Farman Ali Khan Vs. Mohd. Raza Khan and anr. - Court Judgment

Malik, C.J.

1. this is a defendant's appeal against a decree passed by the learned District Judge of Allahabad in a suit filed under Section 92, Civil P. C. Mt. Musharraf Begum, widow of Arab All, and his daughter, Hatimi Begum, executed a deed of waqf on 12th October 1928. Farman Ali Khan, defendant-appellant, was appointed the mutwalli of the property. The income of the property made a waqf of, was said to be Rs. 2,450 out of which land revenue and Government dues had to be paid and Rs. 250 were fixed as the collection charges. A sum of Rs. 600 was set apart for expenses incurred during the Moharram and another sum of Rs. 600 during the month of Ramzan. Detailed instructions were given as to how the money was to be spent. Farman Ali and his two brothers, Waris AH and Abdul Hasan, and Abid Husain, a grandson of Arab Ali, were to get an allowance of Rs. 25 each per mensem.

2. The plaintiffs, Yaqub Husain Khan and Mohammad Raza Khan, claimed that they be-longed to the Shia sect and were residents of Dariabad where the wakifs resided and were thus interested in the waqf. They alleged that the mutwalli had not been holding Majlis during Ashra Moharram, nor was he carrying out the other objects of the waqf, and had also not furnished any accounts. It was further alleged that he was heavily indebted and had executed a lease for a period of two years of village Bakar to pay his personal debts.

3. The allegations of breach of faith were denied in the written statement and it was pleaded that the plaintiffs were not residents of Dariabad and they bad no concern with the waqf and were, therefore, not entitled to sue. It was further alleged that there was enmity between the appellant Farman Ali and one Mahmood Ali Khan alias Agha Ali Khan and the suit had been filed at the instance of Agha Ali Khan.

4. Arab Ali was possessed of considerable property. During his lifetime he had made a waqf of his property and appointed his son Haidar Husain Khan as the mutwalli. His widow, Musharraf Begum, had been given a sum of only Rs. 15 per mensem for her expenses. After the death of Arab Ali, Musharraf Begum and others denied the validity of the waqf executed by Arab Ali, and a suit had to be brought by Sikandar Jahan Begam for a declaration that the property was waqf and she was the mutwalli after the death of her husband, Haidar Husain Khan, son of the wakif. The case was fought up to this Court and the decision of this Court is reported in Musharraf Begam v. Sikandar Jahan Begam : AIR1928All516 .

5. Musharraf Begum and Hatimi Begam thus got certain properties about half of which valued at RS. 30,000 they made a gift of to Far-man Ali by a deed dated 12th October 1928. Arab Ali was a pious Shia and during the period of Moharram and in the month of Ramzan he used to perform certain acts which were considered to be pious acts according to the Shia tenets, and for the performance of those acts a part of the property valued at Rs. 24,ooo was made a waqf of by Musharraf Begam and Hatimi Begam on the same date, 12th October 1928, and Far-man Ali was appointed the mutwalli.

6. Three points arose for decision, firstly, whether the plaintiffs had sufficient interest to be able to maintain the suit, secondly, whether the waqf was of a private nature or was a public waqf and, thirdly, whether sufficient cause had been made out for the removal of Farman Ali from mutwalliship,

7. The learned District Judge held on all the three points in favour of the plaintiffs and directed the removal of Farman Ali.

8. Arguments have been addressed to us on the same points that were raised before the lower Court.

9. On the first point whether the plaintiffs had any interest and could maintain the suit, the case for the plaintiffs was that they were Shia Muslims and were residents of Dariabad. The fact that the plaintiffs were Shias was not denied. The learned District Judge has said in his judgment that although one of the defendant's witnesses has denied that the plaintiffs are Shias the fact that they are Shias is not seriously disputed on behalf of the defendant. That was also the position before us. The point that the learned Advocate-General has urged, however, is that it was not established that the plaintiffs were residents of Dariabad and even if they were residents of Dariabad, they could not have any interest in the waqf which was in the nature of a private waqf, the main object being the maintenance of the members of the family.

