JUDGMENT 1. This is an appeal preferred from a decree passed by the District Judge of Dacca in a suit instituted by the Plaintiffs in accordance with the provisions of sec. 92 of the Code of Civil Procedure. The endowment in respect of which the suit was instituted goes by the name of Badamtali Mosque, which appears to have been founded by one Moulvi Amiruddin, a rich Mahomedan Zemindar of Dacca, a good long time ago. The endowment consists of a mosque and a plot of land which was dedicated for its upkeep and maintenance. As regards the history of this endowment all that is necessary to be stated for our present purposes is that one Moulvi Amiruddin after creating the wakf constituted himself as the mutwali and after his death various members of his family acted as muttvali in succession to one another. The learned Judge has pointed out in his judgment, and that seems to be a fact, that the principles on which these various persons came to succeed as mutwali are not at all clear. But it does appear that there has been a practice that a mutwali, during his or her life-time, would appoint his or her owns successor. The mutwaliship having been continued in this way, one Nurunnessa Bibi eventually became the mutwali', and before her death she executed a towliatnama appointing the Defendant No. 1 as her successor. The two Plaintiffs who instituted the suit were Golam Rabbani and Dewan Abdul Hamid, their case being that during the life-time of Nurunnessa there was an understanding that the Plaintiff No. 1 would be appointed mutwali after her death but that in contravention of the terms of that arrangement the lady executed a towliatnama appointing the Defendant No. 1 as such. On these allegations the suit was founded. In the plaint various acts of mis-feasance and mal-feasance were charged as against the Defendant No. 1, and such reliefs as are contemplated in sec. 92, C.P.C., were prayed for. On these allegations the suit was founded. In the plaint various acts of mis-feasance and mal-feasance were charged as against the Defendant No. 1, and such reliefs as are contemplated in sec. 92, C.P.C., were prayed for. It was set out also in one of the paragraphs of the plaint that the Defendant No. 1 misappropriated the income of the wakf properties in various ways and neglected to perform the duties of the mutwali and ultimately on the 17th February, 1927, granted two leases in favour of the Defendant No. 2 for a period of 15 years in respect of the wakf properties for a nominal consideration and at a nominal rent. On these allegations the Defendant No. 2 was made a party to the suit, it being alleged that he, by virtue of the lease which he had obtained and also by his use and occupation of the wakf properties, was acting as mutwali de son tort, and on that footing he was guilty of mis-management and mal-adminis-tration of the wakf property and also misappropriated its income and was, therefore, liable to be removed and to account. The charges made as against the two Defendants were denied by them in their respective written statements. The Defendants also took various other defences to the nature of which it will not be necessary to refer for our present purposes. Eventually, the learned Judge dismissed the suit in so far as it was against the Defendant No. 2, and made a decree as against the Defendant No. 1, removing him from office of mutwali and appointing one Moulvi A shad Bukht as mutwali in his place. The learned Judge also gave certain directions in his judgment amongst which were the following: that the newly appointed mutwali should, as soon as practicable, take such steps as would tend to increase the income of the trust property, that he would endeavour to come to an arrangement with the Defendant No. 2 for an increase of the rental of the trust property and failing a satisfactory arrangement he would bring a suit for the cancellation of the leases, and that he should render accounts to the Court every year. This decree was made by the learned Judge on the 28th February, 1933. From this decree the present appeal was preferred by the two Plaintiffs on the 29th May, 1933. 2. This decree was made by the learned Judge on the 28th February, 1933. From this decree the present appeal was preferred by the two Plaintiffs on the 29th May, 1933. 2. A few days before the date on which the appeal was filed, that is to say, on the 22nd May, 1933, a lady Faijunnessa made an application to the learned Judge praying that the mutwaliship of the Badamtali mosque to which Moulvi Ashad Bukht, who was but a stranger to the family of the wakif and who had not been nominated under the deed, had been appointed, should be transferred to her. In this application she stated that under the Mahomedan Law, as also under the towliatnama executed by Nurunnessa, she had a preferential right to be a mutwali in respect of this endowment. She also alleged therein that there were other persons amongst whom were one Hayatunnessa and one Kamarunnessa who were entitled to be mutwwali if due regard was paid to the policy of the wakf and the provisions of the Mahomedan Law. Her prayer was that the appointment that had been made in favour of Moulvi Ashad Bukht might be cancelled and that either she or the persons she had named in her petition might be appointed mutwalli. The learned Judge held that such an application did not lie and he rejected it by an order made on the 23rd May, 1933. 