Salihuddin Ahmad vs Mohiuddin Ahmad and Others

Das, J.—These three miscellaneous appeals arise out of the same criers, and have been heard together. In Miscellaneous Appeals Nos. 269 of 1946 and 92 of 1947, the appellant is Shah Saliuddin, and in Miscellaneous Appeal No. 335 of 1946 the appellant is Shah Mohiuddin. They are brother and minor son respectively of one Shah Najiuddin, who was Sajjadanashin and Mutwalli of the well-known endowment of the Sasaram Khanqah, and died on 14.4-1946. The two appeals of Shah Saliuddin are directed against two orders of the learned Additional District Judge of Arrah, one dated 10-8-1946, directing the appointment of a receiver to take possession of the Khanqah properties and the other (fated 14-2-1947, by which one Ghulam Fakhruddin, a senior pleader of Arrah, has been appointed as such receiver. The appeal of Shah Mohiuddin, who is the principal respondent in the other two appeals, is also against the order of the learned Additional District Judge directing the appointment of a receiver. But Mr. Sarjoo Prasad, appearing for the appellant in Shah Mohiuddin''s appeal, has not pressed his appeal; on the contrary, he has supported the order complained against, as respondent in Shah Saliuddin''s appeals.

The point raised in Shah Saliuddin''s appeals is a short one, viz., if the learned District 1 Judge had jurisdiction to appoint a receiver in a summary proceeding, when no suit u/s 92, Civil P.C. or under the provisions of the Religious Endowments Act had been instituted is before him and when the effect of the appointment of such a receiver was the removal of a Mutawalli, holding office de jure or de facto. Though the p&int is a short one and can be answered without much difficulty when presented in the form stated above, a long story has to be told in order to appreciate the point and the arguments raised round it,

The Sasaram Khanqah has been the subject of much litigation from time to time, which has often come up to this Court. The last litigation which came up to this Court resulted in the decision in Shah Najihuddin Ahmad Vs. Amir Hasan Khan and Others, where some of the history of the Khanqah is given. The endowment in question consists principally of two "Imperial grants, one of 1717 from the Emperor Farrukh Siyar, and the other of 1762 from the Emperor Shah Alam, the first for purely religious purposes and the second for charitable purposes of a secular character. The founder of the lihanqah was Shah Kabir Darvesh, who was the first Sajjadanashin Mutwalli. For our purpose, we may skip over the history till we come to 1926 in which year ten Muhammadan inhabitants of Sasaram instituted a title suit u/s 92, Civil P.C. for the removal of Shah Maliuddin, who was the 10th Sajjadanashin Mutwalli, on grounds of unfitness, misfeasance and malfeasiance, and also for the framing of a scheme for the management and administration of the Khanqah properties. This suit was decreed, and Shah Malihuddin was held to be unfit to hold the office, and a scheme was ordered to be prepared and a fit person appointed as Sajjadanashin Mutwalli. There was an appeal to this Court, reference to which has already been made. During the pendency of the appeal Shah Malihuddin died, and his eldest son Shah Najihuddin was substituted and continued the appeal, which except for slight modifications of the decree was substantially dismissed. A scheme of management was then prepared, and in pursuance of the directions given by this Court Shah Najihuddin was appointed Sajjadanashin and Mutwalli out of fourteen candidates for the office. I need not encumber this recital of past history by giving details of the scheme--material clauses of which I shall refer to in due course, nor need I go into the question of the custom or usage which governs the succession to the office of Sajjadanahsin and Mutwalli in this Khanqah, a question which does not really require decision at this stage. I need only state that the learned District Judge has rightly pointed out that the scheme does not contain any provision for the appointment of a Mutwalli Sajjadanaahin when the office falls vacant. Shah Najihuddin, appointed in 1937, died on 14-4-1946.

On 17th April, the District Judge received wire from Shah Salihuddin, younger brother of Shah Najihuddin, that he had assumed the office of Sajjadanashin Mutwalli according to old established custom. This was followed by a regular petition to the same effect, filed on 2nd May 1946. On the same date, the widow of Shah Najihuddin sent a telegram saying that the late Sajjadanashin had nominated his minor son Shah Mohiuddin as his successor. The learned District Judge broached the question of appointing a Receiver on 4th May 1946--to which Shah Salihuddin raised objections on the ground that he had already taken charge of the office. On 18th May 1946 a petition was put in on behalf of the minor son Shah Mohiuddin, whose claim was supported by another younger brother of the late Sajjadanashin. Petitions and counter petitions continued to be filed in this manner till the learned District Judge heard the receivership matter and passed his order dated 10th August 1946, by which he ordered the appointment of a Receiver.

