SECRETARY OF STATE FOR INDIA IN COUNCIL Vs. GULAM MAHABOOBKHAN SAHEB, TRUSTEE OF THE ENDOWMENT OF THE TOMB AND MOSQUE

JUDGEMENT

(1.) The appellant, the Secretary of State for India, was sued by the respondents for recovery of two villages of Ganduvaripalle and Akbarabad in the District of Nellore. The Government purported to res me these villages which are described as Dharmadayam inams by an order passed some time in 1903. These two and eight other villages were made wakf for the maintenance of a mosque, and for feeding the poor and similar purposes in the days of the Carnatic Nawab Wallajah. The history of the grant is set out in the enclosure to the Inam Register, Exhibit I. There was a man called Rahimtulla Sahib Pirzada, otherwise described as the Hazarath, who was regarded as a holy man and it was to him that the Fouzdar of Nawab Wallajah at first made a grant of two villages,--not those with which we are concerned,--so that he might feed Syed Mahomedans and other poor men and " ascribe its virtue to Prophet Mahomed." Then it appears eight other villages including the two in question were purchased by the Hazarath at a nominal price from the then Jagirdhar of Udayagiri and he made a gift of them for charitable purposes. He was in possession and enjoyment of the properties in his lifetime and was succeeded after his death, he having died without any issue, by a relation of his wife. The dedication to charity was made some time in the year 1775. After the death of the original founder the properties were held by his successor and the latter s descendants. In a previous suit instituted under Section 92 of the Civil Procedure Code, the whole history of the institution has been reviewed and it was found that the then incumbent of the office of trustee or Sajjada as he was called, one Mahomed Usuf Sahib, was not fit to hold the office having been guilty of gross mismanagement, misappropriation, and misapplication of trust funds. Even before his time, there had been persistent mismanagement of the trust properties. Some of the previous trustees and he himself made alienations of some villages either by mortgaging them or by granting long leases. The two villages in question Ganduvaripalle and Akbarabad were also similarly alienated by the predecessor of the trustee who was the main defendant in the suit under Section 92 of the Civil Procedure Code above referred to. Ganduvaripalle was leased for twelve years in 1894 and Akbarabad was usufructuarily mortgaged for thirty years in April 1883. The question for decision is whether these two alienations amount to a violation of the conditions in the inam patta so as to entitle the Government to resume the villages. As regards Ganduvaripalle, the lease practically expired some time in 1906, and the usufructuary mortgage of Akbarabad had still about ten years to run at the date of the resumption if the mortgage debt was not paid in the meantime. The inam title deed itself is not forthcoming, but we have the inam register and there, in column 21, the entry over the signature of Mr. Chentsal Rao is " I recommend the villages to be confirmed permanently so long as the service is performed. " And looking at column 8, the service there meant is " for feeding the travellers and poor men and for maintaining an efficient establishment for the services in the mosque at Anamasamudrampeta and for performing the usual festivals, service performed. " The order of the Inam Commissioner, Mr. Taylor is as follows: Although there is no sanad or entry in the old accounts in support of 8 of these villages undoubted (?) the sanad uninterrupted possession of them all as Inam for nearly a century must be respected. The ten villages are confirmed in one deed and continued to the parties in column 16 for the maintenance of the religious objects for which they were granted.

