Shahabuddin vs S. Nohaman and Another

V. Ratnam, J.—In this appeal at the instance of the first plaintiff in O.S. No. 24 of 1975, Sub-Court, Mayuram, the dismissal of that suit laid

by the appellant and one deceased Mohammed Ibrahim in a representative capacity u/s 92 of the Civil Procedure Code, after obtaining the

consent in writing of the Advocate-General, praying for the removal of the first respondent from trusteeship and appointment of fresh trustees, for a

direction to the first respondent to hand over the trust properties in schedule A and B to the plaint and the income therefrom and for the framing of

a scheme for the proper administration of the wakf and its properties and the utilisation of the income for purposes mentioned in the wakf deeds

and for other incidental reliefs, is challenged.

One Haji Udumansa Rowther was the great-grandfather of the appellant and the first respondent. On 27th July, 1919, he executed a deed of

wakf in respect of the A schedule properties for the purpose of running an Arabic school, for the propagation of the Muslim faith and religion from

out of the income therefrom. Subsequently, Haji Udumansa Rowther created another wakf on 2nd August, 1926, in relation to the B schedule

properties and others and a 1/20th share from the income of those properties was set apart for the running of the Arabic school. Later on in O.S.

No. 48 of 1947, Sub Court, Mayuram, specific properties were set apart towards the 1/20th share of the income and those properties were the B

schedule properties. Under the deeds, the wakif appointed himself as the administrator and manager of the wakf, its properties and the Arabic

school and provided that after him, the eldest male member of the family should administer and manage the wakf and perform the charities. Haji

Udumansa Rowther was in management of A and B schedule properties and performed the charities in accordance with the wakf deeds dated

27th July, 1919 and 2nd August, 1926 till his death in or about 1943 leaving behind two sons Mohammed Ibrahim and Habib Mohammed and a

daughter by name Aysa Bivi. In the suit instituted in O.S. No. 48 of 1947, by the heirs of Haji Udumansa Rowther, Mohammed Ibrahim raised a

plea that the properties cannot be divided as they were wakf properties, but this stand was not accepted and in the total extent of the properties;

1/20th share was divided and set apart to meet the objects of the wakf deed dated 2nd August, 1926 and the rest of the properties were directed

to be divided. After the partition. Mohamed Ibrahim was managing the wakfs and on 10th June, 1960, under a family arrangement, he provided

that his son Sarwar should manage the wakf properties. In accordance with this arrangement, Sarwar administered and managed the wakf

properties till his death on 17th July, 1973, leaving behind the appellant and the first respondent-his second son and first son respectively, besides

six other sons and a daughter. In accordance with the provision that the eldest male member of the family should administer and manage the wakfs

and conduct the charities, the first respondent, being the eldest member, took over the management of the charities. According to the case of the

appellant, the first respondent allowed the lands which were in pannai cultivation to be cultivated by tenants after securing a premium and had thus

encumbered the lands. Besides, the appellant charged the first respondent with non-performance of the charities by not employing a teacher for the

conduct of the Arabic school and not using the building set apart for doing prayers and also for conducting the Arabic school, The building put up

to accommodate the Arabic school, according to the appellant, had been converted into a residential one by the first respondent and the students

were deprived of going to the school and learning Arabic and offering prayers. According to the appellant, the first respondent had thus acted

against the interest of the charities by committing malfeasance and misfeasance and rendered himself unfit and incompetent to manage the wakf and

the properties and therefore, he prayed that the first respondent should be removed from the trusteeship and a scheme be framed for conducting

the charities. Since the State Wakf Board, Madras, according to the appellant, had not taken any steps for the due performance of the trust, and

the charities, it was added as a party-second defendant to the suit.

In the written statement originally filed by the first respondent, while admitting the wakfs and the charities to be performed, he denied having

committed malfeasance and misfeasance attributed to him by the appellant. He pleaded that the properties were being managed and administered

properly, that the charities were also being performed regularly and that no irregularities as claimed by the appellant had occurred and therefore, no

case for his removal from the trusteeship or the appointment of other trustees was made out. The suit was characterised as a frivolous and

vexatious one owing to misunderstandings between the appellant and the first respondent and deceased Mohammed Ibrahim was described as a

tool in the hands of the appellant. An objection regarding the maintainability of the suit u/s 53 of the Wakf Act, 1954, was also raised.