10. The plaintiffs gave their residence as Dariabad in the plaint. In para. 16 of the written statement the appellant pleaded that the plaintiffs were not the original residents (asal bashinda) of mohalla Dariabad. Syed Hamid Ali, defendant's witness, has stated that the plaintiff Mohammad Raza has been living in Dariabad since his childhood, and as regards Yaqub Hasan he has stated that Yaqub Hasan has been living in Dariabad ever since the witness attained the age of discretion. The witness is aged 72 and so Yaqub Hasan has also been living in Dariabad for a very long time. This supports the evidence of Mohammad Raza, plaintiff, and the other witnesses for the plaintiffs to the effect that the plaintiffs are residents of Dariabad. Mohammad Raza Khan, plaintiff, has stated that he has been living in Dariabad since the age of 7 and that Yaqub Hasan is an original resident of Dariabad. It is not necessary to quote the evidence of the other witnesses for the plaintiffs who depose to the same effect. The appellant Farman Ali, when asked about Mohammad Raza Khan, said that he did not know where he was living. As regards Yaqub Hasan he said that he belonged to Kanpur. He was cross-examined about the residence of Yaqub Hasan and he had to admit that there was a house in Dariabad in the name of Yaqub Hasan's daughter and daughter-in-law. Musharraf Begum the wakif, admitted that Yaqub Hasan Khan was living in Dariabad since he came with his mother at the age of 6 or 7. Ejaz Husain Khan, defendant's witness, has however, stated that Mohammad Raza, plaintiff, belongs to Fatehpur while Yaqub Hasan belongs to Kanpur.

11. We agree with the finding of the learned Judge that the plaintiffs are the residents of Dariabad, supported as this finding is by the evidence of the witnesses for the plaintiffs and by the defendant's witness Syed Hamid Ali and in part by the wakif, Musharraf Begam.

12. The point for consideration is whether the fact that the plaintiffs are Shias and they are residents of Dariabad gives them sufficient interest to maintain the suit.

13. Under Section 92, Civil P. C., two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General may institute a suit. In the Code of 1877 (Act x [10] of 1877), Section 539, the plaintiffs were required to have a direct interest in the trust. Lord Eldon, Lord Chancellor, In re, Bedford Charity, (1819) 2 Swanst 470: (19 R. R. 107), had held that under Romilly's Act (52 Geo. III, C.101) persons who had a direct interest in the charity were the only persons who were interested to present petitions to the Court in certain matters relating to public charities and that may have led to the word 'direct interest' being used in Section 539 of the Code of 1877 in which for the first time a provision was made for suits by two or more persons, with the consent of the Advocate-General, for relief with respect to public trusts. In the Code of 1882, Section 539, the same words 'direct interest' remained, but the word 'direct' was deleted by the Amending Act VII [7] of 1888. The Code of 1908 also provides that two or more persons having an interest in the trust can file a suit. After the deletion of the word 'direct' it was no longer necessary that a person should have a direct interest to enable him to institute a suit, and the amendment has thus widened the class of persons entitled to institute suits under the section. By omitting the word 'direct' and at the same time giving the right of suit only to persons interested the Legislature must have intended not to give the right of suit only to those who had some direct interest e. g., those who were connected with the management or who had some special interest greater than that of others who had interest in the trust, but at the same time to restrict the right of suit so that only those who had a real interest in the present and not merely a sentimental interest in future like that of a mere co-religionist could file a suit. This was with the obvious object not to allow those who were in charge of public trusts to be harassed by litigation at the instance of busy bodies who had no real or personal interest in the trust. If every Hindu is deemed to be interested in a Hindu trust and every Mohammadan in a Mohammad an trust then the words 'having an interest in the trust' would become so wide as to become practically meaningless. The words 'interest in the trust' must be interpreted to mean some such interest which is affected by mismanagement so that the person is interested in having the affairs of the trust set right by Court.

