TMI Blog1921 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the surplus gulla funds, and (d) Badri Mahal, the Bombay residence of the Mullaji Saheb, which is alleged by the plaintiff to have been partly acquired by the aid of the gulla funds. 4. His Lordship dealt with the respective positions of the. Advocate-General and the Attorney-General, in charity matters and also set out the pleadings and issues and then proceeded to observe as follows. 5. At the Bar, the respective cases of the parties are to the following effect. The plaintiff's, case at the Bar is that the above properties (a) to (c) are all devoted to charitable, uses, and that Badri Mahal is partly devoted to such uses in proportion to the gulla funds utilised thereon. He further says that, as the charity is denied, there, ought to be a. decree to establish it. His contention that for the same reason the Court's discretion ought to displace that of the Mullaji's as regards the choitee of charitable objects for the surplus gulla funds, and that educational objects should be selected by the Court, was, I think, abandoned during the concluding stages of the trial. The plaintiff does not now seek to have trustees appointed or to deprive the Mullaji of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their religion, the Mullaji Saheb is the representative of God on earth, and, as such, is infallible and immaculate. The defendants witnesses further say that, according to these tenets, the Mullaji is the master of the mind, property, body and soul, of each of his followers; that these followers are bound to obey him implicitly and cannot question any act of his that he is entitled to take any property, from his followers, whether trust or private property, and if the former, to alter and cancel the trusts and that there can be no such thing in the Dawoodi Borah community as a permanent irrevocable charitable trust, and that it makes no difference in this respect whether the trust purports to be established by deed or by a scheme of the Court. Defendants Counsel, however, are not prepared to support these extreme allegations of their witnesses so far as they relate to the private property of the followers and to private trusts. Counsel stale that they do not want to put their case too high and that they are not concerned in the present case with private property or private trusts, and so the point does not really arise. 9. Substantially, however, Counsel base their case on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eb was Dai-ul-Mutlak. They, however, mentioned this title in Issue No. 12A and on August 31, 1920 I gave them liberty to amend their pleadings in this respect. Subsequently, on September 20, I overruled an objection taken by the defendants to this matter being contested, and I directed an express Issue No. 12(B) to be raised on the point. 13. The point as to Dai-ul-Mutlak is this The succession in 1840 of Najmudin, the 47th Dai, has been disputed by the plaintiff, who has alleged that the 46th Dai intended to nominate Najmudin as his successor but died without in fact doing so. In support of this a writing of Buhranudin, the 49th Dai, dated September 11, 1891 (Ex. A.T.1), is relied on, but this is alleged by the defendants to be a forgery. The plaintiff also relies by way of corroboration on a case for opinion of Counsel in April 1895 (Ex. E.O.) This was put in at a late stage, after argument as to its admissibility. 14. In his final address to the Court, the Advocate-General suggested that it was unnecessary for the Court to decide this point. It is at any rate a separate point and I will deal with it later. Meanwhile I will assume that the Mullaji Saheb is, or is considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ullaji, about 266 (see Ex. 53) and their principal gullets about 69 (see Ex. 52). 18. According to the pamphlet Ex. A.L. (page 2) the founder of this line was Ali, son of Muhammad Solaihi, a missionary sent by Ulmustansir, the 8th Fatimite Khaliph of Egypt (who reigned towards the end of the tenth century of the Christian era or fifth of the Hijri), to Yemen with the, double object to preach the Shia faith of the Egyptian dynasty and to rule over the country. He sent several deputies to Sindh and Gujarat to teach religion to the Shias of his faith and to get proselytes among the natives of India. He and his successors were called Sultanis and Dais of Yemen. Ulmustansir was the 18th Imam and reigned from 1036 A. D. to 1095 A.I), (see Ex. 34.) The reference to the 10th century is, therefore, a mistake for the 11th century. The count in Campbell's Bombay Gazetteer at page 26 agrees roughly with the above date of the mission, but states that the missionary's name was Abdulla, or else Muhammad Ali (see note 1), and that he landed at Cambay. 