(RAMAPRASADA RAO, J.)

1. The defendant in O.S. No. 36 of 1968 on the file of Hie Court of the Subordinate Judge of Nagapattinam, is the appellant. Under Ex. A-1, dated 16th Deoember 1904 Sikkandar Rowther, the common ancestor of the parties before us, executed a deed of Wakf endowing considerable agricultural properties, both Nanja and Punja of an extent of about 179.17 acres for the purpose of performance of certain charities and incidentally directing the muthavallis functioning under the Wakf deed to divide the 6/16 of the net income after expending for the charities amongst his own descendants. The balance of 10/16 share of the net income was to be spent towards the performance of moulooth on a prescribed date at a prescribed place at which the prescribed quantity of rice Pulav should be cooked for distribution among the poor, the relatives and the friends. Similarly, a moulooth for the distribution of food to all Muslims and miskins present at the Nagor Andavar Vasal should be prepared and so distributed. Besides the agricultural properties, premises No. 35, Therupalli street, including certain movables were endowed for the purpose of performance of the obligations under the trust. Under Ex. A-2, a friend of Sikkandar Rowther, by name Vaojoor Madar Sahib, executed another Wakf deed on 27th June 1914; thus creating an accretion to the original Wakf, the purposes however, are to a similar effect excepting for the fact that Briyani rice of a particular quantity should be cooked and distributed to the poor and the relatives of Sikkandar Rowther on every anniversary of his. Under Ex. A-1 Sikkatdar Rowther appointed himself as the first trustee and gave directions as to the succession of trustees. He left behind him three sons, two daughters and provided for the trusteeship devolving on one of his male descendants, who is capable of properly managing the endownment. There is a provision for removal of an incapable trustee or a trustee, who has become unfit to bold the office. One Bava Mohideen assumed such management of trusteeship in or about 1915. According to the plaintiffs in the action, who claimed to be interested in the trust as descendants of Sikkandar Rowther, Bava Mohideen was not managing the affairs of the trust property. A suit O.S. No. 188 of 1934 was filed in the Court of the District Munsif, Nagapattinam, against the said Bava Mohideen complaining about such mismanagement. But the contesting and the interested parties settled their differences and under an agreement dated 26th March 1934, it was agreed that Bava Mohideen, Haleeth Rowther, one other son of Sikkandar Rowther and Mohammad Ghouse, the daughters son of Sikkandar Rowther, should look after the Wakf by turns. Soon after Haleeth Rowther died. Again troubles arose. The difference had to be referred to the arbitration of the Village Mesdman, one Mohammad Kasim, who gave an award on 2nd February 1941. In connection with the award, there were two litigations, one was filed by Mohammad Ghouse, the daughters son of Sikkandar Rowther for passing a decree in terms of the award. One Maimoon Sharifa Beevi, daughter of Haleeth Rowther, who is the second respondent herein, was also a party in that suit. It is unnecessary to refer to the other parties in that action and the other connected litigations. The second litigation objecting to the award passed by Mohammad Kasim was filed by Bava Mohideen himself under O.P. No. 72 of 1943. The suit filed by Mohammad Ghouse (O.S. No. 18 of 1941) was decreed and Bava Mohideens petition to set aside the award was dismissed. The Wakf apparently was satisfactorily functioning under the terms of the award and in relation to the management of its properties till Bava Mohideen died on 30th March 1953. We may state that between 1943 and 1953 Bava Mohideen, one of the ions of Sikandar Rowther was, in joint management along with Mohammad Ghouse, the appellant herein during that period. After the death of Bava Mohideen, Mohammad Ghouse became the sole trustee Thereafter disputes arose between the descendants of Sikkandar Rowther and a spate of litigation started.

