Sugra Bibi v. Hazi Kummu Mia

Ramaswami, J, Late Haji Elahi Bux had one son named Mohammed Shafi and had one daughter. The appellant is the widow of the said Mohammed Shafi. The respondent who is a nephew of Haji Elahi Bux, married his daughter. The said Haji Elahi Bux carried on a shoe business under the name and style of "S. Mohd. Shafi Kammu Mian". He executed a Walcf deed dated November 18, 1936 in respect of his property and appointed his son Mohammed Shafi and his son-in-law, the respondent, as the joint Mutwallis. According to the terms of the Wakf deed on the death of a joint Mutwalli, the survivor was to be the sole Mut-walli and had the power to nominate his successor from the family line of the settlor. And in case the sole Mutwali died without nominating his successor, the senior-most member among the lineal descendants of Mohammed Shafi and Kammu Mia, if otherwise competent, was entitled to hold the office of Mutwalli. Mohammed Shafi died on December· 20, 1960, and thereafter the respondent became the sole surviving Mutwalli. The appellant filed a suit on July 7, 1961 in the Court of Assistant to the Deputy Commissioner, United. Khasi & Jaintia Hills, Shillong, against the respondent for a . declaration that the respondent was unfit to continue as Mutwalli Qf the Waid estate and that he should be removed from the office of Mutwalli and that Soleman the son of the plaintiff through Mohamed Shafi be declared fit and be appointed as Mutwalli of the Wald estate and till he attained majonty a suitable Receiver should be appointed for the said Wald estate: The respondent contested the suit on the ground that sanction of the Advocate-General was not obtained under s. 92, Civil .Pr.oc.edure Code and the suit was therefore not competent. By its order dated October 3, 1961, the trial Court. decided that the suit was not affec\ed by the .provisions of s. 92, Civil Proce-dure Code and held that the suit was competent. The trial court also ord¢red the removal of the respondent from the office of the Mutwalli pending disposal of the suit. The respondent filed an appeal in the court of Deputy Commissioner, United Khasi & J aintia Hills, Shillong but the appeal was dismissed. The respon-dent took the matter in revision b.~fore the High Court of Assam. By its judgment dated SeJ?teniber 3, 1963, the J:lJgb .Court allowed the revision petition and held that the suit was not maintainable in view of the provisions of s. 92, Civil Procedure Code.

This appeal is brought, by special leave, from the judgment of the Assam High Court dated September 3, 1963 in Civil Revision No. 2l(H) of 1962.

The sole question to be considered in this appeal is whether the suit of the appellaj!jt attracts the provisions of· s. 92, Civil Procedure Code and whether the suit can be maintained with-r out the sanction of the.Advocate-General under s. 92 of the Civil

Procedure Code.

Section 92 of the Civil Procedure Code states :

" ( 1) In the case of any alleged breach of any express or constructive trust created for public pur-poses of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-Gene-ral, or two or mci.re persons having an interest in the trust and having obt\lined the consent in writing of the Advocate-General, niay institute a suit, whether C0\11-temtious or not, in the principal Civil Court of original jurisdiction or in ·any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the wh01e or any part of the SUPll.BMB COUR. T .RliPOll TS t1969] 3 S.C.ll subject-matter of the trust is situate, to obtain a decree-

(a). removing any ~tee;

(b) appointing a new trustee;

(c) vesting ll(llY property in a trustee;

(cc) directing a trustee who has been removed or a person who has ceased to be a crustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;

( d) directing accounts and inquiries;

( e) declaring what proportion of the trust-property or of the interest thereiin shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust-property to be let, sold, mortgaged or exchanged;

(g)'-settling a scheme; or ( h) granting such further or other relief as the nature of the case may require.

"

It is evident that this section has no application unless three conditions are fulfilled : ( 1) the suit must relate to a public charitable or religious trust, (2) the suit must be founded on an allegation of breach oi trust or the direction of the Court is required for administration of the trust, and (3) the reliefs claimed are those which are mentioned in the section.

It was contended on behalf of the appellant that the W akf deed executed by Haji Elahi Bux on November 18, 1936 did not create a public charitable or religious trust but the trust was executed mainly for the benefit of the family members Of the founder oi the Wakf. The relevant provisions of the Wakf deed dated November 18, 1936 are reproduced below :

"Whereas Hazi ElahL Buksh son of late Madda Choudhury of village Kokaran Bazar, Rae-Berely at present residing at Bara-bazar road, Shillong, (here-inafter called the Settlor) is the sole proprietor of the firm in Bara-bazar Road in the Town of Shillong known as S. Mohd. Shafi & K'amoo Mia, together with all properties, movable or immovable aind a]] funds investments and profits belonging and appertaining thereto, as well as of the properties in whomsoever's name standing described in the schedule hereto :-

And whereas the said Settlor is desirous that his said properties shall be permanently dedicated for

SUGRA BIBI v. HAtJ KUMMU (Ramaswami, I.) 8' religious purposes and for the maintenance of his rela-tions and descendants from generation to generation, as well as for the poor and meritorious.