In the written statement filed by the second respondent, a similar objection with reference to the maintainability of the suit u/s 55 of the Wakf

Act was raised. The acts of malfeasance and misfeasance attributed to the first respondent were disputed and the second respondent stated that

the wakfs and their properties were being properly administered and the charities performed by the first respondent under the supervision of the

second respondent.

During the pendency of the suit, Mohammed Ibrahim, the second plaintiff in the suit died and no steps were taken to bring on record any other

representative of the general public or even the legal representatives of the deceased Mohammed Ibrahim. In view of this, in the additional written

statement filed by the first respondent yet another objection was raised with reference to the maintainability of the suit at the instance of the

appellant alone. In the reply statement filed by the appellant, the appellant claimed that in spite of the death of Mohamed Ibrahim, the suit could be

proceeded with and that the suit was also maintainable.

On these pleadings, the learned Subordinate Judge, Mayuram, framed the following issues and additional issues:

""Whether the irregularities alleged as against the first defendant (first respondent herein) are true?

Whether the first defendant (first respondent herein) is liable to be removed from trusteeship?

Whether the plaintiff (appellant herein) is entitled to a scheme decree as prayed for ?

Whether the suit is liable to be dismissed as it has not satisfied the requirements of Section 92, Civil Procedure Code?

Whether the suit is not maintainable for the reasons stated in para. 4 of the written statement?

To what relief is plaintiff (appellant herein) entitled?

Additional issue : Whether the suit is not maintainable by the existing plaintiff (appellant herein) alone?

Before the Court below, the appellant, besides relying upon the two wakf deed, dated 27th July, 1919 and 2nd August 1926, marked as

Exhibits A-1 and A-2, examined himself as P. W, 1 and two others as P. W. 2 and P. W. 3 while, on behalf of the respondents Exhibits B-1 to B-

16 were filed and D. W. 1 to D. W. 3 were examined, Dealing with issue No. 4 and the additional issue No. 1, the learned Subordinate fudge was

of the view that as a result of the death of the second plaintiff in the suit and the omission to bring on record his legal representatives or another

representative, the maintainability of the suit was not in any manner affected and that the suit could be continued. On the question of the

maintainability of the suit without the consent of the Wakf Board u/s 55 of the Wakf Act (hereinafter referred to as the Act), the Court below

found that the suit was not maintainable, as the mere obtaining of the sanction of the Advocate General alone would not suffice. Considering the

evidence relating to the several grounds alleged by the appellant for the removal of the first respondent from the mutavalliship of the wakfs, the

learned Subordinate Judge accepted the evidence of D. W. 1 to D.W. 3 and the other documents produced by the first respondent to show that

the school was being run properly and that the other charities were also being performed regularly under the supervision and control of the second

respondent and concluded that no grounds had been made out for the removal of the first respondent, and, that the first respondent had not in any

manner acted against the interests of the wakfs or adversely to its interests. On these conclusions, the suit was dismissed.

The learned Counsel for the appellant contended that the Court below was in errot when it proceeded to hold that the suit was not maintainable

without the consent in writing of the Wakf Board. According to the learned Counsel, since in the suit, reliefs u/s 9 Mohammed Jacoo Sait Vs.

District Collector of Trichur District and Others, , CPC have been prayed for even against the Wakf Board, the proviso to Section 55 (2) of the

Act would apply and therefore, no consent in writing of the Board is required for the institution of the suit by the appellant. On the other hand, the

learned Counsel for the respondents submitted that Section 55 (2) of the Act clearly postulates the obtaining of the consent in writing of the Wakf

Board for the institution of any suit in which any of the reliefs referred to in Section 92, CPC is prayed for and that in the absence of allegations and

a prayer for any relief of the nature referred to in Section 92, Civil Procedure Code., against the second respondent, the proviso to Section 55 (2)

of the Act cannot be pressed into service by the appellant.