2. Jamila Ammal, one of the descendants of Bava Mohideen filed a suit against Mohammad Ghouse for rendition of accounts and for payment of her share in the net income of the properties as per the deed of trust. This suit had chequered career and it is still pending in the Subordinate Court. Mohammad Ghouse, the appellant, in turn filed a suit against some of the descendants of the common ancestor for recovery of possession of the trust properties in their possession. This is reported to have been decreed in 1965. Thereafter, two suits were filed by respondents 1 and 2 against the appellant for an account of the trust monies and for other reliefs. They are O.S. Nos. 66 of 1965 and 5 of 1969. It is reported, however, that both have been dismissed for default. The present suit by respondents 1 and 2, who are the daughters son and the sons daughter of late Sikkandar Rowther, is a suit for declaration that Mohammad Ghouse, the appellant herein, who is also a daughters son of the ancester, is not a fit and proper person to be a trustee of the Wakf properties and for removing him from trusteeship from the Sikkandar Rowther Wakf and for framing a scheme for the proper management of me same.

3. The defendant raised various contentions. He would say that the trust created by Sikkandar Rowther, is different from the trust created by Vanjoor Madar Sahib and a common suit in relation to both would amount to misjoinder of causes of action. After referring to the litigations summarised by us, the defendant would say that in the course of his administration, he had been obstructed in various ways, by she plaintiffs and other descendants of Sikkandar Rowther, He complains of malversation of trust funds by the plaintiffs and would add that he had been performing the obligations under the trust as prescribed in the Wakf deed and explains the reason as to why he could not pay the beneficiaries under the trust as directed. Since the trust properties were affected by adverse seasoned conditions and, particularly, during the cyclone in 1952, he had to advance large stunt of money for tic preservation of the trust properties and would claim that as on date of the suit, large sums are yet to be recouped by oim from the trust end it was in those circumstances, payment to the beneficiaries were not feasible. He would also take up the legal contention that the main issue in the case revolves upon the non-distribution of the net income to the beneficiaries and that by itself would not be a ground for filing the present suit either under S. 92 of the C.P.C. or under the provisions of the Wakf Act. He claims that the real income got from the lands has been shown from time to time in the return sent to the Wakf Board and they are all reflected in his regularly kept accounts. The suit is neither bona fide nor filed in the interests of the trust and the relief for removal of the appellant as Mulhavalli is a misconceived remedy, which is asked for by the plaintiffs-respondents. On the above pleadings, the following issues were framed for trial:

[The issues are omitted as unnecessaryEd.]

4. Though many of the above issues have been framed, the primary question which arises for consideration in this case, is, whether the plaintiffs have come to Court as disinterested persons or persons championing their own cause as the ultimate beneficiaries, who are benefited in the distribution of 6/16th share of the net income from the Wakf amongst the descendants of Sikkandar Rowther. Secondly, the question is the defendants conduct and his course of administration is such whether he had made himself unfit and a trustee, who ought to be removed from the trusteeship of the Wakf. Thirdly, whether an occasion has been made out for the framing of a scheme, as it is alleged that the Wakf has been improperly managed.

5. The defendant in his written statement has brought out that it is the private interest of the beneficiaries as a whole and the plaintiffs in particular, which have prompted them to cease to Court for his removal, It is not in dispute that the manner in which the net income has to be distributed amongst the descendants is still the subject matter of adjudication in Courts of law and that it is impossible for any trustee, under the present circumstances, to take upon himself the responsibility of any such distribution pending such final adjudication. The appellant would put to the forefront that it is the present dissatisfaction which is lurking to the minds of the beneficiaries that is responsible for the present suit. He complains that one of the plaintiffs is occupying one of the trust properties and they are obstructing him in the matter of the normal performance of the moulooth at the schedule place. The defendant has also taken steps for evicting the plaintiffs from the Wakf properties and in conclusion would say that the suit is not at all bona fide and has not been filed in the interests of the trust at all and that it is only due to malice and ill-will against the defendant that the present action has been initiated.

