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PETITIONER: SUGRA BIBI

       Vs.

RESPONDENT: HAZI KUMMU MIA

DATE OF JUDGMENT: 13/12/1968

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. GROVER, A.N.

CITATION:  1969 AIR  884            1969 SCR  (3)  83  CITATOR INFO :  R          1974 SC2141  (10)

ACT: Civil Procedure Code s. 92(1)-Wakf providing for application of some in income for charitable and religious etc  purposes and  some for settlor’s family-Suit for removal of  Mutwalli and appointment of another-When written consent of Advocate- General necessary to maintainability of suit.

HEADNOTE: E  executed a Wakf deed in November 1936 in respect  of  his property  valued at Rs. 30,000 and appointed his son  S  and his son-in-law, the respondent, as the Joint Mutwallis.   It was  provided in the deed that upon the death of  either  of them,  the survivor was to, be the sole Mutwalli  and  would have power to nominate his successor from the family line of the  settlor; if both died without nominating  a  successor, the senior-most member among the lineal descendants of S and the  respondent  was entitled to become the  Mutwalli.   The Wakf deed provided inter alia for the expenditure of Rs. 500 annually for the maintenance and, upkeep of mosques etc  and for  helping  the  poor  and needy;  it  also  made  certain provisions  for the maintenance of the settlor’s family  and gave power to the Mutwalli, if funds were available, to make contributions  for general charitable purposes.  It  further provided for application of the whole income for  charitable purposes  in  the  event  of the  total  extinction  of  the settlor’s family. S died in December 1960 and thereafter the respondent became the sole surviving Mutwalli.  The appellant, the widow of S, filed  a  suit  in  July 1967 for  a  declaration  that  the respondent  was  unfit to continue as Mutwalli of  the  Wakf estate  and should be removed from office; furthermore  that the son of the appellant through S be appointed as  Mutwalli and  until  he  attained  majority,  a  receiver  should  be appointed for the Wakf estate.  The respondent contested the suit  on  the ground that the suit was  incompetent  as  the sanction  of the Advocate-General was not obtained under  s. 92  C.P.C.  The  Trial  Court held that  the  suit  was  not affected  by  the provisions of s. 92 and also  ordered  the removal of the respondent.  An appeal to the First Appellate

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Court  was dismissed but the High Court allowed  a  revision petition holding that the suit was not maintainable in  view of provisions of s. 92 C.P.C. In  appeal to this Court it was contended on behalf  of  the appellant  that  s.  92 C.P.C. had no  application  for  the reason  inter alia (i) that the Wakf deed of  November  1936 did  not create a public charitable or religious  trust  but the  trust was executed mainly for the benefit of the  foun- der’s  family;  (ii)  that  the  suit  was  not  brought  to vindicate or establish a right of a public institution, i.e. the  trust, but to remedy an infringement of  an  individual right  or to vindicate the private right of  the  appellant. The  respondents  contention was that s. 92 applied  as  the reliefs   sought  by  the  appellant  were   exactly   those contemplated by the section. HELD : The ’suit fell within the purview of s. 92 C.P.C. and in  the absence of the consent in writing of  the  Advocate- General, it was not maintainable. (i)  In  view of the provisions of the’ Wakf deed, the  mere fact  that  there were certain provisions in favour  of  the family of the, founder along 84 with  other  provisions in favour of the  public,  the  case would  not be taken out of the provisions of s. 92 C.P.C.  A substantial portion of the income of the Wakf properties was to be spent for purpose of a charitable and religious nature and the Wakf therefore fell within the purview of s.   93. [88 E-F] S.   Massirat  Hossain v. Hossain Ahmad Chowdhury 42  C.W.N. 345  and  Vaidya Nath, Aiyyar v. Swaminatha Ayyar,  51  I.A. 282, referred to. (ii) Even if a suit related to a public trust of a religious or  charitable  nature and the reliefs claimed  fell  within clauses  (a)  to  (h)  of  subsection  (1)  of  s.  92,  the provisions of that Section would not be attracted unless the suit  is  of a representative character  instituted  in  the interest of the public and not merely for vindication of the individual or personal rights of the plaintiff.  However, in the present case the Wakf was held to have been created  for a public purpose of a charitable or religious nature and the reliefs   claimed were not for enforcing any private right,- but for removal of the   defendant as a trustee as envisaged in clauses (a) and (b) of s. 92 (1),    the suit brought  by the  appellant  must  be  treated as a  suit  brought  in  a representative  capacity on behalf of all the  beneficiaries of the Wakf to which the provisions of s. 92 C.P.C. applied. [90 G-91 B] Budreedas v. Choonilal I.L.R. 33 Cal. 789 at p. 807, Appanna V. Narasinga, I.L.R. 45 Mad. 113 and The  Tirumalai-Tirupoti Devasthananms  Committee  v. Udiavar  Krishnayya  Shanbhaga, I.L.R. [1943] Mad. 619, referred to.

