Mohamad Idris Haider and Others vs Mohammad Habibur Rahman

Beevor, J.—This is an appeal against a decision of the Second Additional District Judge of Monghyr who on 18-8-1944, directed that a certain compromise be recorded and that a suit, which was brought under the provisions of Section 92, Civil P.C., be decreed in terms of the compromise petition.

The suit out of which this appeal arises has had a long and chequered career. The suit was filed on 13-6-1935 by five Muhammadans against one other Muhammadan who was described as sajjadanashin and mutwalli of the Khanqah Qasba Bari Ballia. In the plaint it was alleged that there was a public religious and charitable trust to which various properties had been dedicated and that the defendant was in sole charge of the administration of the trust and the trust funds; The plaintiffs claimed a declaration that the defendant had been guilty of acts of mismanagement, misfeasance and breach of trust, that he be removed from his office and a proper person appointed in his place, that a scheme of management be framed and that the defendant be ordered to render accounts. There was also a claim for appointment of a Receiver pendente lite and a claim for costs and incidental relief. The way in which the suit was dealt with at first is set out in a judgment of this Court arising out of a later title suit and dated 19-8-1941 and printed at p. 44 of the paper book.

By consent of parties the dispute in the suit was referred to arbitration and an award was filed, but it was found that the award dealt with certain matters beyond the scope of the suit. The Judge was disposed to remit the matter to the arbitrator and then a new suggestion was made that a compromise embodying substantially the result of the arbitration be filed and a decree passed in accordance with the compromise A compromise petition was accordingly filed on 11-9-1937 and a decree prepared on 1-10-1987. Thereafter, the plaintiffs brought a suit for a declaration that the terms of the decree and the compromise petition then found on the record of the District Judge''s title suit did not represent the true agreement between the parties, that a draft compromise petition had been prepared embodying different terms and a petition had been signed and presented to the Court accordingly, but that the petition had been tampered; with in the interest of the defendant by substituting different pages of type-written matter for some of the pages. That suit was tried by a Mnnsif who found that the allegations, of the plaintiff s were true and his decision on this point was upheld on appeal. The Munsif had allowed an amendment of the plaint in the title suit before him whereby a prayer was added that a certain original petition be substituted for the alleged false petition in the record of the District Judge and a fresh decree prepared accordingly, and he granted this relief.

On second appeal, it was held that the final order of the Munsif could not'' stand so far as it directed that there should be any substitution of paper on the record of the District Judge and that a decree be drawn up in accordance therewith. It was held that all the Munsif had power to do was to declare the facts what he found them to be and that in consequence the decree of the District Judge must be and should stand as vacated. It was pointed out in the judgment of this Court that it would then be for the parties to go to the District Judge and ask him to revive title suit No. 2 of 1935 (the suit out of which this appeal arises) and dispose of it according to law. After that decision of this Court, an application was made to the District Judge to reopen this title suit and he revived the suit accordingly. It was subsequently transferred to the Second Additional District Judge who heard the parties on the question whether the compromise petition, which was marked before him, could be given effect to as a lawful compromise or not. He answered this question in the affirmative and proceeded to dispose of the suit in the way I have already mentioned.

This appeal was filed by means of a memorandum of appeal presented on 11-10-1944. In that memorandum it is stated:

Being aggrieved by and dissatisfied with the judgment and decree passed by Rai Sahib, J.K. Narayan, Second Additional District Judge, Monghyr, in title suit No. 2 of 1935 on 18/8/44 beg (i.e., the appellants, beg) to prefer this appeal on amongst others the following grounds.

Thereafter the grounds are set out.

The appellants to this Court are the defendant and four out of the five plaintiffs. The appellants have not disputed that they did in fact agree to the compromise in the form in which it now stands on the record in accordance with which the Additional District Judge has passed a decree They have, however, taken various grounds in support of their contention that the compromise is not a lawful one and: that no decree can or should be passed in accordance therewith. Before us the contentions on behalf of the appellants fall under three main heads: first, that Order 23, Rule 8, Civil P.C., does not apply to suits u/s 92, Civil P.C. secondly the various terms of the compromise were prejudicial to the trust, and thirdly that effect could not be given to the compromise because it purports to deal with certain properties in Schedule 3 which stand in the name of the wife of defendant-appellant 1 and she is no party to this suit. One or two subsidiary points were raised with which I will deal in due course.

A preliminary objection was raised on behalf of the respondent that the present appeal was incompetent as an appeal against a decree passed by consent. The appellants urged that the appeal should be treated as in substance an appeal against the order recording the compromise which would be maintainable as an appeal against an order. Under Order 43, Rule 1(m), Civil P.C., they also filed a petition for permission to amend the memorandum of appeal by substituting the word "order" for the word "decree" therein. The respondent contended that the memorandum of appeal clearly constituted an appeal against the decree and not against the order recording the compromise and that the proposed amendment could not and should not; be allowed.