19. It was at the death of this 18th Imam that the break occurred which now divides the Borahs from the Khojas. The Borahs foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act the Dai does not claim to interfere in any way with the temporal ruling of this country nor with its law Courts. On the contrary in Ex.A.L. emphasis is laid by the then Dai on the friendly relations that have always existed between the priestly gadi and Government. The present Mullaji bears this out in his evidence. He also states that he is content that the temporal affairs of his community should be entirely subject to the British Courts of Justice and that he would not be entitled to dictate to, or otherwise interfere with, a Dawoodi Borah Judge or Magistrate. He goes even further when he says that if necessary he would enforce his powers as Mullaji in the ordinary Courts of Law, supposing any member of the community resisted him. 24. The official position of the Mullaji Saheb is thus described in Campbell's Bombay Gazetteer at page 31: Their leader, both in things religious and social, is the head Mulla of Surat. The ruling Mulla names his successor generally but it is said not always, from among the members of his own family. Short of worship, the. head Mulla is treated with the greatest respect. He lives in much state and entertains with the most profuse liberal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difference exists between a trustee and a quasi trustee. 29. When the Imam comes out of seclusion, these powers of the Dai will immediately cease. Meanwhile the Imam has a staff of 26 in seclusion with him. viz., the Bab (the chief of the Imam's staff); 25 Hujjats, 12 of whom are with the Imam and 12 in charge of the different districts, and the Dai-ul-Balagah. If the Imam was revealed the Dai-ul-Mutlak would occupy a lower rank than any of the above officials. 30. Prior to the 21st Imam, there had also been seclusion of the 7th to 10th Imams, but their names and whereabouts were known to their head officers. This seclusion was probably due to persecution by the Sunni Caliphs, and it really meant that they were hiding from their enemies. 31. Another belief is that as an Imam cannot die without leaving a son, his line is still being perpetuated by earthly descendants, although it is not known who those descendants are, so, too, the Dai on earth cannot die without appointing a successor. 32. Another tenet put forward by the defendants is a chain of intercession with the Almighty. This can only be through the Dai, the Imam and the Holy Prophet, If the intercession is- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from a form now obsolete. For one thing, it purports to give the Mullaji certain powers which he expressly disclaimed in the witness-box. For another, it countenances the possession of slaves which has long since been a criminal offence in India (see Indian Penal Code, Section 370). The Mullaji himself says that Ex. 17 purports to be ninety years old. 36. I have now said enough to show that the Mullaji's religious position is so high that it only causes confusion and perhaps injury to overstate it as his Counsel did. It is incorrect to say that the Mullaji Saheb is in effect God, or for all practical purposes God, and that it is a sacrilege to bring the present suit. This is, I think, opposed to the leading tenet of the Muhammadan faith which is known to educated people all the world over, viz., There is but one God and Muhammad is his Prophet. The Holy Koran itself lays it down that the error the Christians made was in treating the Prophet Jesus as divine and in adopting the doctrine of the Triune God but that they were sight in so far as they treated our Lord as a prophet and that the error of the Jews was in rejecting him altogether. Divinity, therefore, is a real disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that he had no religious authority to show in precise words that the Mullaji could take away trust property under a deed, Will, or scheme. That text in the-Koran which was principally relied on was the one which says: The Prophet has a greater claim on the faithful than they have on themselves (Mahomed Ali's translation, page 815, verse 6). The wide interpretation placed on this passage by the defendants is shown in Ex. 124-5A, pages 1-5, Another passage, which is relied on by Mr, Inverarity, will be found at page 424 verse 111, viz., Surely Allah has bought of the-believers their persons and their property for this, that they shall have the garden. This showed, said Counsel, that the relation between God and the faithful was that of seller and purchaser. Stress was also laid on the covenant with Allah (page 984, verse, 10), which is now exemplified in the ceremoney accompanying the taking of the meshak. Or again it was said that there is a rope connecting Allah and his Dai on earth and that all believers must through the help of the Dal, cling to the rope and so gain salvation. 41. I have been through all the other religious writings which were cited, but it is imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ert them? His Solicitor with thirty years experience and a large number of Dawoodi Borah clients has no recollection of such a point having ever been raised as regards the private property of Dawoodi Borahs. The inference which I draw from all the facts before me is that these claims are the; result of the stress of the present suit, and that, if they ever existed, before the trial, nobody regarded them seriously or as giving any legal rights. 45. The Dawoodi Borah Charity Suits, Exs. B.N. to B.T., which the Advocate-General has put in, all tend to support this, inference. Hitherto, nobody has ever suggested that the Dai should be made a party to any such suit. And yet if his claim is true, he ought to have been a party to every suit as being the sole person who can represent Dawoodi Borah Charity. I need not go into the details of these suits. The bare fact speaks for itself. 