Ross, J.The first plaintiff was the President of the Anjuman Imamia of the town of Gaya. After his death his widow has been substituted for him. The second plaintiff is the moofti of the said Anjuman. The plaintiffs sue on their own behalf and on behalf of the Shia community. The defendant is the Secretary of State for India in Council.

2. The case of the plaintiffs is that one Raja Mode Narain Singh of Tikari in the District of Gaya had a Muhammadan mistress named Barati Begum to whom he granted large moveable and immovable properties. Barati Begum had four children, Mirza Himmat Bahadur, Mirza Ekbal Bahadur, Bismilla Begum and Sharfunnissa Begum. She died on the 16th of February 1860, leaving her surviving the first three of the aforesaid children who belonged to the Shia sect of Muhammadans and succeeded to her property. In respect of one mahal called Taluka Belkhara she had executed a deed of taksimnama in favour of her children. Mirza Ekbal Bahadur was in possession of properties yielding an income of more than a lakh of rupees. He married Sahebzadi Begum, a lady of Benares, and died childless in 1867, his properties passing to his widow. He had brought up as his own son the son of his sister named Mirza Jalaluddin Bakht Bahadur, and Sahebzadi Begum executed a deed of gift of all her properties in his favour in 1872. She died in Karbala in 1875.

3. In 1878 a suit was instituted by the Secretary of State for India in Council against Mirza Jalaluddin Bakht Bahadur in the Court of the Subordinate Judge of Gaya for the recovery of the entire estate of Mirza Ekbal Bahadur and of Sahebzadi Begum on the ground that Mirza Ekbal Bahadur being the son of a Hindu Raja could not succeed under the Shia Law to the estate of his mother Barati Begum; and that as he died childless, under the Shia Law his widow could not succeed to his estate; and therefore the deed of gift in favour of Mirza Jalaluddin Bakht Bahadur was invalid. On the 7th of May 1879 the suit was decreed for possession of the immovable properties and dismissed as regards the moveables. The plaintiff in that suit obtained possession of the immovable properties. The judgment in that suit is made part of the plaint and it is pleaded that no regard has been paid to the finding recited in the plaint. Immediately after the decision of the case the Secretary of State got possession over all the immovable properties. The plaintiffs contended that while they have no objection to the right of the Government to hold possession of the estate the escheated estate is a trust property for the benefit of the Shia community and that the Government is bound to apply the income to pious and religious purposes as enjoined by the Shia Law.

4. It is alleged that under the Muhammadan Law of the Shia sect no Shia dies heirless, for the last Imam named Hazrat Imam Mehdi is the heir when there is no natural heir, and that this position was admitted by the Secretary of State for India in the aforesaid litigation. It is further alleged that the Anjuman Imamia of Gaya exists from 1892 and represents the whole Shia community in the District and the Anjuman and the plaintiffs are beneficiaries under that trust. It is also stated that a memorial was submitted to the Governor of Behar and Orissa in Council for a grant for religious purposes out of the income of the trust estate and that the memorial was rejected and that at a meeting of the Anjuman Imamia held on the 10th of December 1922 the plaintiffs have been authorized to institute this suit. The cause of action is the disregard of the defendant to spend the income of the trust estate according to the Shia Law and it is a recurring cause of action. The date of the refusal of the Government to entertain the memorial of the Anjuman, namely the 12th of August 1922, is stated as the date of the cause of action.

5. The bulk of the trust estate, namely the mahal Belkhara, is situated in the District of Gaya. The plaintiffs pray for a declaration that the escheated estate described in the schedules to the plaint is a trust property for the benefit of the Shias in general and of the Shia community of Gaya in particular; for an injunction restraining the defendant and his Government from using the income of the trust estate for any purpose other than that enjoined by the Shia law; for coats and for general relief.

6. The defence is that the plaint is insufficiently stamped; that the suit is barred by limitation; that the defendant has been in possession of the properties in suit as full owner for upwards of forty years; and that no Shia ever put forth any claim on any ground to the same. It is denied that the estate is a trust estate and that the plaintiffs or other Shias have any interest of any sort in the properties in suit or have any cause of action against the defendant. It is alleged that the defendant is not a trustee and is incapable of being a trustee; that he did not get the properties in suit under the Shia Law, but under the law of escheat and that he has been in possession of the escheated estate as absolute owner and not as trustee; that Barati Begum, Sharfunnissa Begum and Mirza Ekbal Bahadur died heirless and their properties escheated to the Crown; that the properties were claimed in 1878 in suits against Jalaluddin Bakht Bahadur and Bismilla Begum and Mirza Himmat Bahadur not on the strength of the Shia Law but on the law of escheat and that the title of the Crown under the law of escheat was declared and possession was decreed and that the Court rejected the plea that the Imam Mehdi was the heir and that the Mujtahids were entitled to possession.

