Ettiyar Ahmed Kutty and Others vs Vayalilakath Ayithraman Kutty and Others

Venkataramana Rao, J.—This second appeal is against the decree of the learned Subordinate Judge of South Malabar dismissing the

plaintiff''s suit which is a representative action filed on behalf of the Mussalmans of Feroke for an injunction directing the first defendant to demolish

and remove the structure put tip in the plot which is claimed to be an adjunct of the Jemath mosque at Feroke, for possession of the same by the

plaintiffs on behalf of the mosques and the Mussalman public of Feroke and for granting all other reliefs to the plaintiffs for and on behalf of the

mosque which the Court may deem fit to grant. The ground of the claim is that the Jemath mosque belongs in common to the Feroke Mussalman

public, that the dead bodies are buried in the Paramba of the mosque and that the plaintiffs congregate, at the said mosque for worship. The

necessity for the institution of this suit is alleged to be a trespass by the defendant in that he has put up a shed and has been attempting to build a

stone structure besides opening a tea-shop therein. It is stated in the plaint, that the karnavans or elders have been managing the affairs of the

mosque, but it is not stated who the karnavans are. The first defendant alleges that the suit property does not belong to the mosque and it is not

trust property. He further set up a title to the suit property in the twenty-sixth defendant as muthavalli and denied the title of the plaintiffs to sue as it

was the muthavalli alone that could maintain such a suit. The twenty-sixth defendant was impleaded as a party defendant to the suit. While

supporting the first defendant in the contention that he is the muthavalli of the mosque and that the affairs of the mosque are under his control, the

twenty-sixth defendant in his written statement alleges that the suit property does not belong to the mosque, that the mosque had no right over it, at

any time, and that it is not useful in any way for the mosque. He also contended that the Mussalmans who assemble in the Jemath mosque are not,

entitled to recover the suit property. The points in controversy that arose on the pleadings were whether the suit property is trust property

belonging to the mosque or private property as asserted by the defendants and whether the plaintiffs are competent to sue for all or any of the

reliefs claimed in the plaint. The learned District Munsiff who tried the suit, came to the conclusion that the property is trust property attached to the

mosque, that the first defendant was a trespasser, and that the plaintiffs 2, 4, 5, 6 and 8 were the elders who were in management of the affairs of

the mosque without their being appointed as such by anybody. He however thought that a mandatory injunction was not necessary and he

therefore gave a decree for possession on behalf of the general public of Feroke by directing the first defendant to remove the basement on the

plot which he erected in contemplation of the stone structure intended to be put up by him. The learned Subordinate Judge dismissed the plaintiffs''

suit on the ground that the plaintiffs as worshippers of the mosque cannot maintain the suit for possession of the mosque property.

It is contended in this second appeal by Mr. Sitarama Rao on behalf of the plaintiffs that the view of the learned Subordinate Judge was wrong

and that even assuming they are not competent to maintain the suit for possession on the allegations in the plaint the learned Subordinate Judge was

not warranted in dismissing the suit. I may at once state that the learned Judge did not go into the question whether the property was trust property

or not, whether there was any muthavalli for the mosque or whether there were any accredited managers for the institution who were in

management de facto of the mosque property because in the view he took he considered it unnecessary to go into those questions. The principles

which regulate the right of suit by a worshipper in relation to trust property are now well settled. Where there is a lawful trustee for an institution, he

is the person competent to institute a suit in relation to the property of the institution, to take the necessary steps for safeguarding and preserving it

and to eject a trespasser and recover possession thereof for the trust; but the recovery of the property is only for and on behalf of the institution

which he represents. But where a trustee has alienated the trust property and therefore would not proceed to recover possession of the same or

has disabled himself otherwise from maintaining a suit in respect thereof or declines to institute a suit, it cannot be said that the institution is without

a remedy. The worshippers, who are the beneficiaries entitled to participate in the benefits of the institution, are entitled to maintain a suit for

preserving the trust property or restoring the property to the trust either by instituting a suit for declaration or for an injunction or even for

possession; but whether the worshippers are entitled to claim all or any of the reliefs which a trustee is entitled to do in a properly framed suit

would depend on the circumstances of each case. It is desirable and necessary to make the trustee a party to the suit and where he is made a

party, it is open to the Court to mould the relief as the circumstances may require. If the suit is one brought for possession by the worshippers, the

Court can, after declaring the property to be trust property and setting aside the alienation, direct delivery of possession to the trustee. In cases

where there is no trustee, it is open to the Court to direct delivery of possession to the worshippers on behalf of the trust. (Vide Rangaswami