46. I have dealt with the religious position at length, for it is the foundation of the defendants case. Unless, therefore, one appreciates it, the defendants are likely to be prejudiced when their legal position comes under consideration. But before considering the law, I will continue dealing with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore me, I need not at this stage quote Her Mejesty Queen Victoria's Proclamation of November 1, 1858, nor any decided case, to support the general proposition. The qualifications on its application to any particular set of facts, and what is meant in this country by Muhammadan Law, I will deal with separately. 51. What then is the relevant Shiah Muhammadan Law of this community? In fact the community has no formal code of law of its own. Nor has its own legal text books and legal decisions. Defendants counsel say that their law is to be found in their religious books and writings and that they have no other. That law and religion are mixed up together in the Muhammadan communities no doubt is true: Abul Fata Mahomed Ishak v. Rasamaya Dhur Chowdhri 22 I.A. 76 at P. 86 : 22 C. 619 : 6 Sar. P.C.J. 572 : 11 Ind. Dec. (N.S.) 412. The religious books are valuable, therefore, so far as they go, but they do not solve all the points I have to deal with here. I must, therefore, go further a field and see on what principles Muhammadan Law, whether Shiah or Sunni is administered in the Indian Courts. 52. The Advocate-General in his opening address submitted to me that, broadly speak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 522 at p. 539 : 7 R.R. 232 : 32 E.R. 947 is not applicable to trusts or consecrations under Muhammadan Law. (See Wilson, pages 363-364, note 2). The peculiarties of the Shiali Law in relation to gifts and wakf are set out in Wilson, pages 477-485. They do not seem to be of any particular importance in the present case. Or if I turn to Section 92 of the C.P.C, I find that section applies generally to a trust created for public purposes of a charitable or religious nature. 58. A gift by way of sadakah indicates that the special motive of the gift is to acquire religious merit or nearness to God. (See Wilson, page 557,) I need hardly, however, say that it does not necessarily follow that because such a gift is made, it is a charity in the eye of the law. 59. On the other hand I think it quite clear that under Muhammadan Law a gift may be made either directly, or by means of a trust. See Moosabhai v. Yacoobbhai 29 B. 267 at p. 275 : 7 Bom. L.R. 45 and Sadik Hasain Khan v. Hashim Ali Khan 36 Ind. Cas. 101 : 43 I.A. 212 at P. 221 : 18 Bom. L.R. 1037 : 31 M.L.J. 607 : 14 A.L.J. 1248 : 19 O.C. 192 : 21 C.W.N. 130 : (1916) 2 M.W.N. 577 ; 21 M.L.T. 40 : 38 A. 627 : 1 P.L.W. 157 : 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able, but not so where their object is primarily to benefit-themselves spiritually. See Cocks v. Manners (1871) 12 EQ. 574 at p. 585 : 40 L.J. Ch. 640 : 24 L.T. 889 : 19 W.R. 1055, In re Delany (1902) 2 Ch. 642 at p. 645 : 71 L.J. Ch. 811 : 51 W.R. 27 : 87 L.T. 46 : 18 T.L.R. 741. The distinctions run on fine lines and perhaps unavoidably so, and in Dunne v. Byrne (1912) A.C. 407 at p. 411 : 81 L.J.P.C. 202 : 106 L.T. 394 : 55 S.J. 324 : 28 T.L.R. 257 a gift for the good of religion in a diocese was held not to be identical with the expression for religious purposes, and was accordingly held void. 62. As instances of specific religious purposes, I may mention that gifts for the worship of God [see Attorney General v. Pearson (1817) 3 Mer. 353 at p. 409 : 17 R.R. 100 : 36 E.R. 135 or for the repair of a parsonage see Attorney General v. Bishop of Chester (1785) 1 Bro. C.C. 444 :28 E.R. 1229, or for church expenses generally, have all been held to be charitable see In re Scowaroft (1898) 2 CH. 638 at P. 642 : 67 L.J. Ch. 697. So, too, has a trust to provide or maintain a churchyard or a monument in a church as opposed to gifts for the building or repair of a tomb not forming p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. 837 Mr. Justice Kay held that an advowson was no exception from the general law as to charitable trusts, and that both the suit advowsons were held in trust for charity. 66. English Law recognises that a wide discretion or choice of objects may be left to the trustees. But the object must not be too vague. Thus a gift for such objects of benevolence and liberality as the trustee approves is bad. See Morice v. Bishop of Durham (1805) 10 Ves. 522 at P. 539 : 7 R.R. 232 : 32 E.R. 947. So, too, if charitable purposes are mixed up with other purposes of such a shadowy and indefinite nature that the Court cannot execute them (such as charitable or benevolent or charitable or philanthropic or charitable, or pious purposes) or where the description includes purposes which may or may not be charitable (such as undertakings of public utility ) and a discretion is vested in the trustees, the whole gift fails for uncertainty. Per Lord Davev in Hunter v. Attorney-General (1899) A.C. 309 at P. 323 : 68 L.J. Ch. 449 : 47 W.R. 673 : 80 L.T. 732 : 15 T.L.R. 384. 