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PETITIONER: AHMED ADAM SAIT & OTHERS

       Vs.

RESPONDENT: INAYATHULLAH MEKHRI AND OTHERS

DATE OF JUDGMENT: 29/03/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1964 AIR  107            1964 SCR  (2) 647  CITATOR INFO :  F          1990 SC 444  (8)

ACT: Public  Religious  Trust-Scheme-Suit to  set  aside  scheme- Beneficiaries,  not a particular sect of  Muslim  Community- Plea of res judicata-Character and nature of  representative suit-Circumstances  under which a scheme can be  set  aside- Code of Civil Procedure, 1908, (Act V of 1908), ss. 11  Exp. VI, 92, Or. 1. rr. 6, 8.

HEADNOTE: The  respondents  filed a suit under s. 92 of  the  Code  of Civil  Procedure,  1908  claiming  to  represent  the  Sunni Muslims  population of Bangalore and praying that_ a  scheme should be settled for the proper administration of the Jumma Masjid, Bangalore.   The plot on which the Masjid was built was purchased about a  century  ago by a large number of Muslims  consisting  of several  groups  from  all walks of life.   The  mosque  was constructed from the funds given as gifts by a large  number of  Muslims.  A grant of land made to the mosque shows  that the mosque and its properties were intended for the  benefit of the Muslim Community as a whole.  For about 60 years  the mosque and its properties were under the management of  non- Cutchi  Memons  and  prior to this the  management  was  not exclusively in the hands of Cutchi Memons but  predominantly in  the  hands  of Dekkhani Muslims  of  the  locality.   In subsequent  years  on  some  occasions  the  management  was predominantly  in  the hands of the Cutchi Muslims  but  the Dekkhani Muslims in Bangalore numbered about 30,000 and  the Cutchi Muslims never exceeded 300. Prior  to the present suit a suit under s. 92 was  filed  in 1924  and a scheme was settled and Trustees  were  appointed and  they  had been in management ever since.  In  the  said proceedings,  the plaintifffs, both in the application  made to  the  Collector for sanction under s. 92  Code  of  Civil Procedure  and in the plaint, specifically averred that  the Masjid  in  question  was an institution  belonging  to  the Cutchi Memon Community 648 and they purported to represent the interests of that Commu-

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nity and . no other.  There were some defendants in the suit who  were  non Cutchi Muslims but they were  sued  as  tres- passers and their only interest in defending the suit was to support their individual rights. In  the suit out of which the present appeal has arisen  the respondents  claimed  that  the  Masjid  with  its  adjuncts belonged to the whole Muslim Community of Bangalore and  not exclusively  to the Cutchi Muslims, It was  further  claimed that the scheme framed under the earlier suit was the result of collusion and that the said decree did not bind the  non- Cutchi  Memons and that the present trustees were guilty  of mismanagement and breach of trust.  The appellants contended that the Cutchi Memons were the exclusive beneficiaries  and that  the  suit was barred by res judicata  and  denied  the allegations of collusion, breach of trust and mismanagement. The trial court rejected the contentions of the  respondents and  upholding  the  plea  of res  judicata  raises  by  the appellants  dismissed the suit.  Thereupon  the  respondents appealed  to  the  High  Court  and  the  High  Court  while rejecting  the  pleas  of  collusion  and  breach  of  trust differed  from  the  trial  court on  the  question  of  res judicata.   It  found  that  the  Mosque  and  its  adjuncts belonged  to  the  whole of the  Muslim  community  and  not exclusively to the Cutchi Memons.  Therefore the High  Court while agreeing with the trial court that a scheme should not be lightly disturbed found that a case had been made out for framing  a  new scheme and remanded the case  to  the  trial court.  The present appeal is by way of special leave. The  first point raised in the appeal was that the suit  was barred by res judicata on the ground that a suit under  s.92 Code  of Civil Procedure was a representative suit  and  the present respondents would be bound by it whether, they  were parties  to  it  or not since they were  interested  in  the Trust.  It was further contended that since both the  courts below  had rejected the plea of mismanagement and breach  of trust  and since the High Court had found that  the  present trustees  were  managing  the  trust  reasonably  and  in  a responsible manner this Court should not lightly disturb the said findings. Held  that the mosque and its adjuncts came into,being,  and continued  to  be  an institution belonging  to  the  Sunni, Muslim Community of Bangalore and it cannot be he held that: its management was exclusively in the hands of Cutchi Memons at any time before 1924.  649 Reading ss. 11, 92 Exp.  VI, 0. 1 rr. 6 and 8 of the Code of Civil Procedure it is clear that in determining the question about  the  effect of a decree passed  in  a  representative suit,  it  is  essential to  inquire  which  interests  were represented  by  the plaintiffs or the defendants.   If  the decree  was  passed  in a suit under s. 92  it  will  become necessary to, examine the plaint in order to decide in  what character  the plaintiffs had sued and what  interests  they bad claimed. The  basis of the principle that a decree under s.  92  suit binds  all  persons  interested in the trust,  is  that  the interests  of  all  persons  interested  in  the  trust  are represented in the Suit as required by Exp.  VI to s. I  and if  that basis is absent the decree cannot create a  bar  of res  judicata  against  persons  claiming  an  interest  not represented in the. earlier suit. The plaint in the earlier suit as well as the application to the  Collector  for sanction proceeded on a  clear  and  un- ambiguous  basis  that  the mosque belonged  to  the  Cutchi Memons  and  the  suit was instituted  on  their  behalf  by

