ISHTIAQ AHMAD Vs. SAIYID MASSAOD AHMAD

JUDGEMENT

(1.) THIS was a suit instituted by four Muhammadans under the provisions of Section 539 of the Civil P. C.. The plaintiffs alleged that there had been a dedication by the Moghul Emperors to the shrine of Hazrat Abul Maoli Saheb, that the defendants were the Superintendents or Managers of the waqf and as such bound to spend the entire income on the expenses of the shrine, that they had dishonestly appropriated a greater part of the income of the waqf property to themselves, spending only a small sum on the purposes of the waqf, and permitted the shrine and houses appurtaining to it to fall into ruin. They prayed that the Court might appoint new managers and vest the property in the persons so appointed, that the Court might also require the defendants to render an account of the income and expenditure for five years preceding the institution of the suit, and that necessary rules should be made for the management of the waqf property. The original grant is not forthcoming, but a document which appears to hare been issued about the year 1748 has been produced. It recites a dedication by Nawab Roshan-ul-dowlah (a governor under the Emperor Muhammad Shah) to Shah Abul Maoli of the property in question. Numerous confirmations by subsequent rulers of the original grant have also been produced on behalf of the defendants extending from 1758 to 1815. The last is a parwanah under the seal of the Collector of the Saharanpur District, North en Division, dated the 15 May, 1815. It appears pretty clear from the documents that for a long period the eldest son in succession occupied the position of Sajjadahnashin of the shrine. The first was one Shah Muhammad Baqur who was succeeded by his eldest son and so on in succession until about a hundred years ago. On the death of Shah Muhammad Kabir, his two sons, namely Shah Ghulam Muhammad and Shah Ghulam Maoli succeeded as Sajjadahnashins. They managed to get the waqf property divided between them, one taking 10 1/2 villages and the other 11 1/2 villages. THIS Sub- division has been recognised in the various sanads and is continued down to the present time. The nature of the waqf can only be inferred from the documents produced and from the undoubted facts that the descendants of Shah Abual Maoli have all along remained in possession of the waqf property. A fair inference to be drawn from the documents as to the nature of the waqf is that it was intended thereby to perpetuate the memory of Shah Abul Maoli, to pay the expenses of maintaining his tomb and shrine with their appurtenances, to provide for the entertainment and expenses of the darweshes and visitors and the performance of urs and other religious ceremonies including the maintenance and support of the Sajjadahnashin for the time being and his family. Whether or not it was legitimate, having regard to the original dedication, to divide the property as it was divided on the death of Shah Muhammad Kabir, is a question which it is now too late to entertain. The division took place at least one hundred years ago and has been maintained up to the present time. A number of issues were dealt with by the Court below on some of which it is unnecessary for us to express any opinion having regard to the view we take of the case. Section 539 of the Code of Civil Procedure provides that in the case of a breach of any express or constructive trust created for public, charitable or religious purposes or whenever the direction of a Court is deemed necessary for the administration of any such trust, any two persons after obtaining the prescribed consent may institute a suit to obtain a decree of the nature specified in the section. We have to consider whether or not in the present case there was an express or constructive trust created for public, charitable or religious purposes within the meaning of Section 539. The Sajjadahnashin for the time being is certainly not a trustee merely. We shall later on consider what his position really is. Beyond all question, for a great number of years the Sajjadahnashin for the time being has been in the habit of expending a considerable portion of the income of the waqf property on the maintenance and support of the Sajjadahnashin and his family. No particular exception seems to have been taken to his doing so, and on the evidence before us there is nothing to suggest that it was contrary to the nature of the waqf and the intention of the donor that a large part of the income of the property should be expended in this way. It is quite impossible for this Court to say how much should be expended on the Sajjadahnashin and his family, and how much on the other objects of the waqf. The Sajjadahnashin is certainly not a mutwalli only, he is also a spiritual preceptor. In him the spiritual line of his ancestor is supposed to be continued. He is the exponent of the particular doctrine originated by the saint The position of a Sajjadahnashin has been considered in Mohiuddin V/s. Sayiduddin alias Natoab 20 C. 810 and The Secretary of State for India V/s. Mohiuddin Ahmad 27 C. 674. It seems to us that even if we were satisfied that there had been abroach of trust, we would be unable under the provisions of Section 539 in the present case to remove the Sajjadahnashin for his office. The possession and custody of the property is inseparable from the office of Sajjadahnashin. It would be impossible to appoint new trustees and vest the waqf property in them; in other words, we think that Section 539 does not meet the circumstances of a case like the present. If the Sajjadahhashin for the time being alienates or attempts to deal with the waqf property in an illegal way, there may be means by which he can be restrained. In the present case there is some evidence that the mother of one of the defendants, (who is one of the Sajjadahnashins) alienated part of the waqf property. There is also some evidence that part of the income of the waqf is being applied to keep down the interest of a mortgage of private property made by a former Sajjadahnashin. There may perhaps be some ground for these allegations, but the present suit is a suit solely under the provisions of Section 539, and in our judgment having regard to the nature of the waqf. it is impossible for us to make the decree claimed by the plaintiffs. In the course of the argument it was practically admitted by Sir Walter Colvin that he could not ask the Court to remove the Sajjadahnashins or to appoint new trustees vesting the property in them. But he suggests that the Court might order the defendants to furnish accounts, and that an injunction might issue restraining the defendants from alienating the property and directing them to maintain the shrine and its appurtenances in proper order. We think that this would be going altogether outside the scope of Section 539. No doubt in a case in which a Court had power to divest the old trustees of the property and to vest it new trustees, it would have power to settle a scheme for the future management of the trust and possibly also to require some sort of accounts to be given by the old trustees. But in a case like the present where we have no power to appoint new Sajjadahnashins, we certainly think that we would be straining the intention and meaning of the section if we were to yield to the suggestion of the plaintiffs counsel. We may say that we agree with the learned Judge that there has not been sufficient evidence given by the plaintiff to show that the religious observances have been neglected or that the buildings have not been kept up in fair order. The result is that we dismiss the appeal with costs including fees on the higher scale.