1. These second appeals are against the decision of the District Judge of Chingleput in a judgment which disposes of two appeals presented against the judgments in two original suits. The two suits were for recovery of melvaram due on land of which the defendant is a tenant for faslis 1328, 1329 and 1330. The plaintiff's case is that she is a mutawalli or trustee of the mosque institution and that defendant is her tenant on a part of the mosque property and as such is bound to pay melvaram. The defendant's contention was first, that there is no mosque in existence, and second, that the plaintiff is not the de jure matawalli or trustee and is therefore not entitled to claim rent from him. He also pleads that the matter of this appeal is res judicata.
2. To take the last point first: on 3rd March, 1923, in a subsequent suit by the plaintiff against the defendant for rent for fasli 1331 the District Munsif pronounced a judgment in the plaintiff's absence, her pleader having no instructions, dismissing the suit. He went, however, into the merits of the pleas and decided, following the findings in the District Judge's judgment, now under appeal, that there is no mosque in existence now and that plaintiff has nothing to do with any such mosque so as to enable her to maintain the suit. This judgment has not been appealed against and is now final so far as it goes.
3. It was delivered four months before the presentation of this appeal. But it is clear that in that suit the District Munsif only decided, and it was sufficient for the purpose only to decide that in fasli 1331 there was no mosque in existence of which the plaintiff could be trustee. It is not a decision that prior to fasli 1331 there was no mosque. In the present appeal we are concerned with faslis 1328 to 1330 and there is in our view no final finding that in these faslis there was no mosque of which the plaintiff could be trustee. The plea of res judicata therefore fails.
4. The next point is whether there is in fact a mosque in the sense of a trust institution. Defendant claims, that, since what is now called the mosque is not situated on the same site as the original mosque was situated, which is not denied, the trust has vanished. The validity of this argument depends entirely on the nature of the trust. If the trust was to maintain a particular building already existing on a particular site, then, with the disappearance of the building the trust might vanish. That is not the present case. Here, as we see from the Inam Register, the trust was for the maintenance of a mosque in his village. Clearly for the fulfilment of that trust it does not matter where the mosque is so long as it is in the village, and to lay down that the trust cannot change the site of the mosque, however, unsuitable it may be or become, or even when the site has been taken from the trust, say, by acquisition by Government or by an act of God, would be absurd.
5. If it is to the benefit of the institution to change the site of the actual building the trust is entitled to change it. It is not urged in this case that a single person interested in the maintenance of the mosque has objected or does object to the change of site. The only objection comes from a Hindu tenant who objects to pay his rent and is seeking an argument for not paying it. There is no doubt on the evidence that there is a separate building set apart across the lane from the plaintiff's dwelling house, for this mosque. There is therefore no failure to maintain the trust institution for which the inam was granted. We are unable to agree with the District Judge that the present mosque is not the mosque for which the inam is granted, if by that finding he means that the trust has vanished. This contention, therefore, also fails.
6. The next contention is that the plaintiff is neither de facto nor de jure mutawalli and is therefore not entitled to sue for the rent. It was admitted before the District Judge that the plaintiff is not the de jure trustee. That the plaintiff is the de facto mutawalli in the sense that she is looking after the temporal affairs of the trust cannot, we think, be doubted. Defendant's contention on this part of the case was not seriously pressed before us. The plaintiff's agent is paying the mosque servant, P.W 3, and it is plaintiff and no one else who has been attempting to recover the rents from the defendant ever since the death of her husband, the previous mutawalli.
7. A more serious argument for the defendant is that the Mahomedan Law does not contemplate a de facto trustee at all, and that such a person has no locus standi to sue for rent. That view the District Judge adopted and this question is the main question for decision here. In the recognized text books of Mahomedan Law we do not find any statement that a de facto trustee is a legal impossibility. The nearest statement on the point is by Mr. Tyabji in his work on Mahomedan Law at page 627 which sets out that a person not validly entitled to act as mutawalli may by taking charge of it and purporting to manage the property, thereby become a trustee de son tort and answerable as such. If this is so, it implies that the concept of a de facto trustee or trustee de son tort is not foreign to Mahomedan Law, and that such a trustee may perform the duties of the de jure trustee, but will be answerable as if he was, as he is, a trustee de son tort.
8. In the case reported in Niamat Ali v. Ali Raza(1) two learned Judges of the Allahabad High Court who have frequently to deal with cases under Mahomedan Law speak of the de facto mutawalli of an Arabic School without hinting that such an office is legally inconceivable. In two other cases of the same High Court, reported in Benarsi v. Altaf Hussain(2) and Muizuddin v. Mohammad Ikhlaq(3) de facto mutawallis of mosques are spoken of as if they were well known to the law. No case to the contrary has been cited before us, and we, therefore, as at present advised, see no difficulty in the legal concept of a de facto mutawalli of a mosque.
9. Plaintiff is no doubt a woman, but there is no objection under Mahomedan Law to a woman doing the temporal duties of mutawalli of a mosque. There is no suggestion that she is not doing the duties properly or that any person interested in the mosque has made any complaint regarding her performance of her duties. The only suggestion that she is not entitled to perform these duties comes from this defendant who, as we have noted, is unwilling to pay his rent to her and is obviously a self-interested party. It is not alleged by him that there is any other person who ought to be the trustee to whom his rent is due. In these circumstances, we cannot see on what ground the defendant can refuse to pay his rent. The plaintiff is the actual manager of the institution. No other person has been alleged to be entitled to manage it. There is no suggestion that she will not appropriate the rent for the benefit of the institution.
10. Nor can we see any legal objection to her maintaining a suit against the tenant for rent. In a case reported in Abttan Sahib v. Soran Bivi Sahiba Ammal(4) both the learned Judges held that the de facto trustee of a mosque was in a position to collect the rents and reimburse himself for the expenses of the collection out of the rents collected. It would be very much to the detriment of a trust if the actual manager thereof, when there is no de jure trustee in charge, were debarred from recovering debts due to the trust. The rent so paid is of course paid to the person properly under the circumstances entitled to receive it. We, therefore, can see no legal ground on which the defendant can refuse to pay his rent to the plaintiff. We must reverse the judgment of the learned District Judge and restore that of the District Munsif with costs of the plaintiff here and in the lower appellate Court (one set vakil's fee).
11. Appeal allowed.