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persons who claimed to be interested in the mosque as Cutchi Memons.   Once  it  is found as it has  been  found  in  the present  case,  that  this basis of the claim  made  in  the plaint was not well founded and that the mosque belonged  to all  Sunni  Muslims of Bangalore it would  be  difficult  to accept  that  the suit can be regarded as  a  representative suit  so far as the interests of the Muslim Community  other than the Cutchi Memons residing in Bangalore are concerned, Raja  Anandrao v. Shamrao, [1961] 3 S.C.R. 930,  Ramados  v. Hanumantha  Rao,  (1911)  I.L. R. 36  Mad.,  364  and  Khaja Hassanulla  Khan  v.  Royal Mosque Trust Board,.  1.  L.  R. (1948) Mad. 257, distinguished, There  can be no doubt that if a scheme is framed in a  suit brought  under s. 92 it should not be changed  unless  there are  strong  and substantial reasons to do so.  It  must  be clearly  shown  not only that the scheme  does  not  operate beneficially but that it can by alteration be made to do  so consistently with the object of the foundation. Attorney General v. Bishop of Worcestor (1831) 63 L. R.  530 and Attorney General v. Stewart (1872) L. R. 14 Eq. 17. The  impugned  scheme in the present suit proceeded  on  the erroneous  assumption  that the Mosque  belonged  to  Cutchi Memons and that the said community alone was entitled to its exclusive  administration.   This  assumption  has   clearly introduced  certain infirmities in the scheme.   The  scheme must 650 be revised on the true basis that the Mosque does not belong exclusively  to  the Cutchi Memons, but belongs to  all  the Sunni Musalmans of Bangalore.

JUDGMENT:   CIVIL  APPELLATE  JURISDICTION : Civil Appeal No.  308  of 1961. Appeal  by special leave from the judgment and decree  dated November 3, 1958 of the Mysore High Court in Regular  Appeal No. 120 of 1950-51. M.   C. Setalvad, M. L. Venkatanarasimhaiah,S.    N. Andley, Rameshwar Nath and P. L. Vohra, for     the appellants. A.  V.  Viswanatha  Sastri,  M.  S.  K.  Sastri  and  M.  S. Narasimhan, for respondent No. 1. 1963.  March 29.  The judgment of the Court was delivered by GAJENDRAGADKAR J.-This appeal by special leave arises out of a  suit  instituted by the respondents in the Court  of  the District  Judge, Bangalore under section 92 of the  Code  of Civil  Procedure  (O.S,  No 2  of  1917).   The  respondents claimed  to  represent the Sunni Muslim  population  of  the Civil  and Military Station at Bangalore, and as  such  they prayed  in their plaint that a scheme should be settled  for the  proper  administration  of the jumma  Masjid  which  is situated  on Old Poor House Road, C & m Station,  Bangalore. Their  case was that the Masjid in question along  with  its adjuncts  such as Idgah, Makkhan, Madrassa,  Kutubkhana  and Musafarkhana   as  well  as  large  movable  and   immovable properties, constitutes a Trust created for public  purposes of  a  religious nature coupled with charity, and  that  the Dakkhani  Muslims as well as the Cutchi Memons  residing  in Bangalore  are  the beneficiaries of the Trust and  have  an abiding  interest  in  its proper  management,  control  and direction. 2 It  appears  that  a similar suit had  been  filed  in  1924 (O.S.No.32  of  1924) in the same Court and in that  suit  a

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scheme  had  been  framed in 1927.   Pursuant  to  the  said scheme,  Trustees  were  appointed and  they  have  been  in management   of  the  Trust  properties  since  then.    The respondents   alleged  that  in  the  said  suit,   it   was represented  that the Masjid belonged mainly to  the  Cutchi Memons of Bangalore and that the Cutchi Memons were entitled exclusively to its management.  It is on this basis that the said  suit was prosecuted by consent and a scheme was  drawn up  by  the court after considering  different  schemes  put before  it  by the respective parties.  To that  suit  seven defendants  were impleaded; defendants 2 and 7  claimed  the right of management of the Trust under wills executed by the deceased Mutawalli Abdul Gaffar.  Defendant No.2 was then  a minor  and his mother was impleaded as defendant No. 1  both in  her  own  right  and  as  guardian  of  defendant  No.2. Defendants 3 to 6 were the Executors under the will of Abdul Gaffar on which defendant No.2 relied.  All those defendants were non-Cutchi Memons and the appellants who had filed  the suit  were Cutchi Memons.  While the said suit was  pending, six  persons who were Cutchi Memons applied to be joined  as defendants  to  the suit.  Their case appears to  have  been that  no  scheme  need be  framed.   Their  application  was rejected  by the District judge, but on revision before  the Court of Resident in Mysore, the District judge’s order  was set  aside and they were ordered to be impleaded.   That  is how ultimately, 13 defendants were joined to the said suit. While the administration of the Trust and the management  of its affairs and properties were thus entrusted to the  Board of  Trustees appointed under the scheme., and the  same  was being  continued  after  the scheme decree  was  passed,  an application  was made by the present respondents on  January 22, 1945 under O. 1 r. 10 and sections 141 and 652 151 of the Code in which they prayed that they may be joined as parties to the proceedings under the scheme and that  the Trustees should be ordered to convene a fresh meeting of the general body of worshippers of the Masjid and prepare a list containing  their  names and submit the same  to  the  Court irrespective of whether they happen to belong to the  Cutchi Memon jamayet or the Dakkbani Muslim Community of Bangalore. Their  contention was that a meeting which had been held  in pursuance  of  the  order on C. M. P. No. 242  of  1944  was invalid,  null and void, and so they wanted to be joined  to the proceedings; they desired that a fresh meeting should be called for the purpose of preparing a list of worshippers as prescribed  by the scheme.  In support of this  application, an elaborate affidavit was filed in which they set out their grievance  that the management of the Trust which  had  been left   exclusively  in  the  hands  of  Cutchi  Memons   was inconsistent with the scheme and on the merits,  unjustified and unfair. This application was rejected by the learned District  fudge on  July 20, 1915.  The learned Judge, while  rejecting  the application,  observed  that  there was some  force  in  the contention  of  the petitioners that the suit in  which  the scheme  was  framed, was not fully representative  and  that there were some "commissions in the proceedings" taken under the decree Which may tend to show that the management of the Trust was not to be exclusively by the members of the Cutchi Memon Community.  In fact, he noticed that the suit had been filed in very peculiar circumstances without impleading  the members  of the Dakkhani Muslim Comminity.  He however  held that after the framing of the scheme, the management had, in fact,  been entrusted solely to the Cutchi  Memon  Community and that it would be inappropriate to make any change in the

