Sagir Khan vs Gul Mahammad

Chittatosh Mookerjee, J.—The Plaintiff-Respondents as Mutwallis of a Wakf estate, known as Anjuman Imdadul Muslim Wakf Estate, instituted a suit in the Second Court of the Munsif at Chandernagore against the three Defendants including the present Appellants and their predecessor-in-interest, inter alia, for the declaration that the property described in the schedule to the plaint was a Wakf property and that the kobala in question, executed in respect of the said property, was void and not binding upon the Plaintiffs, for recovery of possession of the same and for mesne profits etc. In prayer Ga the Plaintiffs had prayed for removal of the Defendant No. 3 who was an alleged Mutwalli. The case of the Plaintiffs, inter alia, was that the suit property appertained to the aforesaid Wakf estate which was enrolled as a public Wakf with the Commissioner of Wakf, West Bengal. Oh January 15, 1945, the said Wakf estate had purchased the suit property. The Defendant No. 3 was alleged to be the secretary of the said Wakf estate. According to the Plaintiffs on Chaitra 28, 1355 B.S. the Defendant No. 3 by practicing fraud and undue influence had purported to execute a kobala in the name of his brother and his wife who were impleaded as Defendants Nos. 1 and 2. The Plaintiffs alleged that the said kobala was a void document without consideration and not binding upon the Plaintiffs.

The Defendants Nos. 1, 2 and 3 filed a written statement in the said suit,, inter alia, denying that the impugned kobala was vitiated by fraud and undue influence. They claimed that the said kobala was a bona fide document and for consideration. The Defendants also pleaded that the suit as framed was not maintainable in view of the provisions of Section 92 of the Code of Civil Procedure.

The Plaintiffs had made an application in the Trial Court for amendment of the plaint. The Trial Court by its order No. 32 dated August 19, 1957, allowed the said prayer for amendment of the plaint. The said order of amendment had been made subject to the payments of costs to the Defendants. In my view, the Defendants, having accepted such costs which was a condition precedent to the amendment of the plaint, they were not entitled to challenge the correctness or legality of the aforesaid order of amendment of the plaint.

The learned Munsif found that the suit having been instituted without a sanction u/s 92 of the CPC was not maintainable. In spite of the fact that the plaint of the suit had been amended by deleting the prayer for removal of the Defendant No. 3 and for appointment of a new Mutwalli. The learned Munsif held that the suit was not maintainable u/s 92 of the Code and he did not discuss the remaining issues in the suit and dismissed the suit.

The Plaintiffs being aggrieved by the said decision preferred an appeal. The learned District Judge, Hooghly, allowed the said appeal, set aside the judgment and decree of the Trial Court and remanded the suit for trial on merits.

Mr. C. F. Ali, learned Advocate appearing on behalf of the Appellants, has submitted that the learned District Judge was wrong in holding that the suit out of which this appeal arises was maintainable and that Section 92(2) was not a bar to the institution of such a suit.

In my view, the suit which was instituted by the Plaintiffs in their capacity as Mutwallis of the Wakf estate in question was maintainable in law. The Supreme Court in Bishwanath and Another Vs. Shri Thakur Radhaballabhji and Others, stated that:

It is settled law that to invoke Section 92 of the Code of Civil Procedure, 3 conditions have to be satisfied, namely, (i) the trust - is created for public purposes of a charitable or religious nature ; (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the 3 conditions is not satisfied, the suit falls outside the scope of the said section. A suit by an idol for a declaration of its title to property and for possession of the same from the Defendant, who is in possession thereof under a void alienation, is not one of the reliefs found in Section 92 of the Code of Civil Procedure. That a suit for declaration that a property belongs to a trust is held to fall outside the scope of Section 92 of the CPC by the Privy Council in Abdur Rahim v. Abu Mahomed Barkat Ali 55 Ind. App. 96 : AIR 1928 P.C. 16, and by this Court in Mahant Pragdasji Guru Bhagwandasji Vs. Patel Ishwarlalbhai Narsibhai and Others, , on the; ground that a relief for declaration is not one of the reliefs enumerated in Section 92 of the Code of Civil Procedure. So too, for the same reason a suit for a declaration that certain properties belong to a trust and for possession thereof from the alienee has also been held to be not covered by the provisions of Section 92 of the Code of Civil Procedure: See Mukaremdas Mannudas and Others Vs. Chhagan Kisan Bhawasar and Others, . Other decisions have reached the same result on a different ground, namely, that such a suit is one for the enforcement of a private right. It was held that a suit by an idol as a juristic person against persons who interfered unlawfully with the property of the idol was a suit for enforcement of its private right and was, therefore, not a suit to which Section 92 of the CPC applied See Darshan Lal and Others Vs. Shibji Maharaj Birajman, ; and Madhavrao Anandrao v. Shri Omkareshvar Ghat 31 Bom. L.R. 192 : AIR 1929 Bom. 153. The present suit is filed by the idol for possession of its property from the person who is in illegal possession thereof and, therefore, it is a suit by the idol to enforce its private right. The suit also is for a declaration of the Plaintiff''s title and for possession thereof and is, therefore, not a suit for- one of the reliefs mentioned in Section 92 of the Code of Civil Procedure. In either, view, this is a suit outside the purview of Section 92 of the said Code and, therefore, the said section is not a bar to its maintainability.

A Division Bench of this Court in Indu Bhusan Sen and Another Vs. Kiron Chandra Sen and Others, also held that:

Section 92 applies only where the suit brought is representative in its nature, that is to say, where the suit is brought by two or more persons as representing the general public in order to secure the proper administration of a public trust: 45 Mad. 113: 33 Cal. 789. It seems to us on these authorities that a suit brought by trustees on their own behalf and in the discharge of their own functions as trustees, not being a representative suit, is outside the scope of Section 92.