7. It is pleaded that the plaintiffs interpretation of the judgment is not correct. It is further pleaded that the religious and moral injunctions and directions of the Shia Law are not binding on and enforceable against the defendant: that the income of the properties cannot be spent according do the Shia Law and that the Anjuman and the plaintiffs and other Shias are not beneficiaries and are not interested in the properties in suit. In a supplementary written statement it is pleaded that the suit is not maintainable without compliance with the provisions of Section 92 of the CPC and that it is barred as res judicata. In a further supplementary written statement it is pleaded that five properties specified therein had been transferred to other persons who were necessary parties and that the defendant has no interest in them and the suit is barred in respect thereof by general and special limitation. The following tissues were framed:

(1) Has the claim been undervalued Is the Court-fee insufficient (2) Is the cause of action recurrent If so to what extent Is the suit barred by limitation (3) Is the suit barred by the principle of res judicata (4) Are the plaintiffs entitled to maintain the suit (5) Does the suit lie against the Secretary of State for India in Council agent of the sovereign (6) Does the suit infringe the provisions of Section 92 of the Civil Procedure Code (7) Is the Imam Mehdi the legal heir under the Shia Law, of a Shia dying without natural heirs Was this not found in the judgment of the 7th May 1879 annexed to the plaint Was this not admitted by the plaintiff in the suit (8) If so does the defendant hold the property in suit to the use of the Shia community until the Imam Mehdi appears (9) Has the defendant obtained the said property under the general law of escheat free from the restrictions of the Shia Law, by the aforesaid judgment of otherwise (10) Is the defendant capable of being a trustee If not is the suit maintainable against him (11) To what relief are the plaintiffs entitled

8. Before discussing the issues it may be mentioned here that an order dated the 16th of January 1924, an application under O. Rule 8 for permission to sue on behalf of the Shias generally who are interested in the subject-matter of the suit and also for notice of the institution of the suit being given to all the persons interested was granted and notice was duly given in the usual way.

9. Issue No. 1.--This issue has been decided in favour of the plaintiffs by order dated the 6th February 1934, which is to be read as part of this judgment.

10. Issue No. 2.--From the plaint in the present suit it would appear that Taluka Belkhara was the subject of a deed of taksimnama executed by Barati Bagum. This is stated in para. 4. In para. 18 of the written statement while certain of the allegations of para. 4 of the plaint were traversed, there was no denial of this taksimnama: and for the purposes of this suit the allegation in the plaint must be accepted, although no document has been produced and so far as I can discover in the litigation of 1878, there was no reference to any such instrument. Barati Begum died in 1860. As no trust was set up time began to run from that date; and as regards the estate other than Taluka Belkhara, which was the subject of the taksimnama the title of the Shia community, if any became barred long before the suits of 1888 gave the property to the Secretary of State.

11. As regards Taluka Belkhara time began to run as to the share of Ekbal Bahadur from the 15th of August 1867 when he died. The property became vested in the Secretary of State on the 7th of the May 1879.

12. It was stated in the argument by the learned vakil for the defendant that possession was not taken until the year 1881, but this does not appear to be correct. On the contrary the plaintiffs said in their present plaint that immediately after the decision of the case the decree was executed and the Secretary of State for India in Council got possession over all the immovable properties claimed by him. The original record has been sent for from the record room of the Calcutta High Court and it appears from the petitions of compromise filed in the appeal from the decree of the Subordinate Judge, dated the 8th of June 1880 that the Secretary of State had already executed the decree and obtained possession. There is therefore no material for holding that possession was not obtained until more than twelve years had expired from the date of the death of Ekbal Bahadur and as regards the interest of Himmat Bahadur and Bismilla Begum in the taksimnama properties it is clear that, as they were alive when the suits of 1878 were decided, time had not begum to run in respect of their interest when the Secretary of State entered into possession.