6. Though the consent of the Wakf Board has been obtained under S. 55(2) of the Wakf Act, yet the principle running in the vein of this process contemplated in suits filed under S. 92, C.P.C. and under S. 55, of the Wakf Act of 1954 govern the present situation. From an overall appreciation of a given situation, it should be made clear that if a suit under S. 53(2) of the Wakf Act has been filed, then it should be for the vindication of a public right. Even then, the action should not be camouflaged with such a request or relief. It must be a genuine desire on the part of the litigant to expose public rights. It is in this view that the Supreme Court said in Parmatmanand Saraswati v. Ramji Tripathi A.I.R. 1974 S.C. 2141 that it is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights and in deciding whether a suit falls within S. 92, the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit wan brought. Further, in cases like this, it is very necessary to substantiate fully the allegations as to the breach of trust or compel the Court reasonably to give a direction to the trustees in management to properly administer the trust. If either or both of the above requirements are not fully made out, then the very basis of the suit under S. 55 of the Wakf Act or under S. 92 of the C.P.C. would fail. The Supreme Court made it clear in the very same section as above that even if all other ingredients of a suit under S. 92, C.P.C. are made out, if it should be brought out that the plaintiffs are not suing to vindicate the right of the public, but are seeking for a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested in such circumstances, the suit would be outside the scope of S. 92, C.P.C. Yet again, the law is clear that the mere fact that some mismanagement has resulted through the misconduct of the trustees is not a ground to modify a scheme which contains provisions, which, if properly worked out are sufficient to protect the interest of the trust, (Vide: Venkatarama Chetty v. Thiruvengadathan Chetty A.I.R. 1916 Mad. 530. Even on the third point posed by us for consideration, the plaintiffs have to establish the necessity for re-framing a scheme but cannot be rest content by alleging that the trust has been mismanaged. It is in the background of the above well laid principles we should consider next as to what are the grounds on which a trustee of a public trust could be removed, We could do no better than to quote from Mulla on the Principles of Mohammadan Law (Sixteenth Edition at page 215). The learned author says:

A mutawalli may be removed by the Court on proof of misfeasance or breach of trust, or if it is faund that he is otherwise unfit to hold the office, though the founder may have expressly directed that he should not be removed in any case.

What exactly has been urged by the plaintiffs in the instant case is that no proper accounts have been maintained, that the moulooth has not been performed properly, that the distribution of the net income by the descendants have not been properly made and that a reserve has not been maintained as directed in the trust. In so far as the above grounds of attack are concerned, the lower court found that the moulooth was performed properly and the non-distribution of the net income to the descendants could not be made, since the High Court is seisin of the matter and while the proceedings it thus pending, the plaintiffs cannot ask for a parellel relief in the present suit and the defendant cannot be charged for non-payment of their share of the income and that cannot form a ground for removing him from trusteeship.

7. The only other surviving grounds of attack are whether the accusation of the alleged improper maintenance of accounts is true and whether the defendant as trustee failed in his obligation in not keeping a reserve amount, for the purpose of ultimate distribution of the net income to the sharers as directed. The plaintiffs case is that for a considerable length of time, the beneficiaries had not been paid, and that be had been consistently appropriating a major part of the income towards the moneys advanced by him, for the preservation and upkeep of the trust. This, according to the plaintiffs, is an act, which savours of mismanagement and has to be taken into consideration by the Court to find out whether he should be removed from trusteeship.

8. At this stage, it would be necessary to scrutinise the evidence let in this case and find out whether there has been a malversation of trust funds or other such allied mis-conduct on the part of the trustees.

XXX

(The discussion of facts is omitted: Editor)

9. The finding of the learned Judge that though the trustee did not pay the beneficiaries, he should have set apart and segregated a certain amount for payment to the beneficiaries, is an uncharitable remark, since the case of the defendant that there was no such available surplus for distribution because of the debts of the Wakf and these accounts have not been scrutinised and adjudicated upon by the Court below. The account books filed into Court from 1948 to 1970 have not been looked into and examined in a manner known to law. The learned Judge himself admits that the defendant may not be liable for non-payment of the income to the beneficiaries in the present suit as matters stand. In such a nebulous and uncertain state of affairs, the contradictory findings of the court below that even-though misappropriation has not been proved, there are circumstances which throw suspicion on the conduct of the defendant and the accounts maintained by him appears to be unjustified is not based on acceptable evidence. This is not a case in which the Court categorically finds that the defendant was encumbering the trust properties by systematically incurring expenses beyond the limits of its Income. There is no express finding either that the continuance of the defendant as trustee would endanger the interest of the institution; as was pointed out by our Court in Zamindar of Kolahasti v. Ganapathi Iyer A.I.R. 1918 Mad; 56.

It is not however every mistake or neglect of duty or inaccuracy of conduct that will induce a Court to remove a trustee. The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a wart of proper capacity to execute the duties of the office or a want of reasonable fidelity.