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pattern of management in  653 the  proceedings initiated by the application; that  can  be done, he thought, in a regular suit.  It is this order  that has led to the present suit by the respondents. In  the  present  suit,  the  respondents  joined  the  five appellants  and  others as defendants  and  claimed  reliefs against  them.  Their case was that the scheme decree  which was  passed in the earlier suit was the result of  collusion and that the said decree did not bind the non-Cutchi  Memons who were the beneficiaries of the Trust.  According to them, though the Cutchi Memons were entitled to claim the  benefit of  the Trust, the predominant interest in the Trust was  of the   Dakkhani  Muslims  who  had  built  the   Mosque   and contributed  substantially  to its  financial  progress  and prosperity.   They further pleaded that the five  appellants who  were in charge of the administration of the Trust  were guilty  of  breach of trust.  According to  them,  even  the scheme which was framed in the earlier suit did not confer a monopoly  of management on the Cutchi Memons as  appears  to have been assumed in making the appointment of Trustees ever since  the said decree was passed, and it was urged that  if on  a correct interpretation, the scheme did confer  such  a monopoly,  it  should be held to be bad in law.   It  is  on these  allegations that the respondents wanted the Court  to settle  a scheme taking into account all the worshippers  of the  Masjid  both Dakkhani Muslims and  Cutchi  Memons,  and recognising the right of the Dakkhani Muslims also to manage the  Trust and its affairs.  As a consequential  relief  the respondents  claimed  that the appellants  be  removed  from their  position  as Trustees and that a Committee  of  Trust appointed  under the old scheme should be dissolved and  new Trustees should be appointed in its place.  That, in  short, is the nature of the claim made by the respondents in  their present suit. 654 The  appellants disputed the respondents’ claim  on  several grounds.   It was urged by them that the Cutchi Memons  were entitled  to the exclusive management of the Masjid and  its affairs; it was pleaded that the present claim was barred by res  judicata and that the respondents had not any  interest in  the Trust and as such., had no locus standi to file  the present  suit under section 92 of the Code.  The  allegation of  collusion  made  by the respondents  in  regard  to  the earlier suit was traversed and it was contended that if an-; relief   was  intended  to  be  asked  in  respect  of   the modification  of the said scheme, the proper remedy  was  an application under clause 25 of the scheme itself and not the present suit.  The charge that the appellants had  committed a  breach of trust was seriously disputed and  emphasis  was laid  on  the  fact that even if a case for  change  in  the scheme was made out that case should not be accepted  unless there are over-riding considerations to do so. On  these  pleadings,  the  learned  District  judge  framed appropriate  issues.  He held that the respondents  had  not shown  that they had sufficient interest to bring  the  suit under s. 92 of the Code.  He also found that their plea that the  decree  in  the  earlier  suit  had  been  obtained  by collusion had not been established, nor ha they succeeded in showing  that  the  Trustees  under  the  said  scheme   had committed a breach of trust.  In regard to the contention of res  judicata  raised by the appellants, he  held  that  the decree  passed  in  the  earlier  suit  was  a  bar  to  the maintainability  of the present suit, and he  expressed  the opinion that the reliefs claimed by the respondents by their

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present  action  could  have  been claimed  by  them  by  an application under clause 25 of the scheme.  Then the learned judge  considered  the  question as to  whether  the  scheme should  be  modified  and  he took the  view  that  in  such matters, it was necessary to exercise utmost caution  before disturbing  a settled scheme.  Since no satisfactory  reason had S 655 been shown by the respondents in support of their case  that the scheme should be changed, the trial Judge rejected their claim and dismissed the suit. The  respondents  challenged this decree  by  preferring  an appeal  in the High Court of Mysore.  The High Court  agreed with the trial Court in rejecting the respondent’s case that the  decree  in  the  earlier  suit  had  been  obtained  by collusion  and  that the Trustees appointed under  the  said scheme had committed breach of trust.  It, however, differed from  the trial Court on the question of res  judicata.   It took  the  view that the plea of res judicata could  not  be sustained and so, it came to the conclusion that the present suit under s. 92 was competent.  The High Court agreed  with the  trial Court that in law, a scheme once  settled  should not  be lightly disturbed or modified, but in its opinion  a case had been made out for framing a new scheme, because  it was satisfied that the Mosque in question really belonged to the  whole of the Sunni Mu-slim Community of C & M  Station, Bangalore, and the basis of the earlier suit that the Cutchi Memons were entitled to the exclusive management of the said Mosque, its properties and its administration was not  well- founded.   On these findings, the High Court set  aside  the decree  passed by the trial Court and remanded the  case  to the  said Court to take further proceedings in the light  of the  appellate  judgment for the purpose of  framing  a  new scheme.   It is against this order that the appellants  have come to this Court by special leave. Before dealing with the merits of the contention which  have been  urged  before  us by Mr. Setalvad  on  behalf  of  the appellants,  it is necessary to set out briefly the  history of  the  Mosque  with  which  we  arc  concerned,  and   the background   of  the  incidents  which  have  led   to   the institution  of the present suit.  The finding  recorded  by the  High Court in regard to the history of the Mosque,  its origin and further 656 development,  and  the part played by  the  Dakkhani  Muslim Community in both the matters, has not been disputed  before us, and so, we must proceed to deal with tile appeal on  the basis  that the said finding truly and correctly  represents the  facts proved in this case.  It is in the light  of  the said  finding,  therefore, that we propose to  set  out  the history  of  the  institution  and  the  background  of  the dispute. It is not disputed that the Mosque came into existence as  a relatively small structure more than 100 years ago and  that it  was  rebuilt in its present form some time  about  1885. The  oral  evidence led by the parties in support  of  their respective  contentions  is  as  often  happens,  not   very satisfactory, and so, the High Court dealt with this part of the  case  on documentary evidence.   The  respondents  have produced numerous documents to prove their case that in  the original  building of the Mosque, in its  reconstruction  in 1885  and  in its progress from year to year,  the  Dakkhani Muslims  have played a dominant part, though it is  conceded by  them that later on the Cutchi Memons were also  actively associated  with  the affairs of the Mosque  and  have  made

