Wallis, C.J:— The District Judge has found that the mosque in question is a public mosque and I see no reason to differ from his conclusion. Defendant 1, who should be in possession of the original purvana or grant by the last ruling Nawah of the Carnatic has not produced it, though it was produced by his predecessors before the Indian Commission in 1861. The Inam Register mentions the objects with which the lands were granted, viz. the building of a mosque and the performance of certain cere monies in commemoration of the Nawab Wallajah whose body rested on the site of the mosque on the way from Madras to Trichinopoly. In the absence of express evidence as to whether the mosque was dedicated for public worship, the point must be determine by user, and it is clear from the evidence that the mosque has always been open to the public for worship. Defendant 1 was fined on one occasion for interfering with the public worship there, and in his cross examination he had to admit that the public had a right to worship there. In these circumstances it is immaterial whether it is called a Jumma Masjid or not, but the fact that the worshippers were styled Jamayakars, as spoken to by him goes to show that it was a Jumma Masid. It must, I think, be taken that the grant was to the original grantee, in the deed which has not been produced, as a muttawali, and this in confirmed by the fact in the column in the Inam Register for particulars regarding the present owner. Three persons are entered as “enjoying together as managers of the Masjid.” It was, I think, clearly a grant on trust, as held in a very similar case in Sikkandar Rowther v. Secy. of State(1).

2. It must, I think, be taken that the mosque was founded, dedicated and endowed for public worship. The Inam granted for these purposes was confirmed by the Inam Commissioner subject to the due performance of services but was resumed in 1898 for failure duly to perform them. With regard to the suggestion that the original grant was only of the assessment, and not of the lands, I think it is clear that the site of the mosque was granted, and I think the presumption is that there was a grant of the other lands as well. The Parwana has not been produced by the defendants, and I think it is not likely that the first muttawali, a grantee of the mosque, was the owner of the lands prior to the grant. Now it is quite clear that Government might have resumed both the lands and the assessment, an re-granted the lands to anyone they chose at the full assessment. What it did was to require payment of the fall assessment from the descendant of the person in whose, name the Inam had been confirmed, and the main question argued was, whether they must be taken to have resumed both the lands and the lands and the assessment and re-granted the lands as private property to defendant 1, or whether they merely resumed the assessment ani did not interfere with the ownership of the lands. They were clearly, in my opinion, lands dedicated to charity though liable to be resumed, and defendant 1 and his predecessors were merely in the position of muttawalis or trustees. In these circumstances I can find no reason for presuming that the Government intended to resume the lands as well as the assessment and to re-grant the lands to the muttawali as his private property. As the resumption of the assessment was occasioned by the failure of the muttawali to perform his duties, it seems unlikely that; the Government) intended to make a fresh grant of the lands in his favour free and discharged from the charitable trusts to which they had till then been subject. That would in effect be rewarding the defaulting muttawali for his breach of duly. I see no sufficient reason for imputing this intention to Government, and consider that the lands still remained subject to the charitable trust even after the assessment had been resumed. In Divi Punniah v. Goruntla Kotamma(2) it appears to have been assumed that the land itself was resumed and granted as private property freed from all charitable trust to defendant 1. The point that the land itself was not resumed but continued subject to the charitable trust was not raised before the Court or adjudicated on. What the plaintiff wanted was a half share in the land for which a pattah had been issued in the name of the defendant, his co-trustee, and the interests of the charity were not represented at all. On the other hand in Sikkandar Rowther v. Secy. of State, which was also the case of a mosque, it was held that the lands had been dedicated for the support of a public mosque and that the so-called resumption of the inam for the failure of the trustees to perform their duties had not the effect of making the lands cease to be trust properties. The contest in that case was whether the lands had been dedicated for a public charitable purpose. If so, it does not appear to have been seriously questioned that a mere resumption of the assessment could be taken as indicating that the Government had exercised its right of resuming the lands themselves and granting them to the defaulting trustees as their private property. I think this decision is in accordance with a principle which to some extent underlies the decisions in Gunnaiyan v. Kamakchi Ayyar(3) and Pingala Lakshmipathi v. Bommireddipalli Chalamayya(4) that when the Government resumes an inam by imposing the full assessment and does nothing more, and does not expressly resume the lands as well, the ownership of the land is unaffected and if it was subject to any charitable trust it still continues subject to it. In these circumstances I think the decree of the District Judge should be confirmed except as to one point. The words in the decree after “do submit schemes for the future management of the trust and its properties” must be omitted, as it is unnecessary and improper to impose a permanent disability to fill the office of trustees on all the defendants and their descendants. Otherwise the appeal is dismissed with costs.

