DOST MUHAMMED KHAN Vs. NAZIR ALI SAHIB

JUDGEMENT

(1.) The suit out of which this appeal has arisen was instituted under the provisions of Section 92 of the Civil Procedure Code with reference to a takia (spelt in these proceedings as Thaikal). The origin of the institution dates bask to the seventeenth century. The only account we have as to how it came to be founded is that given in a Persian inscription, Exhibit KKK. That shows that three men, named Taj Firaque Shah, Yar Shah and Hidayat Shah, came from Upper India and settled at Tiruvalur in the Tanjore District. These fakirs or sufis as presumably they were so, died one after another and their tombs apparently became objects of Veneration and received endowments from time to time, from different rulers. One of the grants which is available was made by a Mahratta Prince of Tanjore in 1770 granting about 22 velies of land to the takia which is Called Tas Prakasha Takia; the other grants are not available. But we have got the tenor of them described in the Inam Register and the Inam Settlements.

(2.) The principal question in this case is what was the nature and scope of these grants, whether it was intended as contended for by the respondent that the income from the properties, after defraying the expenses of the maintenance of the tomb and certain ceremonies and observances, was to be appropriated by the person in charge of the takia for the time being, or whether the properties form a public, religious and charitable trust and if so, whether the 1st defendant is entitled to any part of the profits and what is the extent of his rights. There cannot be the least doubt upon the series of documents proved in the case, that the properties in dispute were endowed entirely and solely for the benefit of the takia. The grant by the Mahratta Prince of Tanjore is to the takia. In Exhibit EE, the Inam Register of 1809, the donee is described as the takia, the grantee is spoken of as the religious endowment, the whole village is granted as inam to the takia and the person then in charge one Nida Shah Fakir is described as the manager. In another register which relates to lands in Kanakarapattu, Chidambaram Taluk, Exhibit , the donee is described as the religious institution, the inam is stated to be for the support of the durgah, that is the takia in question, and the person in charge is called trustee and the order of the Inam Commissioner is that the inam is confirmed to the trustee for the time being. Then it is pointed out that the person in charge had not applied the trust property as he should have but what was to be done by way of remedy was left for the revenue and judicial authorities to decide. We have also several title-deeds granted by the Inam Commissioner; they are issued to the manager for the time being Of the durgah and it is stated that the manager for the time being must hold the property for the takia and for the purpose of feeding the fakirs annually in the village. Exhibit G, which is a statement made before the Inam Commissioner by Nida Shah in 1864, describes the inam as Dharmadayam or charitable endowment and from that statement it appears that a rest house was maintained in connection with the charity. Exhibit F is another extract from the Inam Register. There also the endowment is described as a religious endowment in support of the takia and Nida Shah Fakir, in charge of it is called the manager and the inam is confirmed and continued for the benefit, of the take Similarly in Exhibits these inam lands are stated to be held for the expenses of the takia, and were confirmed and continued in the name of the takia. This description of the inam lands is continued in various other documents that came into existence from time to time down to a very recent date for instance in Exhibit XX which is a sale-deed of some lands purchased by Nazir Ali the 1st defendant he is described as Audinakartha or trustee. See also Exhibit XXII. There have been various litigations between the 1st defendant and some rival claimants for the position held by him and in those suits also the 1st defendant described himself as the trustee of the durgah. For instance in Exhibit , a written statement filed in a suit of 1885 the 1st defendant calls himself a trustee "on behalf of the said trust" and then we have leases in which the 1st defendant s position is defined as of a trustee. There are also other documents of a similar nature in which the properties are described, as being the endowment of this durgah or takia- and are treated as trust properties. On the other hand, there are two or three documents to which the 1st defendant was a party in which some lands belonging to the endowment are stated to belong to him as Audinakartha or manager of the takia. In some other documents of a very recent date some of the lands in dispute are stated to be in the enjoyment of the 1st defendant, but even in these documents he is described as holding the lands as Audinakartha, trustee or manager. The evidence, therefore, conclusively shows that the properties in dispute form a public, religious and charitable trust and this is the conclusion arrived at by the learned Trial Judge.

(3.) That being the character of the properties, it seems to follow as a matter of course that the income is to be devoted solely to the benefit of the institution. But the Subordinate Judge has come to the conclusion that the 1st defendant the manager for the time being sajjada nashin as he chooses to call himself in these proceedings, though as a matter of fact that designation did not appear anywhere before the institution of the suit, is entitled to what he calls the surplus after meeting certain expenses. He does not find what are the necessary and proper expenses and if they are fixed, the result of his conclusion seems to be that it is left entirely to the discretion of the 1st defendant or any one else who may hold that office to spend as much or as little as he chooses for the benefit of the durgah and appropriate to himself the rest of the income, His conclusion in this respect seems to be based entirely upon the analogy of mutts and of other institutions referred to in Some decided cases relating to khankahs principally the Khankah of Sasseram. What the character of this particular durgah or takia is and to what objects the income derived from the properties is to be devoted must necessarily depend upon the nature of the grant in this case. It would only be misleading to proceed upon the analogy other institutions may bear resemblance to the observances of this institution. In the case in Mohiuddin v. Sayiduddin 20 C. 810: 10 Ind. Dec. (N. S.) 545., one of the objects, of the grant was the maintenance of the sajjada, nashin and his successors from generation to. generation. In this case there is not a single word to be found in the various title-deeds, Inam Register or grants which suggests that the grant was intended to benefit the man who might be in charge for the time being whether he is called trustee, manager or Audinakartha or Sajjada Nashin. Then in the present case there is no evidence that the man in charge of the; institution has any religious doctrines to teach and in fact the evidence of the 1st defendant and the other evidence in the case strongly suggest the inference that the institution cannot in any sense be said to be intended for the promulgation of any particular esoteric doctrines of Sufism or any other religious order; All that appears is that a fakir has the charge of the durgah, and it is also probable that he nominated his successor and for that purpose, has a disciple also. The 1st defendant was nominated in that way by his predecessor- in-title and we think the Subordinate Judge is right in finding that the governance of this durgah has been in the hands of a succession of fakirs, the holder for the time being of the office nominating his successor. It also appears that there are other institutions (6 or 7 of them are named in these proceedings) of a similar nature though we have no evidence as to whether they are connected with the teaching of any particular doctrine esoteric or otherwise and what was the nature of the grant in those cases. The learned Vakil for the respondent has pressed upon us the argument that because it is called takia, that is, a place where the fakirs, gather round the tomb of a reputed saint, it must necessarily imply that any grant made to the, takia was really intended for the benefit of the holder of the office the head of the institution, for the time being. None of the cases relating to khankahs or durgahs to which we have been referred Jay down any such proposition whatever.