3. It has already been stated that the present appeal was filed on the 29th May, 1933. The appeal remained on the file of this Court, having been originally filed as against the two Defendants. On the 16th November, 1933, Moulvi Ashad Bukht was added as a party Respondent to the Appeal. On the 18th April, 1935, Faizunnessa Bibi got herself added as a party Appellant to the appeal inasmuch as it appeared that the Plaintiffs who had originally filed it were not going to prosecute the appeal. By an order made on the said date, the said Faizunnessa was added as a party Appellant. The order having been passed by this Court as between the parties to the appeal no question can possibly arise again as regards its validity or propriety. By an order made on the said date, the said Faizunnessa was added as a party Appellant. The order having been passed by this Court as between the parties to the appeal no question can possibly arise again as regards its validity or propriety. The position, therefore, was that on the application of Faizunnessa being granted as aforesaid, she virtually became the sole Appellant in this appeal and it is she who has appeared before us and pressed the appeal as the sole Appellant. 4. One of the contentions urged in support of the appeal is that the learned Judge was wrong in dismissing the suit in so far as it was against the Defendant No. 2 and that he should have, on the other hand, made a decree in favour of the Plaintiffs and as against the Defendant No. 2, directing his removal and giving the Plaintiffs such other or further reliefs as under the law and the circumstances of the case they might be entitled to as against him. The view which the learned Judge took of the case, in so far as it was against the Defendant No. 2, was that the Defendant No. 2 was in the position of a person who was in possession of the trust properties as an alienee from the mutwalli and in that view the learned Judge held that the relief which the Plaintiffs really claimed as against that Defendant was a relief in the shape of ejectment from the trust properties and that such a relief being outside the purview of sec. 92, C.P.C, the Plaintiffs should institute a separate suit, not one under sec. 92 of the Code, as against that Defendant in order to obtain that relief. This view which the learned Judge took of the case as against the Defendant No. 2 has been challenged before us on behalf of the Appellant. It has been said that the allegations that are to be found in the plaint make out a sufficient case as against the Defendant No. 2 on the footing that he was a trustee de son tort and that it having been alleged in the plaint that the Defendant No. 2 was in wrongful possession of the trust properties and being in management thereof and being guilty of misappropriation, mal-feasance and mis-feas-ance, all such reliefs as may be obtained in a suit under sec. 92 of the Code as against a trustee, could be had as against the Defendant No. 2. In support of this position, reference has been made to the terms of the leases or at least one of them under which the Defendant No. 2 came to be in possession of the trust properties. The provision to which reference has been made in this connection runs in these words: Addressed to the Defendant in his capacity as recipient of the deed it was said: You shall continue to defray the expenses of lighting the pucca mosque situated within the boundaries mentioned in the schedule and of repairing the said mosque and the buildings etc., as well as the expenses etc., for Imam (one who leads the prayer), the Muezzim (the crier) and the water-carrier of the mosque according to my permission and after meeting the aforesaid expenses for the up-keep of the waif properties out of the amount of rent, you shall pay the balance to me, to my satisfaction, year after year, and take from me the receipt for, payment of rent year after year. It is pointed out that this provision indicates that the Defendant No. 2 was put in possession of the properties with right to manage the endowment that he was to make the expenses set out in the clause and that it was only the balance that he would have to make over to the mutwalli if any balance remained after the expenses that were to be incurred. In this connection our attention has also been drawn to certain pieces of evidence by which it was sought to establish that the Defendant No. 1 used to remain away from Dacca and that in his absence it was the Defendant No. 2 who used to carry on the work connected with the trust. On these materials it has been argued that the Defendant No. 2 was constituted the mutwalli de facto. These materials, however, in our opinion, are not sufficient to establish that there was a delegation of the trust or such a vesting of trust property in the Defendant No. 2 or that the Defendant No. 2 came to manage the trust in such a way as would go to indicate that he was acting either as de facto or de jure trustee or as a trustee de son tort in respect of the endowment. It is perfectly clear from the clause which has been cited above that the expenditures that were incurred were to be incurred according to the permission of the lessor, that is to say, Defendant No. 1. 