Spencer, J.:— This suit was brought for the removal of the defendants from the position of trustees of the Wallajah Masjid at Viltupuram, for the recovery from them of the income of the institution alleged to have been misappropriated by them, and for the settlement of a scheme for the future management of the charity. Two questions have been argued at the hearing of the appeal (1) whether Section 92 of the CPC is applicable to the facts of this case, and (2) whether the defendants are accountable for the income of the lands after the resumption of the inam. It appears from an extract from the inam Register of the District of South Arcot (Ex. A) that this inam was originally granted in 1799 free of tax for building a Masjid on the spot where the coffin of Nawab Wallajah rested temporarily while it was being carried to Trichinopoly for reading namaz and fatias every Friday, and performing or celebrating the annual ceremony, and for feeding fakirs that may happen to pass by it. In 1893 the inam was resumed and fully assessed by Government on account of the failure of the grantees to perform the religious service for which it was granted. The reasons for the resumption do not find place in the Board's proceedings (Ex. 7) but they appear from the statement of defendant 1 (D.W 1) and from Exs. 3 and 4. The learned District Judge was of opinion that the Government was not acting strictly within its powers in entirely resuming this inam but that it should rather have ensured the due performance of the service by changing the muttawali, which he thinks the Government could have done as being a successor of the original founder. I do not think that any question of the competence of Government to resume the grant can properly be raised in this suit to which the Government is not a party. There is no doubt that, in some instances, religious inams are resumed and re-assigned. Board's Standing Order 54, para. 7, sub-divisions (1) and (2), provide for this course being followed where the institution still continues and the service is maintained but the lands have been alienated, and where the institution still continues but the inam has become incapable of application to is a original object; but sub-division (2) prohibits reassignment in cases when the institution has disappeared and the service has ceased and became incapable of restoration.

3. There is nothing on record to show what considerations influenced the officers of Government in resuming this inam but presumably they acted according to rule. We only know from Ex. 5 that when the Mahomedan inhabitants of Villupuram 18 years later petitioned the Government for a reassignment of the inam, the Collector refused to consider the request after that lapse of time. We have therefore only to consider the effect of the resumption, treating it as an accomplished fact. In Gunnaiyan v. Kamakchi Ayyar Bhashyam Aiyangar, J. observed that grants of land or land revenue for religious or charitable purposes in this country, when made by the ruling authority, should be construed not as out and out grants but as reserving a reversion in case of the trust failing. On this principle, he stated, Government has a right to resume the inam if the grantee's family fail to fulfil the objects and conditions of the grant. He added:

“it is open to the ruling power to resume the grant and appropriate it for other religious or charitable purposes or incorporate it with public revenue. In the latter case Government simply imposes full assessment without extinguishing the right of the family of the grantee in the land and making a fresh grant of it.”

4. The learned Judge then proceeds to consider the effect of enfranchisement and to distinguish it from resumption. The two are distinct processes in their operation on the grantee's interest but we need not follow him into his discussion of their features. This is a case of resumption and resumption means a taking back of what was granted. But in cases like the present, the real question is not so much what was resumed as what was granted in the first instance. We have not the original grant to tell us these directly. But we know what is the presumption that the Government draws in such cases, because that is laid down in the Board's Standing Orders for the direction of officers of Government dealing with cases of resumption and we are able to know what presumption the Government drew in this particular case from their conduct in simply imposing full assessment and leaving the enjoyment of the land where it was. In the case of ancient grants like this, where it does not appear from the title-deed whether it was the land or the assessment that was originally granted, the Government gets over the difficulty of uncertainty as to title and avoids interfering with occupancy rights by requiring the Collector to report who is the actual occupant of the land and by treating the inam subject to resumption as a grant of the assessment on the land and fully assessing it in the name of the occupant. It is only in the case of grants made within 60 years of resumption proceedings, when there is prima facie evidence that the grant was of the land also, that any steps are taken to resume the land and interfere with the enjoyment of the person in possession. That these are the principles governing the action of Government is evident from the Board's Standing Order, p. 54, paras. 4 and 5. I agree with the learned Judge who decided Divi Punniah v. Goruntla Kotamma that in cases of resumption of charitable inams the land that was previously the property of the trust becomes the property of the person to whom Government grants it, and that it is within the discretion of Government to grant land which it has resumed to the former trustee or to any other person.

