K. Sherfuddin Sahib vs Ameermiah Sahib and Others

Raghavan, J.—The first Plaintiff is the Appellant. The above appeal has been filed by the first Plaintiff under clause 15 of the Letters Patent

with the leave of the learned Judge who heard the second appeal. The facts of the case are as follows. The Plaintiffs as managers of Fathunonbu

Pallivasal in Jarikivelaikara street, Madurai Town, filed Original Suit No. 77 of 1958 on the file of the Sub-Court, Madurai, for a declaration that

the Plaintiffs were validly appointed trustees and the first Defendant had been validly, removed from the management of the said Pallivasal for a

permanent injunction restraining the first Defendant from interfering with the Plaintiffs'' management and for a mandatory injunction directing him to

hand over the records of the Pallivasal The Plaintiffs also prayed for a declaration that a particular sum in Court deposit belongs to the Pallivasal

and for a direction against the 1st Defendant to surrender possession of item 2, a punja land and to render an account of his management.

The first Defendant contended that the Pallivasal mentioned in the plaint is not a mosque or Dharga or a Makhan but is a private wakf or trust,

that the Muslim residents of the street were only allowed to participate in the functions in the Chavadi, that item 1 is a private property in which the

first Defendant has got hereditary rights of trusteeship that item 2 which is dedicated to the Chavadi must be managed only by him, that the suit as

framed s not maintainable, that the sanction of the Advocate-General required u/s 92, CPC has not been obtained, and that the meeting at which

the 1st Defendant was removed is not lawful.

The trial Court held that the suit is maintainable without a prayer for removal of the 1st Defendant from trusteeship, that the suit is not barred u/s

92, Code of Civil Procedure, that the Plaintiffs were validly appointed as trustees, that the first Defendant is not a hereditary trustee of the

Pallivasal, that the first Defendant was validly removed from trusteeship, and that he is liable to render an account of his management from the date

of his appointment as trustee in 1932. The result is that the suit was decreed as prayed for. The first Defendant filed Appeal Suit No. 319 of 1961.

The learned Subordinate Judge confirmed the decision of the trial Court on all the points and dismissed the appeal. The first Defendant filed

Second Appeal No. 1375 of 1962 to this Court. Srintvasan J., who heard the appeal, upheld the plea of the first Defendant that the suit as framed

is not maintainable for want of sanction of the Advocate-General u/s 92, CPC particularly by reason of the addition of a relief in clause (cc) to

Section 92 by the Amending Act LVI of 1956, that the suit was also bad for the reason that the consent of the Wakf Board not having been

obtained as required by Section 55(2) of the Muslim Wakf Act, 1954 and the procedure u/s 57 of the said Act not having been followed, that the

nature of the reliefs claimed in the suit and not the character of the Plaintiffs filing the suit is the test to determine whether a suit falls u/s 92, Code of

Civil Procedure, or not, and that all the decisions rendered prior to the amending Act have no application, with the result the appeal was allowed,

and the suit dismissed. The above Letters Patent Appeal has been filed against the judgment of the learned Judge.

Sri V.K.T. Chari, for the Appellant raised two contentions. Firstly, he contends that in respect of a Mohamedan religious endowment neither

Sajjada-Nashir, nor the Mutawalli is a trustee in the technical sense of the term in whom legal tile vests but that Mutavalli is only the manager and

custodian appointed for a proper administration of the institution and in support of this position he refers to the decisions in Sankaranarayana Ayyar

v. Poovanathaswami Temple ILR (1950) Mad. 191 196 and 197 (F.B.) and Masjid Shahid Ganj Mosque v. Shiromani Gurdwara Parbantak

Committee Amritsar (1940) 67 I.A. 251 266. Secondly he contends that if the Mutavalli validly appointed files a suit against the former Mutavalli

who was removed and seeks some of the reliefs contained in clause (1) of Section 92, Code of Civil Procedure, the said suit does not fall u/s 92,

CPC and no sanction of the Advocate-General is required for instituting such suit. The first contention'' is not controverted. The controversy is only

in regard to the second contention and Mr. Vedantachari for the Respondent contends that the sanction of the Advocate-General is necessary in

any suit where reliefs claimed fall under any of the reliefs mentioned in sanction 92 (1) of the Code. Which of the contentions is correct, falls to be

decided in this appeal.

