The Secretary of State for India in Council vs Gulam Mahaboob Khan Saheb, trustee of the Endowment of the Tomb and Mosque

Abdur Rahim, J.—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 u/s 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 u/s 92 of the CPC 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.

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 performance of 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 u/s 92 of the CPC 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.

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 the Standing 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 ILR (1902)

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.

The next question argued is as to limitation. It is contended on behalf of the Secretary of State that Article 14 of the Limitation Act applies and

that therefore the suit not having been instituted within one year of the order passed by the Board of Revenue it was barred. Article 14 says that for

suits to set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for, the period of

limitation is one year from the date of the act or order. I think that the Subordinate Judge is right in saying that whatever may be the form of the

prayer, the object of the suit is to recover possession of the villages from the Government and that the order of resumption must be treated as a

nullity as the contingency On which alone the Government was entitled to make the resumption did not arise. If the plaintiff did not seek to recover

possession of the villages but only wanted the order of the Board of Revenue to be set aside and to obtain any relief in consequence of that order,

as in the case of Subbanna v. The Secretary of State for India (1915) M.W.N. 915 the suit would come within Article 14. I think the proper

Article applicable in a case of this nature is Article 144, and it is not disputed that the suit was brought within 12 years of the Government taking up

the villages. I would therefore dismiss the appeal with costs.

Spencer, J.

I too am of opinion that the Government Order of the 18th March 1903 resuming the grant in this case cannot be justified on the facts which are

before us. The terms of the grant as they appear from the Inam Register Exhibit I, are that the inam was to continue so long as the services which

consisted of (1) feeding travellers and the poor, (2) maintaining an efficient establishment for the services in the mosque at Anamasamudrampeta

and (3) performing the usual festivals, continued to be rendered. The Subordinate Judge has found that there has been no cessation or

discontinuance of the services specified in the Inam Register. He says that the Urus and other usual festivals have been performed without break,

though on a less grand scale than before; and there is no reason to question the correctness of this finding. In fact, shortly before the passing of the

Government order, the Collector, Mr. Butterworth, reported that religious worship was kept up although the expenditure in recent years had been

considerably curtailed and the mosque and appurtenant buildings were then maintained in good repair. He did not recommend the resumption of

the inam. But he considered that the directions of a Court for framing a scheme of administration was necessary and he asked for orders whether

he should himself take action in this direction. The board of Revenue left the matter in the hands of the Government, and the Government decided

that those portions which had been mortgaged, leased or otherwise alienated and not redeemed within one year should be resumed. In no sense

can it be said that there has been an entire failure of the trust in respect of this inam, but it appears that the Government resolved to resume the two

villages which formed a part of the endowment of the trust on account of the act of one of the former trustees in temporarily alienating them and

thus diverting the income from the purposes of the trust. A list of the villages alienated is attached to the Collector''s report, dated February 1st,

1901; and from his subsequent report of the 18th May 1903, it appears that all these villages except two were redeemed and freed from

encumbrances by the trustee. The two exceptions are the villages of Akbarabad and Ganduvaripalle. The village of Akbarabad was mortgaged

with possession for 30 years from 189 3 with the condition that; at the close of the mortgage period the mortgagee was to give up the property

unconditionally and free of debts. The village of Ganduvaripalle was mortgaged with possession and then the mortgage was converted into a lease

for 12 years from Fasli 1303. The terms for which these villages were alienated expired long before the suit. There was no permanent dissipation

of the endowed property of the trust.

Now that a scheme has been prepared by this Court in appeals 191 and 236 of 1914 and in A.S. 200 of 17, it is unlikely that any further

abuses of the trust and acts of mismanagement by the trustee will occur. It would not be doing justice to the intention of the founder to allow the

institution to suffer for the fault of the office-holder for the time being. Moreover the resumption that was ordered in 1903 would be contrary to the

spirit of the Board''s Standing Orders as amended and brought up to date in 1913 which lay down directions for dealing with cases of religious and

charitable inams held on title-deeds. This is neither a case of a mosque abandoned or in ruins; nor is it one of a permanent loss of title to the land

forming the endowment of the institution in which cases the rules provide for the permanent resumption of the inam. I therefore agree with my

learned brother that the judgment of the lower Court must be supported on this point. I also agree with him that the respondent is entitled to the

mesne profits awarded to him in the lower Court''s decree, that Article 14 of the Limitation Act has no application to the facts of this case, and that

the appeal should be dismissed with costs.