Dealing first with the preliminary objection, I find that the memorandum of appeal clearly constituted an appeal against the decree and not an appeal against the order recording the compromise. This is supported by the fact that the court-fees paid thereon are those proper for an appeal against a decree and not for an appeal against an order Section 96(3), Civil P.C., clearly bars any appeal from this decree passed on consent. The case in Sabitri Thakurain v. Mrs. F.A. Savi AIR 1929 Pat. 318 shows that the right of appeal provided by Order 48, Rule 1(m) against an order passed under Order 28, Rule 3 recording a compromise is not lost by reason of a decree having been prepared. I cannot accept the contention on behalf of the appellants that there is no substantial difference between an appeal against the order recording the compromise and an appeal against the decree based thereon. The distinction between the two is made clear by a passage in the judgment in Sabitri Thakurain v. Mrs. F.A. Savi AIR 1933 Pat. 306. That passage shows that an appeal against an order recording the compromise was admitted under Order 43, Rule 1(m) and before that appeal was disposed of, an appeal against the decree itself was presented and dismissed, yet the Judges went on to deal with the Appeal against the order recording the compromise on its merits. I, therefore, come to the conclusion that the appeal as it stands is barred by Section 96(3), Civil P.C.

As regards the application to amend the memorandum of appeal, it seems that there is no specific power to allow amendment except under Order 6, Rule 17 which states that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Dealing with this provision of law the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 P.C. 249 stated:

All Rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment may be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suits.

Although their Lordships were dealing with an application for amendment of the plaint and their words, therefore, did not deal specifically with the case of an appeal, it seems to me that the same principle must apply and that there is no power in the Court to allow by amendment an appeal against one decree or order to be sub-stituted for an appeal against another decree or order.

It seems to me that what the appellants seek by way of an amendment could only be granted on an application u/s 5, Lim. Act, to permit them now to file an appeal against the order recording the compromise and to condone the delay in filing that appeal. The conduct of the appellants in the suit has been such that I do not think that they personally are entitled to any indulgence but as this is a suit dealing with a public trust and the interests of the public are, therefore, involved, it may well be that the Court would favour such an application in the interest of the public if it appeared that the interests of the public were in any way prejudiced by the decree now under appeal or the order recording the compromise on which that decree is based. As we have heard the appeal on the merits and have thus considered the interests of the public, I will return to this matter after dealing with the merits of the appeal.

In support of the appellants contention that no compromise could be recorded in a suit u/s 92, Civil P.C., I would point out first that Order 23 Rule 3 runs as follows:

Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.

There is nothing in this Rule which suggests that any particular form to suit is outside its scope though no doubt the question what is a lawful agreement or compromise Will vary with the varying character of different suits. The first case on which the appellants relied in support of this contention of theirs is the case in Gyananda Asram v. Kristo Chandra 8 C.W.N. 404. That was a case dealing with a suit under the Religious Endowments Act (Act 20 [XX] of 1868) and the learned Judges pointed out that Section 539, Civil P.C., 1882 (equivalent to'' Section 92 of the present Code) is much wider than the suit framed under that Act. I, therefore, do not think that that decision is any clear authority on the point now raised That decision was certainly followed by the Calcutta High Court in Abdul Karim v. Abdus Sobhan AIR 1915 Cal. 193 which was a case dealing with a suit u/s 92, Civil P.C. In that case however, there was a clear finding that if the compromise were allowed the persons interested in the mosque in question would be very considerably, prejudiced, and the case, does riot seem to lay down a Rule that no compromise can ever be recorded in a suit u/s 92, Civil P.C.

The decision of the Privy Council in Sankaralinga Nadan v. Rajeshwara Dorai (08) 31 Mad. 236 was not a decision in a suit u/s 92 though it was a case dealing with a public trust, and it is quite clear that there was no compromise which was really in the interest of the trust. The decision of the Madras High Court in Sunderambal Ammal v. Yogavanagurukkal AIR 1915 Mad. 561 is another case in, which there was a clear finding that the terms of the compromise themselves were not legal, and again it is clear that the learned Judges were not dealing with a suit u/s 92, Civil P.C., Order, because, the suit was filed in the Court of a Munsif. The case in Narayanswami Mudali v. Board of Commrs for the Hindu Religious Endowments AIR 1930 Mad. 629 arose out of a suit brought by a Board of Commissioners for modification of a scheme under the Madras Religious Endowments Act. It seems that the suit was one u/s 92, Civil P.C., though this is not specifically stated in the judgment. The District Judge refused to record a compromise arrived at between the plaintiff and certain defendants. It seems to me that this decision is strongly against the appellant''s contention. Venkata Subba Rao J. stated in his judgment:

There is nothing to prevent cases of this kind from being compromised like other cases, but it seems to us plaint hat the Court has plenary power to subject the terms to security and reject the compromise for valid reasons. We would go further and say that if any party opposes so compromise from sordid motives or on improper grounds, the Court, even then, has a right to take suitable action. These in our opinion are the c principles that should guide the Courts. But we may rest our judgment on narrower grounds In the case of a public trust, no compromise can be said to be lawful which sacrifice; its interests on the ground, therefore, that a compromise entered into without due regard to the trust, is under Order 23, Rule 3, an unlawful agreement our conclusion may be supported.

I would reserve my opinion on the views expressed by the learned Judge as to the Court''s powers, to take suitable action, if any party opposes a compromise on improper grounds because I am not sure exactly what the learned Judge had in mind, but subject to this reservation, it seems to me that the learned Judge has set out with admirable clarity the principles to be applied in dealing with an application to record a compromise in a suit u/s 92, Civil P.C.

The learned Additional District Judge, relied on a decision of the Calcutta High Court in Syed Abu Mahomed Barakat Ali and Others Vs. Abdur Rahim and Others, for the proposition that "Order 23, Civil P.C., dealing with adjustments of suits does not restrict the jurisdiction of a Judge to pass a decree "on the basis of a compromise in a suit brought u/s 92, Civil P.C." It has been pointed out that that decision was reversed by the Privy Council in the case reported in Abdur Rahim v. Mahomed Barkat Ali AIR 1928 P.C. 16. The learned Additional Judge had however recognised that fact, and I think he was right in saying that their Lordships of the Privy Council did not appear to have dissented from the above proposition. I would go tether. In the course of their judgment their Lordships stated in dealing with a decree passed on a compromise in a suit u/s 92, Civil P.C.:

It is extremely doubtful whether a decree passed in the circumstances of this case can be held to be res judicata as against any persons other than those who consented to that decree.

If the contention of the present appellants that no decree could be passed oh compromise in a suit u/s 92, Civil P.C. were correct, their Lordships would hardly have expressed any doubt'' about the matter.

It was urged that the consent of the Advocate-General was necessary to the validity of the compromise The plaintiffs certainly had to obtain the consent in writing of the Advocate-General u/s 92(1) before instituting a suit, but the decision of the Privy Council in AIR 1938 184 (Privy Council) lay''s down that "there is no provision whatsoever in the Code for recourse being had to the Advocate-General or Collector during the course of a suit or any proceedings in appeal. As Sub-section (2) of Section 92 sufficiently shows, the consent in writing is a condition of the valid institution of a suit and has no reference to any other stage When once validly instituted, it is a representative suit subject to all the incidents affecting suits in general and representative suits in particular." From this, I think, it clearly follows that the validity of a compromise does not depend on any consent of the Advocate-General.

As regards the merits of the terms of the compromise, the learned Additional District Judge has considered them in detail with reference, to the question whether they would be prejudicial, to the interests of the trust and has come to the conclusion-that they are not. Before four-particular terms of the compromise hate been challenged. These are set out in para. 2(e) of "the compromise petition embodied in the decree and shown under heads (s), (t), (u) and (v) printed at p. 12 of the paper book.

Heading (s) is "Allowance to the Sajjadanashin 0-2-6 out of the entire 16 annas income of the estate--Rupees 753-7-0", and heading (t) is "Haq Toliyat to the mutawalli to the extent of 0-1-8 out of the entire 16 annas income of the estate Rs. 376-11-0. It has been pointed out that there was some scheme of arrangement in 1284 Fasli which is equivalent to 1827 A.D. The allow, ances then granted to the Sajjadanashin were certainly somewhat lower, but it cannot be in the interest of the trust that that figure should be regarded as immutable The amounts under heads (s) and (t) were challenged with reference to the allegation in para. 2(e) of the compromise that the present income of the was estate is calculated to be Rs. 5072-3-101/2, It was pointed out that the plaintiffs in the plaint alleged that the income was considerably higher about Rs. 900. This, however, does not seen to me important because the plaintiffs must have been somewhat in the dart as to the; exact income, and the compromise itself disclosed that it was reached through the intervention of five persons, four of whom were outstanding Muhammadans of the district while the fifth was a responsible Hindu practising as a pleader in the district. It is difficult to believe that they would have approved of a compromise which did not give a fair estimate of the income. It may be noted that the compromise does provide for dealing with excess income on charitable purposes namely education.