In the absence of such continuous, dishonest, designed and motivated activities of a trustee, which would impair the corpus of the trust, and shake its foundation, it would be difficult for this Court and particularly, due to the wavering findings of the court below to agree with it that the plaintiffs have made out a case for removal of the trustee.

10. It is in the light of such evidence let in this case that we should now take up the contention of Mr. Ahmed Meeran, who harped upon the alleged mis-management of the defendant in the light of the non-distribution of the 6/16th part of the net income to the descendants of the donor. Though the account books are in Court, the plaintiffs did not request for a scrutiny of those accounts; but they did not go anywhere near it for the purpose of a probe to find that a case of misapproriation or malversation has been made out. Argument are built on bare suspicion and not on established facts. A person can only produce the accounts maintained by him and if the opponent wants to surcharge the other on such accounts, he should make a case by a deep study and a scrutiny of such accounts, but should not be rest content by criticising them without even looking into them. Mr. Meeran repeats the argument urged by the plaintiffs in the lower court and would pay that the plaintiffs did make out a case for removal of the trustee. His accent was on the non-distribution of the net income of the descendant. Apart from the fact that such an assertion is indicative of the private interest of the plaintiffs for which purpose no suit either under S. 92 C.P.C. or under S. 55 of the Wakf Act is maintainable, the plaintiffs have not even established reasonably that their apprehension about the accounts is justified. The role played by the plaintiffs is that they accused the defendant. They do not go into the accounts. They do not prompt the Court to find that the expenses incurred by the trustee are not justified. They also conceded that the manner of distribution of the available surplus if any, is still to be adjudicated upon by this Court, But yet they would seek for a removal of the trustee on vague, uncertain and unproved allegations.

11. Reliance is placed upon a decision in S. Veeraragha v. V. Parihasarathy A.I.R. 1925 Mad. 1070. There, the Full Bench of our Court laid down a salutary principle for removal of trustees and the Bench held thus:

Once a person accepts an office of trusteeship the one governing consideration in his mind, the ruling motive for all actions the one principle by reference to which all his acts should be determined, is the interest of the institution and that alone. Persons who though holding a fiduciary position allow their actions to be prompted by any other considerations, motives, principles areas such guilty or breach of trust as persons who may be found actually guilty of misappropriating property belonging to the trust. Even though the evidence in a case against the trustees may not be sufficient to warrant, generally speaking, their removal from office on the ground of misconduct or negligence, still their removal may be ordered if, in the opinion of the Court, such removal is necessary in the interests of the trust to be administered.

It is, therefore, clear that in the absence of objective evidence, about malversation or misfeasance on the part of the trustee, the subjective satisfaction of the Court without even a full probe into the evidence on the conduct of the trustee cannot go a long way to prompt the Court to remove him, as the primordial consideration in such circumstances in the interests of the institution. The plaintiffs have miserably failed to let in any evidence touching upon the motive of the defendant in the matter of the administration of the trust property, as he is doing. We have to say that in this case no case has been made out by the plaintiffs for the removal of the defendant on the ground that the interests of the trust and its administration so requires.

12. We have already referred to the conflicting observations made by the court below, which has not definitely stated and found that the defendants actions as trustee and in relation to the Wakf are such that the Court is reasonably prompted to remove him from the trust. We do not find, in the instant case any proof of such misconduct which throws light upon the misconduct of the trustee in the administration of he trust. We have already referred to decision in Venkatarama Chetty v. Thiruvengadathan Chetty A.I.R. 1916 Mad. 530 and observed that mere mismanagement is not enough to modify a scheme. Farther, in the view that we hold that the plaintiffs did not make out a case of mismanagement or misconduct on the part of the defendant, and that no clear and acceptable evidence has been let in to bring out that the interests of the institution require the removal of the defendant, the plaintiffs case fails in this behalf. As it is not necessary, therefore to modify the scheme, as the defendant is prima facie conducting himself in accordance with the scheme and the Wakf deed, we do not feel justified in accepting the alternative prayer of the plaintiffs for the modification of the scheme as well.

13. In the result, the judgment and decree of the trial Court are set aside, the suit is dismissed and the appeal is allowed with costs.