On 14th August 1946 Shah Salihuddin was appointed ad interim Receiver, on the ground that he was in possession of the estate. This appointment was subject to the qualification, expressly mentioned in the order, that it would not prejudice his right to appeal against the order directing the appointment of a Receiver. Applications for the appointment of a Receiver were then called for, and on 14th February 1947 Ghulam Pakhuruddin, a senior pleader of Arrab, was appointed Receiver.

Now, the first question requiring determination in these appeals is if Shah Salihuddin bad already taken possession of the office of Sajjadanashin Mutwalli and the properties of the Khanqah, before the order dated 10th August 1947. The contention of Shah Salihuddin (hereafter referred to as the appellant) is that he had whether rightfully or not need not be considered now. The contention of Shah Mobiuddin (hereinafter referred to as the respondent) is that he had not, and that the property was in media, i.e., in the enjoyment of no one, till the District Judge made his order for the appointment of a Receiver. This question is of some importance in view of the arguments presented before us. Let us see how the District Judge has himself dealt with this question. In the order complained against the District Judge has referred to the various act of possession alleged on behalf of the appellant (a) the issue of parwanas arranging for the allowances to be paid to the members of the Sajjadanashin''s family; (b) issue of parwanas to tahBildars for the management of the estate; (c) the appointment of Mr. Mehdi Hassan as Manager; (d) substitution of the appellant in place of the deceased Sajjadanashin in some rent suits; (e) the obtaining of a decree in a money suit as Sajjadanashin; (f) payment of Government revenue and rent; (g) payment of municipal dues, etc. The learned District Judge has further found that Mr. Mehdi Hassan, the Manager of the estate, has accepted the appellant as Sajjadanashin and is working under him, though he has criticised this action of the Manager. After referring to the various acts of possession the learned District Judge has expressed himself as follows:

It could not be doubted that this intermeddling with the property could not and would not convey valid title to the appellant unless it is found as a matter of fact that he has good title to the office of Sajjadanaehin Mutwalli.

This shows that the learned District Judge himself was of opinion that the appellant was acting as de facto Sajjadanashin Mutwalli. The position is made still more clear in subsequent orders of the learned District Judge. In the order dated 14th August 1946, by which the appellant was '' appointed ad interim Receiver, it was observed as follows:

There are indications on the record that Sjed Shah Salihuddin is in possession of the estate and some of the local bodies have even been dealing with him as such. To appoint any other ad-interim Receiver at this stage would mean taking over charge of the estate to day and making over charge of the same to the permanent Receiver after sometime.

Then, in the order dated 14th February 1947, it was observed that the appellant had in fact taken possession of the office and had remained; in possession for sometime in that capacity without having obtained any order of the Court. It seems clear, therefore, that the learned District Judge was himself of the opinion that the appellant had taken possession of the office and the properties of the estate. A trustee may be such de jure or de facto, a person who without title-chooses to take upon himself the character of a trustee becomes a trustee, de son tort.

Having found that the appellant was acting as Sajjadanashin Mutwalli, the District Judge had a very simple problem before him, namely, if he could remove such a trustee and. appoint a Receiver in a summary proceeding. In my opinion, the learned District Judge was in error in thinking that he could remove such a trustee in a summary proceeding and appoint a Receiver, when there was no suit before him u/s 92, Civil P.C., or under the provisions of the Religious Endowments Act. The effect of the appointment of a Receiver in such circumstances is the virtual removal of a trustee who is acting, as such, de jure or de facto. The reason which the learned District Judge has given for the appointment of a Receiver can be best expressed. in his own words. Dealing with the contention of the appellant that the learned District Judge-had no right to appoint a Sajjadanashin in the circumstances mentioned above, the learned: District Judge stated as follows:

If this were to be accepted, the result would be that the Court would entrust the management of the properties carrying an income of several thousands a year to a man whose title to the office has not been found to be proved and which is liable to be lost if any one of the other claimants runs to a Court of competent jurisdiction and gets his title to the office adjudicated by it.