13. With regard to the taksimnama properties, therefore, the question of limitation must be decided with reference to Section 10, Lim. Act. The argument of the plaintiffs is that as to this part of the property they are protected by Section 10, Lim. Act: (Section 23 was also referred to but that has obviously no application.) Now by pleading limitation the defendant admits that the Shias once had title, but it has been lost by lapse of time. The plea therefore is in this form that the property was trust property but not property held in trust for a specific purpose. In Burdick v. Garrick (1870) 5 CH 243, Giffard, L.J. said:

I do not hesitate to say that where the duty of persons is to receive property, and to hold it for another, and keep it until it is called for, they cannot discharge themselves from that trust by appealing to the lapse of time. They can only discharge themselves by handing over that property to somebody entitled to it,

14. In Lyell v. Kennedy (1889) 14 AC 487, Lord Macnaghtan in adopting that dictum said:

Nor do I think it can make any difference whether the duty arises from contract or is connected with some previous request or whether it a self-imposed and undertaken without any authority whatever. If it be established that the duty has in fact been undertaken and that property has been received by a parson assuming to act in a fiduciary character, the same consequences must, I think, in every case follow.

15. The determination of this question will, therefore, depend upon: (1) whether the Shia Law impressed a definite trust upon this property: (2) whether under the judgment of 1879 the Secretary of State took the property with notice of that trust. The result therefore is that with regard to the property in suit except Taluka Belkhara the suit is barred by limitation; and, whether as regards Taluka Belkhara it is also barred, will depend upon the decision of the issues on the merits.

16. Issue No. 3.--The suit is not barred by the principle of res judicata as it is not between the same parties as the suits of 1878.

17. Issue No. 4.--The plaintiffs sue on behalf of the entire Shia community. In order to conduct the action the plaintiffs must represent the class. They have bean permitted to use as representing the class. They must also give an opportunity to the class to say whether the class wants to be represented by them. This has been done by the notice under Order 1, Rule 8. But learned Counsel for the defendant contends that as representing the entire Shia community the plaintiffs cannot be said to represent the Shia poor in particular (who are the true cestuis que trustent) and that the Shia poor have a hostile right to the general Shia community. It is contended that a claim on behalf of the Shias in general cannot be joined with a claim on behalf of the Shia poor because their interests are necessarily conflicting. The principle governing representative actions is thus stated by Lord Macnaghten in Duke of Bedford v. Ellis (1901) AC 1:

Given a common interest and a common grievance, a representative suit is in order if the relief sought is in its nature beneficial to all whom the plaintiff proposes to represent.

18. Now while it is true that community of interest is the essence of a representative action, and an order appointing a person to represent a class does not affect one of the class who has a distinct and independent right in another capacity, In re Lart (1896) 2 Ch 788 and Daniels Chancery Practice, Eighth Edition, p. 869, yet it seams to me that so far as the present suit is concerned it is a suit for a declaration of trust and in this matter the interests of all Shias are identical. It may be that if there is a trust it is the poor Shias who are the beneficiaries, but the entire Shia community is interested to have the trust declared even if it be a trust in favour of the Shia poor, and in this matter it seems to me impossible to distinguish, or to infer, a conflicting interest between those who are actually poor and those who are only potentially so. I would, therefore, decide this issue in favour of the plaintiffs.

19. Issue No. 5.--The statutory provisions relevant to this issue are Section 79 of the CPC and Section 32 of the Government of India Act;. Section 32 provides that every person shall have the same remedies against the Secretary of State for India in Council as he might have had against the East India Company if the Government of India Act, 1858, and this Act had not been passed, and that the property for the time being vested in His Majesty for the purposes of the Government of India shall be liable to the judgments and executions as it would have been liable to in respect of liabilities lawfully incurred by the East India Company if the Government of India Act, 1858, and this Act had not been passed. The question of the liability of the Secretary of State for India in Council to an action in the Municipal Courts was discussed in The Peninsular and Oriental Steam Navigation Company v. Secretary of State for India (1861) 5 BHCA 1 where Barnes Peacock, C.J., said:

In determining the question whether the East India Company would, under the circumstances, have been liable to an action, the general principles applicable to sovereigns and States and the reasoning deduced from the maxim of the English law, that the King can do no wrong, would have no force. We concur entirely in the opinion expressed by Chief Justice Grey in the case of Bank of Bengal v. East India Company Bignell Rep 120 which was cited in the argument, that the fact of the Companys having been invested with powers usually called sovereign powers did not constitute them sovereigns. We are further of opinion that the East India Company were not sovereigns, and, therefore, could not claim all the exemptions of a sovereign, and that they were not public servants of Government, and, therefore, did not fall under the principle of the cases with regard to the liabilities of such persons, but they were a Company to whom sovereign powers were delegated, and who traded on their own account and for their own benefit, and were engaged in transactions partly for the purposes of the Government and partly on their own account, which, without any delegation of sovereign rights, might be carried on by private individuals. There is a great and clear distinction between acts done in the exercise of what are usually termed sovereign powers and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them: Moodaley v. East India Company and the same v. Morton (1785) 1 BCC 469. But the Master of the Rolls, afterwards Lord Kenyon, said: I admit that no suit will lie in this Court against a sovereign power for anything done in that capacity, but I do not think the East India Company is within the rule. They have rights as a sovereign power, they have also duties as individuals. But where the act is done or a contract is entered into in the exercise of powers usually called sovereign powers, by which we mean powers which cannot be lawfully exercised except by sovereign or private individuals delegated by a sovereign to exercise them, no action will lie.

20. The same principle was laid down in the Raja of Tanjores case Secretary of State v. Kamachee Boye Sahaba (1859) 7 MIA 476, where the question was put thus:

The next question is: What is the real character of the act done in this case Was it a seizure by arbitrary power on behalf of the Crown of Great Britain of the dominions and property of a neighbouring state, an act not affecting to justify itself on grounds of Municipal law Or, was it in whole or in part a possession taken by the Crown under colour of legal title of the property of the late Raja of Tanjore in trust for those who, by law, might be entitled to it on the death of the last possessor.

21. Similarly in Forest v. Secretary of State for India (1872) IA 10, it was held that the resumption was not an act of State. It was the:

resumption of land previously held from the Government under a particular tenure upon the alleged determination of the tenure. The possession was taken under the colour of a legal title, that being the undoubted right of the sovereign power to resume, and retain or assess to the public revenue all lands within its territories upon the determination of the tenure, under which they may have been exceptionally held rent free. If by means of the continuance of the tenure or for other cause a right be claimed in derogation of this title of the Government, that claim, like any other arising between the Government and its subjects, would prima facie be cognizable by the Municipal Courts in India.

22. Sirdar Bhagwan Singh v. Secretary of Sate for India (1874) 2 IA 38 was a case where the act of Government was done in accordance with the notions of the Government of what was just and reasonable and not according to any rules of law to be enforced against them by their own Courts.

23. These decisions make it clear that if the Secretary of State took the property in suit in this case by an act of sovereignty, then no suit will lie; but if, on the other hand, he took it under the colour of a legal title, then his acts will be within the jurisdiction of the Courts. As the property came to the Secretary of State by a decree of the Court it would seem that it was not taken by an act of sovereignty, but under the colour of a legal title. It was said, however, that the property came by escheat, that is, by the prerogative of the Crown and therefore by an act of sovereignty. This argument, however, involves the question which arises on the merits as to the nature of the estate taken by the Secretary of State under the judgment of 1879. It was further contended on behalf of the defendant that no suit could have been brought against the East India Company in respect of property taken by escheat and reference was made to Regulation 19 of 1910 which deals with the custody and disposal of escheats. By that Regulation a right of suit, is reserved in respect of lands and buildings of the nature described therein and it is said that no right of suit is reserved with regard to escheats. But this merely repeats the former argument and the answer to this contention depends upon the merits of the case. Reference was also made on behalf of the defence to Section 20 of the Government of India Act, which provides that the revenues of India shall be received for and in the name of His Majesty and shall be applied for the purposes of the Government of India alone and the expression "revenues of India" is defined as including all moveable and immovable properties of British India escheating or lapsing for want of an heir or successor and of property in British India devolving as bona vacantia for want of a rightful owner. This argument does not advance the matter further as its validity also involves the question of the nature of the estate taken by the Secretary of State in the property in suit. The answer to this issue, therefore, depends upon the decision on the merits of the case.