67. Accordingly the following gifts have been held void, viz., a gift for such charitable or religious institutions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Goodman Saltash Corporation (1882) 7 App. Cas. 633 at P. 642 : 52 L.J.Q.B. 193 : 48 L.T. 239 : 31 W.R. 293 : 47 J.P. 376 which was a fishery case, Lord Selborne said: A gift subject to a condition or trust for the benefit of the inhabitants of a parish or town, or of any particular class of such inhabitants, is (as I understand the law) a charitable trust. Lord Cairns said (at p. 650,) Such a condition would create that which in the very wide language of our Courts is called a charitable, that is to say a public, trust or interest, for the benefit of the free inhabitants of ancient tenements. A trust of that kind would not in any way infringe the law or rule against perpetuities, because we know very well that where you have a trust which, if it were for the benefit of private individuals or a fluctuating body of private individuals, would be void on the ground of perpetuity, yet if it creates a charitable, that is to say a public, interest, it will be free from any obnoxiousness to the rule with regard to perpetuities. It is a principle which has been established in many cases. 70. I put it to Mr. Inverarity whether the principle of In re Allen (1905) 2 Ch. 400 : 74 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contrasted with In re Mann (1903) 1 Ch. 232 : 71 L.J. Ch. 150 : 51 W.R. 165 : 87 L.T. 734 where a particular institute was held to be for the benefit of the inhabitants generally and, therefore, charitable. The distinction in principle is important. It lies in the difference between a public trust and a private one. It is emphasised in Section 92 of the C.P.C. by the use of the words public, purpose. The Advocate-General is only concerned with public charitable trusts. He is not concerned with private trusts. 72. In contrasting the principles of English Law exemplified in these cases with, the principles of Muhammadan, Law, one finds one main principle in common. It is that perpetuities are obnoxious to the law, and void, but that charities are an exception to the law against perpetuities. Thus in Doe dem,. Howard v. Pestonji (1852) Perrys O.C. 535 at P. 541 : 4 Ind. Dec. (O.S.) 488 which was a case of an invalid consecration of a Parsi fire temple in Bombay, Sir Erskine Perry said: The law looks with great jealousy on any attempts to fetter the transmission of property.... The law in most civilized countries has interposed to prevent individuals from imposing shackles on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al classes and that according to Muhammedan Law there could be no doubt that the proposed application of the fund was a highly commendable charity (page 51). In conclusion, the judgment pointed out that a dedication in wakf is irrevocable, and that charitable grants being tenderly regarded, it would be inconsistent that a power of revocation should be recognised in the grantor. 75. The Hindu religious cases illustrate how broadly the exception in favour of charities is applied in India. The principal cases on this side of India are-(1) the Dakore Temple case with its numerous ramifications extending from Manohar Ganesh Tembekar v. Lakhmiram Govindram 12 B. 247 : 12 Ind. Jur. 387 : 6 Ind. Dec. (N.S.) 650, in 1887 to Asharam Ganpatram v. Dakore Temple Committee 55 Ind. Cas. 956 : 22 Bom. L.R. 232 : 44 B. 151 in 1919 (2) Chintaman Bajaji Dev v. Dhondo (sic) Dev 15 B. 612 : 8 Ind. Dec. (N.S.) 413 and (1805) 10 Ves. 522 at P. 539 : 7 R.R. 232 : E.R. 947 the unreported Swaminarayan case F.A. No. 119 of 1905 on the appellate side of this High Court: an echo of which has recently come before the Privy Council in an appeal from Oudh, Kamla Lachhmi v. Basdev Prasad 58 Ind. Cas. 900 : 7 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any purpose of recognised public utility (page 259 pages of 22 Bom. L.R.-Ed.). But it was decided that the religion of the Hindu population being jurally allowed, the duties and services connected with it must be deemed an object of; public concern, and at least as to their physical and secular elements, enforceable like other obligations (page 261 Pages of 22 Bom. L.R.-Ed.). After observing that the votary was little interested in what afterwards becomes of the offering (page 261), and that under Hindu Law a trust is not necessary (page 263 Pages of L.R.-Ed.), the judgment proceeded at page 265 Pages of 22 Bom. L.R.-Ed: But if there is a juridical person, the ideal embodiment of a pious or benevolent idea as the centre of the foundation, this artificial subject of rights is as capable of, taking offerings of cash and jewels as of land. Those who take physical possession; of the one as of the other kind of property incur thereby a responsibility for its due application to the purposes of the foundation. They are answerable as trustees even though they have not consciously accepted a trust, and a remedy may be sought against them for mal-administration by a suit open to any one i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imams. 82. Nor wfts this altogether a fanciful contention, for the legend ran that the deity would be incarnate in the founder Monga and his descendants for seven generations (p. 618). I can not find that the defendant was within that limit, but be that as it may, his contention was unsuccessful, and it was held that the shrines and their endowments were a public religious and charitable trust (page 622) and that under all the circumstances the defendants ought to be removed from the management (page 624). 