DOST MUHAMMAD KHAN Vs. HASSARATH KIBULAE SAYYAD

JUDGEMENT

(1.) In the hearing of this appeal we have been much handicapped by the fact that the appellant has printed none of the documents or other evidence on which he relies, so that the examination of evidence has been impossible and we have had to be guided solely by the remarks of the learned Judge in his judgment.

(2.) The suit is brought under Section 92, Civil P. C., for a declaration that the defendant is not the rightful trustee of a certain Makhan and that a scheme be framed for the proper management of the Makhan and its affairs. As a good deal turns upon the nature of this institution, as far as it can be made out from the meagre materials at the disposal, it must be noted that the plaintiffs in para. 3 refer to it as the "Ashraf Shah Sahib Makhan or mosque or darga at Dalvapalayam," which they assert is a public religious and charitable trust and that among its endowments are three villages of Dalvapalayam, Vuluthur and Chakkrapalli granted by the then Rajah of the District for the support of the mosque. These three villages were granted by the Maharajah of Tanjore in the year which seems somewhat uncertain in the grant but it is said to be 1757 and it is set out in the learned Subordinate Judge's judgment at p. 35. It evidences the giving for darnaj (charity) as nazzar (present or gift) to Hassarath Ashraf Shah Sahib the villages and gardens set out below and continues: "In all, villages three including-the garden have been given as "nazzar" (gift or present)." This grant was confirmed by the Nabob Wallajah in 1774 as set out in para. 12 of the judgment: The said cusbah and others should be left for the office or dignity of the said Shah, so that utilising the incomes thereof for his own expenses he should engage in worshipping God and in praying for the durability of the State till eternity.

(3.) The defendant contends that on these documents the grantee has a fee simple and that no trust is constituted, though the performance of certain ceremonies have been undertaken by the successive holders out of respect for the founder, Only the 1 and 2nd issues were tried in the case which were: (1) Whether the suit properties are trust properties of the nature described in Section 92 Civil P. C., and whether the suit is maintenable under it?