To appreciate this, it is necessary to refer briefly to the background leading to the enactment of the Wakf Act. A permanent dedication of

properties by a person professing Islamic faith for any purpose recognised by Islam as religious, pious or charitable, is known as a wakf Such a

wakf a would be valid only if the property was given in substances for charitable or religious purpose; but the provisions of the Muslim Wakf

Validation Act, 1913, enabled the creation of a wakf for the maintenance and support, wholly or partially, of the members of the settlor''s family

provided the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognised by Muslim law as religious, pious

or charitable. But it should be permanent in character. A wakf, therefore, in its essence, is a public religious or charitable trust, but there was no

legal machinery for ascertaining or knowing the several endowments as wakfs nor was there any system of registration. u/s 14 of the Religious

Endowments Act 1863, any person interested in a mosque or religious establishment, may sue before a civil Court, the trustee or manager, etc , of

such an institution for malfeasance, breach of trust, neglect of duty, etc., and the Court had the power to direct the performance of any act by the

trustee and even grant a decree for damages and costs against such trustee. The Court had also power to remove the managers or trustees and this

was intended to protect the endowment. Section 92, Civil Procedure Code, confers regulatory powers on courts in regard to public trusts,

whenever there is a breach of a public trust or the affairs thereof are conducted in a manner that calls for directions from Court for the proper

administration of the trust. In such cases, the Advocate-General either by himself or two or more persons interested in the trust, after obtaining the

sanction of the Advocate-General and now leave of Court can file a suit in the proper Court for all or any of the reliefs enumerated in that section.

The effectiveness of the safeguards provided in Section 92, Civil Procedure Code,, would depend upon the availability of public spirited persons

inclined to take the necessary measures as well as steps for protecting the trust.

Regarding the administration of wakfs apart from the Court, there was no agency to effectively control and administer them and their

management and to keep a vigil over the affairs of wakfs. In order, therefore, to provide for the better administration of the management and

supervision of wakfs, the Wakfs Act, 1954, came to be passed. A statutory corporation or Board of Wakfs having a perpetual succession had

been created under that Act with certain defined powers for general superintendence of the wakfs. It is the duty of that body to ensure that the

wakfs under its superintendence are managed properly and fulfil the objects and purposes of the wakfs. Section 15 of the Wakf Act, besides

conferring on the Board so established for a State the power of general superintendence over all wakfs in that State, further enjoins on the Board

to exercise its powers under the Act as to ensure that wakfs and their superintendence are properly maintained, controlled and administered and

the income duly applied to the objects and purposes for which the wakfs were created and intended. Such powers include the maintenance of

records relating to the origin, income, object and beneficiaries of every wakf to ensure that the income and other properties of wakfs are applied to

the objects and for the purposes for which such wakfs ware created or intended, to give directions for the administration of wakfs, to settle

schemes of management for a wakf, etc. Section 32 of the Act provides for submission of accounts by mutavallis and Section 33 requires audit of

the accounts of the wakfs submitted u/s 32 to be made by an auditor appointed by the Board. Section 36 (a) directs every mutavalli to carry put

the directions of the Board, to allow inspection of the wakf properties, accounts, records and to do any other act, he is lawfully required to do

under the provisions of the Act, etc. Section 42 enables the Board to appoint any person to act as a mutavalli in the vacancy that may arise, if there

is none to be appointed under the terms of the deed or where the right of any person to act as such is disputed. Section 43 enables the Board to

remove a mutavalli from his office, if he becomes disqualified from holding the office, for all or any of the reasons set out thereunder. By Section 43

(a) provision for the assumption of direct management of the wakf by the Board has been made. Section 44 provides for invoking the powers of

the Board by any person interested in a wakf for taking such action as the Board may think fit, if it is satisfied that an enquiry relating to the

administration of the wakf is called for and that there are reasonable grounds for believing that the affairs of the wakf are being mismanaged.

Section 45 empowers the Board to hold an enquiry either on an application received u/s 44 or suo motu into any matter relating to wakf and take

such action as the Board may think fit. There are other provisions also in the Act, calculated to ensure the exercise of effective control and

supervision by the Board, over the proper management and administration of wakfs and their properties and the application of the income of the

wakf for the avowed objects of the, wakf.

Despite these elaborate provisions, it was presumably thought that there still might remain areas in the management and administration of wakf

appropriately failing u/s 92, Civil Procedure Court and calling for reliefs provided for thereunder, but not covered by the provisions of the Act and

Section 55 of the Act conferred on the Board and other persons a right to secure reliefs stated therein by the institution of suits under the ordinary

law concerning the administration of wakfs. That provision originally read as follows-

A suit to obtain any of the reliefs mentioned in Section 14 of the Religious Endowments Act, 1863 (20 of 1863) and in Section 92 of the Civil

Procedure Code, 1908 (V of 1908), relating to any wakf may, notwithstanding anything to the contrary contained in those Acts, be instituted by

the Board without obtaining the leave or consent referred to in those Acts;

(2) No suit to obtain any of the reliefs referred to in Sub-section (1) relating to a wakf shall be instituted by any person or authority other than the

Board without the consent in writing of the Board:

Provided that, no such consent shall be required for the institution of a suit against the Board in respect of any act purporting to be done by it in

pursuance of this Act or of any rules or orders made thereunder.