83. The Muth cases are also instructive, because there (1) the institution with its preceptor or head and its disciples or students more resembled a monastery than a public temple; (2) the Muth property was attached to the office and passed to the head for the time being; and (3) in one case the superior claimed to be the owner of the bodies, souls, and wealth of his disciples in pursuance of a religious ceremony in that behalf. In the earlier cases there was considerable doubt as to the legal position of the superior. It was, said that the property was in a certain sense trust property but the superior was not accountable for its management nor for the expenditure of inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t page 386 pages of 10 M.-Ed. the nature of a Muth, and then at page 475 pages of 10 M.-Ed. it deals with the ceremony of dattam whereby each, tambiran (disciple) makes a gift of his soul body, and wealth, to his guru (preceptor), The judgment then proceeds as follows: There is a great deal of oral evidence to the effect that such a ceremony is gone through by the tambirans of Dharmapuram during their ordination, and it is corroborated by the allusions made, to the spiritual slavery, which is an incident of that ceremony, by several managing tambirans, including Ganpati I for upwards of sixty years. Although this ceremony may perhaps be a pious motive for a gift and a reason for upholding it when it is completed and executed, still we cannot recognise it as a source of property or legal right in those cases in which the tambiran acquiring the property either refuses to surrender it or devotes it to charity and thereby clothes it with a special trust, religious and charitable. It is provided by Act V of 1843, Section 3, that no person who may have acquired property by his own industry or by the exercise of any art, calling or profession, or by inheritance, assignment, gift or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast to celebrate the appointment of Ali as successor to the Holy Prophet were valid charitable gifts, but the validity of another bequest for fatyeh dinners for the testator and his wife was left open. It appears from the head-note that the testator was a Shia Muhammadan. In Assqbai v. Noorbai 8 Bom. L.R. 245 a trust deed inculded a trust to provide a least for the jama't in the sacred month of Warfar, which is the month in which Muhammad died. An action by the settler to set aside the deed failed, and it does riot appear to have been contended that this particular gift was in itself invalid. 90. Now let me apply, some of these general legal principles to the facts of this particular case, and see, what legal deductions ought to be drawn. I take first the mosque, for its legal position, is simpler than that, of the gulla. This seemed to me from the outset the weak point in the pleaded case of both the plaintiff, and defendants, and Counsel on both sides showed a tendency to avoid it in the earlier stages of the trial. 91. Now in my judgment it is clear on the evidence (1) that the mosque is God's house and is held by the Mullaji as Dai and passes on his death to his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation was made to amend them till November 25,1920, when the trial had been, in progress for nearly three months. 93. What then made defendants adopt a different attitude at the trial, and persist in the contention that, if the Mullaji was in fact a trustee and so in theory accountable, the Muhammadan religion was at an end? Why, too, did they call many ignorant witnesses to say that the Mullaji was absolute owner (Malik or Dhani) of the mosque, when cross-examination was bound to show that whatever he was, he was not that? When I say ignorant, I mean ignorant of what absolute ownership really means in law. You might almost as usefully ask an English layman whether the local Squire was tenant-in-tail male. 94. The answer may be (1) that the trusteeship familiar to the western lawyer is misunderstood by the eastern layman, and (2) that any concession as regards the mosque might logically weaken the position taken up with respect to the gulla. Be that as it may, the final contention put forward was that the mosque was held upon a religious trust, hut it was a trust peculiar to Dawoodi Borah, and to no other known law, inasmuch as the trustee was not accountable. (See Ex. 158.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged trustee can ever commit a breach of trust, which is what the defendants contention in effect amounts to. His Holiness the Pope of Rome claims to be infallible and immaculate, and Iris followers are numbered by the million and are found in ail parts of the globe. And yet in Moore v. The Pope (1919) 1 Ir. R. 316, His Holiness submitted to the jurisdiction of the Irish Courts and contended that a bequest to him to be applied at his sole, discretion in carrying out the duties of his sacred office was a valid charitable bequest. If the defendants are correct, the Holy Father ought to have strongly protested against any suggestion that he could be a trustee of a charitable fund. He was held to be a trustee but that the trust was invalid. 97. In 1 Blackstone's Commantaries 112 (which is quoted in Halsbury's Laws of England, Volume 11, page 717), I find the following passage: In respect of these lands the King as supreme Ecclesiastical head was entitled to the Ecclesiastical emoluments in trust that he should distribute the same for the good of the Church. 