In this case, the suit was filed by the validly appointed trustees. They prayed for a declaration that the first Defendant was validly removed from

management of the Pallivasal, for an injunction retraining the first Defendant from interfering with the Plaintiffs management and for directions in

regard to handing over of certain money in Court deposit and the records belonging to the Pallivasal and rendering of accounts by the first

Defendant in regard to his management. The question is whether Section 92 of the Code applies to such a suit.

Before considering this question, it will be use full to set out the provisions of Section 92, CPC and indicate its relation to the corresponding

provisions under the earlier Codes. Section 92 Code of Civil Procedure, runs as follows:

92 (1) In the case of any alleged breach of any express of constructive trust created for public purposes of a charitable or religious nature, (sic)

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 contentions 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 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 therein shall be allotted to any particular object of the trust;

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

(g) granting such further or other relief as the nature of the case may require;

(2) Save as provided by the Religious Endowments Act, 1863, or by any corresponding law in force in territories which immediately before the 1st

November, 1956, were comprised in Part B States no suit claiming any of the reliefs specified in Sub-section (1) shall be instituted in respect of

any such trust as is therein referred to except in conformity with the provisions of that sub-section.

There was no corresponding provision in the CPC of 1859. Section 539 of the CPC of 1877 was substantially the same as Sub-section (1) of

Section 92 of the present Code and it was continued in the CPC of 1882. The CPC of 1877 and 1882 did not, however, embody the provisions

of Sub-section (2) of Section 92 which makes the previous sanction of the Advocate-General imperative for the maintainability of the suit.

We shall now consider the relevant decision the point.

In Budree Das Mukim v. Chooni Lall Johurry I.L.R.(1906) Cal. 789 the question which arises for determination now was exhaustively

examined by WOODROFFB, J. The learned Judge observed as follows (at page 807):

The suit contemplated by the Section is one of a representative character.

It is obvious that the Advocate-General, Collector or other public officer can and do sue only representing the public, and if, instead of these public

officers, two or more persons having an interest in the trust sue with their consent, they so sue under a warrant to represent the public as the

objects of the trusts: see Laksamandas Raghnath Dass v. Jugal Kishore I.L.R.(1896) 22 Bom. 216.

It follows from this that when a person or persons sue not to establish 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 with in or need be brought under the section

* * *

In my opinion the present suit, so far as it is brought by the Plaintiffs in their individual capacity as trustees to enforce their individual claim to be

such trustees of the temple in suit, is not within the scope of the section.

To the same effect is the judgment of the Allahabad High Court in Muhammad Abdul Majid Khan v. Ahmad Said Khan I.L.R.(1913) All. 459. In

that case, the Plaintiff came to Court alleging that he was the original Mutawalli of a certain Wakf and that the Defendant on the death of the last

incumbent had unlawfully taken possession of the wakf property, and asking to be put into possession thereof as Mutawalli, the question arose

whether this was not a suit which fell within the purview of Section 92 of the Code of Civil Procedure. The learned Judges observed at page 462:

In our opinion, the scope and application of Section 92 is very limited in character. In the first place, it enables, by Sub-section (1), the Advocate-

General, or two or more persons having an interest in a trust created for a public purpose of a charitable or religious nature, to bring a suit in the

principal civil court of original jurisdiction or in any other court empowered in that behalf by the local Government, within local limits of whose

jurisdiction the whole or any part of the subject-matter of the trust is situate, where there has been an alleged breach of such trust or where the

direction of the court is deemed necessary for the administration of any such trust and then only to obtain a decree of one or more of the kind

specified in the section. Sub-section (2) of that Section enacts that, save as provided by the Religious ,Endowments Act of 1863, no suit, claiming

any reliefs specified in Section 1 shall be instituted in respect of any such trust as is therein referred to, except in conformity with the provisions of

that sub-section. The suit contemplated by the section is one brought in the interest of the public, through the Advocate-General, or of a section of

the public or community, interested in a particular public trust, through two or more of its members with the previous sanction in writing of the

Advocate-General, and does not apply to a suit brought by an individual to enforce his personal rights.