By Section 55 (2), the Board was enabled to institute a suit to secure any reliefs in Section 14 of the Religious and Endowments Act, and Section

92 of the Civil Procedure Code, in relation to any wakf without obtaining the leave of Court to institute such a suit or the consent in writing of the

Advocate General. The Board was thus at liberty to institute suits in relation to wakfs without being obliged to obtain the leave of Court or the

consent in writing of the Advocate General, notwithstanding such a requirement u/s 18 of the Religious Endowments Act, and Section 92 of the

Civil Procedure Code, Section 55 (2) laid an embargo on the institution of a suit relating to a wakf by a person or authority other than the Board

for obtaining any of the reliefs referred to u/s 55 (1), without the consent in writing of the Board. However, the proviso to Section 55 (2), created

an exceptio regarding the institution of a suit against the Board with reference to acts purporting t be done by it in pursuance of the Act or an rule

or order thereunder.

Section 55 (2), as it then stood, wakf interpreted by a Full Bench of the Kerala High Court in Mohammed Jacoo Sait Vs. District Collector of

Trichur District and Others, , as curtailing a private party''s right of suit by requiring him to comply with both Sub-section (2) of Section 55 of the

Act and Section 92, Civil Procedure Code. In other words, with reference to the suits by parties other than the Board, Section 55 (2) of the Act

was interpreted as intended to supplement and not supplant Section 92, Civil Procedure Code, and in this view, it was told that the objection that

the Collector had no jurisdiction to proceed with the enquiry into an application for leave to institute a suit u/s 92, Civil Procedure Code, was

rightly overruled, Since that was not the intention with which Section 55 (2) of the Wakf Act had earlier been exacted, Section 55 was amended

by Section 19 of Act XXXIV of 1964. In the Statement of Objects and Reasons for this amendment, after referring to the interpretation of Section

55 (2) by the Kerala High Court, to the effect that a person desiring to institute a suit for obtaining reliefs under the provisions of any of the Acts

mentioned in Section 55 (1) of the Act has to obtain, in addition to the consent of the Board, the consent of the authorities specified under the

provisions of those Acts, it was stated that that was not the original intention and therefore, the section had been recast to bring out the real

intention. By Section 19 of Act XXXIV of 1964, Section 55 of the Act was substituted as under-

55 Institution of suits u/s 92 of the Civil Procedure Code, 1908-

A suit to obtain any of the reliefs mentioned in Section 92 of the Civil Procedure Code, 1908, relating to any wakf may, notwithstanding

anything to the contrary contained in that section, be instituted by the Board without obtaining the consent referred to therein.

No suit to obtain any of the reliefs referred to in Section 92 of the Civil Procedure Code, 1908, relating to any wakf shall be instituted by any

person or authority other than the Board without consent in writing of the Board and for the institution of any such suit, it shall not be necessary to

obtain the consent referred to in that section, notwithstanding anything contained therein:

Provided that nothing in this sub-section shall apply in relation to any such suit against the Board.

Under this section, which is applicable to this case the Board may u/s 55 (1) of the Act institute a suit to obtain any of the reliefs mentioned in

Section 92, Civil Procedure Code, in relation to any wakf without obtaining the consent in writing of the Advocate-General (now leave of Court),

referred to in Section 92, Civil Procedure Code, notwithstanding such a requirement in Section 92, Civil Procedure Code. Section 555 (2)

consists of two parts. By its earlier part, Section 55 (2) of the Act prohibits the institution of suits by any person or authority other than the Board

claiming the reliefs u/s 92, Civil Procedure Code, relating to any wakf without the consent in writing of the Board. The latter portion of Section 55

(2) clarifies that for the institution of such a suit by any person or authority, it would not be necessary to obtain the consent in writing of the

Advocate-General (now leave of Court), notwithstanding what is contained in Section 92, Civil Procedure Code. That would mean that any

person or authority other than the Board can with the consent in writing of the Board institute a suit praying for the reliefs referred to in Section 92,

Civil Procedure Code, relating to any wakf and that in such a suit, it is not obligatory on the part of such a person or authority to further obtain the

consent of the Advocate-General (now leave of Court) as provided u/s 92, Civil Procedure Code. Thus, Section 55 (1) and (2) provide for the

institution of suits by the Board and by a person or authority other than the Board, but praying for any of the reliefs u/s 92, Civil Procedure Code.