98. This, of course, was before the days of Governors of Queen Anne's Bounty and Ecclesiastical Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emonies (see C.P.C. Section 9), nor will it, I think, pronounce on any religious doctrine see Attorney-General v. Pearson (1917) 3 Mer. 353 at P. 409 : 17 R.R. 100 : 36 E.R. 135 unless it is necessary to do so in order to determine rights to property, as in Free Church of Scotland (General Assembly of) v. Oyertoun (Lord)(1904) A.C. 515 : 91 L.T. 395 : 20 T.L.P. 730. As put by Mr. Justice Melvill in Vasudev v. Vamnaji (5 B. 80 at PP. 81, 82 : 5 Ind. Jur. 427 : 3 Ind. Dec. (N.S.) 55. It is the policy of the State to protect all religions, but to interfere with none. 105. Accordingly, at a very early stage, I pointed out that the Court would not interfere with the worship at the mosque, and that apart from the denial of the trust, no case was made out by the Advocate-General for interfering with the general management. So the only point left was as to the theoretical trusteeship of the Mullaji. The defendants, however, persisted in contesting this, and in my judgment they were wrong. Their religion, however, stands where it did. A theoretical accountability affects the doctrine of infallibility no more than the theoretical criminal liability does that is, not at all. Neither could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyal Prerogative in De Keysers Royal Hotel, Limited, v. Regent (1919) 2 Ch. 197 : 88 L.J. Ch. 415 : 120 L.T. 396 : 68 S.J. 445 : 35 T.L.R. 418 : on appeal (1922) A.C. 508 : 89 L.J. Ch. 417 : 122 L.T. 691 : 64 S.J. 513 : 36 T.L.R. 600 . The theory of the Mullaji Saheb's universal ownership, therefore, seems to me to be unfounded in fact and bad in law. 108. The conclusion, therefore, which I have arrived at on this part of the case is that in law the Mullaji is a trustee of the suit mosque and theoretically accountable as such, but that no case has been made out for interfering with his management of the mosque, or for directing any account against him. 109. This conclusion applies not only to the prayer-hall, but also to the rest of the mosque building, including its site but excluding the tomb. In view of defendants Counsel's admission in his final address, I need not dwell further on that point. 110. Next I will deal with the tomb and gulla. These differ somewhat in their legal aspect. The tomb is real property and is in the nature of a perpetuity. The surplus of the past gulla offerings have also been invested in land, and it is at any rate arguable that they no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not confined to saints of the highest degree, such as Ali, the Holy Prophet's son-in-law, but includes saints of lower degree, such as, Chandabhoy. The meaning put forward by the defendants varied as the case went on. The endeavour to confine it to Imams and Dais failed, and in cross-examination the Mullaji had to admit that many others besides Imams and Dais were saints. 113. What assistance then do the authorities give on this point? The defendants rely on Zooleka Bibi v. Syed Zynul Abedin 6 Bom. L.R. 1058 and Kaleloola Sahib v. Nusseerudeen Sahib 18 M. 201 : 5 M.L.J. 40 : 6 Ind. Dec. (N.S.) 489 as showing that only the tombs of saints are charitable, and that according to the standards there mentioned, Chandabhoy cannot be regarded as a saint. But in both those cases the facts were quite different for the deceased persons were ordinary individuals. In the former case, Budruddin was an ordinary member of the family of the founder or Pir Syed Ahmed Rafai. He had no religious sanctity or any distinction whatever. He was just an ordinary Muhammadan husband whose memory his wife wanted to honour in perpetuity. The Judge held that he was not a saint, and that consequently the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of 6 Bom. L.R.-Ed. he says: It is not shown that he (the deceased) was particularly learned member of the society, or that he was looked upon with reverence by the Mussalman community or that he was considered a Pir. An echo of this is found in para. 1 of the Mullaji's written statement where he pleads that Chandabhoy was not a saint or a learned man or otherwise a public character. The conclusion of the learned Judge at page 1086 pages of 6 bom. L.R.-Ed., was that Badruddin was not a religious person to whom any such sanctity was attached that his tomb could itself be considered a religious object. As regards the other Durga, it was held at page 1067 pages of Bom. L.R.-Ed that the deceased Bismillah was not even a member of the Kafai family, and that he was not possessed of any religious character. These passages seem to me once more to draw the distinction between matters of public and of merely private interest. This time it is the private individual as compared with the public character. In my judgment Chandabhoy satisfied the tests adopted in the above passages. I think that he is looked on with reverence by the Dawoodi Borah community; that he is a man of public ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oting as the rest of the mosque building, and is held by the Mullaji as trustee or mutawalli accordingly. To borrow the language of Lord Macnaghten in Court of Wards v. Ilahi Bakhsh 17 Ind. Cas. 744 : 40 I.A. 18 at p. 23 : 1 W.R. 1913 : 11 A.L.J. 265 : 13 M.L.T. 318 : (1913) M. W.N. 270 : 17 C.L.J. 360 : 27 P.R. 1913 : 83 P.L.R. 1913 : 40 C. 297 : 156 Bom. L.R. 436 : 25 M.L.J. 61 (P.C.), 1 think that by user, if not by dedication, the tomb is wakf. But here again I do not propose to interfere with the management of the Mullaji Saheb. It is preferable that it should be left to him to do what is seemly and right. 