24. Issue No. 6.--In my opinion Section 92 of the CPC is not applicable to the present suit. Section 92 regulates suits where there is a breach of an express or constructive trust created for public purposes of a charitable and religious nature; but here the suit is to establish the existence of the trust itself and the whole question involved is whether such a trust exists or not. In my opinion & suit of this nature is not within the purview of Section 92 of the Code. This issue is decided in favour of the plaintiffs.

25. Issue Nos. 7, 8 and 9.--In dealing with these issues it will be convenient in the first place to ascertain what the law of the Shias is wish regard to the heirship of the Imam. The principal modern authorities are as follows:

In Bailies Digest of Muhammadan Law Imameea, at page 261, the scheme of inheritance under the Shia law is set forth: Inheritance is founded on nusub or consanguinity and on subub or special connexion. One of the forms of subub is wula or dominion and the last form of wula is the wula of Imamut or headship of the Musalman community. At page 301 the rule is laid down that where there is no surety for offences (that is the second form of wula) the Imam is the heir of a person who has no other heirs, and this is the third kind of wula. If then the Imam be present, the property belongs to him to do with it as he pleases. Aly, on whom the peace was accustomed in such cases to give the property to the poor and indigent of the deceaseds city and the weak and infirm among his neghbours gratuitously. And if the Imam is absent, the property is to be divided among the poor and indigent, and not be given up or surrendered to any other but a righteous Sultan or ruler, except under fear or actual compulsion.

26. It may be explained hare that by all the followers of the twelve Imams, Imam Mehdi, their twelfth and last spiritual as well as temporal leader, is believed to be still living but to have retired from human observations since his last appearance on earth (page 272, footnote.) The wula of the Imam or doctrine of escheats to the public treasury is more fully explained at pages 362 and 363, where the authorities are cited which prescribe the partition of the property among the poor and indigent of the Shia sect in the same manner as they enjoy the fifth of the spoils taken in battle. Mr. Shama Churun Sircar in his Tagore Law Lectures, 1874, at page 264, discusses the wula of Imamat and lays down, quoting the authorities, that if the Imam be present the property goes to him to do with it as he pleases and that the most approved opinion is that the property thus vested in the the Imam should, while he is absent be distributed among the Sayyids who are his descendants, preference nevertheless being given to such of them as are poor and indigent.

27. Several authorities are quoted, including the Sharayaul-Islam, to show that the property should be distributed among the poor and indigent. Mr. Ameer Ali in Vol. II of his Muhammadan Law, Fourth Edition, at pages 132 to 134 discusses the Walaul Imam. In his view the right of the Imam is not in the nature of an escheat to the sovereign, but the property goes to him as the spiritual head of the Shia Commonwealth to be distributed among the poor and indigent of the locality where the intestate lived, or where he was born and in the absence of the Imam the property goes to his representative, the Mujtahid, the chief expounder of the law, to be distributed by him equitably and properly among the poor and indigent of the place where the intestate lived or for such charitable and religious purposes as may seem consonant to his last wishes. The right of the Imam is not qua sovereign but qua spiritual leader, and is therefore subject to the ordinary bar of the statute of limitation. The learned author, after quoting a Fatwa pronounced by a leading Mujtahid of Iran, goes on to say:

In Shia countries not subject to foreign control the Mujtahid, who is the chief expounder of the law, is also frequently vested with the power of the Kazi. When this is the case no difficulty occurs in the application of the principle of Shia law. But in India, where the Shias are subject to a non-Moslem power, the question may arise, under whose direction the distribution contemplated by the Shia law should take place These questions it seems to me are answered by the dictum quoted from the Jama-ush-Shittat. The Civil Court, representing the Hakim mentioned in the Fatwa, would assume the charge of the property and make it over to the Mujtahid, if there be any, to be distributed among the poor and indigent of the deceaseds village or native city under the Courts own control and supervision so as to leave no room for doubt as to its proper application. If there be no Mujtahid some Shia officer should be appointed for the purpose of distribution. It must also be remembered that the law does not necessarily contemplate application of the proceeds in the shape of alms. If the object of the law which has in view the benefit of the poor and the indigent, who are always in need of help, can be attained by establishing an institution by which regular assistance can be rendered to them it would be valid.