5. If then resumption, in the words of the Privy Council quoted in Sreevadhu Yerranna v. Pontiva Kannamma(5),

“consists in putting an end to the grant, remitting the services and requiring them (i.e, the grantees or their heirs) to pay the full assessment,”

6. What is the effect on the rights of the defendants to dispose of the land which was trust property, and its income? There is nothing to show that the lands were waste before the grant. The grant was more than 60 years old at the time of the resumption. The lands have now been incorporated with Ayan, an ordinary raiyatwari patta has been issued to them which carries with it no obligation beyond the payment of the assessment. The restriction on alienation has been removed from the properties, which were before inalienable on account of the religious service for which they were intended to be a support; transfers of the pattadar's interest are recognised by the Government and the holding is hereditary in the ordinary way according to the personal law of the holder. The natural inference is that the grant must be taken to have been a grant of the assessment, that on full assessment being imposed nothing was left for the trust, that the Government, which represents the grantor, released the grantees from their obligations to render service from the moment that resumption took place and that the trust is at an end. It may be that the holders of service and religious inams are by these means able to take advantage of their own default, but this is a matter for consideration of the Government and not of the civil Courts, whose function is only to declare the law as it stands. See the observations of the Judicial Committee in Balakrishna Udayar v. Vasudeva Aiyar(6). Moreover as full assessment is now being paid I am doubtful whether there has been any real advantage accruing to the defendants in consequence of the resumption. Issues 2 and 4 must therefore in my opinion be answered in the negative.

7. I am further of opinion that the suit must fail on issue 1 also, though I admit that this question does not admit of easy solution. Mr. Ameer Ali in his Book on Mahomedan Law at p. 561 distinguishes between public wakfs and quasi public or private wakfs and states that a Mahomedan mosque, unless it is a Masjid-i-Jamma, is not regarded by Mahomedan lawyers to be vested in the public. In this passage and in his commentary on Code of Civil Procedure the learned author declares that Section 92 of the CPC, has no application to private or quasi public trusts. In the present case we have the statement of Kazi of Villupuram (D.W 3), who ought to know the facts, that this Wallajah Mosque is not called a Jamma Masjid, that is, a mosque where congregational worship is held. In Ganapathi Iyer's Religious Endowments at pp. 119 to 125 the distinction between public and quasi public trusts made by Mr. Ameer Ali is said to be unwarranted but the latter's authority on questions of Mahomedan law is, in my opinion, so great as not to be lightly disregarded. In Sikkandar Rowther v. Secy. of State the Begumpur Mosque at Dindigul was decided to be a public trust although the learned Judges held in that case, to which Government; was a party, that Government were justified in resuming the inam. That was a grant of two whole villages as inam for the upkeep of a mosque and a durgah. In Sriranga Chariar v. Pranatharthihara Chariar(7), an inam granted for the support of hereditary office holders in a Hindu temple was held to be not a religious trust of a public nature. No doubt each case must depend on its own facts and therefore other decisions do not help us much in determining this case, but looking to all the known circumstances connected with the grant and the resumption of this inam, its registration not in the name of any institution, but in the name of an individual grantee, the statement of D.W 3 and other evidence, I am of opinion that this is not a public trust of the kind to which Section 92 of the CPC, is applicable. On these two grounds I think that the appeal should be allowed and the suit dismissed with costa here and in the District Court. Under Section 98 of the CPC, the appeal is dismissed with costs.