Now be it known that the said Settlor by these presents divests himself of the ownership of the said firm together with all properties movable or immov-able and all funds investmemts and profits belonging or appertaining thereto, as wel! as the properties des-cribed in the schedule hereto, all which shall hence forward vest absolutely in AlmightY God for the pur-poses hereinafter specified, and shall constitute a Wakf Estate to be administered in the following manner:-

( 6) Out of the· iiirome of the Estate, a sum ol Rs. 500 shall be annually spent for the maintenance and upkeep of Mosques and Madrassas and for help-ing the poor and needy.

(7) The mutwalli shall give to Ali Mastaque (Nanka) the Settlor's son by his nika wife, Noju Bibi since divorced, a mQDthly a!lowance of Rs. 10 (ten) or in the alternative and at his option, a oonsoli-dated sum not exceeding Rs. 1000 (Rs. One thousand) but the sons and descendants of the said Ali Mastaque (Nanka) shal! have .n.o claim whatsoever against the estate for maintenance or any other purpose nor shall he or they have any right to the office of Mutwalli.

(8) The mutwalli shall be entitled to reasonable remuneration not exceeding Rs. 50 (fifty) per month.

( 11 ) Whatever remains after defraying the above expQDSes the mutwalli shal! be at liberty to spend for his own maintenance and the maintenance of the Settlor's family and descendants from generation to generation as provided in paragraph I 0.

( 13) Qn the total extinction of the settler's family line, the whole income of the estate after defraying the expenses as provided for above, shall be spent for helping the poor and meritorious, and for promoting the cause of Moslem education in such manner as the mutwalli, in his discretion, may determine.

( 14) The mutwalli shall have \I10 power to sell or give away. any portion of the estate except for justify- .~ legal necessity .

. ... . . .................... .

;

(16) The mutwalli shall have power, if funds permit, to make reasonable contributions to funds and institutions created or maintained for general charit· able purposes.

And it is hereby further declared that all properties movable, immovable, and all funds, investments and profits bought, created or made with money belong-ing to or accruing out oi the estate, or in any ruanner appertaining thereto, shall for all purposes, be an-nexed to the W akf by these prcscnts founded and shall be administered aind enjoyed in the same manner and be in all respects liable to the same incidents as the estate itself.

And be it known that the present market value of the properties included in the deed is Rs. 30,000 (Rupees thirty thousand only).

In witness whereof, I Hazi Elahi Baksh, the Settlor above named do hereby set my hand the ninth day of November, 1936."

Having examined the various clauses of the Wakf deed, we are of opinion that the mere fact that there are certain provisions in favour of the family members of the founder along with some other provisions in favour of the public, the case will not be taken out of the provisions of s. 92, Civil Procedure Code. The reas~n is that there is a substantial portion of the income of the W akf properties to be spent for pu.rp.oses of charitable and religious nature. The pro{'er test for holding whether the ·wakf would .fall within the purview of s. 92, Civil Procedure Code is to examine whether the Wakf has been created substantially for a public purpose. Applying the test to the present case, we are of opinion that the Wakf created by Haji Elahi Bux on November 18, 1936 falls within the purview of s. 92, Civil Procedure Code. This view is borne out by the decision of the Calcutta High Court in S. Massirat Hossain v. Hossain Ahmad Chowdhury.(') That case related to a wakf estate, the net annual income of which was about Rs. 1,300 and out of this a sum of Rs. 353 was set apart for public purposes of a charitable or religious nature. It was held by the learned Judges that the amount by no means was a trifling or a disproportionate pro- (!) 42 C.W.N. 345 ..

SUGRA BIBI v. HAZI KUMMU (Ramaswami, I.) 89 vision in favour of the public and conseq~y the suit was maintainable under s. 92 of the Civil Procedure Code. Reliance was placed by the High Court in support of its decision upon the pronouncement of tho Judicial Committee in Vaidya Nath Aiyyar v. Swaminatha Ayyar(') where the founder of the trust directed by his will that two-thirds of the income of his property would go to his wife and the remaining one-third would go first towards the discharge of certain debts and thereafter to establish a Chatram for the feeding of the poor. There was a further provision that after the ~e's death, .two-thirds of ~he income given to her would be apphed to charity and one-third to the members of the family. On these facts the Judicial Com-mittee agreed witli the findings of the court below that the Chatram so established was a public trust.