Naidu v. Krishnaswami Aiyar (1922) 44 M.L.J. 116.) Again, in certain circumstances it is competent to the worshippers to maintain an action for

a declaration that a certain property is trust property and for an injunction restraining the defendant from interfering with their right of worship,

which is a personal right without making the trustee a party to the suit. This would not offend the principle that a trustee alone is competent to

maintain a suit to eject a trespasser--vide Kuvarbai v. Mir Alam Khan ILR (1883) Bom. 170 where a relief of injunction was given to worshippers

in a caste temple. Applying these principles the question in this case is, is the present suit by the plaintiffs for all or any of the reliefs claimed by them

maintainable? The title to the suit property is in dispute. A declaration therefore whether the property is trust property is absolutely necessary

before the plaintiffs can get any other relief by way of an injunction or for possession, and the plaintiffs are entitled to claim that relief and the suit

involves the granting of that relief. If the property is declared to be the trust property, the next question that arises is, whether the defendant is a

trespasser and if he is, he has to be ejected from the trust property in order to safeguard the interests of the trust. Therefore that relief also the

plaintiffs can claim. The fact that by reason of the institution having a trustee a Court might refuse to grant delivery of actual possession to a

worshipper would not take away his right to maintain a suit for ejectment of a trespasser of trust property, where the circumstances would entitle a

worshipper to claim that relief. The right of a worshipper to maintain a suit in ejectment ought not to be confused with the relief of actual possession

which the Court may or may not give him. (Vide Srinivasacharlu v. Subuddhi (1888) 23 M.L.J. 348.) That it is competent to a worshipper to

maintain a suit in ejectment is too well established, though I have stated that the form in which the appropriate relief should be moulded, would

depend upon the circumstances of the case. In Zafaryab Ali v. Bakhtawar Singh ILR (1883) All. 497 a relief by way of an injunction for removal

of a building was granted in respect of a mosque property. In Muhammad Alam v. Akbar Husain ILR (1910) All. 631 the learned Judges cite with

approval Zafaryab Alt v. Bakhtawar Singh ILR (1883) All. 497 and also a passage in Ameer Ali in his work on Muhammadan Law where the

learned author observes:

Every Muhammadan who derives any benefit from a wakf or trust is entitled to maintain an action against the muthavalli to establish his rights

thereto or against a trespasser to recover any portion of the wakf property which has been misappropriated.

In Maulavi Muhammad Fahimul Huq v. Jagat Ballav Ghosh ILR (1922) Pat. 391 Mullick, J., observes thus:

It is now settled that a beneficiary of a trust in respect of a Muham-madan wakf interested in the maintenance of a mosque or other charitable

institution may, without having recourse to the provisions of Rule 8, Order 1, Civil Procedure Code, and without other beneficiaries, sue for

recovery of possession of property wrongfully alienated by the trustee and for the incidental declaration that the properties are the subject of the

trust and that they cannot be alienated.

The same view was taken in Ashraf Ali v. Mohammad Nurojjoma (1918) 23 C.W.N. 115. So far as the cases in our High Court are

concerned, the view has always been taken that it is competent to a worshipper to maintain a suit in ejectment against the alienee in possession of

the trust property and direct delivery of possession of the trust property to the trustee after declaring the alienation invalid. (Subramania Aiyar v.

Nagarathna Naicker (1909) 20 M.L.J. 151.) The principle underlying such a suit has been that the suit is really on behalf of the trust and the

worshippers must be deemed to be suing in right of the trustee as pointed out in Chidambaranatha Thambiran alias Sivagnana Desika Gnana

Sammanda Pandara Sannadhi and Another Vs. P.S. Nallasiva Mudaliar and Others, but in cases where possession cannot be awarded to the

plaintiffs on the ground that, there is a lawful trustee and that such a trustee has not been made a party to the suit, the suit cannot be dismissed, for

other reliefs can be granted, for example, a declaration that the property is trust property--vide Kazi Hassan v. Sagun Balkrishna ILR (1899)

Bom. 170. The cases relied on by-Mr. Kuttikrishna Menon do no more than lay down that actual possession cannot be given to a worshipper if

there is a duly constituted representative for the institution. (Kamaraju v. Asan Alt Sheriff ILR (1900) Mad. 99 and Noor Muhammad Sahib and

Others Vs. Karim Bibi Ammal and Others, .) In this case it is alleged in the written statement that the twenty-sixth defendant is the muthavalli. If he

is really found to be the muthavalli, there is nothing to prevent possession on being delivered to him. It is also stated that the plaintiffs 2, 4, 5, 6 and

8 are persons in de facto management of the mosque and its property and if so, there is nothing to prevent the Court delivering possession to them.

But if it is found that there is no muthavalli or plaintiffs 2, 4, 5, 6 and 8 are not the de facto managers, the Court may award possession to the

plaintiffs on behalf of the trust, so that when appropriate proceedings are instituted for the management of the trust property and a trustee is

appointed, they may hand over possession to him. It seems to me therefore that the plaintiffs are competent to maintain this suit. The decree of the

lower appellate Court is therefore set aside and the learned Subordinate Judge is directed to dispose of the other issues in the case, namely,

whether the property is trust property or not; whether the twenty-sixth defendant is the muthavalli and is in possession and the management of the

mosque and its property and whether plaintiffs 2, 4, 5, 6 and 8 are de facto managers of the mosque and its property. It is competent to him to

remand the case to the lower Court for findings on the question as to who is the muthavalli and who are the de facto managers and dispose of the

appeal after receipt of the said findings. The plaint has not been happily worded and it is partly responsible for the view which the learned

Subordinate Judge took in the lower Court. In the circumstances therefore, I direct each party to bear his own costs in this appeal. The order of

costs made by the lower appellate Court will stand.

Leave to appeal refused.