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contributions to its prosperity and progress.  The  earliest document  on  the  record (Ext.  K) which  is  a  sale  dead executed on January 4, 1823 shows that the generality of the people  wished to construct a Masjid, and so, the open  plot covered by the sale-deed was purchased.  The purchasers were a  large  number  of Muslims consisting  of  several  groups described  as  traders, bakers,  sweetmeat  makers,  Copper- smiths,   rope-makers,  mutton  butchers,   beef   butchers, gardeners  and  other Muslims.  That shows the  very  broad. basis  of  the cross-section of the Muslim  community  which joined  in purchasing the open plot on which the mosque  was built.   Then followed a gift deed executed on  November  1, 1923 (Ext.  L’) which was a voluntary undertaking given by a large number of Musalmans to contribute funds in the  657 construction of the Mosque.  A grant of land made on October 4, 1830 (Ext.  YYYY) clearly brings out that the Mosque  and its appurtenances were intended for the benefit of the whole Muslim  Community represented by the local Kazi.   In  about 1850,  Abdul Khuddus appeared on the scene and it is  common ground  between the parties that he was actively  associated with  the institution for about half a century.  He  appears to  have been a very influential person in the locality  and helped   to   popularise  the   institution   and   acquired considerable  properties  for it; thereby, he  rendered  the mosque useful to the community in various directions.  Abdul Khuddus  was in management of the Mosque till 1905  when  he died.   He was followed by his son Abdul Gaffar who died  in 1922.   It  appears that Abdul Gaffar left  behind  him  two wills under which two different claims for the Mutavalliship of the Mosque were made.  About this time’ the eariler  suit of  1924 was instituted.  It is thus not disputed  that  for nearly 60 years and more, Abdul Khuddus and his son who were non-Cutchi Memons were in management of the Mosque and as we have already noticed, prior to 1850 when Abdul Khuddus  came on the scene, the management does not appear to have been in the  hands  of  the Cutchi Memons exclusively,  but  it  was predominantly  in the hands of the Dakkhani Muslims  of  the locality. On  June, 29, 1880, a Power of Attorney was executed by  the jamayat in favour of Abdul Khuddus in order to enable him to enter into transactions on behalf of the Mosque.  Of the ten presons  who  executed  the Power of  Attorney,  three  were Cutchi Memons and the rest Dakkhani Muslims.  This  document shows  that Cutchi Memons had by then associated  themselves with  the  administration of the affairs of the  Mosque  and formed  part  of the jamayat which owed  allegiance  to  the Mosque but amongst the Trustees who executed the Power of 658 Attorney  in favour of Abdul Khuddus, the proportion was  3: 7. On  December  29,  1892, a sale deed  was  executed  by  one Thulsibayama  (Ext.  HHHH) conveying her house  property  in favour of Abdul Khuddus.  Abdul KhUddus was described as the Head  Trustee  of  the  jumma.Masjid.  The  other   Trustees mentioned  in the document who numbered 13, represented  the Dakkhani Muslims and the Cutchi Memons in the proportion  of 7:6.   It  is  true  that on  some  occasions,  the  Headmen appeared  to  have  been predominantly  Cutchi  Memons;  for instance.  the document pertaining to the transfer of  Fazel Mahomed  Asham Sait’s right to Jumma Masjid (Ext.  UUU)  was executed  in favour of six Headmen all of whom appear to  be Cutchi Memons; but as the High Court has observed, this  can have  no special significance since in this document,  Abdul Khuddus himself is not mentioned and that may show that  the

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Headmen  did  not include the main person  who  was  looking after the Masjid.  However, one fact is significant that the Dakkhani Muslims numbered about 30,000 and the Cutchi Memons never exceeded 300 and this fact has to be borne in mind  in dealing  with  the  question of the  administration  of  the properties  belonging to Jumma Masjid, and, so it  would  be clear that though the Cutchi Memons were associated with the administration  of  the Trust, they were not at all  in  its exclusive  management.  Before his death Abdul  Khuddus  had executed  a  Power of Attorney in favour of  his  son  Abdul Gaffar on June 14, 1905, and as we have already seen,  Abdul Gaffar  stepped into the management.  Thus, the  documentary evidence  which  the High Court has  accepted  supports  its finding that the Mosque came into being and continued to  be an institution belonging to the whole Sunni Muslim Community of  Bangalore  and  that  it could  not  be  held  that  its management was exclusively in the hands of Cutchi Memons  at any  650 time  before 1924.  Having regard to the very prominent  and Powerful part played by Abdul Khuddus in the development  of the Mosque and its properties, it is not surprising that the Mosque  came to be known as "Khuddus Saheb’s  Mosque."  This description of the Mosque is found in a document executed on June  7,  1884  (Ext.  RRRRRR-1).   Subsequently,  when  the Cutchi  Memons filed a suit in 1924, they alleged  that  the Mosque  was  known  as  the  Sait’s  Mosque,  but  that   is undoubtedly a later development. It  maybe  conceded  that the several  jamayats  of  Muslims residing  in  Bangalore in different localities  have  their separate mosques, and as often happens, the Muslim residents of  a  particular locality generally offer  prayers  in  the mosque situated in the locality and in that sense, owned  by the jamayat of the said locality.  The position of the Jumma Masjid  with which we are concerned, however, appears to  be that of a central Mosque to which allegiance is owed by  all the  Sunni Muslims of Bangalore.  In fact, evidence  adduced in   this  case  clearly  shows  that  the   Cutchi   Memons constituting a Jamayat by themselves have a mosque of  their own  in  Fraser town.  This fact was admitted,  though  with reluctance  and then too not clearly, by Haji Saleh  Mohamed Sait whom the appellants examined on their behalf.  It  also appears from the evidence of the said witness that the  bulk of  Nikahs in the Jumma Masjid (Ext.Y-6) consists  of  those Muslims other than Cutchi Memons and that rather shows  that amongst  the usual worshippers at the Jumma Masjid the  non- Cutchi  Memons  occupied an important place.  It is  in  the light  of  these  facts that  the  controversy  between  the parties in the present litigation has to be judged. It  appears  that  about  1.920,  when  the  non-cooperation movement was in full force, there was a 660 sharp division in the Cutchi Memon Community a,% well as the Dakkhani   Muslims  at  Bangalore.   The  majority  of   the community sympathised with the non-co-operation movement and applauded  those who took part in it, whereas  the  minority led by Haji Sir Ismail Sait disapproved of the movement  and publicly  denounced it-.  That led to the usual  development of excommunication of the minority, and so, Haji Sir  Ismail Sait  filed  a  suit No. 6/1921 to vindicate  his  right  of access to the Mosque for performing religious ceremonies and claimed  an   injuncion against the managers of  the  Mosque restraining  them from interfering with the exercise of  his right  in  that behalf.  During the pendency  of  the  suit, however, Abdul Gaffar died on January 9, 1922.  That  tended