This reason is untenable, because it is not a case of entrusting the management of the properties-by the Court, but is a case of removing a person who is already acting as a trustee. The question before the learned District Judge was if he had such power in the absence of a suit u/s 92, Civil P.C. or under the provisions of the Religious Endowments Act. This question has been considered in two decisions of this Court, with particular reference to the powers of the District Judge as Kazi under the Mahomedan law. One of the points which has been urged before us on behalf of the respondents is that the District Judge as Kazi was entitled to appoint a Mutwalli, and reliance was placed on the observations made in Mohamed Iamail Ariff v. Ahmed Molla AIR 1916 P.C. 132 the observations being at page 134 of the report:

The Mussulman law, like the English law, draws a wide distinction between public and private trusts. Generally speaking, in case of a wakf or trust created for specific individuals or a'' determinate body of individuals, the Kazi, whose place in the British Indian system is taken by the civil Court, has in carrying the trust into execution to give effect so far as possible to the expressed wishes of the founder. With respect, however, to public, religious or charitable trusts, of which a public moaque is a common and well-known example, the Kazi''s discretion is very wide. He may not depart from the intentions of the founder or from any rule fixed by him as to the objects of the benefaction ; but as regards management which must be governed by circumstances he has complete discretion." In Bibi Zohra Vs. Bibi Habibunnissa, the point has been considered at great length with reference to earlier authorities on the question, and the conclusions arrived at on a consideration of the earlier authorities have been expressed as follows:

It may be said on these authorities that there is practically a consensus of opinion that when there is a vacancy in the office of a Mutwalli the District Judge in his discretion may nominate a Mutwalli but that he has no power in a summary proceeding to appoint another Mutwalli in place of one who is in office. This can only be done in a suit instituted either under the Religious. Endowments Act of 1863 or u/s 92, Civil P.C. When, however, two persons claim to be the Mutwalli, the dispute been them is one of a civil nature and must be decided in an ordinary civil suit the vindication of individual (rights is not a matter for decision either u/s 92, Civil P.C. or under the provisions of the Religious Endowments Act.

If I may say so with respect, I agree entirely with the conclusions expressed above. There can be no doubt that the appellant was the de facto Mutwalli, though he may be no more than a trustee de son tort The District Judge had no jurisdiction in a summary proceeding to remove him from office or to interfere with his possession. The same view has been expressed in Mia Mohammad Yusuf Vs. Mia Mohamad Ayub and Others, where it has been observed that the District Judge has'' no general power to remove a mutwalli in miscellaneous proceedings his powers in this respect being limited and denied by Sections. 18 and 14, Religious Endowments Act, 1863, and Section 92, Civil P.C. The District Judge has, no doubt, power in proper circumstances to make an appointment to fill a vacancy when an office of this kind has fallen vacant. Learned Counsel for the respondents has very strenuously contended before us that the property was in medio and the office had fallen vacant: therefore the District Judge as the Kazi had power to fill the vacancy.'' The District Judge did not, however, base his decision on this ground; he found that the appellant had been acting as mutwalli without the order of the Court and he removed him not because the property was in medio but because he thought that he had not established his title as de jure mutwalli. That there was no suit u/s 92, Civil P.C. before the learned District Judge is also sufficiently clear. As has been explained in Budree Das v. Chooni Lal (06) 33 Cal. 789, (see the observations at p. 807), Section 92, Civil P.C., contempt�s a representative suit, that is, a suit which is prosecuted by individuals not for their own interests but as representatives-of the general public in order to secure a proper administration of a public trust. Suits brought not to vindicate or establish the rights of the public in respect of a public trust, but to remedy an infringement of an individual right or to vindicate a private right do not fall within the section. An instance of a suit for the enforcement of personal, individual rights is one between two persons for determination as to which of them is the lawful trustee or mutawalli over wakf property. In the case before the learned District Judge there were three rival claimants each one of whom claimed to be the lawful trustee. It has been stated by Mr. Sarjoo Prasad on behalf of the respondent that his client has already brought a regular suit before the Subordinate Judge for a declaration of his title as mutwalli. It is clear, therefore, that there was no suit pending before the learned District Judge u/s 92, Civil P.C.