(2.) Admittedly this is not what is called a personal inam; nor is it an inam in which the grant is made to a person on condition of his performing certain services of a religious character. The learned Government Pleader conceded that it was a charitable inam or Dharmadhayam, that is to say, that it was an inam for the maintenance and support of certain charitable and religious objects. What is granted here so far as the Government is concerned, is the Government assessment; that is to say, the British Government confirmed the grant and exempted the villages from payment of the Government revenue. I might mention that Mr. Venkatrama Aiyar appearing for the respondents argued that this was not an inam which the Government was entitled under any circumstance to resume because it comes within the description of the inam specified in Section 2 of the Regulation 31 of 1802. Under that section the inams which are declared to be non- resumable are certain grants for holding lands exempt from the payment of public revenue. But the question whether the present grant is one of that category, having been exempt from payment of public revenue at the date mentioned therein was not raised before the Court of trial, and as pointed in Sikkandar Rowthen v. The Secretary of State for India (1916) 5 L.W. 402 this is a question which should not be entertained for the first time in this Court if it was not properly raised in the court of trial. I shall proceed on the assumption that the case is not covered by Section 2 of Regulation 31 of 1802, but that the villages were liable to be resumed if the condition on which the villages were held had been violated. I will also assume that the recommendation of Mr. Chentsal Rao forms part of the order of the Inam Commissioner, the effect of which would be that the grant was to continue so long as the services mentioned are performed. It will be noticed that some of the charitable objects are of an interminable character such as feeding the travellers and poor men. One of the main objects of the grant is the maintenance of the mosque. It appears that on the death of the founder of these charities his tomb became an object of considerable veneration in the locality and by a long course of usage the proper maintenance of that tomb, the celebration of Urus and other ceremonies in commemoration of that holy personage became incorporated with the objects of wakf. The learned Subordinate judge has gone into the evidence and come to the conclusion that the mosque is maintained in good repair and the services are regularly performed there and similarly the Hazaraths tomb is properly maintained and the services in connection with the tomb are observed. But there has undoubtedly been considerable mismanagement for a long time and it may be taken that the religious and charitable observances have not been uniformly performed either on the scale or in the manner in which they should have been. At the same time there can be no doubt whatever upon the evidence that there has been a substantial performanceof the charitable and religious objects of the foundation in spite of misapplication and misappropriation of trust moneys from time to time by the trustees for the time being. In this connection it may be pointed out that in addition to the income of the 10 villages some income is derived also from presents made at the tomb of the Hazarath. Further it has already been held in the suit under Section 92 of the Civil Procedure Code that the maintenance of the descendants of the 2nd Muttawalli or Sajjadanishin is also one of the objects of this charitable foundation. Alienation of these two villages and misapplication of the trust funds such as there have been would not in my opinion strictly be a breach of the condition of the inam grant, so long as the service is performed. As found by the Subordinate judge the services are performed though not to the full extent of the income actually derived or which could be derived from the properties. It is however argued by the learned Government Pleader that the alienation of the two villages, although not of a permanent character, is a diversion of the inam villages to purposes alien to the grant and therefore the villages have become resumable. No doubt in a case where inam villages are alienated in a manner so that they are lost to the charity and the charity cannot be maintained without their income the forfeiture clause would in my opinion come into operation. But I am not prepared to go so far as to hold that a temporary alienation although for a number of years and as such beyond the power of the trustee for the time being, necessarily amounts to a violation of the condition of the grant. The fact cannot be overlooked that this is not a personal grant.

