JUDGMENT

Misra and Madaley, JJ. - The applicants are the trustees of the Husainabad Endowment. They applied to the District Judge, Lucknow, for fixation of their remuneration, but their prayer was refused. The Deputy Commissioner, Lucknow, who is the Adviser to the Provincial Government regarding the Endowment was unnecessarily imp leaded as opposite-party. The lower Court discharged him from the case and granted his costs against the applicants. The trustees have come up in revision. The Deputy Commissioner was again imp leaded as opposite-party, but by our order dated 29rh October, 1945 he was removed and the Advocate General representing the Endowment was brought on the record as opposite-party.

2. The Husainabad Endowment was bounded by Mohammad Ali Shah, the third King of Oudh. In 1838 he built mosque called Husainabad Mubarak. In November 1839 he deposited with the late East India Company at the Residency in Lucknow a sum of rupees 12 lacs, and by a deed of trust, dated 23rd November, 1939, assigned its interest to two specified trustees and an agent with a direction that the income there from and from the offerings and certain shops should be devoted to the payment of pensions to a number of persons and to various religious and charitable purposes including the upkeep of the mosque and the road leading to it. The trustees and the agent were the King's own servants. Under the deed they were to hold office generation after generation and in the event of the failure of the heirs of any of these persons the British Resident was to elect a substitute from amongst the pensioners. Before his death in May 1842 King Mohammad Ali Shah had deposited a further sum amounting to rupees 24 lacs in the East India Company securities with the Resident. The securities now held by the trust are of the face value of rupees 37,87,500.

3. Certain events which occurred during the outbreak of 1857 necessitated the appointment of new superintendents, namely Nawabs Mohsinuddaula and Mumtazuddaula and an agent Sakhawatullah Khan, and the trust funds were handed over to these persons in 1860. The old trustees, however, questioned the authority of the newly appointed persons, and the Government of India had, therefore, to pass in 1878 what is known as Husainabad Endowment Act (XV of 1878); in order to stabilize statutorily the authority of the new trustees. The object and the reasons which necessitated the enactment were given in the preamble which after setting out the history of the Endowment stated.

And whereas, the said Nawab Mohtinuddaula has recently died but the said deed of gat confers no power to appoint any person to be a Superintendent in his stead ; and whereas, it is doubtful whether the aforesaid appointment of Superintendents and Agent was a regular and valid appointment, and whether there exists any person who can exercise the power of appointment conferred on the Resident of the said deed of gift; and whereas owing to the changes which have happened since the death of the said Mohammad Ali Shah, it is expedient to provide for the management of the said Endowment in manner hereinafter appearing; and whereas it is also expedient to indemnify all persons for anything done before the passing of this Act which might lawfully have been done if the said appointment of the said Nawabs and Sakhawatullah Khan had been valid, it is hereby enacted as follows.

4. The Act consisted of 14 sections. The first section empowered the Local Government to select and to appoint three trustees out of six persons who were to be nominated by the pensioners and the descendants of the that King residing at Lucknow. The subsequent sections provided for tilling up of vacancies, for appointment in default of nominations and for devolution of property etc. As regards management Section 7 laid down that

The trustees for the time being under this Act shall, for the purpose of the Endowment, have the entire management of the property and affair of the Endowment and shall