(PRINCE) GHOLAM HOSSAIN SHAH Vs. ALTAF HOSSAIN

JUDGEMENT

(1.) This appael has arisen out of a suit instituted by the plaintiffs appellants, as the members of the committee for the management of the Hooghly Imambarah, appointed under Act 20 of 1863 (I. C.) for a declaration that defendant 1, respondent has been validly removed from his office as manager or muttawali of the Hooghly Imambarah, and that defendant 2 has been validly appointed in his place. In addition to the declaration mentioned, the plaintiffs in the suit prayed for a perpetual injunction restraining defendant 1 from asserting his alleged right to the office, and interfering with defendant 2 in the execution of his duties. The suit was dismissed by the Subordinate Judge, in whose Court it was instituted, on 21 May 1929; and this appeal was preferred by three out of the five original plaintiffs in the suit. One of the plaintiffs, plaintiff 2, died before this appeal was filed; plaintiff 3 died alter the filing of the appeal to this Court.

(2.) The history of the litigation has to be stated in some detail, in view of the nature of the controversy between the parties. Hajee Mohamed Moshin, a name writ large in the annals of Bengal, executed a deed of appropriation or endowment on 20 April 1806 conveying certain properties, yielding a very large income, to two Muttawalis named Rajab All Khan and Shakur Ali Khan in trust for certain, purposes. For the purpose of the present case, we are concerned with the income out of properties devoted to what is described as religious or pious purposes. The different purposes of the trust were mentioned by the founder of the endowment under three heads: (1) three-ninths on religious ceremonies and the upkeep of the Imambarah at Hooghly; (2) two-ninths on emolument of the muttawalis, (3) four-ninths in maintaining establishment, and paying certain pensions. The muttawalis appointed by the founder of the endowment were given the power to appoint their successors. The trust so created was carried into effect, and Haji Mohamed Moshin died in the year 1813, when the two muttawalis appointed by him were in possession of the endowed properties. In the same year Shakur Ali Khan, one of the muttawalis was seriously ill, appointed his son Baker Ali Khan muttawali in his place, and died in the next year. Rajab Ali Khan and Baker Ali Khan who acted as joint muttawalis, were dismissed by the Board of Revenue by virtue of powers con-ferred upon the Board by Regn. 19 of 1810, and one Syed Ali Akbar Khan was appointed sole muttawali, in the year 1818, of the Imambarah and the religious ceremonies connected therewith. The Government thereupon substituted one trustee for two muttawalis appointed by the original deed of endowment, thereby substantially altering the original idea of having two muttawalis.

(3.) In the year 1825, Wasiq Ali Khan, claiming muttawaliship under a nomination by his father, Rajab Ali Khan, brought a suit impugning the right of the Board of Revenue to dismiss muttawalis, and claiming the right of his father to nominate him as the successor muttawali. The case of the Government as stated before the Court in Wasik Ali Khan's suit, was that the case was of a public trust of a religious endowment, which properly came within the intent and scope of Regn. 19 of 1810, Under Section 13 of which the revenue authorities and local agents had full power, on proof of corruption on the part of the incumbent trustees, to appoint others in their stead. In the case the Board of Revenue with the sanction of the Governor-General in Council, on full proof of corruption, incapacity, and dishonesty, appointed Ali Akbar Khan to the office of muttawali. The Government's case further was that Rajab Ali Khan had no power to appoint a successor. The case came up to the Sadar Dewany Adalat (6 S. D A. 130). The plaintiffs suit was dismissed. The final decision was passed by the Sadar Dewany Adalat in September 1836. The learned Judges held that the trust created by Haji Mohamed Moshin was of the nature of a towleeut mi-ul-waseeut or testamentary trust (per Mr. Barwell and per Mr. Smith); that the Board of Revenue under the authority vested in the Government and delegated to the Board by Regn. 19 of 1810, had the power to remove a muttawali on sufficient grounds, and that power was rightly exercised. On such dismissal, the office of Muttawali became vacant (per Mr. Smith). It was further held that under the terms of the original trust deed, the endowment could not have been excluded from the control and superintendence of the Board of Revenue, who possessed the right of control over such establish, ment.