28. Sir Roland Wilson in his Anglo-Muhammadan Law (1st Edition, page 378) deals with the difference in the Shia law of inheritance, from the Hanifi Law by which the property of a Muhammadan dying without heirs devolves upon the Government and says that:

the surplus does not return to the wife even where there are no other heirs but passes by escheat, in Shia theory, to the Imam, and according to Anglo-Muhammadan law to the British Government.

29. It is noteworthy, however that in the last edition (that is the fifth edition) of this work, which has been revised by Mr. Yusuf Ali, this qualification is omitted. It is simply stated at page 451 that:

there is no final escheat to a Baitul Mal. Where a deceased person leaves no possible hair, his property is liquidated by the Mujtahid as representing the Imam, the proceeds to be districted among the poor of the city in which the deceased was born (or presumably, where that is impracticable, where he died)

30. The learned Subordinate Judge of Gaya in his judgment in the suits of 1878 cited numerous original authorities Shurra-al-Islam, Mustanid-ul-Sheea, Mansubood, Mussal-ul-efham and Zainul-ul-ehakam and on a review of these authorities he came to the conclusion that the majority of the traditions concur and agree that the property of a Shia should be received by Sayyids, the poor and the indigent especially of Shia sect.

31. Learned Counsel for the plaintiff cited also the following passages from texts of authority: (1) Mustanadash Shia on Jurisprudence by Ahmad b. Muhammad b. Mahdi b. Abi Darr, Vol. II. Juzv. 26, the Book of Inheritance, Chap. IV edited in Tehran Rajab A.H. 1273; (2) Sharai-ul-Islam, p. 267, by Abul Qasim Najmud Din Jafar b. Muhammad b. Yahya b. Saidal Hilli, also known as Ali Muhaqqiq (the scholar), who died in A.H. 676, A.D. 1275; (3) Jawahirul Kalamfi Sharh-i-Sharai-ul-Islam by Muhammad Hasan b. Baquir-an-Najafi. Book of Inheritance, Vol. VI; (4) Najatul Ibad page 404 on the heirship of the Imam and (i) Copy of an Istifa (precept) in connexion with the property of one who has no heir taken from the book entitled Jamis Shattah by Abdul Qasim Alib Abdul Hamid-al-Quami, (ii) Jawahirul Kalam, Vol. VIths Book of Inheritance (iii) Najatul Ibad, by the author of Jawahirul Kalam, Edition of A.H. 1318 page 404(iv) Ar-Rahdatul Bahiyah by Zainud Din B. Ali Amili, who died A.H. 966, A.D. 1558, and (5) Mustanadash-Shia, Vol. II, on the mode of dealing with property left without heirs.

32. These authorities make it clear that the last heir of a Shia leaving no other heirs is the Imam; and that the Imam being infallible could dispose of the property as he pleased. But the practice of the Imams had established a rule which was binding upon the Mujtahide who took the property during the absence of the Imam Mehdi on his behalf; and under that practice the property was to be distributed among the poor and indigent. There is some difference of opinion as to whether the beneficiaries were to be Sayyids, especially poor Sayyids, or whether they were to be the poor and indigent whether Sayyids or not, and whether they were to be the poor of the native town of the deceased or the poor of the place where he resided or the poor of the place where he died or of all these places, or whether they were to be poor Shias generally. While therefore it is clearly the intention of the Shia law that the property should be devoted so the poor and indigent, there is some vagueness as to the persons who are intended to be benefited; and in some of the authorities the matter is left to the discretion of the vicegerent of the Imam.

33. I now turn to consider the judgment of the Subordinate Judge of Gaya in the suits of 1878; and, in order to ascertain the effect of this decision on Issue No. 2 in these suits, it will be convenient first to deal with the decision of the Judicial Committee in Collector of Masulipatam v. Covely Vencata Narainappa (1867) 8 MIA 500. That was a case dealing with the estate of a Brahmin dying without heirs and the matter which called for consideration was the effect of the prohibition in the Hindu Law:

If there be no heir of a Brahmins wealth, on his demise, it must be given to a Brahmin, otherwise the King is tainted with sin.