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to accentuate the division in the Community and it was  this sharp   division   in  the  Community  which   was   further complicated  by  the  rival claims  made  by  two  different persons  who had set up two different wills of Abdul  Gaffar that led to Suit No. 32/1924 being filed.  In that suit,  it was  claimed that the Mosque was primarily developed by  the Cutchi  Memons and that the Cutchi Memons were  entitled  to the exclusive management of the affairs of the Mosque.   The defendants  who  had  been  impleaded  to  that  suit  first appeared  to  resist the claim.  We have  already  seen  who these  defendants were.  They were interested in  supporting their individual rights in respect of the management of  the Mosque  and  it  appears  that  they  reached  an   amicable settlement with the plaintiffs and ultimately submitted to a preliminary  decree  directing that the  scheme  be  framed. Those  defendants  who  were  non  Cutchi  Memons  did   not represent  the non-Cutchi Memon Community as such  and  were interested  only  in their personal rights  based  upon  the wills  executed by Abdul Gaffar.  After the  parties  agreed that  the  scheme  should be drawn up,  the  District  judge directed  them to file their respective schemes.  The  Court then examined the said schemes and finally  661 framed  its  own  scheme.  Thereafter,  Trustees  have  been appointed  under  the  Scheme  from time  to  time  and  the administration  of  the  Trust and  the  management  of  its properties  has remained in the hands of Trustees  who  have always  been Cutchi Memons.  That, in short, is the  history of the commencement and the development of the Mosque and of the facts leading to the present dispute. The  first  point which has been pressed before  us  by  Mr. Setalvad is that the present suit is barred by reason of the fact that in the earlier suit instituted under s. 92 of  the Code  a  scheme  had  already been  framed  by  a  court  of competent  jurisdiction  and the decree by  which  the  said scheme wAs ordered to be drawn binds all parties  interested in  the  Trust.   A  suit under s. 92, it  is  urged,  is  a representative  suit,  and so, whether or  not  the  present respondents  actually appeared in that suit, they  would  be bound by the decree which had framed a scheme for the proper administration  of the Trust.  In support of this  argument, reliance  is  placed on the decision of this Court  in  Raja Anandrao  v. Shamrao (1), where it is observed  that  though the  Pujaris were not parties to the suit under s.  92,  the decision  in that suit binds the pujaris as  worshippers  so far  as  the  administration of  the  temple  is  concerned, because  a  suit under s. 92 is a  representative  suit  and binds  not only the parties thereto, but all those  who  are interested  in the Trust.  Mr. Setalvad has also  relied  on the  two decisions of the Madras High Court, (1) in  Ramados v. Hanumantha Rao (2)  and (2) in Khaja Hassaanullah Khan v. Royal  Mosque  Trust  Board (3) . The effect  of  those  two decisions  is that a decree passed in a suit filed under  s. 92 framing a scheme is binding on all and it prevents  every person whether a party to the suit or not from asserting  in a  subsequent suit rights which conflict with or attack  the scheme. In assessing the validity of this argument, it is  necessary to consider the basis of the decisions that (1)  (1961]  3 S.C.R. 930, 940.  (2) (1911) I.L.R.  36  Mad. 364.                 (3) I.L.R. (1948) Mad. 257. 662 a  decree  passed in a suit under s. 92 binds  all  parties. The  basis  of this view is that a suit under s .  92  is  a