5. Our attention has been drawn to the various reliefs claimed in the plaint and it has been argued that the Plaintiffs never asked for a decree for ejectment as against Defendant No. 2. We are unable to see that such an interpretation can be put upon the prayers that are to be found in the plaint. In one of these prayers it is stated that the Defendant No. 2 may be removed from the use and occupation and from the management of the wakf property; and it has already been said that the leases themselves were set out in one paragraph of the plaint. By ignoring the leases which the Defendant No. 2 had obtained from the Defendant No. 1 and by asking for removal of the Defendant No. 2 and for other reliefs in the shape of accounts, etc., as against that Defendant, the Plaintiffs could not expect to get the Defendant No. 2 to vacate the premises in respect of which there were leases outstanding in his favour. We are of opinion that whatever may have been the wording of the reliefs that were asked for in the plaint and whatever may have been the allegations that were made to obtain the reliefs, the substance of the case as against Defendant No. 2 was that he was in possession of the properties as a lessee and although he has been described as trustee de son tort, it can not be said that anything has been established which would go to show that the Defendant No. 2 really occupied such a position. There can be no question that in a suit under sec. 92 of the Code reliefs in the nature of ejectment cannot be asked for as against an alienee in respect of the trust property. The view which the learned Judge has taken is evidently right. It may be stated here that one of the directions that the learned Judge gave in his judgment upon the newly appointed mutwalli was to start a suit against the Defendant No. 2 and we are informed that a suit was subsequently instituted against him and a. decree has been passed as against him. It may be stated here that one of the directions that the learned Judge gave in his judgment upon the newly appointed mutwalli was to start a suit against the Defendant No. 2 and we are informed that a suit was subsequently instituted against him and a. decree has been passed as against him. There is, therefore, no substance in the first ground that has been taken on behalf of the Appellant in this appeal. 6. The second contention that has been urged, and that apparently is the principal contention that the Appellants are anxious to put forward, is that the appointment that has been made of Moulvi Ashad Bukht was not properly made. The circumstances under which this gentleman was appointed are the following. It appears that both the parties to the suit, such as it was at the time that it was in the Court of the learned Judge, agreed that if a Committee was to be appointed, some one of the family of Moulvi Wahed Bukht who was a Nazir of the Judge's Court at Dacca, should be appointed a member of it, because the family was very respectable and well-known in the locality and they lived immediately opposite the mosque which formed the subject-matter of this case. Moulvi Wahed Bukht was not inclined to accept the mutwalliship. But his brother Moulvi Ashad Bukht was willing to act as mutwalli. In the circumstances, the learned Judge, without holding any investigation and without going into the question as to whether there were other persons amongst the members of the family of the wakif or of any of the mutwallis available and competent to act as mutwalli, made the. order appointing Moulvi Ashad Bukht, as mutwalli in respect of the endowment. Now, the argument that has been addressed to us is that in making the appointment of a trustee, when the existing trustee in respect of a public, religious and charitable endowment is removed, the Judge ought to give public notice so that claimants to the office might know that an appointment was going to be made and might come forward to put in their claims. It has been argued that unless this procedure is adopted, the claims of persons who are entitled to be appointed to the office may be overlooked and it may also be that the decision in the suit, regarded as a decision in a representative suit with regard to a public, religious and charitable endowment, may operate as res judicata and may bar in future the claims of really rightful claimants. It has further been argued that in order to give finality to a decision in respect of a suit of this nature, that is the procedure that should be resorted to. There can be no question that ordinarily when a trustee is removed in accordance with the provisions of sec. 92 of the Code, the Judge should issue notice to parties interested and also give public notice in such a way as to enable claimants to the office to come forward and put in their respective claims. The law, however, does not make any provision of this nature; and, therefore, it cannot be laid down as a hard and fast rule that in all suits under sec. 92 of the Code that is the procedure necessarily to be restored to. In the present case, as far as one can make out, there was no claimant in respect of the office and the parties to the suit, as it was constituted at that time, by agreement proposed that if a Committee was to be appointed, Moulvi Wahed Bukht or some member of his family, his family living close to the mosque and he being in a position to exercise control