GHOLAM HOSSAIN SHAH Vs. SAYED MUSLIM HOSSAIN

JUDGEMENT

(1.) This appeal was, at the instance of the learned advocates for the parties concerned, heard before the appeal from Original Decree No. 248 of 1929, but as the said appeal arose out of a previously instituted suit, and inasmuch as the decision of the trial Court was given before the decision of the trial Court in the suit out of which this appeal has arisen, we have dealt with the appeal No. 248 first. One of the main points argued before us in this appeal, arising out of the specific prayer in the plaint, is the same as the one decided by us in the other appeal, and our judgment in Appeal No. 248 is therefore to be treated as a part of this judgment.

(2.) The previous history of the litigation is the same as that in the other case. The plaintiffs- respondents in this appeal, as members of the Mahomedan public, instituted the suit out of which this appeal has arisen, with the sanction of the District Judge of Hooghly, Under Section 14 read with Section 18, Religious Endowments Act (Act 20 of 1863), for the removal of the defendant in the suit from membership of the committee appointed under the Act for a decree for damages caused to the wakf estate for misfeasance, breach of trust and neglects of duty. The plaintiffs prayed for a direction upon the committee to observe strictly the directions contained in the trust deed, as regards the appointment of mutawalli, and to abolish the illegal innovation of appointment for the period of three years, with all its objectionable features. There were other ancillary and consequential prayers made by the plaintiffs in the suit, bearing upon the details of the administration of the endowment, In view of the nature of the allegations made in the plaint, a brief reference to the main features of the case is necessary. Haji Mahammad Moshin dedicated his properties to the service of God, by a document, variously described as a towliatnama, a deed of appropriation or a deed of trust, creating an endowment, popularly known as the Hooghly Imatnbarah. Two mutawallis were appointed by the creator of the endowment by the deed executed by him in the year 1806.

(3.) The net income of the endowed properties was divided into nine different shares; three of these shares were devoted to religious purposes, two shares were to be applied to the remuneration of two mutawallis, and the remaining four shares were to be spent for secular purposes, specifically mentioned in the deed of the endowment. The properties which came to be known as the kharij towliat properties, which escheated to the Government after demise of Haji Mahammad Moshin have by virtue of an arrangement made by the Government, all along been treated as appanage to the three ninths share mentioned above. It is not necessary to refer in detail to the narration of events relating to the appointment and dismissal of mutawallis by the Government, acting through the Board of Revenue Under Regulation. 19 of 1810, and the appointment of mutawallis by the committee after the Religious Endowments Act came into operation in 1863 nor would the repetition of the narration of facts leading upto the appointment of mutawallis for a term serve any useful purpose, as they have been referred to in detail in our judgment in Appeal No. 248. The fact that Syed Ashrafuddin was made to retire in 1916, on a monthly pension of Rs. 250, and on payment of a bonus of Rs. 3,000, requires special notice in this case; it has also to be mentioned, for the purposes of this case, that Moulvi Syed Baziuddin had to be given a bonus of Rs. 500 at the time when he was made to relinquish the office of mutawalli. The appointment of Syed Kazi Maini as mutawalli for three years, the appointment of Syed Altaf Hossein in the year 1923 by the committee, and his dismissal by the committee in 1926, are facts to which detailed reference has bean made in our judgment in the other case (Appeal No. 248). The committee appointed one Ajaz Hossein Jaffri in the place of Syed Altaf Hossein, who however refused to vacate the office of mutawalli.