Headings (u) and (v) relate to first, a donation to the Anjuman Hammayat Islam, Monghyr of Rs. 50 and secondly, a scholarship to four Muhammadan students reading in Begusarai English High School at Rs. 4 per month. It is pointed out that in para. 2 (a) it was stated that the intention of the wakf was to utilise the income of the properties on headings (a) to (f) which are as follows: (a) Warid and Sadir Foqara. Moakin, and poor, (b) Performance of chiraga and Neaz of the Dargah. (c) Celebration of Moharrum festival, (d) Establishment of a Madrasa for the education of boys. (e) On the poor people of Balliah at the time of marriages in their families, (f) Maintenance of the descendants of Syed Alauddin Bnkhari Rahmatullah Alaih, and it is contended that these items (u) and (v) did not fall within the objects of the trust so set out. I think the answer to this contention is that the compromise petition cannot be construed so strictly as would be proper in the case of a trust deed in England, and that these heads were only intended as rough guides of the nature of the objects of the trust. The learned Additional District judge pointed out in his judgment that it was conceded before him that the terms of the wakf had been clearly stated in para. 14(a) of the plaint. That paragraph runs as follows:

That the objects of the wakf of the Khanquah of Bari Ballia may be classified under two main heads or items namely:

(a) Purely charitable and religious purposes which under the directions given in the sanad or instruments of dedication or by krag customary user have been devoted to the use and benefit of Fakirs, needy and forlorn tranvellers and casual visitors to the Khanqah Chiraga, Urs and Neyaz in. the Dargah, Moharram expenses and the maintenance and up-keep of the Khanqah, the Madarsa, the mosque, the Imambara, the Karbala, the Mosafirkhana, the family graveyard and the public graveyard and in giving gratuitious aid to deserving persons both Hindus and Mahamrnadans on the occasion of marriage or death in their families and to other pious purposes arising therefrom or kindred thereto.

I agree with the learned Additional District Judge that the words "and, to other pious purposes arising therefrom or kindred thereto" are quite wide enough to coyer the expenditure under headings (u) and (v) specified above, In fact I think that such expenditure was obviously the sort of expenditure which was contemplated by this trust, though at the date, of the trust itself it could not be contemplated, that the expenditure Would take exactly this form because there was no such thing as a High School at Begusarai in those, days and probably no Anjuman Islam, Monghyr.

I agree with the learned Additional District Judge that there is nothing improper in the provision that the appellant-defendant should consult the plaintiff-respondent regarding the management of the trust, as he had pointed out. The compromise does not state that defendant would be bound by the advice of the plaintiff-respondent. The provision for consultation may well be a good method for securing that some responsible outsider should have access to information which would enable a watch to be kept on the proper administration of the trust property.

In my opinion the learned Additional District Judge has rightly considered that the compromise in this case was a lawful one and, that its terms were to the benefit of the trust. In these, circumstances there is no justification for allowing any belated application u/s 5, Limitation Act to avoid any possible prejudice to public interest. For these reasons I would dismiss this appeal, and would direct that thus appellants'' pay the respondent''s costs.

Bennett, J.

This is an appeal against a decree under Order 23, Rule 8, Civil P.C., embodying a compromise in a suit u/s 92 of the Code, relating to the administration of a public trust which we have allowed to be argued as if it were, an appeal against the order recording the compromise I have no sympathy with the appellants because I have come to the conclusion that they are primarily actuated by a desire to get rid of a compromise which they now regret rather than by any anxiety on behalf of the public trust. That, however, would not in itself, constitute any sufficient reason for dismissing the appeal. I agree with the judgment delivered by my learned brother who has fully set out the facts of the case and the points relied upon in support of the appeal and I would only state very shortly in my own words my reasons for dismissing the appeal.

I think that the plea u/s 96(3), Civil P.C., in bar of the appeal against the decree must succeed and I do not think that an amendment of the memorandum of appeal converting the same into an appeal against the order recording the compromise can be allowed. There is ho provision of the CPC expressly governing the amendment of a memorandum of appeal once it has been admitted. Section 107, Civil P.C., however, provides that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. The effect of this section, in regard to the amendment of a memorandum of appeal, appears to me to be to apply there to mutatis mutandis, the provisions f the Code relating to the amendment of a plaint. An amendment, however, is a matter which leaves unaltered the fundamental nature of the thing amended. If an amendment purports to go beyond that point, it ceases to be an amendment. The decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 P.C. 249, is a direct authority for this proposition so far as the amendment of a plaint is concerned, and in this respect, I see no reason to distinguish between a plaint and a memorandum of appeal. In regard to an application for extension of time u/s 5, Limitation Act, if this were a suit between private parties, I doubt if sufficient cause exists to accede thereto; since, however, in this case, the interests of the public are involved and sufficiently grave allegations are made in the memorandum of appeal to warrant an inquiry into the effect of the compromise upon the public interest, I should myself have been reluctant to refuse the application upon proper terms, especially as, as was pointed out in Banabehari Puri v. Ananda Puri AIR 1944 Pat. 115, in such a case even if no appeal lies, the High Court can interfere under its revisional powers if the interests of the public institution have not been considered by the lower Court in passing the order recording the compromise.