14. The question in this case, however, narrows itself to this short point whether a Shia Mohammadan who is a resident of Dariabad and who has been taking part in the various functions like the majlises, aftari etc. held in Dariabad is entitled to bring this suit. We are of the opinion that it being established that the plaintiffs are Shia Mohammadans, that they are residents of Dariabad and that they used to take part in the various functions connected with the trust, they are persons who have sufficient interest in the trust so as to be able to maintain the suit.

15. Several decisions were cited by the learned Advocate-General. In Ramachandra Aiyar v. Parameswaran Unni, 42 Mad. 360 : A. I. R. (6) 1919 Mad. 884) the only interest that the plaintiffs had was that they were Hindus. They were living in a different locality and had not been visiting the temple. Wallis C. J. held that

'the Legislature intended the plaintiff to have some special interest in the endowment whether based on the right to worship or on habitual attendance, and this intention will be frustrated if it be held that every Hindu and every Muhammadan in India or beyond has an interest. . . . . '

The learned Chief Justice pointed out that every temple and every mosque is dedicated for the use of every Hindu and every Mohammadan and in that sense every Hindu and every Mohammadan can say that he has interest, but this is not the type of interest that the section contemplates. In the later part of the judgment the learned Chief Justice observed that 'the plaintiff is a Hindu by religion, but he must have a clear interest in the particular trust over and above that which millions of his countrymen may be said to have by virtue of their religion.'

The other learned Judge, Kumaraswami Sastri J. expressed a different opinion. The case was referred to a Full Bench and it was held by the majority that

' 'interest' under Section 92 of the Code denotes an interest which is substantial and not sentimental or remote: It must be a present and substantial and not ft remote and fictitious or purely illusory interest.'

Abdur Rahim J. did not agree. The expression 'a present interest' used in the judgment of the majority does not mean that the person desiring to file a suit should be benefited in praesenti, for example, if the wakif has fixed a line of mutwallis or has appointed beneficiaries one after the other, though a mutwalli to be appointed later or a beneficiary to be benefited hereafter may not have 'a present interest', it cannot be said that neither of them has any interest in the trust of the nature to enable them to maintain a suit under Section 92 of the Code, The words 'a present interest' must mean an interest, whether in praesenti or in future, which is likely to be affected by the way the property is managed or mismanaged by the trustees at the time of the contemplated suit. In Vaidyanatha Ayyar v. Swaminatha, Ayyar, 51 I. A. 282 : (A.I.R. (11) 1924 P. C. 221) their Lordships held that the descendants in the female line of the founder of a trust of a public purpose for the benefit of the Hindus had a sufficient interest to maintain a suit under Section 92 but a remote possibility that a Hindu might desire to resort to a particular temple in any part of India did not give him such right. Their Lordships approved of the dictum of Wallis C. J. in Ramachandra Aiyar's case, (42 Mad. 360: A. I. R. (6) 1919 Mad. 384), that

'the object was to prevent people interfering by virtue of the section (Section 92) in the administration of charitable trust merely in the interest of others and without any real interest of their own.'

In the case of Gayananand v. Jagdish Chandra, 1942 A. L. J. 334 : (A. I. R. (29) 1942 ALL. 315) the plaintiffs who were merely Hindu residents of Benares were held to have no interest which would entitle them to file a suit under Section 92. Their Lordships were of the opinion that the Madras case Ramachandra Aiyar v. Parameshwaran, (42 Mad. 360: A. I. R. (6) 1919 Mad. 384) was stronger than the case before them as barring the fact that the plaintiffs were Brahmins of Benares, they had taken no interest in the case and had not even come to the Court to show what, if any, their interest was.