Ayling, J.:— The first question for consideration in this case is obviously the nature of the original grant which, it is common ground, was made by the Nawab of the Carnatic in 1798; and I have no hesitation in agreeing with my Lord the Chief Justice that it was of the nature of a public trust for the benefit of a mosque founded, endowed and dedicated for public worship. In the absence of the parwana, we have to look to the record in the Inam Register, Ex. A, and to the evidence of user. Both are strongly in plaintiff's favour. I attach no importance to the statement of D.W 3 that the mosque is not called a Jumma Masjid, in the face of the evidence that it has always been used for public worship. Ex. A shows clearly that the Inam was a religious endowment for the establishment and upkeep of a mosque and various services therein, and that the persons named in Cols. 16-20 as “present holders” are so treated as managers of the Masjid and not in their individual capacity.

8. Indeed, the only ground on which the public character of the trust has been seriously attacked is the fact that it was treated by the British Government as resumable, and that, under Mahomedan law, a wakf must be unconditional. No authority has been quoted which, as far as I can see, supports the contention that in the case of a grant by the ruling power the condition of power of resumption, in case the trust is not carried out, impairs the public character of the trust. We have been referred to a passage at p. 526 Vol. 1, of Ameer Ali's Mahomedan Law, which says:

“If a person were to create a wakf and make a condition that the property should return to him in case of necessity, the condition would be valid and the wakf would be void, the transaction taking effect as a mere hubs or settlement; when the need arises the property would revert to the owners.”

9. This has reference to a totally different state of things. A contingency of reversion to the owner, in case the latter needs the property, obviously implies only a temporary settlement, which can be annulled although all its other conditions are rigorously complied with. In Kuttayan v. Mammnnna Ravuthan(8), the only case to which we were referred as being in appellant's favour, there was no question of resumability, but of the existence of outstanding private; rights in the alleged wakf property. In Sikkandar Rowther v. Secy. of State a very similar case to the present, Srinivasa Aiyangar, J., and my sell held that land forming the subject of a public trust was resumable by Government on failure to perform the conditions of the trust.

10. I would therefore reject this contention and may add that in any case it could not be applied to a grant by the British Government while there is no evidence attaching a specific condition of resumability to the original grant by the-Nawab. The earliest evidence is the entry in the Inam Register, Ex. A, dated 1861. It only remains to consider the nature and effect of the proceedings of Government in 1893 by way of resumption. There appears to have been considerable argument before the Divisional Bench as to whether the original grantor was of the lands themselves as held by the Chief Justice or only of the assessment thereon. Before us the learned vakil for the appellants did not contest the view taken by the Chief Justice on this point, but was content to argue his case on the hypothesis that the lands themselves constituted the grant.

11. But if this be so appellants' case is hopeless whichever view be taken of the extent of the interest resumed by Government. If, as both the learned Judges of the Division Bench held, Government only resumed its right to collect full assessment on the land, then the remaining interest in the land remained as much the subject of the trust as ever. If, on the other hand, it be held that Government took back all that it had granted (i.e the raiyats' interest as well as its own right of collecting assessment) at made a re-grant of the raiyats' interest to the trustees in their individual capacity then the principle embodied in Section 88 of the Trusts Act, come into effect. There can be no question that, by such a transaction the trustees would gain for themselves a very valuable proprietary interest in the property, which interest previously appertained to the trust. This interest would have been acquirer by the simple process of neglecting their duty as trusses, whereby Government was driven to resume the Inam. In such circumstances the advantage they gained must be held by them for the ??? of the trust. It is argued that the trust had ceased to exist, but this cannot be the case. Apart from the cultivable lands which formed the endowment of the mosque, there is the mosque itself and the site on which it stands, which latter also formed part of the original grant. It cannot be seriously suggested that the site of the mosque was assessed aud with the mosque upon it re-granted to the defaulting trustees for their private use. There is certainly no evidence to prove that such was the case, and as long as the mosque and the site remain unaffected, the trust cannot be said to be extinguished. I would dismiss the appeal with costs.