The learned Judges referred to the decision of the Bombay High Court in Ghelabai Garishankar v. Uderam Icharam I.L.R.(1911) 36 Bom. 29

where the Bombay High Court held that a suit to eject the trespasser from property did not fall within the scope of Section 539 of the old Code of

Civil Procedure. In Ayatunnessa Bibi v. Kulfu Khalifa ILR (1914) cal. 749 the learned Judges followed the decision in Budree Das Mitkim v.

Chooni Lall Johutry (1906) ILR 33 Cal. 789 and held that the suit for removal of a trespasser in possession of trust property is not a suit of the

kind contemplated by Section 92 Code of Civil Procedure, and therefore, for the institution of such a suit no consent of the Advocate-General is

necessary. In Appanna Poricha v. Narasinga Poricha I.L.R(1921). Mad. 113 (F.B.) the question arose whether in a suit by a hereditary trustee

against his co-trustees praying inter alia for accounts of the trust property in their hands the sanction of the Advocate-General u/s 92 was

necessary. The learned Judges held that Section 92, governed suits for the vindication of the rights of the public in public charitable trusts and had

no application to suits for the vindication of the rights of management by hereditary trustee or to disputes between such trustees inter-se as to their

turns of management. Kumaraswami Sastriar J. expressed the opinion that the words directing accounts and inquiries in clause 1 (d) of Section 92

should be confined to suits by the Advocate-General, or by two or more persons with his consent, against all the trustees for an account of their

management, and not by one or more trustees against the others, as such trustee has a right to call upon the other to account to him for the trust

funds which he has received, even though the other trustee commits no breach of trust. In Ganny v. Mahamed Ebrahim AIR 1931 Rang. 322 the

learned Judge following Budree Das Mukim v. Chooni Loll Johurry I.L.R.(1906) Cal. 789 and some other cases referred to above, held that a suit

brought for a declaration that the Plaintiffs are the lawfully appointed trustees of the trust and that the Defendants have been removed from their

trusteeship by a competent authority and for an injunction restraining the Defendants from interfering with the exercise of the Plaintiffs of their duties

as trustees, does not fall within the scope of Section 92 requiring the sanction of the Advocate-General. In Abdur Bahim v. Mahomed Barkat Ali

I.L.R.(1927) Cal. 519 the Judicial Committee rejected the contention that all suits founded upon a breach of trust for public purpose of charitable

or religious nature irrespective of the relief sought must be brought in accordance with the provisions of Section 92, Code of Civil Procedure. In

that case, the Judicial Committee was not called upon to decide whether the sanction of the Advocate-General u/s 92, CPC would be necessary

when trustees sued to enforce their rights. In Janaki Bai v. Tiruchitrambala Vinayakar I.L.R.(1933) Mad. 988 (F.B.) CORNISH J. delivering

judgment for the Bench observed.

The question, therefore, whether a suit fall within Section 92 depends not upon the character in which the Plaintiff sues, but upon the nature of the

reliefs sought.

In Shanmukam Chetty v. Govinda Chetty ILR (1938) Mad. 988 (F.B.) the learned judges held that the correctness of the Full Bench decision

Appanna Poricha v. Narasinga Poricha I.L.R.(1921) Mad. 113 (F.B.) was unshaken after the decision of the Judicial Committee in Abdur Rahim

v. Mahomed Barkat Ali I.L.R.(1927) Cal. 519 Varadachari J., in his separate but concurring judgment observed:

An examination of the earlier cases in India will show that even when a suit was not intended to enforce a right in the nature of the rights of a trustee

but related to the enforcement of the obligations of the Defendant in the performance of the trust for the benefit of the public, it had been held that a

suit of that kind need not necessarily be brought only in conformity with the provisions of Section 539 of the old Code but may be brought either

under Order I, Rule 8, of the present Code or even independently of it. It is in this sense that their Lordships point out that the question had arisen

in this country whether the provisions of Section 539 were merely permissive or mandatory. The question of permissive or mandatory cannot

possibly arise in respect of a suit which cannot be brought in a representative character at all. All that the Judicial Committee intended to lay down

and did lay down was that wherever the cause of action on which the suit is founded is one which could have sustained a representative suit, the

procedure prescribed by Section 92 must necessarily be followed and no suit could be maintained in any other form. I particularly wish to point out

that, in this judgment, their Lordships did not add the sentence which is somehow introduced in a later judgment of this Court namely, that the

character of the Plaintiff is immaterial. It is only in the judgment of this Court in Janaki Bai v. Thiruchitrambala Vinayalcar I.L.R.(1993) Mad. (F.B.)

Cornish J., in attempting to restate, the effect of the decision of. the Privy Council puts the antithesis in the following words:

Whether the suit falls within Section 93 depends not upon the character in which the Plaintiff sues but upon the nature of the relief sought.

With great respect I would state that this is not the proper test to be applied and was certainly not the test laid down by the Judicial Committee.

It has sometimes been said that whenever relie is sought on the allegation of a breach of trust the suit must necessarily be brought in conformity with

Section 92, if it in any manner relates to a public charitable trust. Here again, I think this will not be a safe or a conclusive test, because an

allegation of breach of trust may in certain circumstances be necessary even when a co-trustee is trying to assert or vindicate his own rights against

other co-trustees who are in management: Narayanan v. Mootha Poduval I.L.R.(1920) Mad. 214. The test seems to me to have been stated with

fullness and accuracy in the passage that I have already cited from Sir F. Mulla''s book Even in Bombay, the principle that Section 92 will not

apply to suits instituted for the vindication of the right of management vested in the Plaintiffs has always been recognized see Bavroji v. Dastur

Kharsedji Mancherji I.L.R.(1903) 28 Bom. 20, 54 Narayan Bhikaji Khanolkar Vs. Vasudeo Vinayak Prabhu, Particularly the judgment of

Fawcett J. but differences have arisen mainly on the construction of the scope of the plaint in each case.

The passage referred to by the learned Judge is contained in Mulla''s Code of Civil Procedure, thirteenth edition at page 46 as follows:

It is not every suit claiming any of the relief specified in Sub-section (1) that should be brought with the consent of the Advocate-General, but those

suits only which besides claiming of those reliefs are brought by individuals as representatives of the general public.

In Tirumalai-Tirupati Devasthanams Committee v. Krishnayya ILR (1943) Mad. 610 (F.B.) the facts are that a suit was filed by the general trustee

of a public temple against the trustees in respect of certain offerings in cash and kind contributed by devotees, for being made over to that temple,

praying for a decree directing accounts and inquiries and for recovery of such offerings or their value to be ascertained on such accounts being

taken. The learned Judges followed the decision in Budree Das Mukim v. Chooui Lall Johury I.L.R(1906) Cal. 789 overruled the decision of the

Full Bench in Janaki Bai v. Tiruchitrambalam Vinayakar I.L.R.(1933) Mad. 988 (F.B.) and held that in deciding whether a suit falls u/s 92 of the

Code the Court must go beyond the reliefs prayed and have regard to the capacity in which the Plaintiffs are suing and to the purpose for which the

suit is brought.

The question next arises whether the amendment of Section 92 CPC by the addition of clause (cc), affects the position. Having regard to the

decision in Thirumalai-Tirupati Devasthanams Committee v. Krishnayya ILR (1943) Mad. 619 (F.B.) which lays emphasis on the character of the

suit and not on the reliefs claimed, we are of opinion that the clause (cc) which is only a further relief added to Section 92(1) does, not alter the

position as that leaves untouched the question whether the Court should have regard to the capacity in which the suit was filed.