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representative  suit  and  is  brought  with  the  necessary sanction  required by it on behalf of all the  beneficiaries interested in the Trust.  The said section authorises two or more persons having an interest in the Trust to file a  suit for claiming one or more of the reliefs specified in clauses (a) to (h) of sub-section (1) after consent in writing there prescribed has been obtained.  Thus, when a suit is  brought under s. 92, it is brought by two or more persons interested in  the Trust who have taken upon themselves  the  responsi- bility  of representing all the beneficiaries of the  Trust. In  such  a suit, though all the beneficiaries  may  not  be expressly  impleaded,  the  action is  instituted  on  their behalf and relief is claimed in a representative  character. This   position  immediately  attracts  the  provisions   of explanation  VI  to  s.  11 of  the  Code.   Explanation  VI provides that where persons litigate bona fide in respect of a public right ’or of a private right claimed in common  for themselves and others, all persons interested in such  right shall, for the purposes of this section, be deemed to  claim under  the persons so litigating.  It is clear that s.  1  1 read  with  its explanation VI leads to the  result  that  a decree  passed  in  a suit instituted by  persons  to  which explanation  VI applies will bar further claims  by  persons interested  in the same right in respect of which the  prior suit  had been instituted.  Explanation VI thus  illustrates one   aspect   of  constructive  res  judicata.    Where   a representative  suit is brought under s. 92 and a decree  is passed in such a suit, law assumes that all persons who have the  same interest as the plaintiffs in  the  representative suit were represented by the said plaintiffs and, therefore, are  constructively barred by res judicata from  reagitating the matters directly and substantially in issue in the, said earlier suit. A  similar  result follows if a suit is  either  brought  or defended under O. I, r. 8. In that case,  663 persons either suing or defending an action are doing so  in a  representative  character, and so, the decree  passed  in such a suit binds all those whose interests were represented either by the plaintiffs or by the defendants.  Thus, it  is clear that in determining the question about the effect of a decree  passed in a representative suit, it is essential  to enquire  which interests were represented by the  plaintiffs or the defendants.  If the decree was passed in a suit under s.  92,  it will become necessary to examine the  plaint  in order  to decide in what character the plaintiffs  had  sued and  what interests they had claimed.  If a suit is  brought under  O. 1 r. 8, the same process will have to  be  adopted and if a suit is defended under O. 1 r. 8, the plea taken by the  defendants  will  have to be examined with  a  view  to decide which interests the defendants purported to defend in common with others.  The decision of this question would  be material  in  determining the correctness  of  the  argument urged by Mr. Setalvad before us. Let  us, therefore, examine the plaint filed in the  earlier suit  of 1924.  Before filing the said suit, an  application had  been  made  to  obtain sanction  of  the  Collector  as required by s. 92.  In that application, the petitioners had specifically  averred  that the Masjid in  question  was  an ancient  and important institution belonging to  the  Cutchi Memon  Community  and there were properties attached  to  it worth over a lac of rupees : the net income from them  being about Rs. 2,400/- per annum.  On this basis, the petitioners claimed that they were interested in the Trust and wanted  a scheme  to  be  framed.  It would thus  be  clear  that  the

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application  for  sanction  proceeded  on  the  narrow   and specific ground that the Mosque belonged to the Cutchi Memon Community  and the interest which the petitioners  purported to represent was the interest of the Cutchi Memon  Community and no other, 664 After  permission was obtained from the Collector, the  suit was  filed.  In the plaint, the same position  was  adopted. It  was averred that the Mosque had been mainly  founded  by the  Cutchi Memon Mohammadens residing at Bangalore  and  it was  alleged that the Mohmmaden communities other  than  the Cutchi  Memon had established other independent mosques  for their  use and benefit and for the last over a century,  the Cutchi  Memons  had been maintaining and managing  the  said Mosque.   The plaint further claimed that the plaintiffs  as members of the Cutchi Memon Community were interested in the proper management of the suit Mosque and that as Mohammadens and  members  of the said Community they had  the  right  to perform  therein  their daily and usual prayers as  well  as funeral  and other special prayers.  Consistently with  this attitude,  the  plaint in its prayer clause  claimed,  inter alia, that a scheme should be framed safeguarding the rights and  privileges of the Cutchi Memon Community.  It  is  thus clear that the plaint, like the application for the sanction 0f the Collector proceeded on a clear and unambiguous  basis that  the Mosque belonged to the Cutchi Memon Community  and the  suit was instituted only on behalf of the Cutchi  Memon Community  by  persons who claimed to be interested  in  the Mosque as Cutchi Memons.  There is, therefore, no doubt that the  plaintiffs in the said suit did not claim and in  fact, did not represent the interests of any community other  than the Cutchi Memon Community.  Once it is found as it has been in  the present case, that this basis of the claim  made  in the plaint was not well-founded and that the Mosque  belongs to  all  the  Sunni Mohmmadens of  Bangalore,  it  would  be difficult to accept the argument that the suit instituted on the  narrow  basis  to which we have just  referred  can  be regarded as a representative suit so far as the interest  of Muslim  Communities  other than the Cutchl  Memon  Community residing in Bangalore are concerned.  These  665 who  filed  the said suit expressly pleaded  that  no  other community was concerned or interested in the said Trust and, therefore,  it  would be idle for them now to  contend  that they  purported  to  represent the interests  of  the  other communities. It is true that defendants 1 to 7 who had been impleaded  in that  suit  were non-Cutchi Memons, but as we  have  already observed,  these  defendants were sued  as  trespassers  and their  only  interest in defending the suit was  to  support their individual right to manage the property.  The  written statements filed by them leave no doubt at all that they did not  purport  to  represent non-Cutchi  Memons  residing  in Bangalore.  Their pleas centered round the rights which they claimed  under  the wills of Abdul Gaffar.   Similarly,  the written statements filed by defendants 8 to 13 in that  suit cannot  be pressed into service for supporting the  argument that  non-Cutchi Memons’ interests were represented.   These defendants were Cutchi Memons and. in substance, they agreed with the plaintiffs in that suit that the Mosque belonged to Cutchi  Memons alone.  No doubt, they made some other  pleas disputing  some of the allegations made in the plaints,  but those pleas have no relevance on the point with which we are concerned.   It is thus clear that the allegations  made  in the plaint, as well as the averments made by the  respective