16. The rulings cited above and relied on by the learned Advocate-General do not, in our opinion, help him to establish that the plaintiffs in the case before us have no sufficient interest which can entitle them to maintain the suit.

17. The next point for consideration is whether the trust is of a private or a public nature. The learned Advocate-General has urged that the trust was of a private nature and the suit under S. 92 of the Code was therefore, not maintainable. After the Mussalman Wakf Validating Act (VI [6] of 1913) a waqf created for the maintenance and support of the family of the wakif, 'generation after generation, is valid, provided the ultimate benefit is reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character. Section 92 is applicable to all suits relating to trusts created for public purpose of a charitable or religious nature. A waqf under the Mohammadan law means divesting of one's ownership and vesting the same in God, the profits alone being available for application towards the objects mentioned in the deed. Where, therefore, a Mussalman makes a waqf known as waqf alal aulad with the ultimate benefit being reserved for a public purpose, even though the public may have no chance of being benefited while any one in the family of the wakif is alive, it will be difficult to hold that the waqf is a private waqf so long as there are any descendants in the family of the wakif and becomes a public waqf when the line is exhausted. As I have pointed out in Mt. Khatun Begam v. Saghir Husain : AIR1945All321 .

'The application of modern conception to an old system of law, when the ideas and the legal principles in the minds of those who laid down the law were entirely different is apt to lead to confusion and difficulties.'

Mr. Ameer Ali expressed an opinion in Md. Ismail Ariff v. Ahmed Moolla Dawood, 14 A. L. J. 741 I (A. I. R. (3) 1916 P. C. 132) that the Mussalman law like the English law draws a wide distinction between public and private trusts and the Qazi has greater rights of interference in a public trust, but what exactly was the distinction was not stated by him. It has been assumed in most cases that under the Mohammadan law also there may be waqfs of a private nature to which Section 92 was not applicable ; see Mohd. Yusuf v. Mohd. Shafi : AIR1934All1013 , Mahammad Nabi v. Province of Bengal : AIR1942Cal343 . In Abdul Halim v. Mt. Nasibunnessa Bibi, 44 C. W. N. 969, Ameer Ali J. pointed out five different ways of classifying waqfs. It is not necessary for us, the Court, to go into the question what waqfs may be classified as public waqfs under the Mohammadan law, suits with respect to which may be filed under Section 92, Civil P. C. For the purposes of determination of that question we must apply the Anglo Indian law and decide whether, this is a private trust as opposed to a public trust; in other words, whether the trust is for the benefit of an unascertained fluctuating body or for the benefit of certain named individuals.

18. A private trust has been defined as a, trust only for the private convenience and support of individuals or families while a public trust may be for the benefit of the public, at large or some portion of it answering a particular description, the object being to benefit an un-certain and (fluctuating body and the trust being of a permanent and indefinite character. Judged from this standard, there can be no doubt that the trust in question was a public trust. The objects of the trust as set out in the deed are: Rs. 500 to be spent towards Azadari of Syed Us Shuhda and Rs. 600 in the month of Ramzan for Majlises to be held during Ashrai Moharram to commemorate the martyrdom of Syed Us Shuhda, the money being spent for the remuneration of Zakirs, in the distribution of tabarruk and for purposes of Azadari. An Alim of the Shia faith has to be called to conduct the five prayers and after the -evening prayers aftari has to be distributed and the expenses of the Alim met. When the beneficiaries of the waqf and their descendants become exhausted the income from the waqf properties has to be utilised in giving scholarship and maintenance allowances to Momin students following the Shia faith of Asnai Ashri.