It was, however, contcc.ded on behalf of the appellant that the suit was brought not to vindicate or to establish a right of the public institution i.e., the trust but to remedy an infringe-ment of an individual right or to vindicate the private right of the appellant. It was said that the suit was therefore not within the purview of s. 92 of the Civil Procedure Code. The argu-ment was stressed that in deciding whether s. 92, Civil Procedure Code is attracted the Court must go beyond the reliefs prayed for and have regard to the capacity in which the plaintiff is suing and for the purpose for which the suit is brought. For the respondent it was pointed out that the reliefs sought for by the appellant in the present suit are exactly those contemplated by s. 92 of the Civil Procedure Code. The reliefs prayed for are : ( 1) removal of the respondent from the office of MutwalH and appointmept of Soleman, appellant's son, as Mutwalli in his ):llace, and (2) till the said Soleman attains majority appointment of a Receiver for the management of the Wakf estate It is true that the facts that a suit relates to public trust of a religious or charitable nature and the reliefs claimed fall within els. (a) to (h) of sub-s. ( 1) of s. 92, Civil Procedure. Code would not by themselves attract the operation of the section, unless the suit is of a repre· sentative character instituted in the interests of the public and not merely for vindication of the individual or personal rights of the plaintiff. As was stated by Woodroffe, J. i11 Budreedas v. Choonilal(')

"lt is obvious that the Advocate-General Collector ?r other public officer can and do sue only ~represent­ mg the public, and if, instead of these officers two or mo~e persons having an interest in the trust ;ue with thetr cOtDSent, they sue under a warrant to represent th~ public as the objects of the trust. It follows from this, that when a person or persons sue not to establish (I) 51I.A.282.

L 7 Sup. CI/69-7 (2) I.LR. 33 Cal. 789 at 807,

the general rights of the public, of which they are a ~el!1ber or · members, but to remedy a particular mfnn~en_ient of their own individual right, the suit is not withm or need not be brought under the sectioo." This principle was accepted as sound by a Full Bench oi the Madras High Court in Appanna v. Narasigna('). In that case, a suit was instituted by a trustee of a public religious trust against a co-trustee for accouj),ts and the Full Bench decided that it did not come within s. 92 of the Civil Procedure Code, the claim being to enforce a purely personal right of the plain-tiff as a trustee against his co-trustees. The same view was taken by the Madras High Court in The Tirumalai-Tirupati Devastha-nams Committee v. Udiayar Krishnayya Shanbhagal('). In this case the general trustees of a public temple filed a suit agaiDSt the trustees for the recovery of moneys which the latter had collected on behalf of the former praying for a decree directing accounts and inquiries. It was held that the right to collect moneys was entirely independent of s. 92 o.f the Civil Procedure Code and no sa.n:ction of the Advocate-General was necessary for the institution of the suit. Leach C. J. who delivered the judgment of the Court observed as follows :

"After hearing the arguments of learned Counsel in the present case we can see no reason for disagree-ing with anything said in Shanmukham Chetty v. Govinda Chetty (I.LR. 1938 Mad. 39). On the order hand we find ourselves in full agreement with the opinion of Varadachariar, J. that, in deciding whether a suit falls within section 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 is brought. The judgment of the Privy r Council in Abdur Rahim v. Mohomed Barkat Ali [(1927) l.L.R. 55 Cal. 519 (P.C.] lends no support for the opinion expressed by the Full Bench in J anki Bai v. Thiruchitrambala Vinayakar ((1935) I.LR. 58 Mad. 988 (F.B.) ]"

Applying the principle laid down in these authorities, we are of opi.Dlion that in the present case the suit brought by the appellant must be treated as a suit brought by her in a represen-tative capacity on behalf of all the beneficiaries of the Wakf. As we have already stated, the Wakf created by Haji Elahi Bux was a Wakf created for a public purpose of charitable or religious nature. The reliefs claimed by the appellant in . the suit are not reliefs for enforcing any private rights but reliefs for the removal of the defendant as trustee and for appointment of a (I) l.L.R.45 Mad. \13. (2) 1.L.R. [1943] Mad.619. new trustee in his place. The reliefs asked for by the appellant fall within els. (a) and (b) of s. 92 (1) of the Civil Procedure Code and these reliefs claimed by the appellant indicate that the suit was brought by the appellant not in an individual capacity but as representing all the beneficiaries of the Wakf estate. We are accordingly of the opinion that the suit falls within the purview of the provisions of s. 92, Civil Procedure Code and in the absence of the consent in writing of the Advocate-General the suit is not maintainable.

For these reasons we hold that the judgment of the High Court of Assam dated September 3, 1963 is right and this appeal must be dismissed. There will be no order as to costs of this appeal.

CML APPELLATE JURISDICTION : Civil Appeal No. 128 of 1966.

Appeal by special leave from the judgment and order dated September 3, 1963 of the Assam High Court in Civil Revision No. 21 (H) of 1962.

Debabrata Mukherjee and A. K. Nag, for the appellant. Bishan Narain, V. D. Kisra and P. N. Bhardwaj, for the res-pondent.