Kumaraswami Sastri, J.:— I am of opinion that the decision of the Chief Justice ought to be affirmed. There can be little doubt from the inam title deed that the inam was granted by Nawab Azim Jah in Fasli 1208 (1798) for the purpose of erecting a Masjid, for keeping a light burning every night for reading the Namaz and Fatias every Friday (for performing the annual ceremony, of the Nawab whose coffin rested on the spot where the Masjid was to be built on its way from Madras to Trichinopoly) and for feeding the fakirs. It does not appear that it was he intention of the grantor that the trustee should obtain any personal benefit or that he should appropriate any portion of the income of the lands. The land is passed as a religious endowment in the Inam Register and this is as pointed out in Muhammad v. Jafar Muhammad Ibrahim(9), strong evidence that the property was subject to a public trust. The persons in possession are described as managers of the Masjid. Defendant 1 and his witnesses in their evidence state that the lands were Manyam lands assigned to the mosque. I see no reason to hold that the mosque is not a public mosque and that the grant of the inam was in the grantees personally as a service inam. It is conceded before us that the grant was of both the melvaram and kudivaram of the land. In the absence of evidence as to what was actually granted the recent decision of the Privy Council in Adusumilli Suryanarayana v. Achuta Pothanna(10) is to the effect that to grants by native rulers there is presumption that only the melvaram was granted. It is also clear that a mosque was built and that the trusts were carried out till at least 1861, as the remark in Col. 8 of the Inam Register is to the effect that the conditions were all regularly fulfilled. It also appears that the trusteeship was hereditary. As to what happened between 1861 and 1893 (the date of resumption by Government) the evidence is not clear. The probabilities are that having got the recognition of the British Government during the inam settlement proceedings the trustees-gradually negrored their duties and treated the inams as their private property. In 1898 an inquiry was held and in consequence of it full assessment was levied on the lands Ex. 6 shows that a total ??? of Rs. 1238-0 was levied on the lands which are said to consist of 2 acres 99 cents of punja aud 16 acres 70 cents of nanjah. It is argued the levying of this assessment had the effect of putting an end to the trust and the grant of the lands as the private and absolute property of the grantees.

12. I do not think this consequence follows. All that Government did was to levy the full assessment on lands which were free from it. The kudivaram rights on the lands were not affected and as the grant in inam was of both varams it is difficult to see how the levying of the assessment can put an end to the trust. At the most all that can be said is that by levying full assessment the income of the trust properties was reduced by the amount of the tirva levied. Reference was made by the appellants' vakil to Unide Rajaha Raje Bommaraaze Bahadur v. Pemmasamy Venkatadry Naidoo(11). In this case the inam was a service inam and the grant seems to have been of the melvaram in return for services. The levying of the assessment had therefore the effect of putting an and to the tenure. In the present case the grant in inam was of both the varams and I cannot a from the mere fact of the levying of full assessment and the grant of patta to the trustees, hold that there was a resumption of both the varams by the Government which extinguished the trust and a re-grant to the trustees of an absolute estate freed from all obligations. The case of Divi Punniah v. Goruntla Kotamma is distinguishable as the resumption was assumed to be of both the varams.

13. It has been argued that no valid wakf was ever created as the lands were resumable at the option of the grantor if the trusts were not performed by the grantees of the inam. Reference has been made to Ameer Ali's Muhammadan law, Vol. 1, p. 526. The original grant is not produced and no satisfactory explanation has been given for its non-production. That such a document existed appears from the Inam Register which refers to “documents in Persian with Parwana.” There is therefore nothing to show that a right of resumption existed in the original grant constituting the wakf. I doubt very much if the limitations which would apply to grants by private individuals would apply to trusts created by sovereign rulers, but assuming it is so there is nothing to show that there were any terms or conditions in the Parwana issued by the Nawab of the Carnatic which were repugnant to Mahomedan law. What the British Government did in 1861 was to confirm the grant. A clause was added that the inam was “continued so long as the conditions of the grant are regularly fulfilled,” but this clause cannot render a valid wakf already created invalid nor can the inam proceedings of 1861 be taken to amount to the creation of a new wakf. Assuming it to be so the trust would be one created by the British Government and the law as to wakf would not apply to trusts created by anon Mahomedan state. I am also of opinion that Section 2 of the Crown Grants Act, 15 of 1895, which provides that all provisions restricting conditions and limitations contained in grants by the Crown shall take effect according to their tenor notwithstanding any rule of law to the contrary will validate the grant as the act is retrospective.

