Das, J.

1. These appeals raise three important questions; first the validity of the appointment of Abbas Hussain as the mutwalli of the endowment; secondly, the propriety of the order of the learned District Judge in directing Haji Syed Ali Nawab, appellant in first Appeal No 191 of 1920, to pay to the plaintiffs the cost of the suit; and thirdly, the necessity of framing a scheme for the administration of the trust funds. The cross-objection presented on behalf of Abbas Hussain raises the question whether the learned District Judge should not have directed Haji Syed Ali Nawab to render an account of his dealings with the trust estate.

2. It will be convenient, first, to dispose of the cross-objection. I think there was more or less an understanding between the parties that, if Haji Syed Ali Nawab voluntarily tendered his resignation of his office, the plaintiffs would waive the question of accounts as against him. The order of the 10th December, 1919, suggests that there was such an arrangement between the parties. I must assume that the learned Judge, in declining to direct an account as against Haji Syed Ali Nawab, had in his mind the existence of such an arrangement.

3. The cross-objection must be dismissed.

4. Coming now to the appeals, the question most seriously pressed before us is, that the learned District Judge should not have set aside the election of Ahmed Nawah by the respectable Shiahs of Muzaffarpur, and appointed Abbas Hussain as the Mutwalli of the endowment. As Abbas Hussain is now dead, I do not think that it is necessary for us to determine this question. If it was necessary for us to determine this question, I would find it difficult to maintain the order of the learned District Judge. I must not, however, be understood to assent to the proposition that the Court has no power to depart from the arrangement contemplated in the wakfnamah. The institution of a suit under the provision of section 92 of the Civil Procedure Code attracts the jurisdiction of the Court, and the Court has complete power to make such appointment as it considers proper in the circumstances though the appointment may involve a departure from the arrangement contemplated in the constitution of the trust. There is no legal restriction in the power of the Court; but, although there is no legal restriction, the Court ought not to depart from the arrangement contemplated by the settlor except for a very strong reason. The deed of trust vests the power of appointment in the respectable Shiahs of Muzaffarpur. The respectable Shiahs of Muzaffarpur, by a majority of votes, elected Ahmed Nawab as the mutwalli of the endowment. Although the power of the Court was in no way restricted, still, the Court should have been more careful in enquiring whether it was necessary that the election of Ahmed Nawab be set aside, and another appointment made by it. The learned Judge thought that Ahmed Nawab had procured his election by offering bribes to the electors. If he is right in his view that bribes were offered by Ahmed Nawab, we could not interfere with the exercise of his discretion in the matter. But I have anxiouly considered the evidence in the case, and I have come to the conclusion that the evidence, even if believed, does not establish the guilt of Ahmad Nawab in the matter. It is unnecessary to pursue the subject any further; for, in my opinion, Abbas Hussain being dead, the question does not arise for our consideration in these appeals. The learned Government Advocate, indeed insisted that we ought to hold that Ahmad Nawab was properly elected in a constitutional way; but, as I have said before, the power of the Court, in the matter of the appointment, was unrestricted; and though if we had to decide the question for the first time, we might say that there was nothing in the case which would induce us to set aside the election of Ahmad Nawab; we could not, on the materials before us, go further and hold, that the Court should have appointed Ahmad Nawab as the mutwalli. All that we need say at this stage is this that, in the fresh election which must be held it will be open to Ahmad Nawab to offer himself as a candidate, and that the Court, in making the appointment, ought to give due weight to the wishes of the respectable Shiahs of Muzaffarpur. The considerations which weighed with the learned District Judge are not, in my opinion, sufficient to disregard the arrangement contemplated in the constitution of the trust. I am, of course, not accepting his finding that Ahmad Nawab secured his election by offering bribes.

5. The next question is, whether the Court was right in directing Haji Syed Ali Nawab to pay the costs of the suit. The costs were in the discretion of the learned Judge, and I am not prepared to say that the learned Judge exercised his discretion unreasonably. It is quite true that Haji Syed Ali Nawab tendered his resignation of his office, and that his resignation was accepted by the Court. But on the finding of the Court, the suit was an entirely proper one, and was rendered inevitable by reason of the gross mismanagement of he trust estate by Haji Syed Ali Nawab.

6. First Appeal No. 191 of 1920 fasils and must be dismissed.

7. There is an additional question raised in First Appeal No. 190 of 1920, namely, the question whether the learned Judge should have framed a scheme to safeguard the interest of the endowment. The appellant has raised the question in the memorandum of appeal; but Mr. Akbari appearing on behalf of the appellant did not press it before us, but since the trust estate is before us, we think it right that we should express our opinion on this point. The view of the learned Judge may be stated in his own words.

The trust deed does not appear to contemplate any scheme. It says that every trustee is bound to keep accounts of the income and expenditure, so that he may show them in case they are demanded for inspection by the family members or the gentry of the town, or the Court. A suggestion has been put forward that a managing committee should be appointed, but such a body is not contemplated in the deed, and I could not get the names of any three persons willing to act and commanding the confidence of the parties, In the high state of tension now existing in the local Shiah community even if such a committee could be established, it would be liable to develop only into a faction fight. In my opinion, it will be sufficient if a direction is given to the mutawalli to frame a budget for each year and to file it and also accounts for the past year in Court where they will be open to inspection and criticism.

8. It is too late in the day to assert that because the trust-deed does not contemplate a scheme, a scheme should not be framed by the Court. In refusing to frame a scheme, the learned Judge declined a jurisdiction which clearly it was his duty to assert. It is not, in my opinion, sufficient to direct the mutwali to file his accounts in Court. There ought to be a small committee consisting of three respectable Shiahs of Muzaffurpur to check the accounts, as filed in Court, of the mutwalli, and to exercise, not control, but superintendence, over the mutwalli. I think that this committee should be appointed by the learned District Judge.

9. The decree is defective in another respect. The suit is one for the administration of a public trust, and it is necessary that liberty to apply should be reserved to the parties. The effect of making such a provision is that the suit is kept alive and it is possible for the parties to take the direction of the Court from time to time and so often as may be necessary. To take the present case, there is no power in the Court to appoint a successor to Abbas Hussain or to direct a fresh election since the decree has made no provision for such a contingency. It is to prevent a multiplicity of suits that the Courts in administrative action, reserve a liberty to the parties to apply from time to time and so often as may be necessary.

10. First Appeal No, 190 of 1920 succeeds in part. I would vary the decree passed by the Court below by providing that a committee of three respectable Shiahs of Muzaffarpur be appointed by the learned District Judge to check the accounts of the mutawalli as filed in Court and to exercise superintendence over the mutwalli, and that liberty be reserved to the parties to apply from time to time and so often as may be necessary.

11. It will now be open to the parties to apply to the learned District Judge for appointment of a new mutwalli in the place of Abbas Hussain and to take immediate steps for the protection 'and preservation of the trust estate. It will also be open to the parties to apply to the learned District Judge for the appointment of a committee to examine and check the accounts of the mutwalli as filed in Court and to exercise supervision over the mutwalli, and for the framing of rules in this connection.

12. There will be no order as to costs.

Civil Rvision No. 199 of 1920.-

13. This application fails and must be refused, There will be no order as to costs.

John Bucknill, J.

14. I agree.