(1.) The following are the reasons for our order dated 7 August 1935, dismissing this appeal with costs. This is an appeal by the plaintiff, who is a merchant, shopkeeper and money lender, from the dismissal of his suit to recover from defendant 2 (a trustee) a sum of Rs. 14,000 in respect of money lent and goods supplied to defendant 1 the trustee-predecessor of defendant 2 on the allegation that the money lent and the goods supplied were lent and supplied for the benefit of the trust and were so in fact applied by defendant 1. It is now admitted that the money and goods were in fact supplied to defendant 1 and a judgment has been given against defendant 1, but defendant 2 and the trust property have been held free from liability. It was contended that in fact the money and goods supplied to defendant 1 were applied by him to the services of the trust. It was held that the plaintiff had failed to establish this. Now where a trustee has incurred debt the creditor cannot recover against the trust property unless the trustee, if he had paid the debt, could have claimed indemnity out of the trust property. In other words the principle of subrogation applies; the creditor can only claim to stand in the shoes of the trustee as against the trust property and his rights are no greater than those of the trustee. This is the law in India as well as in England.
(2.) The right of a trustee to be indemnified out of the trust property for expenses incurred by him is a matter of the particular trust concerned and of the rules applicable to a trust of the class to which it belongs. In this case the trust is of the class known as "wakf" and of the variety founded for the perpetuation of religious establishment based on the personality of some deceased saint. In this kind of wakf the duty of the mutawalli extends to the performances of religious observance and he is also the religious superior of the establishment. Such a mutawalli Is called a sajjadanashin. Sajjada is the carpet on which prayers are offered and nashin is the person seated thereon. The sajjadanashin is not only a mutawalli but also a spiritual preceptor. He is the curator of the dargah where his ancestor lies buried, and in him is supposed to continue the spiritual line (silsila). These dargahs are the tombs of celebrated dervishes, who, in their lifetime, were regarded as saints: see Ameer Ali's Mahomedan Law, 4 Edn., Vol. I, p. 443.
(3.) There is no dispute that the trust is of this character. Defendant 1 at the date of the transactions in question was the sajjadanashin of this trust or kankah. Subsequently to the transactions with the plaintiff he was, on petition, removed from the office of mutawalli by order of the District Judge on account of extravagance and mismanagement of the trust funds. He was allowed to continue in the purely religious capacity of sajjadanashin of the kankah, but defendant 2 was appointed mutawalli and assumed the temporal functions of the trusteeship and the control of the trust property. We have now to consider the position of a mutawalli in the matter of his power to bind the trust funds to pay debts incurred by him. The fact that in this case the mutawalli is a sajjadanashin is of little if any, importance. Having regard to the nature and object of the trust to perpetuate the memory of a particular saint, the sajjadanashin can only be chosen from among the saint's descendants and ho is under an obligation, in addition to his duties as mutawalli (i.e., managing the trust property and out of it any allowance reserved by the trust deed to specified persons or classes of persons) to carry out religious ceremonial. But in the matter of the trust funds he is in no better position than that of any other mutawalli. In this capacity he may borrow money and incur debts for the preservation of the trust property, but even then only with the sanction of the Kazi (whose modern representative is the District Judge) and the Kazi may authorize him to create an incumbrance upon the waqf property. If the income from the property should decline he must cut down the payments to beneficiaries. He may not pay dividends out of capital and in no case may he mortgage the capital to pay off loans) without the consent of the Kazi. The learned authorities cited by Mr. Ameer Ali at pp. 470 and 471 of the work referred to establish this limitation upon the power of the mutwalli, and the history and nature of this particular waqf is fully described in the judgment of this Court reported in Md. Kazim V/s. Abi Saghir 1932 Pat 33. In the matter of the limitation upon his powers he is in a position other than that of a Mahanth of a Hindu math who appears to have the power of pledging the credit of the math not merely to preserve it from loss or destruction but for the carrying on of the daily ordinary objects for which the math was founded.