120. I will next consider whether the offerings at Chandabhoy's tomb are charitable. These admittedly come to the Mullaji in right of his office: they pass to his successor as Dai and not to his heirs: they are not his private property like the Salam; but according to him are dawat property. In the past they have been spent regularly on the upkeep of the mosque and tomb, the feasts, majlis and illuminations. The surplus has been invested in land, and the resulting rents carried to the gulla account. But I need not repeat the facts already mentioned. The essential feat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mperative on the Mullaji Saheb to distribute these gulla offerings for the benefit of the community, and that he is a trustee in respect thereof. 125. The next question is whether the objects of this trust are all charitable. If, for instance, the trust is for private and not for public purposes, the Advocate-General cannot intervene. In my opinion the purposes here are public purposes, viz., for the benfit of the Dawoodi Borah community. This large community is quite unlike the Dominican convent in Cocks v. Manners (1871) 12 Eq. 574 at p. 585 : 40 L.J. Ch. 640 : 24 L.T. 869 : 19 W.R. 1055 on which the defendants relied. Nor can I accept their argument that perpetuity is essential for a charitable gift. A donation may be charitable just as well as an endowment. But, if the donation can wholly be applied as income, it is often unnecessary to consider whether it is charitable and thus within the exception to the rule against perpetuities. Accordingly in Cocks v. Manners (1871) 12 Eq. 574 at p. 585 : 40 L.J. Ch. 640 : 24 L.T. 869 : 19 W.R. 1055 the Judge, first held that the convent was not charitable because it only existed for the edification of its inmates, and then considered w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the eventual decision was that the fatyeh ceremonies, were valid charities see Mazhar Husain Khan v. Abdul Hadi Khan 9 Ind. Cas. 703 : 33 A. 400 at p. 406 : 18 A.L.J. 152. In the present case, it does not appear that any alms are given id the poor but on the other hand the celebrations are open to the rich and poor alike. It is true that the Mullaji sends out the invitations for the feasts, but these are effected by a crier, and are of a general nature. In my opinion, then, these celebrations stand on' much the same legal footing as the gadi feasts in honour of Ali, which were held charitable in Sakbhai Abdul Qadirv. Bai Safiabu 12 Ind. Cas. 702 : 36 B. 111 : 13 Bom. L.R. 1025 although of course there is a big difference in the relative religious positions of Ali and Chandabhoy. There is, also an unreported decision in Chambers of Mr. Justice Macleod in Suit No. 334 of 1909 which is substantially to the same effect as regards feasts in honour of Ali. 128. It is a far cry from a BombayJamai feast, to a Yorkshire clerical dinner, but some observations of Mr. Justice Eve in re Charlesworth (1910) 101 L.T. 908 : 54 S.J. 196 26 T.L.R. 214 seem to me to be apposite, and I will qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tember 19, 1920, Ex. YYY, it is recited, that the moneys collected in Chandhabhoy's gulla have at all times been applied under the control of the Dai-ul-Mutlak for the time being of the Dawoodi Borah community in and for purposes of the community. The objects mentioned in that Memorandum for the intended application of the surplus gulla moneys are, I think, charitable objects. If necessary I think that this view may be justified on similar principles to those on which In re Allen (1905) 2 Ch. 400 : 74 L.J. Ch. 593 : 54 W.R. 91 : 21 T.L.T. 662 : 93 L.T. 597 was decided as already mentioned. 131. The examination-in-chief of the Mullaji as to the objects of the dawat will be found at pp. 180-182 of the Notes and his cross-examination at pp. 276-280. In chief the Mullaji mentioned allowances to the learned; allowances to anvils; allowances to Dawoodis in trouble; assistance to Dawoodi Borahs to start business; assistance on marriage; the maintenance of schools; the repairs of mosques and other dawat property; and assistance to pilgrims. It is true that he added that the funds could be spent on any purpose the Dai thought fit; but apart from a contribution to the War Loan witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 : 28 T.L.R. 257 and In re Davidson (1909) I. Ch. 567 at p. 569 : 78 L.J. Ch. 437 : 99 L.T. 222 : 24 T.L.R. 760 which I have already referred to, and also from In re Costa (1912) I.C.h. 337 : 81 l.j. Ch. 293 : 106 L.T. 458 : 58 S.J. 240 : 28 T.L.R. 189 where the gift was to such persons, and for such public purposes as the Governor-in-Chief of South' Australia should direct. As I have already pointed out, the principles referred to in In re Allen (1905) 2 Ch. 567 at. P. 569 : 78 L.J. Ch. 437 : 99 L.T. 222 : 24 T.L.R. 760, may be applied by analogy, and in some respects the present case may be compared to In re Garrard (1907) I.Ch. 382 : 76 L.J. Ch. 240 : 76 L.T. 357 : 23 T.L.R. 256. 