Salil Kumar Datta, J. - (1.) These two appeals arise out of two suits relating the affairs and administration of the Hoogly Imambarah. As, to some extent, common questions of fact and law are involved in the two appeals, on the prayer of the parties, the appeals have been heard analogously.
(2.) The Hoogly Imambarah is a public and religious establishment founded by Hazi Mohammad Mohsin of hallowed memory in 1806 who by a wakfnama dedicated vast properties to God Almighty, for the benefit in particular of Shia Muslims as also for others purposes of public and charitable nature. Formerly the Imambarah was managed by the Government through the Board of Revenue and the local agents. On the coming into force in 1863 of the Religious Endowments Act (Act XX of 1863), hereinafter referred to as the said Act or Act XX of 1863, the management of the Imambarah vested in a Committee of Management appointed by the Government, under provisions of the said Act.
(3.) The relevant provisions of the Religious Endowments Act, 1863, material for the purpose of adjudication of the issues in these appeals, are as follows: Section 7. "Appointment of committees. In all cases described in Section 3 of this Act the State Government shall once for all appoint one or more committees in every division or district to take the place, and to exercise the powers, of the Board of Revenue and the local agents, under the Regulations hereby repealed. Constitution and duties of committees. Such committee shall consist of three or more persons, and shall perform all the duties imposed on such Board and local agents, except in respect of any property which is specially provided for under Section 21 of this Act." "Section 9. "Tenure of office. Every member of a committee appointed as above shall hold his office for life, unless removed for misconduct or unfitness; Removal and no such member shall be removed except by an order of the Civil Court as hereinafter provided." Section 10. "Vacancies to be filled. Whenever any vacancy shall occur among the members of a committee appointed as above, a new member shall be elected to fill the vacancy by the persons interested as above provided. Procedure. The remaining members of the committee shall, as soon as possible, give public notice of such vacancy, and shall fix a day, which shall not be later than three months from the date of such vacancy, for an election of a new member by the persons interested as above provided, under rules for elections which shall be framed by the State Government; and whoever shall be then elected, under the said rules, shall be a member of the committee to fill such vacancy. When Court may fill vacancy. If any vacancy as aforesaid shall not be filled up by such election as aforesaid within three months after it has occurred, the Civil Court, on the application of any person whatever, may appoint a person to fill the vacancy or may order that the vacancy be forthwith filled up by the remaining members of the committee, with which order it shall then be the duty of such remaining members to comply; and, if this order be not complied with, the Civil Court may appoint a member to fill the said vacancy. (Explanation.-- In this section "Civil Court means the principal Court of original civil jurisdiction in the district in which the mosques, temples or establishments for which the committee has been appointed or any of them are situate.)" Section 11. "No member of committee to be also trustee, etc., of mosque, etc. No member of a committee appointed under this Act shall be capable of being, or shall act, also as a trustee, manager, or superintendent of the mosque, temple or other religious establishment for the management of which such committee shall have been appointed." "Section 13. "Duty of trustee, etc., as to accounts; It shall be the duty of every trustee, manager and superintendent of a mosque, temple or religious establishment to which the provisions of this Act shall apply to keep regular accounts of his receipts and disbursement in respect of the endowments and expenses of such mosque, temple or other religious establishment; and of the committee. and it shall be the duty of every committee of management, appointed or acting under the authority of this Act, to require from every trustee, manager and superintendent of such mosque, temple or other religious establishment, the production of such regular accounts of such receipts and disbursements at least once in every year; and every such committee of management shall themselves keep such accounts thereof." Section 14. "Persons interested may singly sue in case of breach of trust, etc. Any person or persons interested in any mosque, temple or religious establishment, or in the performance of the worship or of the service thereof, or the trusts relating thereto, may, without joining as plaintiff any of the other persons interested therein, sue before the Civil Court the trustee, manager or superintendent of such mosque, temple or religious establishment or the member of any committee appointed under this Act, for any misfeasance, breach of trust or neglect of duty, committed by such trustee, manager, superintendent or member of such committee in respect of the trusts vested in, or confided to, them respectively; Powers of Civil Court. and the Civil Court may direct the specific performance of any act by such trustee, manager, superintendent or member of a committee, and may decree damages and costs against such trustee, manager, superintendent, or member of a committee, and may also direct the removal of such trustee, manager, superintendent or member of a committee." "By Section 78 of the Bengal Wakfs Act, 1934 (Bengal Act XIII of 1934) after Section 23 of the Religious Endowments Act, 1863, the following section was inserted: Section 23A. "Powers of Civil Court to be exercised by the Board of Wakfs in Bengal. Notwithstanding anything contained in this Act, the powers of the Civil Court under Sections 5 and 10 shall be exercised in respect of any wakf property in Bengal by the Board of Wakfs appointed under the Bengal Wakfs Act, 1934.";