19. The evidence on the record appears to be all one way that the Shia public was intended to be benefited and that they attended the various functions as of right. Murtaza Husain Khan, a witness for the plaintiffs, has stated that the residents of Dariabad who desired to attend the congregational prayers attended the prayers conducted by the Moalvi. Mohammad Raza Khan plaintiff has stated that the Majlises are mostly attended by Shias but also by Sunnis and also by Hindus. The public can attend these Majlises. Congregational prayers are also open to the public. Syed Hashim Ali, another witness, states that congregational prayers are open to the Shia public as of right whenever they may be held. Majlises are also open to the public as of right. Mahmud Ali Khan, the next witness, has stated that every Shia has a right to take part in congregational prayers and that the Shia public is interested in the provisions made in the waqf deed about Azadari and Ramzan as a matter of right.

20. The defendant's witnesses, more or less, say the same thing. Farman Ali Khan appellant has himself admitted that the prayers were open to all Shias and so was Aftari. Mt. Niyadri Begam states that the appellant always sends Aftari to Imam Bara. Maulana led the congregational prayers in the Imam Bara where the Aftari was also distributed. The more men were collected in the Majlises, the more he was pleased. This congregational prayer and Aftari were meant for all the Shias who attended. According to the wakif, Musharraf Begam, the public has got only such rights as coming to Majlis or jalus or matam (mourning). Later in cross-examination she admitted that everybody whether Hindu, Muslim, Shia or Sunni could participate in the Majlis and no one could check any one who went to offer prayers in Ramzan with Alims.

21. In view of the terms of the waqf deed and the evidence of the witnesses we are of the opinion that the trust is a public trust and a suit under Section 92 of the Code is, therefore, maintainable.

22. Coming to the question of the breaches of trust, the waqf deed provides that an Alim shall be called to lead the congregational prayers in the month of Ramzan. It is in evidence that for the first few years the appellant did call an Alim. Thereafter the public has been subscribing for the expenses of an Alim who is called by them. The appellant's contention is that he ceased to call an Alim as the public bad started calling one. The plaintiffs' contention, on the other hand, is that the public was compelled to call an Alim at their expense when the mutwalli ceased to call one. The lower Court came to the conclusion that as the appellant had ceased to call an Alim the public was compelled to call one. We are inclined to accept the finding on the point arrived at by the lower Court. The lower Court has relied on a statement made by the appellant before the Tahsildar. It is contended that it was not admissible in evidence, but even if that statement is omitted it appears more probable that the public started spending money as the defendant had ceased to call an Alim. The evidence of the plaintiffs' witnesses on the point is supported by the defendant's own witness, Syed Hamid Ali, resident of Dariabad, who has stated that when no Alim was invited by Farman Ali for four or five years, the mohalla people made the arrangement of raising money by subscription to call an Alim. There is, therefore, no doubt that the defendant has not carried out the instructions in the waqf deed that he should call an Alim.

23. Another breach of trust which it is said the defendant had committed was that be did not call Majlises in ashra Moharram which has been interpreted before us as the first ten days of Moharram but in ashra sani and ashra, chehlum. The fact that the defendant had been holding Majlises in ashra sani and ashra chehlum has been deposed to by a large number of witnesses for the defendant as well as for the plaintiffs. Neither the defendant nor the waqif, Musharraf Begam, was asked why the mutwalli was holding Majlises from the eleventh day when he was required to hold Majlises on the first ten days. In the absence of any expert evidence in the case it is difficult for us to decide what ''ashra Moharram' really means. Learned counsel for the appellant has urged that it means ten days in the month of Moharram, while learned counsel for the plaintiffs respondents has urged that it means the first ten days of Moharram. No point seems to have been made in the Court below why the Majlises were being held from the eleventh day and not during the first ten days, and in the absence of any evidence as to the meaning of the words 'ashra Moharram' it is not possible for us to hold that the defendant has committed a breach of the term of the waqf. It was suggested by learned counsel for the plaintiffs-respondents that Arab Ali used to perform Majlises in the first ten days and his brother Salawat All from the eleventh day, and the appellant being the son of Salawat Ali performed the Majlises which used to be performed in his family and not the Majlises which used to be performed by Arab Ali, the husband of the wakif. We have already said that as no point seems to have been made of it in the lower Court, we are not in a position to decide how far this charge is proved. We can only issue a general direction to the mutwalli that he must perform the Majlises in accordance with the terms of the waqfnama and call an Alim for congregational prayers as required under the waqf deed.