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defendants  in their written statements do not  justify  the contention that the earlier suit was either filed by persons who  could  claim  to represent non-Cutchi  Memons,  or  was defended by persons who could make a similar claim.  If that be  so, the very basis on which the binding character  of  a decree  passed  in  a suit under s. 92  of  the  Code  rests disappears;  we  have  already seen that the  basis  of  the principle  that a decree under s. 92 suit binds all  persons interested  in  the  trust, is that  the  interests  of  all persons interested in the Trust are represented in the  suit as required by 666 explanation  VI to s. 11; and if that basis is  absent,  the decree  cannot create a bar of res judicata  againt  persons claiming interest not represented in the earlier suit. In  the case of Raja Anandrao (1), this Court has  no  doubt observed  that  a  decree passed in  a  representative  suit tinder  S.  92 binds not only the parties thereto,  but  all those who are interested in the Trust, and Mr. Setalvad  has naturally  relied  upon this observation in support  of  his plea of res judicata : but it would be unreasonable to treat the said observation as laying down a broad and  unqualified proposition  like the one which Mr. Setalvad  had  submitted before  us.  The context in which the observation  has  been made  must be borne in mind and that context  clearly  shows that  the earlier suit had been filed in respect of a  Hindu Temple  and  it was plain from the recitals  in  the  plaint filed  in that suit that the plaintiffs who had brought  the said  suit represented the interests of all worshippers  and devotees  of the said temple, including the worshippers  who had  brought  the  subsequent  suit.   In  other  words,  in accepting  the plea that the subsequent suit brought by  the worshippers was barred by res judicata, this Court  affirmed the  finding that the interests of the said worshippers  had been  represented  in the earlier suit, and so, it  made  no difference to the binding character of the decree passed  in that  suit  that  the said worshippers  personally  did  not appear in the earlier litigation.  This decision, therefore, proceeds on the basis that the party who was held  precluded from filing a subsequent suit was constructively represented in the earlier litigation and the provisions of  explanation VI  to s. 11 therefore, applied.  It is thus clear that  the observations made in Raja Anandrao’s case (1) do not support Mr. Setalvad’s contention in the present appeal. (1)  [1961] SS.  C. R 930, 940.  667 That takes us to the next question as to whether it would be appropriate  to change the scheme in the present  litigation even  though the present suit may not be technically  barred by  res judicata.  Mr. Setalvad contends that it is a  well- recognised  principle  of law that a scheme in regard  to  a public  trust  once  framed should  not  be  altered  light- heartedly unless there are substantial reasons to do so  and he  has strenuously relied on the finding of the High  Court that  the Trustees appointed under the scheme ever since  it was framed have, on the whole, managed the trust  properties and  its affairs in a reasonable and responsible manner  and that the allegations of breach of trust which had been  made against  them in the present suit have been held not  to  be proved by both the courts below.  There can be no doubt that if  a  scheme is framed in a suit brought under  s.  92,  it should   not  be  changed  unless  there  are   strong   and substantial  reasons  to  do  so.  This  position  is   well established and cannot and has not been disputed before  us. As  observed by Halsbury, when a scheme has been settled  by

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the Charity Commissioners, the Court will not interfere with it  unless the Commissioners have acted ultra vires, or  the scheme  contains something wrong in principle or in law,  or by  reason of changed circumstances, the continuance of  the charity under the constitution established by the scheme has become impracticable.  This principle was laid down as early as  1851 in the case of the Attorney-General v. The’  Bishop of Worcester (1), where it was held that schemes which  have been settled under the directions of the Court are not to be disturbed  upon  merely speculative view or  in  matters  of discretion  or  regulation upon which judges  or  Attorneys- General  may differ in opinion, or except  upon  substantial grounds  and clear evidence, not only that the  scheme  does not  operate beneficially, but that it can by alteration  be made to do so consistently with the object of the (1)  [1831] 68 B. R. 539. 668 foundation.   The same principle was reiterated in  1872  in the case     of Attorney-General v. Stewart (1). There  are, however, two considerations which must be  borne in  mind  in dealing with Mr. Setalvad’s  argument  on  this point.   It  is  not disputed that even after  a  scheme  is framed  in  a  suit  properly instituted  under  s.  92,  if supervening   considerations  justify  its   alteration   or modification,  the  bar  of re,,; judicata  cannot  then  be pleaded  against such alteration or modification.   Besides, in  the  present case, it has now been discovered  that  the scheme framed in 1927 proceeded on the erroneous  assumption that  the Mosque belonged to the Cutchi Memon Community  and that the said community alone was entitled to its  exclusive administration.  It may be that the parties who conceded  in that  suit  that  the  said assumption  was  right  did  not collude, but, nevertheless, the said assumption has  clearly introduced  a  serious infirmity in  the  scheme.   Speaking numerically,  the  interests of the  non-Cutchi  Memons  who numbered  about 30,000 were ignored and attention  was  paid exclusively  to  the interests of Cutchi  Memons  who  never numbered more than 300.  Once it is found that the Mosque is a  Central  Mosque  and the  Dakkhani  Muslims  residing  in Bangalore  were  responsible for the  constructions  of  the Mosque  and were vitally interested in offering  worship  in the Mosque and in taking part in, the administration of  the Mosque, its affairs and properties, it would be difficult to resist the respondents’ case that the scheme framed in  1927 must  be revised bearing in mind the interests of all  those who  are  interested  in  the  Mosque.   Therefore,  we  are satisfied  that  the High Court was right in coming  to  the conclusion  that  ’the scheme must be revised  on  the  true basis  that  the Mosque does not belong exclusively  to  the Cutchi  Memons,  but belongs to all the Sunni  Musalmans  of Bangalore. (1)  ( 1872) L. R. 14 Eq.  Cases 17.  669 The next question which we have to consider is whether it is necessary that the order of remand passed by the High  Court should be confirmed and the District judge directed to frame a new scheme in the light of our decision.  We are  inclined to  take  the  view that it is not  necessary  to  frame  an entirely  new scheme in the circumstances of this case.   We have  already referred to the fact that the High  Court  was satisfied   that  the  scheme  has  worked,  on  the   whole satisfactorily.   We  have examined the 25  clauses  of  the scheme  and  have  heard the learned counsel  for  both  the parties in regard to the modification’s which these  clauses may  need and we are satisfied that if suitable changes  are