JUDGMENT: CIVIL 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. The Judgment of the Court was delivered by Ramaswami, J. Late Haji Elahi Bux had one son named Mohammed Shafi  and had one daughter.  The appellant is the widow  of

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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 Wakf 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  Mutwalli and had the power  to  nominate  his successor from the family line of the settlor.  And in  case the sole Mutwalli 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. 85 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 of the Wakf 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 Wakf estate and till he attained majority a  suitable Receiver should be appointed for the said Wakf estate.   The respondent contested the suit on the ground that sanction of the  Advocate-General  was not obtained under s.  92,  Civil Procedure Code and the suit was therefore not competent.  By its  order  dated October 3, 1961, the trial  Court  decided that  the suit was not affected by the provisions of s.  92, Civil  Procedure Code and held that the suit was  competent. The  trial court also ordered 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 & Jaintia Hills, Shillong but the appeal  was  dismissed.  The respondent took the  matter  in revision  before the High Court of Assam.  By  its  judgment dated September 3, 1963, the High 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. 21(H) of 1962. The sole question to be considered in this appeal is whether the suit of the appellant attracts the provisions of s.  92, Civil Procedure Code and whether the suit can be  maintained without 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  purposes 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-General, or  two  or               more persons having -an interest in the  trust               and having obtained the consent in writing  of               the  Advocate-General, may institute  a  suit,               whether  contentious 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 whole or any  part  of               the

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             86               subject-matter  of  the trust is  situate,  to               obtain a decree-               (a)   removing any trustee;               (b)   appointing a new trustee;               (c)   vesting any property in a trustee;               (cc) directing a trustee who has been  removed               or a person who has ceased to be a trustee, 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 there in 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 of 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  Wakf 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  of the Wakf.  The relevant provisions  of  the Wakf deed dated November 18, 1936 are reproduced below :               "Whereas  Hazi Elahi Buksh son of  late  Madda               Choudhury of village Kokaran Bazar, Rae-Berely               at   present  residing  at  Bara-bazar   road,               Shillong, (hereinafter called the Settlor)  is               the sole proprietor of the firm in  Bara-bazar               Road in the Town of Shillong known as S. Mohd.               Shafi   &   Kamoo  Mia,  together   with   all               properties, movable or immovable and all 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               87               religious purposes and for the maintenance  of               his relations 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 immovable and all  funds               investments    and   profits   belonging    or               appertaining   thereto,   as   well   as   the               properties  described in the schedule  hereto,               all which shall hence forward vest  absolutely               in  Almighty God for the purposes  hereinafter               specified, and shall constitute a Wakf  Estate

