SAYAD AMIN SAHEB Vs. SHEIKH MASLEUDIN

JUDGEMENT

(1.) The plaintiffs, who are the present appellants, instituted a suit under Section 92 of the Code of Civil Procedure for the administration and management of certain religious wakf property. The learned District Judge after an investigation found certain of the trustees liable for certain sums. The 4th trustee was found liable only in respect of certain costs, but he was not found to be a defaulting trustee. In providing for the appointment of new trustees, the learned District Judge has included the 4th defendant as one of the trustees. That is substantially the ground of the plaintiffs appeal to this Court, but it does not appear to us that there is any such blame attaching to the 4th defendant upon the finding of the lower Court as should induce us to bold that he is not a fit and proper person to be a trustee under the new scheme. The appeal, therefore, must be dismissed.

(2.) That, however, is not the only question which we have to determine now, for it appears upon certain information brought to our notice by Mr. Mehta, who appears under instructions from the Talukdari Settlement Officer as the Court of Wards in charge of the superintendence of the property of the 1st defendant, that that defendant has now, and since 1909, been a Government ward under the Court of Wards and was so at the date of the institution of this suit on the 20th of December 1910, and although there was a full hearing of charges against the 1st defendant as a defaulting trustee in the Court of the District Judge, the Government Officer acting as the Court of Wards wishes to establish that by reason of defects in procedure provided by the Court of Wards Act (1 of 1905), the whole proceedings so far as the 1st defendant is concerned are a nullity, including the decree for restoration of Rs. 6,000 found to be in his possession as a trustee liable to refund. The point has been brought to the notice of the Court in the form of cross-objections, as the Court of Wards was added as a party respondent by ex parte order. It has been contended on behalf of the appellants that the cross-objections are not properly stamped, We think that this contentious argument is well founded.

(3.) They must be stamped upon that footing as on an appeal relating to the sum of Rs. 6,000 decreed against the 1st defendant. We have no information as to the manner in which the 1st defendant became a Government ward under the Court of Wards Act; whether he is a person declared by the District Court after application and inquiry to be incapable of managing, or unfitted to manage, his own property on account of physical or mental defect or infirmity, or such habits as cause, or are likely to cause, injury to his property or to the well-being of inferior holders under Section 5 of the Act; or whether he is a landholder who has applied in writing to the Governor in Council, under Section 9 of the Act, to have the property placed under the superintendence of the Court of Wards. In the absence of any evidence of a declaration by the District Court under Section 5, it would probably be safe to assume that he has made the application under Section 9. The point, however, is not very material. The 1st defendant was sued with the other trustees of a Mahomedan religious institution, and has been found to have been in possession of the trust funds for a long series of years. Being found to be responsible for a sum of upwards of Rs. 6,000 which has come to his hands, a decree has been passed against him. That decree was passed in a suit under Section 92 of the Civil Procedure Code properly instituted in relation to a public charitable or religious trust.