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made in clauses (iv), (v), (xxiv) and (xxv), that would meet the  requirements of justice and fair administration of  the Mosque, its affairs and its properties.  Broadly stated, the scheme  framed  in 1927 provided for the  appointment  of  a Committee of five Trustees who were to hold office for seven years commencing from the date on which the scheme came into force.    Clause  (iv)  then  made  a  provision   for   the appointment of fresh Trustees at the completion of the seven years’ period prescribed by cl. (i).  This clause reads thus:-               ,,Six  months  before the  completion  of  the               seven years mentioned above, the committee  of               trustees  shall prepare a list of  male  adult               worshippers, and submit the same to the  Court               within a month thereafter; and the Court shall               as soon as convenient nominate from among  the               worshippers  a  committee  consisting  of   15               worshippers.  Each member of the committee  of               worshippers  shall hold office for  ten  years               from  the  date of his  appointment;  and  any               vacancy  arising  among them for  any  of  the               reasons  specified in clause 3 supra shall  be               filled  up by the Court.  And  this  committee               shall  elect from among their number 5  (five)               persons to 670               perform  the  duties  of  trustees  after  the               expiry of seven years aforesaid."               Clause (v) which is also relevant reads thus:               "The trustees so elected shall hold office for               a term of five years and whenever any  vacancy               arises among the elected trustees by reason of               death or resignation or if any member shall be               absent from the Bangalore C & M Station for  a               continuous  period  of six months,  or  be  an               undischarged insolvent or be convicted of  any               criminal offence involving moral turpitude  or               refuses or in the opinion of the Court becomes               unfit  or  incapable of acting as  trustee  or               ceases  to  be a member of  the  committee  of               worshippers the same shall be filled up by the               committee   of   worshippers,   from   amongst               themselves  the  person so appointed  to  hold               office for the remaining period of five years.               The procedure described in clause (4) shall be               adopted   for  electing  trustees   for   each               successive period of five years." It is obvious that clause (iv) has worked itself out; but it provides  for  the basic structure for  the  appointment  of Trustees, and we are inclined to think  that basic structure must  now be alterad in view of the fact that the number  of worshippers  is  very  much larger than  was  then  assumed. ’Worshippers’  in the context, would mean not Musalmans  who are entitled to offer worship, because that view would  take in  Musalmans not only from Bangalore but from all over  the country.  The ’worshippers’, in the context, should  include persons  who  usually worship in the said  Mosque.   In  our opinion, it is not necessary to make any list of male  adult worshippers as provided by cl. (iv), nor should a  Committee of  worshippers  be  appointed as contemplated  by  it.   We think, it is desirable that the appointment of  671 five  trustees  from  time to time should  be  made  by  the District  judge from amongst the worshippers of the  Mosque, the class of worshippers being determined in the sense which

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we have just clarified It appears that after the scheme came into  force, trustees were appointed, when necessary,  by  a kind of election.  We have no doubt that this course  should be  avoided.  We would, therefore, insert in place  of  cls. (iv) and (v), cl. (iv) in these words :               "The   district  judge  of  Bangalore   should               nominate five persons from amongst male  adult               worshippers of the mosque as trustees to  look               after   the  mosque,  its  affairs   and   its               administration.   The  trustees  so  nominated               shall hold office for a term of five years and               whenever any vacancy occurs among them  either               by   reason  of  death,  or  resignation,   or               otherwise, the District.Judge shall fill  that               vacancy by nominating another Trustee in  that               behalf.  The remaining trustees will  continue               to function till the vacancy is filled." The result would be that cl. (iv) & (v) as they stand  would be  removed  and cl.. (iv) as we have formulated  will  take their  place, and the remaining clauses will  be  renumbered accordingly. Clause (xxiv) which gives the right to demand copies of  the rules  and or translations thereof in Urdu language only  to the  members  of  the cutchi Memon  Community  will  now  be available to all the Sunni Musalmans residing in  Bangalore. Therefore,  the modification in the clause would be that  in place  of  the  words  "any  member  of  the  Cutchi   Memon Community"  shall  be  substituted  the  words  "any   Sunni Musalman of Bangalore". Clause (xxv) which enables the Trustees to apply for  advice or direction to the District Court as 672 occasion  may arise, should be so amended as to  enable  the Trustees or any person interested in the Trust to apply  for modification  of the scheme.  Clause (xxv) so amended  would read thus:-               "The Trustees. may apply for advice or  direc-               tion,   and   the  Trustees  or   any   person               interested   in  the  Trust  may   apply   for               modification  of  the scheme to  the  District               Court  of  the C & M  Station,  Bangalore,  as               occasion may arise." By  modifying  the clause in this way, we wish  to  make  it clear  that if in future an occasion arises for changing  or altering the terms of the scheme, it should not be necessary to file a separate suit. Before we part with this appeal, there is one point to which we may incidentally refer.  During the course of the hearing of this appeal, an argument was urged before us by both  the parties as to the true denotation of the word  "worshippers" used  in  cl.  (iv).  Mr. Setalvad  contended  that  in  the context  of the pleadings filed by the parties in that  suit and  in the light of cl. (xxiv), it was clear that the  word "worshippers"  must  mean only worshippers from  the  Cutchi Memon  Community.   If  that argument is  upheld,  it  would emphatically  bring out the fact that in the suit, the  only interest that was represented was that of the Cutchi  Memons and  that  would clearly help to negative the  plea  of  res judicata.   On  the other hand, if  the  word  "worshippers" received  a larger denotation, it may show that  the  scheme binds  all the worshippers interested in the Trust,  but  it would immediately raise the question of clarification of the scheme because in the administration of the scheme, the word "worshippers"   has   consistently   received   the   narrow interpretation, and the Trustees as well as the committee of

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worshippers  has always been constituted out of  members  of the Cutchi Memon Community and no others, so that on this  673 alternative basis, the plea of res judicata may be upheld  ; but an occasion will clearly arise for either clarifying the scheme  or  medically changing it so as to  make  the  other worshippers eligible for appointment as Trustees. In  the result, we reject all the contentions raised by  the appellants  and  confirm the findings recorded by  the  High Court  in favour of the respondents.  We are,  however,  not inclined  to affirm the order of remand passed by  the  High Court,  because we have held that the scheme framed in  1927 should be left as it is with the modifications which we have indicated  in our judgment.  Therefore, the order of  remand passed  by the High Court is reversed and  the  respondents’ claim  for  a  modified  scheme  allowed.   The  appeal   is dismissed with the above modifications.  The appellants will pay the costs of the contesting respondents throughout.