Then there is the question if the learned District Judge had power under the scheme already framed under the previous suit u/s 92, Civil P.C, to make an appointment of a mutwalli in circumstances similar to the present case. I have already stated that the scheme does not contain any provision for the appointment of a mutwalli when the office falls vacant. In cases of misfeasance or malfeasance the District Judge has authority under the scheme to appoint a manager, answerable to him, for the purpose of managing the Farukhiyari properties-as also the Alamshahi properties. Clauses 5 and 11 of the scheme give this power of appointing, managers to the District Judge. Then there is Clause 17 which reads as follows: The District Judge will have a general power of control over the management of the Alamsbahi and Farukhiyari properties and trust. It has been contended before us that this general power of control over the management gives the District Judge power to appoint a mutwalli also. I must make it clear that there is no allegation of mismanagement or breach of trust against the appellant. A de facto-trustee is liable to account for what he has done and received in so acting and cannot be heard to say for his own benefit that he had no right to act as trustee. The learned District Judge is, there fore, entitled to exercise such control over the management of the properties as the scheme gives him. Control over the management of the properties can by no stretch of reasoning be held to include the power to remove a mutwalli from office and appoint a Receiver in his place. The question whether the scheme should contain a provision for the complete removal, of a mutwalli in a summary way was considered in the appeal which was preferred to this Court from the decree in Section 92, Civil P.C. suit in respect of this very Khanquah see the observations at p. 457 in Najihuddin Ahmad v. Amir Hasan Khan AIR 1984 Pat. 443. It was observed that it was not necessary in the present case to provide for the complete removal of mutwalli in a summary way, a suit u/s being still open to the public interested. A reference has been made before us to certain Madras decisions in which the view has been expressed that such a clause in the scheme would be ultra vires. It is unnecessary to consider those decisions because the question does not arise in the present case. Moreover, the Madras view has not found favour with this Court. It is sufficient to state that under the scheme there is no power in the District Judge to remove a mutwalli or to appoint one, though the District Judge can appoint a manager for both kinds of properties in certain contingencies and has a general power of control over the management of the Alamshahi and Faraksiyari properties. I do not think that the orders complained of in this case can be supported by a reference to the scheme.

The position, therefore, comes to this. The District Judge had no power to remove a de facto mutwalli in a summary proceeding when there was no suit before him u/s 92, Civil P.C. or under the provisions of the Religious Endowments Act. He had no such power of removal as Kazi or under the scheme framed in the previous suit u/s 92, Civil P.C. The order of the learned District Judge dated 10-8-1946 directing the appointment of a Receiver and the further order dated 14-2-1947, appointing a particular person as receiver were both without jurisdiction and in excess of the powers of the learned District Judge.

It must be made clear that I should not be understood to have expressed any opinion on the propriety of appointing a Receiver in future if and when such a request is made in the suit, which Mr. Sarjoo Prasad on behalf of the respondent says has already been filed on behalf of his client.

There are two other points which require mention. On behalf of the respondent it was contended that the appellant having already accepted the position of ad interim Receiver it was not open to hint to complain against the order directing the appointment of a Receiver. I have already referred to order No. 278 dated 14-8-1946, 6:24 PM 1/12/2009by which the appellant was appointed ad interim receiver. That order made it perfectly clear that the appointment of the appellant as ad interim receiver would not prejudice him in any way with regard to his right to appeal against the order directing the appointment of a Receiver. The appellant had all along taken the position that he was the rightful mutwalli who had already taken charge of the office and he could not be removed by the appointment of receiver. There is, therefore, nothing in the contention that the appellant having accepted the position of an ad interim Receiver was not entitled to challenge the orders. Another contention raised on behalf of the respondent is that no appeal lies against the orders complained of. The learned District Judge purported to make the orders under Order 40, Rule 1, Civil P.C., and an appeal lies under Order 43, Rule 1, Clause (s). When the District Judge appoints a mutwalli in a summary proceeding under his general powers as a Kazi, no appeal lies. But the order will be subject to revision if the District Judge had no jurisdiction to pass the order a which he did. It is open to us to treat the memoranda of appeals as applications in revision and it would be our duty to interfere with the orders which were passed without jurisdiction. There is, therefore, no substance in this objection raised on behalf of the respondent. Even under Order 40, Rule 1, Civil P.C. the power of the Court to appoint a Receiver is subject to the prerequisite condition, that it must appear to the Court to be "just and convenient" to make the appointment. Those words do not mean that the Court is to appoint a Receiver simply because the Court or one of the parties to the proceeding thinks it to be convenient; they mean that the Court should appoint a Receiver for the protection of rights or for the prevention of injuries, according to legal principles. If the property was shown to be in medio, the Court could appoint a Receiver to prevent a scramble which would be detrimental to the interests of the estate. The learned District Judge proceeded, however, on the footing that the appellant was acting as de facto mutwalli and he proceeded to remove him in a summary way without any ''allegation of mismanagement or breach of trust. It cannot be said that the appointment of a Receiver in such circumstances was just and convenient.

For the reasons given above I would allow the two appeals of Shah Salihudin with costs. The two orders of the learned Additional District Judge, one directing the appointment of a Receiver and the other appointing Guiana Pakhruddin as Receiver are both set aside. The appeal of the respondent Shah Mohiuddin, which was not pressed, is dismissed.

Ray J.

I agree.