If the Board should institute such a suit for any of the reliefs u/s 92, Civil Procedure Code, it can be done by the Board without the consent of the

Advocate-General as the requirement then stood or the leave of Court as now provided u/s 92,-Civil Procedure Code. If a person or authority

other than the Board should'' institute such a suit for any of the reliefs u/s 92, Civil Procedure Code, then such, a suit cannot be instituted without

the consent in writing of the Board. It is wholly unnecessary to further obtain the consent of the Advocate General as provided in Section 92, Civil

Procedure Code, as it then stood or leave of Court as now provided in Section 92, Civil .Procedure Code. The proviso to Section 55 (2) of the

Act excepted suits against the Board from the operation of Section 55(2) and this dispenses with the requirement as to consent in writing of the

Board prior to the institution of any suit by any person or authority in cases where such suits are instituted against the Board. The benefit of the

proviso can be availed of when the suit instituted relating to a wakf is against the Board and the relief sought is any of the reliefs in Section 92,

CPC The use of the expression ''such'' in the proviso contemplates a suit of that nature praying for the reliefs referred to in Section 55 (2) of the

Act.

We may now refer to Section 15 of the Apt. u/s 15(2) (d) and (e) of the Act, the Board is empowered to settle scheme of management for a

wakf and to direct the utilisation of the surplus income of a wakf with reference to objects, which are not evident from any written instrument and

further in a case, where the object of a wakf had ceased to exist to direct the application of so much of the income as was previously applied to

that object or to any other objects, which are similar or as nearly similar to the original object. Section 15(3) of the Act confers a right of suit on a

person interested in the wakf or affected by such settlement or direction to set aside such settlement of direction and it is declared that the decision

of the civil Court thereon shall be final. The proviso to Section 55 (2) contemplates suits of this type against the Board being exempted from the

requirement as to the consent in writing of the Board. Otherwise in questioning the very settlement of the scheme by the Board or the, direction or

an order issued by the Board, to insist upon the consent in writing of the Board to so challenge its order setting a scheme or giving directions would

be a travesty of sound principle. It would thus appear that the proviso is intended to cover suits instituted against the Board complaining against or

challenging its orders or directions or actions, but nevertheless impinging upon the reliefs obtainable u/s 92; Civil Procedure Code. Apart from such

and similar cases so exempted from the operation of Section 55 (2), it would be. otherwise necessary; to secure the consent in writing of the

Board as required by Section 55 (2) and a failure to do so would attract the bar to the institution of the suit and the suit cannot be maintained.

Bearing in mind the aforesaid scope of Section 55 of the Act, it is seen that in this case, though the appellant had secured the consent in writing

of the Advocate-General as then required u/s 92, Civil Procedure Code, as it then stood, the consent in writing of the Board as contemplated u/s

55 (2) had not been obtained. The reliefs prayed for relate to the reliefs available u/s 92, Civil Procedure Code, but no act or order or direction of

the Board has been complained of by the appellant and relief asked for on that footing. Indeed, there is nothing stated in the plaint against the

Board. The suit has not been instituted against the Board in the manner in which we have Understood and interpreted Section 55 of the Act to

enable the appellant to claim that the suit falls within the scope of the proviso to Section 55 (2) of the Act. The proviso to Section 55(2) exempts

only a limited category of suits against the Board as pointed out earlier and the appellant cannot take advantage of the benefit of such an

exemption. Under these circumstances, we uphold the conclusion of the Court below that the suit is not maintainable without the consent in writing

of the Board, though on a totally different reasoning. We are not disposed to deal with the merits of the allegations made by the appellant against

the first respondent as the suit instituted by him has to fail for want of compliance with the requirements of Section 55 (2) of the Act. Accordingly,

we dismiss the appeal; but there will be no order as to costs.