Mr. Vedantachari appearing for the Respondent referred to Jambulinga Pathan and Another Vs. Akilanda Asari and Others, where emphasis

was laid on the relief claimed ignoring the character and nature of the suit. In that case the learned Judges followed the earlier unreported decision

of this Court in Abdul Rahim Sahib v. Abdul Kareem Sahib Original Side Appeal No. 106 of 1925. In the unreported case the Plaintiff claiming to

be the lawful Mutawalli of a mosque alleged that the Defendant was appointed manager of the mosque by the congregation, that, as the Defendant

was introducing into the original mosque service new customs till then not observed in that mosque, he was removed by the Muhammadan

worshipers at a meeting and that the Plaintiff was appointed as Mutawalli of the said mosque and was instructed to file a suit and obtain possession

of the mosque and its endowments from the Defendant. Laying emphasis on the relief claimed the learned Judges held that the suit fell within the

scope of Section 92, CPC and the sanction of the Advocate-General was necessary. Mr. Vedantachari next cited the decision in Subramania Pillai

v. Krishnaswamy Somayajir I.L.R (1919). Mad. 668. In that case the suit was instituted by two out of three trustees of a temple for a declaration

that the appointment of the 8th Defendant in the vacancy, created by the death of the 3rd trustee, by the Devasthanam Committee was invalid.

Abdur Rahim J., referred to the argument of Mr. Rangachari that suits by trustee did not come within Section 92, CPC and characterised it as an

unsound argument. The Bench referred to the reliefs claimed and also the language of Sub-section (2) of Section 92 CPC and held that want of

sanction u/s 92 was fatal to the maintainability of the suit. The above case is distinguishable from the present case in that in the former case

emphasis was laid more on the reliefs than on the character of the suit. The decision in Balakrishna Odayar v. Jagannada Chariar (1924) 48 M.L.J.

534 does not support the contention of Mr. Vedantachari Mr. Vedantachari then cited the decision in Sundara Ayyar and Others Vs. Morari

Varada Ayyar and Others, . The head note therein runs as follows:

The mere fact that the Plaintiffs may in a sense be trustees will not necessarily preclude the application of Section 92 of the Code of Civil

Procedure, if the reliefs in the suit relate not to the vindication of their personal rights but to the advancement of the interests of the institution itself

by securing more efficient management. Thus a suit whose avowed object is the furtherance of the interests of the institution itself by the framing of

a scheme and appointing certain persons as trustees from amongst the members of the Plaintiff''s family who are alleged to be the trustees of the

institution and who are not able to agree among themselves upon proper management falls under the Section and hence not maintainable in tie

absence of the sanction provided by it.

In all the above decisions cited by Mr. Vedantachari emphasis was laid on reliefs claimed ignoring the character of the Plaintiffs who filed such suit

Further, the above decisions were rendered prior to the decision of the Full Bench in the Tirumalai-Tirupati Devasthanams Committee v.

Krishnayya ILR (1943) Mad. 619 (F.B.). In fact the order of reference to the Full Bench refers to Subramania Pillai v. Krishnaswamy So (sic)

I.L.R(1919) mad. 668 which is one of the decisions cited by Mr. Vedantachari. As mentioned already by the introduction of clause (cc) a further

relief to the reliefs enumerated in Sub-section (1) of Section 92 has been added. That by itself is of no consequence. In the present case, the newly

appointed Mutawallis have filed the present suit qua Mutawallis for recovery of proper ties and moneys belonging to the trust and also for accounts

from the former trustee and this suit is not filed on behalf of the general public for which alone Section 82 of the Code will be applicable. We are

also of opinion that Section 55 of of the Muslim Wakf Act, 1954 is not applicable. Srinivasan J., while referring to the Full Bench decision in the

Tirumalai-Tirupati Devasthanams Committee v. Krishnayya ILR (1943) mad. 619 (F.B.) erroneously held that the character in which the suit was

brought would not merely depend on the character of the Plaintiffs but on the reliefs and on the nature of the reliefs sought for in the action. We are

of opinion that the above view of the learned Judge is contrary to the decision of the Full Bench in the Tirkimalai-Tirupati Devastanams Committee

v. Krishnayya ILR (1943) mad. 619 (F.B.).

In the result the letters Patent appeal is allowed and the decree of the trial Court as confirmed by the first appellate Court is restored. The

Appellant will be entitled to his costs.