Bharpat Mohammad Haneef Sahib and Others vs Board of Trustees, Jumma Masjid and Another

Mockett, J.—This appeal concerns the mosque Jamma Masjid at Adoni. The appellants are 20 Adoni Muslims. The respondents are the

trustees who owe their existence to a scheme which was settled in 1920 in O.S. No. 43 of 1920. That scheme contains Clause 22, which reads as

follows:

Any of the plaintiffs or the board of trustees or 20 Mahomedans of Adoni interested in the mosque may by petition apply to the Court for such

further directions or alteration or modification of the scheme as may be necessary. The Court may after publication of notice in such manner as it

deems proper hear the petitioners and any persons that may appear after such notice or their pleaders and pass such orders as it thinks necessary

in the circumstances of the case.

The learned District Judge of Bellary dismissed the application on the ground that it offended against Section 92, Civil P.C. The law on the subject

had been set at rest by the decision of the Full Bench of this Court reported in Veeraraghavachariar v. Advocate-General, Madras AIR 1927

Mad. 1073. The head-note which appears accurately to represent the judgment is as follows:

If in a decree for a scheme framed u/s 92, Civil P. C, liberty is given to persons to apply to the Court for directions merely to carry out the scheme

already settled, such reservation of liberty in the decree will be intra vires if the assistance of the Court can be given without offending Section 92;

but where liberty is given to apply to the Court for alteration or modification of the scheme, such reservation is ultra vires as offending Section 92.

The attention of the Full Bench was drawn to the fact that in two cases Prayag Dasji v. Tirumala Srirangacharyulu 30 Mad. 138 and Kripasankar

v. Gopalrao (1913) 24 M.L.J. 199 the Privy Council had apparently sanctioned schemes which contained clauses somewhat similar to Rule 22 of

the scheme before us. The Full Bench pointed out that never at any time was the attention of their Lordships invited to the point which arose before

the Full Bench, namely, whether such clauses were ultra vires or intra vires. The same comment can be made with regard to a later decision of the

Privy Council in AIR 1940 24 (Privy Council) where a similar clause is not the subject of comment. It is worthy of note that the decision of the

Madras Full Bench in Veeraraghavachariar v. Advocate-General, Madras AIR 1927 Mad. 1073 was not mentioned before their Lordships.

The question that arises in this case which has been dealt with at length by the learned District Judge is whether these proposals which were

before him offended against the rule as laid down by the Full Bench. They are headed ""modifications proposed."" They have been subjected to a

careful analysis by the learned District Judge who has divided them into two groups and he takes the view that they all are modifications, alterations

or additions and that not one of them can be said to be an application for directions for the purpose of carrying out the scheme already settled. We

do not propose to follow the learned Judge throughout his analysis with which however we are in agreement. One or two examples are enough.

There are certain striking changes, for instance, in Rule 2 a period of five years is to be altered to three years. In Rule 3 the subscription of 4 annas

is to be reduced to 2 annas and the qualification of an elector is to be raised from a subscription of not less than one rupee to ten rupees. Additions

are to be made to Rule 3 with regard to the publication of the preliminary electoral roll. In Rule 8 a very important change is proposed. It originally

reads thus: ""The office of the executive trusteeship shall go by rotation."" It is sought to be altered to ""election and rotation."" We do not propose to

go further into the learned Judge''s analysis. It is enough to conclude with this: that there is a prayer for directing the accounts to be taken from

1931-32 upto date, that is, upto 1942, which palpably offends against Section 92 (d), Civil P. C. The learned Judge has therefore quite rightly held

that the whole of the application in the Court below is an attempt to change the scheme substantially by means of alterations and additions. In other

words, it offends against the rule laid down by the Full Bench in Veeraraghavachariar v. Advocate-General, Madras AIR 1927 Mad. 1073. Mr.

Basheer Ahmed who has argued this case before us has left nothing unsaid that can be said. He has asked us to say that it was time that the

decision of the Full Bench should be reconsidered in view of the decisions of other High Courts, for example, Srijib Nyayatirtha, Secretary and

Others Vs. Sreemant Dandy Swami Jagannath Ashram, Mohunt Moharaj and Others, . There are no decisions of this High Court which in any

way suggest that the view taken by the Full Bench in Veeraraghavachariar v. Advocate-General, Madras AIR 1927 Mad. 1073 requires

consideration. It has been followed in several cases. It may be unfortunate that parties are driven to the cumbrous procedure of suits in these

matters, but that appears to be the law and apparently the considered law.

There was, however, one decision to which our attention was drawn, the decision of Venkataramana Rao J. reported in Govindaswami v.

Kandaswami AIR 1939 Mad. 605. In that case the scheme provided for the election of trustees and the learned Judge held it was open to a

worshipper or voter to apply to the Court for the issue of a direction to the trustee to remove the name of a person from the list of candidates. The

learned Judge took the view that this was merely a direction for the carrying out of the scheme. It does not appear that the decision of

Venkatasubba Rao and Cornish JJ. in Vaidhyalinga v. Thyagarajaswami Devasthanam AIR 1936 Mad. 581 was brought to the notice of the

learned Judge, especially the observations of Cornish J., and we do not think that that case can be held to be an authority apart from the special

facts on which it was decided.

We would add that the learned Counsel for the respondents took the point that an appeal did not lie in this case. We do not think it necessary to

decide this as we dismiss the appeal on the merits. In the result the appeal is dismissed with costs.