfy itself that there is no misappropriation, embezzlement or breach of trust, and for this purpose the Board shall have the right to have access to the collection papers and other necessary papers, and the local agents will be entitled to pay visits to the office of the Khanqah and the institutions maintained from the income of the Alamshahi properties.
62. What exactly the lower Court meant by saying that the Board of Local Agents is entitled "to see to the application" of the said income is far from clear, nor does the scheme provide for the action to be taken when the local agents find that there has been some misappropriation, embezzlement or breach of trust or when the sajjadanashin refuses to place the necessary papers before them or declines to let them have access to the office of the Khanqah and the connected institutions. It ought, in our opinion, to be made clear that it is no part of the duty of the local agents to appoint or interfere with the subordinates of the sajjadanashin in the actual management of the properties and the institutions. They should look into the sajjadanashin''s accounts, and for this purpose the sajjadanashin must place all necessary papers before them. Should the sajjadanashin fail to do so, or should he fail to give them a satisfactory explanation of anything in the accounts which in their opinion requires explanation, they should, subject to such instructions if any, as may be received from the revenue authorities, report the matter to the District Judge who may thereupon, should he consider it necessary to do so, appoint a manager answerable to himself, the cost being charged to the Sajjadanashin''s surplus, and the management being restored to the Sajjadanashin only when he satisfies the District Judge that orders will in future be properly attended to.
63. Such manager may, in the discretion of the District Judge, be empowered to make the collections only or may further be empowered to administer the connected charities. Rules should be framed by the District Judge as a part of the scheme for the way in which the work of the manager, whenever one is appointed, is to be carried on; but it should be kept in mind that the local agents, who must be allowed to function until withdrawn by the revenue authorities, may still be of assistance and save the Court much needless labour. The District Judge should also have power to make such alteration in these rules as he may at any time consider necessary.
64. So much has come to light regarding the deplorable condition of the finances of the trust estate since the filing of this appeal that it seems to us that the scheme must also be modified so as to include transitory provisions as in 1893. The lower Court should (as soon as the necessary rules can be framed) replace the receiver by a manager for not more than five years to make the collections from all the properties of the endowment and pay the public dues. The salary of the manager should be charged half to the Farrukhsiyari and half to the Alamshahi income. There should be a regular scheme of repayment of debts and rebuilding and repairs. The balance of the Farrukhsiyari income should be made over to the Sajjadanashin-mutawalli to be appointed by the lower Court as the cost of performing his religious trusts and his Sajjadanashin''s surplus; and the balance of the Alamshahi income should be made over to him for carrying out the charitable trusts.
65. The management should be put into the hands of the Sajjadanashin-mutawalli as soon as the finances are put into order; and the maximum period of five years should not be exceeded except with the leave of this Court.
The scheme that we have attempted to sketch does not by any means purport to be complete but contains the modifications that appear to us to be necessary in the scheme of the lower Court. We would direct the District Judge to draw up a complete scheme in the light of these observations, and add the usual provision regarding liberty to apply for modifications or alterations: see para. 8 of the Maulanagar Scheme at p. 355 of the Report in 11 Patna. The decree of this Court need only embody the broad principles of the scheme, as in the Maulanagar case, and the detailed scheme of management should be prepared by the District Judge after hearing the parties.
66. The appeal fails substantially and must be dismissed. The cross-objections have succeeded in the matter of some not unimportant details. As to costs we consider that the justice of the case will be met by allowing the appellant to get his costs incurred in getting the paper book prepared from the income of the Farrukhsiyari properties and allowing the respondents'' costs to come out of the income of the B properties.