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             to be administered in the following manner               (6)   Out  of the income of the Estate, a  sum               of  Rs.  500 shall be annually spent  for  the               maintenance   and upkeep  of  Mosques and               Madras and for helping 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 monthly  allowance               of Rs. 10 (ten) or in the alternative -and  at               his  option, a consolidated sum not  exceeding               Rs. 1000 (Rs.  One thousand) but the sons  and               descendants  of the said Ali Mastaque  (Nanka)               shall  have  no 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  expenses  the  mutwalli  shall  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 10.               (13)  On 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.               88               (14)  The mutwalli shall have no power to sell               or give away any portion of the estate  except               for justifying legal necessity.               (16)  The mutwalli shall have power, if  funds               permit,  to make reasonable  contributions  to               funds  and institutions created or  maintained               for general charitable purposes.               And  it  is hereby further declared  that  all               properties movable, immovable, and all  funds,               investments  and  profits bought,  created  or               made  with money belonging to or accruing  out               of  the estate, or in any manner  appertaining               thereto, shall for all purposes, be annexed to               the  Wakf by these presents founded and  shall               ’be  administered  and  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  reason is  that  there  is  a substantial portion of the income of the Wakf properties  to be  spent for purposes of charitable and  religious  nature. The  proper  test for holding whether the  Wakf  would  fall

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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  Chodhury.(1) 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- (1)42  C .W.  N. 3 4 89 vision in favour of the public and consequently 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 the Judicial Committee in Vaidya Nath Aiyyar v. Swaminatha Ayyar(1) 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 wife’s death, two-thirds of the income  given  to her  would  be  applied to charity  and  one-third,  to  the members  of  the family.  On these facts the  Judicial  Com- mittee ’agreed with the findings of the court below that the Chatram so established was a public trust. It  was, however, contended 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  infringement  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 argument  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 Mutwalli and  appointment  of  Soleman, appellant’s son, as Mutwalli in his place, and (2) till  the said Soleman attains majority appointment of -a Receiver for the  management  of the Waif 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  cls. (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  representative  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. in Budreedas  v. Choonilal (2 ) :               "It  is  obvious  that  the  Advocate-General,               Collector  or Other public officer can and  do               sue  only as representing the public, and  if,               instead of these officers, two or more persons               having an interest in the trust sue with their               consent, they sue under a warrant to represent               the  public  as the objects of the  trust.  it

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             follows  from  this,  that when  a  person  or               persons sue not to establish (1) 51 I.A. 282.                         (2) I.L.R. 33  Cal. 789 at 807. L 7 Sup.  CI/69-7 90               the  general  rights of the public,  of  which               they are a member or members, but to remedy  a               particular    infringement   of   their    own               individual  right,. the suit is not within  or               need not be brought under the section This principle was accepted as sound by a Full Bench of  the Madras  High  Court in Appanna v.  Narasigna(1),.   In  that case,  a  suit  was instituted by a  trustee  of  a  public, religious  trust against a co-trustee for accounts  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 plaintiff as a trustee against his co- trustees.  The same view was taken by the Madras High  Court in The Tirumalai-Tirupati Devasthanams Committee v.  Udiayar Krishnayya   Shanbhagal(2);.   In  this  case  the   general trustees  of  a  public  temple filed  a  suit  against  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 of the  Civil Procedure Code and no sanction 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 disagreeing with anything said  in               Shanmukham  Chetty v. Govinda  Chetty  (I.L.R.               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 Council  in  Abdur               Rahim v. Mahomed Barkat Ali [(1927) I.L.R.  55               Cal.  519  (P.C.]  lends no  support  for  the               opinion  expressed by the Full Bench in  ranki               Bai  v.  Thiruchitrambala  Vinayakar   [(1935)               I.L.R. 58 Mad. 988 (F.B.)]" Applying  the principle laid down in these  authorities,  we are of opinion that in the present case the suit brought  by the appellant must be treated as a suit brought by her in  a representative 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 (1) I. L.R. 45 Mad. 11 3.     (2) I.L.R.[1943] Mad.619. 91 new  trustee  in his ’place.  The reliefs asked for  by  the appellant  fall within cls. (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

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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. R.K.P.S.                  Appeal dismissed. 92