34. The Judicial Committee first of all discussed the question as one to be determined merely by Hindu law; and it was held that according to Hindu Law the title of the King by escheat to the property of a Brahmin dying without heirs ought, as in any other case, to prevail against any claimant who could not show a better title, and that the only question that arose upon the authorities was whether Brahmanical property, so taken, was, in the hands of the King, subject to a trust in favour of Brahmins. Their Lordships then proceeded to say that they were not satisfied that the Sudder Court was not in error when it treated the appellants claim as wholly or merely determinable by Hindu Law. They conceived that the title which he set up might rest upon grounds of general or universal law. They pointed out that any question touching inheritance is determinable in a manner personal to the last owner; but when it is made out clearly that by the law applicable to the last owner there is a total failure of heirs, then the claim to the land ceases, they apprehend, to be subject to any such personal law. And as all property not dedicated to certain religious trusts must have some legal owner, and there can be legally speaking, no unowned property, the law of escheat intervenes and prevails and is adopted generally in all the Courts of the country alike. Private ownership not existing, the estate must be owner as ultimate lord.

35. Their Lordships further held that the Sudder Court was in error in applying the actual or supposed Hindu law (which negatives the Kings right to Brahmanical property) in derogation of the general right of the British sovereignty, and they came to the conclusion in favour of the general right to the Crown to take by escheat the land of a Hindu subject, though a Brahmin, dying without heirs, and they thought that the claim of the appellant to the zamindari in question (subject or not subject to a trust) ought to prevail.

36. There are, therefore, three grounds for the decision: in the first place, supposing the case to be governed by Hindu law, then the King must take as, at least, intermediate holder of the property; in the second place, where there is no heir under the personal law, the personal law ceases to govern the case and the King takes by the general law of escheat; and, in the third place, the personal law cannot be applied in derogation of the general right of the British sovereignty.

37. Now it seems to me that the learned Subordinate Judge has followed closely the line of reasoning in that case. He first of all pets forth the Shia law on the heirship of the Imam. During the absence of the Imam the property is to be held by his deputy, the Mujtahid. There is no Mujtahid in British India with the powers required:

On the contrary, as regards this estate, in the absence of the Imam the most influential, honest and faithful person is the sovereign for the time being, that is, the Queen-Empress. It is most likely that she on receipt of possession of this estate shall use it for good purposes in the way that she thinks best.

38. This line of reasoning seems to correspond with the first part of the decision of the Privy Council. Then he goes on to say that this line of reasoning is inapplicable because the defendants in these suits were not entitled to raise objections for or on behalf of the Imam or Mujtahid and they, at all events, had no title. He then holds that apart from this, in this matter the plaintiff, that is, the Secretary of State, is not bound by the religious books of the Shia sect. When the defendants had no right, there was no heir to the estate. That being so the sovereign for the time being is under the general law of escheat entitled to take possession. He then points out the analogy between this case and the case of a Brahmin dying without heirs, and as the principle of the Hindu Law could not prevent the Government for the time being from taking the estate, under the general law of escheat, in like manner the doctrine of the Muhammadan Law could not bar the plaintiffs claim.

In this age the Government should, in my opinion, be held as the last heir just in the same way as the Imam has been declared the last heir in the Shurra. That this is the scheme of the judgment is apparent also from the form of the issue framed. According to the general law and the law of the Shias (Kanunan O Sharah) who is entitled to take the estate of a Musalman of the Shia sect who has no issue nor relation entitled to the estate

39. The argument of the learned Counsel for the plaintiff is that the Subordinate Judge found title to be in the Imam. He then looked for some one to hold the property and that must mean some one to hold it with the obligation of Mujtahid. The Crown was selected, because it was honest and the Grown must therefore take the property with the conditions of the Shia law attached and has freedom only within the admit of Shia purposes. The estate had vested in a heir who could not take possession; he was not present to perform his obligations; the deficiency was to be made up by the sovereign. The Subordinate Judge did not hold that title went to the Secretary of State, but he get the estate in accordance with the principles of the Shia law. The Secretary of State in the plaint had based his claim to the property explicitly on the Shia law, and that in two respects:

By the Imamia Code of Muhammadan law an illegitimate child has no nusub or parentage and is not an heir of his mother. By this law therefore neither Himmat Bahadur, Ekbal Bahadur or Bismilla Begum were the heirs of Barati and as Barati Begum left no other heirs her surviving the properties possessed by her at the time of her death passed in default of other heirs by escheat to the Crown (para 8). Under the Imamia Code of Muhammadan Law by which the family of Ekbal Bahadur was governed, Sahebzadi Begum being a childless widow was not entitled to inherit any portion of the immovable property of her late husband and as Ekbal Bahadur was himself an illegitimate child and had no issue of his body the whole of his immovable property and 12 annas of his moveable property escheated on his death to the Crown (para. 12).