I find it impossible to accept the contention that Order 23, Rule 3, Civil P.C., does not cover a suit brought u/s 92, Civil P.C. The use of the word ''suit'' in the Rule is obviously general and the wording of the Rule is quite plain and unambiguous I can find nothing in Section 92 or in any other statutory enactment inconsistent with the plain wording of Order 23, Rule 3, Civil P.C. Apart from authority, therefore, I should feel myself bound by the plain wording of the Rule No authority binding upon this Court to the contrary was cited on behalf of the appellants. In Banabehari Puri v. Ananda Puri AIR 1944 Pat. 115, however, a Division Bench of this Court, after considering, the authorities on the point decided that a suit u/s 92, Civil P.C., is covered by p. 23, Rule 8. That authority, which happily coincides with my own reading of these two statutory provisions, is binding upon me and, therefore, conclusive.

For the reasons given by my learned brother I agree that the consent of the Advocate-General to the compromise of a suit brought with his sanction u/s 92 Civil P.C., is not necessary.

In considering whether the terms of the compromise go beyond the purposes for which the public trust in question was founded, we have to bear in mind that the compromise was the result of an arbitration before five persons of standing and respectability who obviously went into every aspect of the dispute including the objects of the trust. In assessing their conclusion as to those objects, I think that we have to look at the compromise as a whole and that we must assume that it was not intended in .one part of the document to contradict what is stated in another part. All the parts must be read together if they are susceptible of being so read. I think, therefore, that it would be wrong to accept para. 2(a) thereof, which is set out in the judgment of my learned brother, as an exclusive statement of the objects of the trust. I think that the compromise must be interpreted as stated that, in addition to the general objects so referred to the specific objects mentioned under the agreed heads of expenditure in para. 2(e) also come within the objects of the trust. If that is so it was for the appellants to show aliunde that any specific item of expenditure, authorised by the compromise was outside the objects of the trust. The only guides upon the point are the statement of the objects of the trust in para. 14(a) of the plaint, which has been quoted by my learned brother, the admission in para. 15 of the written statement that.

a Sajjadanashin does give alms and food to Fakirs, needy travellers and visitors who came, or come to him and does celebrate Urs, Moharram and perform Neaz in the Dargah, maintains Khanqah, mosque, Imambara, Madrasa (School) and mosafirkhana and family graveyard.

and the fact, that though the defendant-appellant 1 in this Courts denied in para. 15 of the written statement that, the sajjadanashin maintained any public graveyard or performed ehiraga or gave gratuitous aid on the occasion of marriage or death in the family of any person there was no denial of the final phrase in para. 14 of the plaint "to other pious purposes arising therefrom or kindred thereto". I see no sufficient reason, therefore, for supposing that the items of expenditures (u) and (v) in para. 2(e) of the compromise, namely, the donation of Rs. 50 to the Anjuman Hemayat Islam Monghyr and the scholarship to four Mahammadan students at the Begugarai English High School are outside the scope of the trust either in their nature or in their extent.

I do not think that the statement in the compromise that the income of the wakf is calculated to be Rs. 5072-3-101/2 is in any way discredited by the allegation in the plaint that it was about Rs. 900 The five arbitrators Clearly investigated the position with care In any event all the alleged sources of income are included in the compromise and there is a proper and sufficient provision in para. 2(f) thereof for the disposal of surplus income.

Nor do I think that the fact that the allowance to the sajjadanashin is greater than that temporarily agreed upon in the scheme of management evolved more than a hundred years ago constitutes any breach of trust. I think that we can assume that the five arbitrators fixed a reasonable figure It would be refreshing to think that the Bajjadanashin (the appellant) was opposing the compromise because he thought it gave him too large an allowance, but I am afraid his motives are quite otherwise.

In regard to the costs of this appeal, having regard to the discreditable history of this litigation, the negligent manner of appeal and the conclusion to which I have come as to the motive for the appeal, I think that the appellants must pay the respondent his costs thereof.