and supervision over the mosque, might be appointed. In the circumstances, no enquiry was made nor any elaborate proceedings were resorted to but Moulvi Ashad Bukht was appointed the new mutwalli. The appointment was not an appointment which was the result of a judicial proceeding but made more or less by consent of parties and can only be justified as an appointment made with such consent and on no other footing. That being the position, there can be no, question that the order which the learned Judge has made in respect of the appointment will not operate as res judicata barring the claim of any claimant in future. That being the position, there can be no, question that the order which the learned Judge has made in respect of the appointment will not operate as res judicata barring the claim of any claimant in future. If any authority is needed for this purpose, reference may be made to the case of Abdur Rahim v. Syed Abu Mahomed Barkat Ali Shah 32 C.W.N. 482. s.c. 48 C.L.J. 55 (P.C.)(1927). The whole question, therefore, that we have to consider is whether this appointment should now be disturbed in order to give the Appellant an opportunity of putting forward her own claim or that of her nominees or enabling the Judge to see whether there is any other person who may have a superior claim to the office of mutwalliship. We find that the Appellants' application was dismissed by the learned Judge before the present appeal was preferred to this Court. We find that so long as the two original Plaintiffs were willing to prosecute the appeal, the Appellant never chose to come forward and get herself impleaded as a party to the appeal. We find also that the two ladies whose names are to be found in her petition to the learned Judge have never come forward to press their own claim. In the circumstances, we are of opinion that we ought not to interfere with the appointment which the learned Judge has made. In making an appointment of a trustee in a suit under sec. 92 of the Code of Civil Procedure, although regard must be paid to the line of devolution that may have been prescribed in the deed of endowment, it is permissible to the Court, in peculiar circumstances having regard to the exigency of the case, to make an appointment in respect of a trustee which may involve a departure from the arrangement contemplated by the deed of the trust itself. So long as the rights of the rightful claimants are not in any way barred or affected, there is no reason why the appointment already made by the learned Judge should not be allowed to remain intact. It goes without saying that it would be quite open to the Appellant or anybody who may have a just claim to the office of mutwalliship to put forward that claim in a properly constituted suit which he or she may be advised to bring. 7. It goes without saying that it would be quite open to the Appellant or anybody who may have a just claim to the office of mutwalliship to put forward that claim in a properly constituted suit which he or she may be advised to bring. 7. The third contention that has been urged is that the learned Judge should have framed a scheme under the provisions of sec. 92, sub-sec. (1) (g) of the Code. It will be seen that the discretion which is conferred upon a Court by the terms of this section is very wide and the law does not make it obligatory upon a Court in a suit under that section to make all the orders that are contemplated by the different clauses of that sub-section. In the present, case, the learned Judge found that the income of the trust property was comparatively small and was reduced much further by the leases which the Defendant No. 1 had granted to the Defendant No. 2. So far as the expenses are concerned, it does not appear that they were of such a nature as would require any very detailed directions from the learned Judge. We have already stated that certain directions were given by him to the newly appointed mutwalli so that the income might be increased, the leases got rid of and annual accounts might be rendered to the Court. Our attention has been drawn to the decision of the Judicial Committee in the case of Chotalal Lukhmiram v. Manohar Ganesh Tambekar L.R. 261. A. 199: s.c. 4 C.W.N. 23 (1899) in support of a contention which, in our opinion, is not well-founded and which is this that once you find that an institution is a public charitable or religious institution and if you have got to make and remove the existing trustee and appoint a new one, you must settle a scheme in every case. Reference in support of this contention has been made to a passage in the judgment of Lord Macnaghten where his Lordship says as follows: Mr. Mayne, who opened the case very fairly, was compelled to admit in the course of the discussion that he could not maintain that position. He admitted that there was a religious foundation and that there must be a scheme. Mayne, who opened the case very fairly, was compelled to admit in the course of the discussion that he could not maintain that position. He admitted that there was a religious foundation and that there must be a scheme. We are unable to hold that this passage really supports the contention that has been put forward as aforesaid. The passage, in our opinion, only means that in that case, in which it was found that the subject-matter of the suit was a