24. The next charge was that the mutwalli had been utilising the money for purposes other than those mentioned in the waqf deed. As regards this, the learned Advocate-General has urged that the other expenses are all incidental to what has been mentioned in the waqf deed and at beat it can be said that the mistake, if any, was committed in good faith. There can be no doubt that ashra means, ten days and, therefore, there was no reason why the mutwalli should have performed Majlises out of the money provided for in the waqf deed both for ashra sani as well as for ashra chehlum. The mutwalli must confine himself strictly within the terms of the waqf deed and any other function that he wants to hold must be at his own expense. He must maintain proper accounts. The lower Court has inferred from the fact that no accounts were produced that proper accounts were not maintained. The mutwalli, on the other hand, took his stand on the terms of the waqfnama that no one except the stipend-holders would have the right to call for accounts.

25. Two other charges were made against the mutwalli, one, that he had executed a theka for two years of one village. It is not proved that the theka had been executed for a sum less than the proper amount or that the money realised from the theka had been diverted to other purposes and we cannot consider the granting of a theka for two years to be a breach of the terms of the waqf deed.

26. Lastly, it was alleged that contrary to the terms of the waqf deed the mutwalli had not made proportionate reductions in the stipends with the reduction of the income. It is true that the mutwalli has said that when the income is less he reduces the allowance without any strict regard to proportion, but this must be read along with the rest of his statement that he has been paying the allowances in full and that any reduction in the amount left for the religious observances is made up by him out of his own private funds. In the absence of anything to prove that this statement was incorrect, it can-not be said that the mutwalli is guilty of breach of trust.

27. The learned Advocate-General has urged that this is not a bona fide suit and has been filed at the instance of Agha Ali Khan. He has relied on certain observations made in Jugal Kishore v. Shiam Lal : AIR1944All231 that the Advocate-General before granting leave should try to find out whether it was a bona fide suit by persons aggrieved or was being filed with some ulterior object of revenge. That may be a matter for the Advocate-General to consider, but so far as the Courts are concerned, if two persons who have an interest in the waqf have filed the suit under Section 92, after obtaining the sanction of the Advocate-General, we do not think that the Courts can refuse to entertain the suit merely on the ground that the plaintiffs may have been actuated by motives of personal revenge or had been set up by others. We do not think the question of motive, therefore, is of much consequence, though in awarding costs that may be a point which may be considered.

26. The result, therefore, is that it has been proved that the mutwalli has not called an Alim and that the mutwalli has been holding certain functions which do not appear to have been strictly included in the various objects of the waqf and further that the mutwalli did not produce his account books in the lower Court. The question is whether on these facts the mutwalli should have been removed. It must be borne in mind that neither the stipend-holders nor the wakif, who is alive, have any grievance. It is admitted that most of the various objects for which the waqf was created are being duly performed. In the waqf deed a provision is made that the mutwalli shall be removed on any of the following grounds (1) if the mutwalli does not pay to any stipend-holder his two half yearly allowances, (2) misappropriates the same, (3) squanders the waqf property, (4) mismanages the waqf property in such a way as to cause loss to the waqf property, and (5)'commits any immoral act. None of these five grounds has been made out and in view of the fact that the wakif as well as the other beneficiaries have no complaint, we do not think it is a case where the mutwalli should be removed from office. He should, however, be directed to maintain proper accounts of the income and expenditure in respect of the waqf property which should be available for inspection when directed by the Court. He must perform the various objects of the waqf strictly in accordance with the terms of the waqf deed.

29. The result, therefore, is that the decree of the lower Court is set aside and this appeal is allowed to the extent mentioned in this judgment. The parties must bear their own costs in' both the Courts.