14. There can be little doubt that full assessment was levied by the Government because the then trustees did not carry out the trust. Assuming that there was a re-grant of both the varams to such trustees, the case will fall under Section 88 of the Trusts Act. Having regard to the Standing Orders of the Board of Revenue the grant in cases where inams are resumed is as pointed out by Spencer, J., ordinarily to the persons in possession and the patta was issued to the trustees because they were in possession of the lands. I agree with the Chief Justice that the Government can hardly have intended to reward the defaulting trustees by conferring on them an estate free from the trust. The Government had waived its right to levy assessment on condition that certain trusts were performed and on failure by the trustees it levied full assessment. The patta was issued to the trustees because they were in possession as trustees, and not because of any special claims they had apart from the trust. The trustees, who were bound to carry out the trusts therefore gained an advantage by their breach of trust and the must hold the land for the benefit of the trust. I would dismiss the appeal with costs.

Krishnan, J.:— The first question for our decision in this case is whether the plaint mosque is a trust created for public purposes within the meaning of Section 92 of the CPC. The nature of a trust has to be judged primarily from the terms of the deed of endowment creating it. But in the present case the parwana by which the trust was created is not produced. The appellants pretend that they have lost it, but I am unable to believe it. I am inclined to think it is kept back as its production would work against their interests and therefore every presumption should be drawn against them on the question at issue. In the absence of the original deed of the trust we have to fall back upon what appears in the extract from the Inam Register of 1861, Ex. A, and on the usage in the institution. Ex. A shows that the grant was made in Fasli 1208 or A.D 1798 by the order of the then Nawab of Carnatic for the purpose of building a Masjid on the spot where the coffin of Nawab Wallajah rested on its way to Trichinopoly, for keeping a light in it, and for reading Namaz and Fatias on every Friday for performing the annual ceremony of the Nawab's death and for feeding Fakirs who pass by. No doubt the object so stated and the fact that the Inam was to be continued only so long as the conditions were fulfilled are in favour of the appellants' argument that the Inam is a service Inam. But the Inam is not described as a service Inam in the deed but it is stated to be a “religious endowment” and the lands are said to be enjoyed by the persons then in possession as “managers of the Masjid.” These circumstances rather support the contention that the endowment is a public one. I am however not prepared to go so far as my learned brothers that they are conclusive of the question at issue. It seems to me that no definite inference can safely be drawn from Ex. A by itself as to the character of the trust. But I consider the matter is put beyond doubt by the usage in the institution as proved by the evidence in the case. Several witnesses speak to the mosque being open to the Mahomedan public for worship. Defendant himself had to admit that “the people had a right to worship in the mosque.” He seems to have also been fined once for interfering with public worship in it see: Exs. B and B-1. It is also proved that there is a Peshi Imam and Khatib and a Muazzin for the mosque. P.W 1 swears that he is the holder of the first two offices and P.W 3 claims to be the Muazzin Defendant 1 admits the existence of these offices though he claims to hold them himself. P.W 1 also swears that he was in the habit of preaching as Katib from the “mimbar” or pulpit regularly to congregations of Mahomedans. In these circumstances it seems to me idle to say that the mosque is not a public one. I therefore agree that the finding arrived at by the District Judge and supported by his Lordship the Chief Justice and by my learned brothers now that the mosque is a public trust should be adopted. As pointed out by the learned Chief Justice, this view is supported by the ruling in Sikkandar Rowther v. Secy. of State, where under similar circumstances a similar inference was drawn.