The Supreme Court in Chairman Madappa Vs. M.N. Mahanthadevaru and Others, held that the main purpose of Section 92 was to give protection to public trusts of a charitable or religious nature from being subjected to harassment by suits being filed against them. That is why it provides that suits under that section can only be filed either by the Advocate-General or two or more persons having an interest in the trust with the consent in writing of the Advocate-General. The object is that before the Advocate-General files a suit or gives his consent for filing a suit, he would satisfy himself that there is a prima facie case either of breach of trust or of the necessity for obtaining directions of the Court. In the said decision the Supreme Court, however, pointed out that the different clauses in Section 92(1) of the Code did not have the effect of circumscribing the powers of trustee? to carry on ordinary administration of trust property for the benefit of the trust. The Judicial Committee of the Privy Council in O.RM.O.M.SP. (Firm) v. P.L.N.K.M. Nagappa Chettiar (1940) 45 C.W.N. 385 expressed the opinion that no consent of the Advocate-General u/s 92 of the Code was necessary in order that a trustee may recover the trust property in the hands of a stranger to the trust estate.

On the authority of those decisions, I must hold that the suit brought by the Mutwallis themselves, and not in representative capacity, for recovery of trust properties from the Defendants was not hit by the provisions of Section 92 of the Code. Accordingly, the suit as framed now is maintainable in law.

The learned Munsif had relied upon the decision of the Bombay High Court in Annappa Ramchandra Pai v. Krishna Narayan Prasad and Ors. (1940) 45 C.W.N. 385. Mr. C. F. Ali has also relied upon the subsequent decision of the Bombay High Court in Gajramji Jasramji Maharaj Vs. Somnath Bhudardas Soni, . But, both the said decisions are clearly. distinguishable and they have no manner of application to the facts of the present appeal. In Annappa Ramchandra Pai v. Krishna Narayan Prasad and Ors. (1940) 45 C.W.N. 385 the managers of a temple brought a suit -against the Defendants, the members of a committee holding and managing a fund. A part of the said fund had been set apart for the benefit of the said temple. The Plaintiffs had instituted the suit alleging that the Defendants who were the trustees had been guilty of breach of trust. Broomfield J. recorded in his judgment that the learned Advocate for the Plaintiffs-Respondents had conceded that the suit was covered by Section 92 and. that it had not been instituted in accordance with that section. Broomfield J. was of the view that the Plaintiff could not be allowed to amend the plaint by abandoning the claim for taking accounts. One of the reasons for such refusal was that the provisions of Section 92 could not be evaded by an amendment of the plaint at later date. It is interesting to note that Tyabji J. although agreed with the ultimate decision that the Plaintiff''s prayer for amendment should be rejected, but he did not give the identical reasons for justifying the rejection of the said prayer for amendment.

In the case of Gajramji Jasramji Maharaj Vs. Somnath Bhudardas Soni, the Trial Court held that the reliefs for accounts sought by the Plaintiffs was barred u/s 92 of the Code and it had given only the relief for a declaration as prayed for. The Defendant No. 1 ''being aggrieved by the said decision had preferred an appeal. The learned Judges of the Bombay High Court held that the relief by way of accounts prayed for in the said suit was not independent or surplusage in the sense that any of the other reliefs could not be also granted if the prayer for accounts was deleted. It was also observed that the suit as originally instituted was incompetent for want of the Collector''s sanction and the suit could not be taken away from the purview of Section 92 of the Code.

In the instant case the suit was brought by the Mutwallis themselves and more over the Trial Court had allowed the prayer for amendment infer alia by way of deletion of the prayer Ga. The Defendant having accepted costs awarded was no longer entitled to challenge the propriety or legality of the said amendment of the plaint. The lower Appellate Court rightly relied upon the decision of the Judicial Committee in Abdur Rahim and Ors. v. Syed Abu Mahomed Barkat Ali Shah and Ors. L.R. 55 LA. 96: AIR 1928 P.C. 16. In the case before the Privy Council the suit had been originally instituted with the sanction of the Advocate-General u/s 92 of the Code. The plaint in the said suit was, however, subsequently amended but no sanction of the Advocate-General was obtained for said amendment. Ultimately the decree was drawn up upon a compromise petition. Thereafter another suit was brought challenging the said compromise decree. The Judicial Committee rejected the contention made on behalf of the Defendants that the second suit was barred by the rules of res judicata. The Judicial Committee made observations with regard to the effect of the amendment of the plaint of the previous suit without the sanction of the Advocate-General. Thus their Lordships considered that, insofar as the nature of the suit was changed by the amendment mentioned, viz. by adding strangers to the trust as. Defendants and by prayers for relief not covered by Section 92, the suit ceased to be one of a representative character of the decree passed on the compromise in the suit, however, was binding as against the consenting parties, could not bind the rest of the public. Therefore, according to the Judicial Committee, after the amendment of the plaint the suit ceased to be one u/s 92 of the Code. In the instant case the amendment in the plaint related back to the date of the institution of the suit. Further, the suit as constituted now is by the Mutwallis against the strangers for recovery of the Wakf property. Therefore, the suit was perfectly maintainable. The plaint now is not for any of the reliefs specified in Sub-section (1) of Section 92 of the Code.

In my view the learned District Judge, Hooghly, was right in holding that the suit was maintainable in law and, accordingly, it ought to be tried on merits. I make it clear that the Trial Court after remand would decide the remaining issues in suit on merits in accordance with the law as observed by the lower Appellate Court.

I accordingly dismiss this appeal but make no order as to cost. Let the records be sent down expeditiously.