religious institution and in which a scheme had to be framed, that such a scheme was rightly framed. It was quite open to the learned Judge to think it was not necessary to settle a detailed scheme, if he thought, as he did, that his directions would be quite enough. It will be seen from the judgment of Lord Macnaghten where his Lordship has pointed out that: The first thing to be done is to take an account of the trust property. Much must depend upon the result of that account. Until the trust funds are ascertained, it seems impossible that any scheme can be settled. In the present case, the leases have been got rid of and presumably the income of the trust funds have increased. It will be quite open to the learned Judge who has already directed accounts to be submitted to his Court every year by the newly appointed trustee, to look into the accounts and to frame a scheme or give directions for the proper carrying out of the endowment. 8. Lastly, it has been argued that a decree directing accounts ought to have been made as against the Defendant No. 1. So far as this matter is concerned, the position seems to be this. The allegations made a? against Defendant No. 1 were carefully enquired into by the learned Judge. With reference to the charge of misappropriation and mismanagement, he held that those charges were not sufficiently specific. He found also that there was nothing very seriously wrong regarding the arrangements for the congregational prayers. As regards the allegation that Imam and Muezzim had not been kepi, the learned Judge held that the charge had not been satisfactorily proved. With reference to the charge of misappropriation and mismanagement, he held that those charges were not sufficiently specific. He found also that there was nothing very seriously wrong regarding the arrangements for the congregational prayers. As regards the allegation that Imam and Muezzim had not been kepi, the learned Judge held that the charge had not been satisfactorily proved. It was alleged that the wakf property was badly in need of repairs; and he found that it was so, upon the evidence and fin inspection of the said property which he seems to have held in the course of the trial of the suit. He found also that the mutwalli had but exhibited a single scrap of paper in show how he used to spend the income of the estate. He held further that the leases which the Defendant No. 1 had granted were outside the scope of his powers as mutwalli, because the mutvwlli under the Mahomedan Law could grant a lease of wakf property for a year only; and he was not also satisfied that this lease had been granted bond fide. It was mainly on the ground of these leases and of the fact that he found that the Defendant No. 1 was not keeping proper accounts that he ordered a removal of the Defendant No. 1. In addition to these facts he found that the charges made against the character of the Defendant were proved. These are the findings to which our attention has been drawn for the purpose of supporting the contention that a decree for accounts should have been made as against Defendant No. 1, Now, what the learned Judge has said in this connection is that the income of the wakf estate is not very much and that it would be waste of time and money to order an account. We find there is some evidence to show that all the properties of Defendant No. 1 have been sold, although it does appear that the Defendant No. 1 was not willing to admit that position before the Court and he tried to make out that he had still some property and a respectable income. We find there is some evidence to show that all the properties of Defendant No. 1 have been sold, although it does appear that the Defendant No. 1 was not willing to admit that position before the Court and he tried to make out that he had still some property and a respectable income. It is said before us on behalf of the Appellants that if an accounting be made on the footing of wilful default, it will be possible to have the liability of the Defendant No. 1 established in respect of a large sum of money. But the position being that there are no account books available and the Defendant No. 1 not having kept accounts in respect of the income of the wakf properties, if the Plaintiffs have to proceed upon the footing of the accounting taken on the basis of wilful default, the chances of success must be highly problematical, and in any event if a decree is secured it is not unlikely that such a decree would be infructuous because of the financial condition of the Defendant No. 1. If upon a consideration of the facts and circumstances of the case, when the income of the endowment is quite small and the expenditure does not leave much in the shape of balance, the Judge comes to the conclusion that it would be not profitable to make an order for accounts, it is very difficult for this Court to say that that order is not justifiable or that it would be interfered with. 9. We are of opinion that the learned Judge below exercised a proper discretion, having regard to the circumstances of the case in refusing to make a decree for accounts. These are all the grounds that have been urged before us in support of the appeal and inasmuch as we are of opinion that they cannot be upheld, we order that the appeal be dismissed with costs-hearing-fee five gold mohurs.