136. For similar reasons, I think that Moore v. The Pope (1919) I. Ir. R. 316 is also distinguishable. A gift for carrying out the duties of the sacred office of the Pope is not, I think, the same as a gift for religious or pious purposes for the benefit of a community. In that case as stated by the learned Judge at page 321 page of (1919) Ir. R.-Ed. The bequest is not an endowment for the Pope, the benefit of which was ultimately to enure for a congregation, but it is for the purpose of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said at page 348 that the Court thought that a suit by the Aga Khan to enforce payment of religious taxes would fail. 138. The conclusion then, which I have arrived at, is that all the suit gulla moneys, whether surplus or otherwise, are held upon charitable trusts. I am also of opinion that in law the Mullaji is the trustee thereof, and that as such trustee he has wide powers of management, and also a wide discretionary power as to the particular purposes for the benefit of the community on which the surplus moneys should be expended. 139. For present purposes, I think I need not decide whether these gulla offerings may more properly be described as wakf or as sadakah. Either form of gift may be the subject of a trust. See Muthukana Ana Ramanadham Chettiar v. Vada Levvai Mara-kayar 6 Ind. Cas. 1 : 34 M. 12 at. p. 16 : (1910) M.W.N. 180 : 20 M.L.J. 254 : 8 M.L.T. 16. Properties Nos. 1 to 4 would now seem to form a permanent endowmentof the gulla charity; and a similar observation probably applies to property No. 6. Nor I think need I decide whether moveable property could form the subject of a wakf prior to the Wakf Validating Act, 1913. In Banubi v. Narsingrao 9 Bom. L.R. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angry disputes. If, therefore, the Court could have made an end of this suit once and for all, there would have been much to justify such a course being taken. But a discordant note was struck in Mr. Inverarity's final address. ? He intimated that his client would not accept the position of a trustee appointed by the Court, and that in the event of an adverse decision, his client would leave the suit properties in the hands of the Court. I stopped Mr. Inverarity on this, because I thought it an unfair statement to make at that stage of the case, and one which, if permitted, might necessitate the further recall of the Mullaji. 144. If the Mullaji Saheb had wished to adopt that attitude the candid, course would have been to plead it, or at any rate to state it in his evidence. He could then have been cross-examined on it. As it was he put forward sand adhered to the Memorandum Ex. Y.Y.Y., and he also intimated that he was content that the temporal affairs of his community should be entirely subject to the British Courts of Justice, and that in certain contingencies he would seek the protection of those Courts to enforce the rights he claimed as Dai. 145. I also took exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the gulla charity is entitled to an aliquot share of Badri Mahal and of the past and future rents, while the defendants contend that the charity is only entitled to a charge. The practical importance of the point arises from the increase in value of Badri Mahal. On the other hand, I think, that under Ex. O.4, Badri Mahal is held on a charitable trust as a residence for the High Priest for the time being. So the contest only lies between two charities of the same community, subject, of course, to the claims of the Official Assignee. 149. On the legal aspect of this question, I am disposed to think that the plaintiff is right. Mr. Inverarity tried to show that the gulla moneys all went for payment of interest on the moneys provided by defendants Nos. 1 and 2. I think he failed in this. But be that as it may, the gulla moneys were utilized towards the acquisition of Badri Mahal free from incumbrances. I think, therefore, that, on the principles adopted in Lord Provost, etc. of Edinburgh v. Lord Advocate (1879) 4 A.C. 823 at pp. 835, 839 the gulla charity might claim a proportionate share of the property. No. doubt in In re Hal left's Estate (1880) 13 Ch. D. 693 at p. 709 : 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dai-ul-Mutlak. Proper accounts have been kept of the suit gulla moneys by defendants Nos. 1 and 2, or their predecessors, down to the date of the suit. The suggestions made in the plaintiff's affidavits on the summons for discovery that the defendants might be tampering with the books have been shown to be quite unfounded. On the other hand the plaintiff's modified case was formulated as long ago as September 30, 1920, and in the result he has substantially succeeded on that modified case. As regards defendants Nos. 1 and 2, I think that they ought not to have severed from the Mullaji in their defence. I see no reason for their employing separate Solicitors and separate Counsel. They however, persisted in this throughout the trial, and intimated that they were not much concerned about costs. All the defendants have denied the trust, and that in it self is a breach of trust. On the whole, then, I think the right order will be to direct that the defendants to pay three-fourth of the costs of the plaintiff of the suit, but that all other costs to date be borne by the parties themselves. Further costs will be reserved. In giving the above directions I have taken into considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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