15. It was next contended by the appellant's vakil that as the grant was confirmed and continued by the British Government by Ex. A only subject to the conditions of the grant being fulfilled, it became an invalid wakf, as under the Mahomedan law the grantor cannot retain any interest in a valid Wakf and reliance was placed on Ameer Ali's Mahomedan Law, Vol. 1, p. 526. This argument is clearly fallacious. In the first place the Government was creating no new trust at all by Ex. A. They simply confirmed the previous grant imposing certain conditions, as they were entitled to do as the ruling power in the land. In doing so they did not act as the representatives of the Nawab who was the original grantor, nor did they purport to make a new grant themselves. In the second place, if we take it that they did make a new grant obviously the Mahomedan law of Wakf cannot apply to it. In any case, therefore the objection is futile. It was finally contended by the appellants' vakil that the resumption proceedings in 1893 put an end to the Inam in question and as the lands were granted to his client's predecessor-in-title on an ordinary raiyatwari patta they became his private property. On this question the learned Chief Justice and Spencer, J., have taken different views, the former holding that it did not affect the trust and the latter that it did. I am inclined to agree with the view of his Lordship the Chief Justice.

16. It is admitted before us that the lands themselves formed the Inams and not merely the revenue payable on it. As the note of the fact of the Inam Register, Ex. A, states that the “whole Inam has been resumed,” I am not able to adopt the suggestion that the resumption was only of the melvaram right and that the kudivaram still remainedias it was before. But even taking that the lands themselves were resumed, I think it really makes no difference to the result of the case. If the Government had granted the lands to a stranger without expressly providing for the trust to attach to them it may be they would have become the ordinary private raiyatwari property of the grantee. But the grant in this case was to the muttawalis themselves and apparently on the ground that they were such muttiwalis. In such a case it seems to me a fair inference to draw that the Government intended that the lands should be held under the same conditions as before, subject to the one exception that full assessment was to be paid. In fact the considerations mentioned by Spencer, J., regarding resumption in the case of ancient grants show that where the Government merely levy full assessment they do not intend to interfere with the existing rights; and therefore, where they purport to resume the land and re-grant it to the same trustee on full assessment, it is clearly right to hold that they intended by their re grant that the lands should be held subject to the same right as before resumption. The case of Divi Punniah v. Gorunta Kotamma relied on by the appellant's vakil does not seem to me to be in point here.

17. In that case both parties were agreed that the charitable trust had come to an end by the resumption proceedings; in fact the claim was for a share on the footing that the property had become private property. In such a case the learned Judges held that the re-grant to a person who happened to be one of the trustees did not lead to a presumption that it was given to him because he was a trustee or that he took it jointly for himself and the other trustees; for, if that was the intention of the Government, the grant-would have been to all the trustees. Whether this view be correct or not, it is not in conflict with the view that where the grant is not inconsistent with an intention to preserve the trust, such intention may be presumed.

18. I agree with the view taken in Sikkandar Rowther v. Secy. of State, which is followed by the learned Chief Justice in this case, that where lands have been dedicated for the support of a public mosque, their resumption and re-grant to the trustees on full assessment do not free them from the trust. I am prepared to support my conclusion in this case on another ground as well. It is proved here that it was entirely due to the failure of the muttawalis to perform their duties properly that led to the inam being resumed and the lands being re granted on full assessment. In these circumstances I am of opinion that even though the resumption proceedings be taken to have resulted in freeing the lands from the trust in the hands of the Government, the trust re-attached to them when they were given back to muttawalis on the principle underlying Section 88 of the Trust Act, among that Act does not directly apply to public religious endowments. Otherwise as the learned Chief Justice remarks:

“We would in effect be rewarding the defaulting muttawalis for their breach of duty.”

19. Section 88 embodies a principle which is of general application, that if a trustee avails himself of his character as such to gain an advantage thereby he must hold it for the beneficiaries. It is quite clear in this case that it was by taking advantage of their position as muttawalis and failing to do their duty as such, that they led the Government to resume the lands and re-grant them to them they cannot be allowed to take advantage of their own default and to treat the lands as private property in their hands. I, therefore find on issue 1 that the Wallajah Masjid of Villupuram is a public religious institution to which Section 92 of the CPC, applies and on issues 2 and 4 that the lands are trust properties belonging to the Masjid and that defendants are accountable for the income. The amount decreed by the lower Court has not been seriously disputed before us. I agree with the learned Chief Justice that the decree of the District Judge should be modified as he proposes, as it is not right to exclude the defendants and all their descendants from filling the-office of trustees far ever. Adopting that modification which has already been incorporated in the decree of this Court, I agree in dismissing the appeal to us with costs.

S.N/R.K

20. Appeal dismissed.