(3.) The grant is to a charity of a permanent character. It is inconceivable that it should have been intended that any act of mismanagement or malfeasance on the part of a trustee of a charity like this should result in the resumption of the grant. If that was the intention one would have expected that the condition would have been to the effect that an attempt of any character at alienation by the trustee would make the inam liable to resumption. In the case already mentioned in Sikkandar Rowthen v. The Secretary of State for India (1916) 5 L.W. 405 it has been sugggested that "a mere alienation of the trust property may not entail a forfeiture if the trustees kept the mosque clean and in good repair, put up the lights and kept it is as a place fit for worship in the usual manner". It is not necessary for us to lay down any such general proposition, for here the alienation was not such as to deprive the charity of the use of the properties. It was further pointed out by Mr. Venkatrama Aiyar the learned vakil for the trustee respondent, that the lease and mortgage of the villages in question were not binding on the chanty and that the trustee Mahamed Esuf Mia Peerjada in fact took steps to get back the villages from the lessee and the mortgagee. The evidence on that point is to the effect that he managed to obtain possession of the villages by getting the tenants to attorn to him by executing muchilikas. It is however found that the mortgage amount due on Akbarabad was not paid but the trustee or sajjadanashin contends that the charity was not bound to pay inasmuch as the debt was not incurred for the benefit of the charity. It seems to me that we must put a reasonable construction upon the language of this grant which is of an extremely laconic character. All that is said is " the villages to be confirmed permanently so long as the service is performed." It cannot possibly mean that any default in the performance of the service of however minor a character would come within these words. Putting a reasonable construction on these words what is contemplated is that if the charity fails altogether, or substantially for instance, through the disappearance of the mosque or of persons who would resort to the institution for prayer etc., or if the charity is entirely discontinued then the Government would be entitled to resume the grant. And that seems to be the interpretation placed on such grant by the Board of Revenue which is the highest revenue authority in the Presidency as noticed in the Standing Orders placed before us. See Standing Order 54 of the old Order pages 120 to 122 paragraphs 2 and 3. Paragraph 2 says :-- "Religious and charitable inams may be resumed on the ground that the land in respect of which the title deed was issued has been alienated or otherwise lost to the institution or service to which it once belonged or that the terms of the grant are not observed." Then it says in paragraph 3 :--"In cases of abandonment or discontinuance of service, all reasonable endeavours should be made to secure a continuance or revival of religious and charitable institutions and services before proceeding to the resumption of inams attached to them." That implies that the resumption is to be made only in cases of abandonment or discontinuance of service. Similarly in paragraph 4 it is said: "Proposals for the resumption of religious and charitable inams should be submitted to the Board of Revenue except in cases of inams or money allowances attached to temples, mosques, etc., which have been abandoned or in ruins for 12 years or more." We are not bound by any interpretation of the Board of Revenue. But I allude to it as showing that that is the customary interpretation which the Board of Revenue has placed on these and similar words of grant and which in my opinion accords with the proper interpretation of the grant in question in this case. I might here mention that what the Government has done in this case is not to order the revenue to be assessed upon resumption to be paid to the charity but has directed the assessment to be credited to the general revenues. The Government might be entitled to do that if they had a right to resume the grant, but I might here refer to paragraph 7 of theStanding Order already referred to: " When the land has been alienated but the institution or service is still maintained, the inam will be resumed, converted into a beriz deduction and reassigned to the working incumbent or trustee." The assessment is to be credited to the general revenues only in the case of a service inam, originally granted for the benefit of an institution or service if it has been resumed on account of the disappearance of the institution or cessation of the service which it is found cannot be restored. Here it is found that the services are still maintained though they are not as efficiently as they ought to be and some of the objects at least are of an unfailing character. Our attention has been drawn to a well known decision of this Court in Gunnaiyan v. Kamakchi Ayyar (1902) I.L.R. 26 M. 339 where there is a dictum of Bhashyam Iyengar, J., to the effect that in cases of Dharrnadayam or Devadayam there is no room for the application of the doctrine of cypres execution. It is unnecessary for us to consider here such a general question. In this case there are certain objects such as feeding the poor and the travellers which it is not alleged to have come to an end, or could become extinct. And I am not at present prepared to say that where there is a general charitable object mentioned in the grant, the doctrine of cypres execution can have no application to Charitable Inams. And it seems that all that the learned Judge meant to lay down by that general dictum was that if the charity be of a specific character and it disappears, then the Government would be justified in resuming the grant altogether and crediting the assessment to public revenue. The learned Government Pleader also relied upon an unreported decision of a Bench of this Court in Appeal No, 342 of 1915 where it was held that a partial diversion may justify resumption. But in this case the alienation was not such as to render the villages unavailable to the charity. On that ground alone I think the present case may be distinguished from the unreported decision. I am of opinion that the conclusion of the Subordinate judge on this point is correct.