40. It is clear that whatever claim the Secretary of State may have had on principles of general or universal law to the property other than the Taksimnama property, he had no such claim to the Taksimnama property and his claim to that property so far as Ekbal Bahadurs share was concerned was based wholly on the peculiar provision of the Shia law that a childless widow is not an heir. There is therefore great force in the argument of the plaintiffs that inasmuch as, the Secretary of State took the property or at least the Taksimnama property under the peculiar provisions of the Shia law, he should hold it under that law. But the argument is not conclusive. By the personal law governing the parties the estate was strictly heirless (apart from the claim of the Imam), the persons holding it had no title to it. The Crown was therefore entitled to come in under the general law and to hold the estate. As regards the heirship of the Imam, there was, in the words of the Privy Council, no "person in the nature of an heir capable of succeeding," and on this ground also the Crown was entitled to come in. It is clear that no trust was imposed upon the Secretary of State by the judgment of the Subordinate Judge. The question of the heirship of the Imam was discussed only as a theoretical question, because it was definitely held that the defendants in these suits were not entitled to raise it. No trust therefore could have been imposed by the judgment because there was no one to sat up any trust.

41. It was also argued that the second ground of decision in The Collector of Masulipatam v. Cavely Vencata Narainappa (1867) 8 MIA 500 cannot apply to the present case because in fact there is an heir and consequently there can be no escheat under the general law. But the question is whether there was anyone in the nature of an heir capable of holding the property; and the answer to the question must be in the negative. And the analogy with 8 Moore is complete because in the case of a Brahmin dying without heirs the Mitakshara repeatedly describes the other Brahmins as his "heirs." Consequently a Brahmin dying without natural heirs is no more heirless than a Shia.

Then apart from the judgment, does the Secretary of State hold this property impressed with a trust This raises the question: Who is the trustee And who is the cestui que trust If there is substance in the plaintiffs contention, then the Secretary of State occupies the position of the Mujtahid. But the Mujtahid is not a trustee for the poor and indigent he is agent of the Imam. If it be assumed that the Imam could give directions, and by law has given directions to his deputy to distribute the estate which is in the nature of spoils, this would not establish the relation of trustee and cestui que trust between the deputy and the poor. The law binding upon the deputy would not create a trust enforceable by the Court for the benefit of the poor: see Kinlock v. Secretary of State for India (1889) 7 AC 619. There was no means of enforcing the law against the Mujtahid and there is in my opinion no ground in the Shia law for holding that the present claim can be enforced against the Secretary of State. On these grounds therefore I think that these issues must be decided against the plaintiffs: (1) the trust set up is, on the texts, vague and not enforceable (2) no trust was imposed by the judgment and decree of the Subordinate Judge awarding possession of the property to the Secretary of State and (3) no relation of trustee and cestui que trust exists between the parties,

42. Reference was made in the argument to the practice of the Crown in England in the matter of re-granting escheated lands:

Property which has escheated to the Crown may in certain cases be granted to the family of or to persons adopted as part of the family of the person whose estates the same have been. (Halsbury, Laws of England, Vol. 2 p. 27.)

43. This is a matter however which rests in the discretion of the Government alone.

44. Issue No. 10.--That the Secretary of State is capable of being a trustee is indisputable. In Secretary of State for India v. Guru Prasad Dhur (1893) 20 Cal 51 Piggot J., said:

It need not be discussed whether or not the East India Company could be a trustee. It is certain it could be and often was,

45. See also The Secretary of State for India in Council Vs. Pandit Radhika Prasad Bapuli, . This issue is decided in favour of the plaintiffs.

46. Issue No. 11.--No injunction could in any view be granted as the effect would merely be to hold up the property without imposing any duty. On the findings on the above Issues Nos. 7 to 9 the plaintiffs are not entitled to any declaration and therefore to no relief.

47. The suit must therefore be dismissed; but, in view of the importance of the question that has been raised and of the fact that the plaintiffs did not raise it for their own benefit, I think that the costs of both parties should come out of the estate. Hearing-fee, Rs. 1,000 per diem, for seven days.

Das, J.

48. I agree.