Shahabuddin vs S. Nohaman and Another

Ratnam, J.—In this appeal at the Instance of the first plaintiff in 0. S. 24 of 1975, Sub-Court, Mayuram, the dismissal of that suit laid by the

appellant and one deceased Mohammed Ibrahim in a representative capacity under S. 92 of the CPC 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 schedules A and B to the plaint and the income there from 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 27-7-1919, 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 there from Subsequently, Haji Udumansa Rowther created another wakf on 2-81926 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 0. S. 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 dt. 27-7-1919 and

2-8-1926 till his death in or about 1943 leaving behind two sons Mohammed Ibrahim and Habb Mohammed, and a daughter by name Aysa Bivi.

In the suit instituted in 0. S.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 2-8-1926 and the rest of the properties were directed to be divided. After the partition,

Mohamed Ibrahim was managing the wakfs and on 18-6-1960. 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 17-7-1973, 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 r4yers. 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 waki and the properties and therefore he

prayed that the first respondent should be removed from the trusteeship and a scheme should be framed for conducting the charities. Since the

State Wakf Board, Madras, according to the t had not taken any steps for ''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 me 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 under S. 55 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 under 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

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 Mohammed 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 S. 92 C.P.C. ?

Whether the suit is not maintainable for the reasons stated in pars 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?

7.Before the Court below, the appellant, besides relying upon the two wakf deeds dt. 27-7-1919 and 2-8-1926, marked as Exs. A.1 and A.2,

examined himself as P. W. I and two others as P. W. 2 and P. W. 3, while, on behalf of the respondents, Exs. 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 Judge was of the view that u 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 under S. 55 of the Wakf Act (here in-after 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 mutavaliship of the wakfs, the learned Subordinate Judge

accepted the evidence of D. W. I 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 their interests. On conclusions the suit was dismissed.

The learned counsel for the appellant contended that the court below was in error 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 under S. 92 C.P.C. have been prayed

for even against the Wakf Board the proviso to S. 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 S. 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 S. 92

C.P.C. is prayed for and that in the absence of allegations and a prayer for any relief of the nature referred to in S. 92 C. P, C. against the second

respondent, the proviso to S. 55 (2) of the Act cannot be pressed into service by the appellant.

9.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 would be valid only if the property was given in substance for charitable or religious purposes - 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 recognized 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 them any system of registration. Under 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. S. 92 C.P.C. confers regulatory powers on court in regard to public tru6ts, 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 S. 92 C.P.C. would depend upon the availability of the 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 kee-0 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 fulfill the objects and Purposes Of the wakfs. S.

15 of the Wakfs Act, besides conferring, on the Board so established for a State the power of general superintendence ever all wakfs: in the State,

further enjoins the Board to exercise its powers under the Act as to ensure the wakfs and their superintendence are properly maintained, controlled

and administered and the income is duty 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 benefices of every wakf to ensure that the income and other properties of

wakfs am applied to the objects and for the purposes for which such wakfs were created or intended, to give directions for the administration of

wakfs, to settle schemes of management for a wakf etc. S. 32 of the Art provides for submission of accounts by mutavallis and S.33 requires audit

of the accounts of the wakfs submitted under S. 32 to be made by an auditor appointed by the Board. S. 36 (a) directs every mutavalli to carry

out 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. S. 42 enables the Board to appoint any person to act as a mutavalli on 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. S. 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 there under.. By S. 43 (a) provision

for the assumption of direct management of the wakf by the Board has been made. S. 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 1,heaffairs of the wakf are being mismanaged. S. 45 empowers the Board to

hold an enquiry either on an application received under 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 by the exercise of effective control and supervision of the Board 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

wakfs appropriately falling under S. 92 C.P.C. and calling for reliefs provided for there under but not covered by the provisions of the Act and S.

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-

(1); A suit i to obtain any of the reliefs mentioned in S. 14- of the Religious Endowments, Act 1863 . (XX of 1863 and in S 92 of the CPC l908

(Act 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-sec. (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 there under"".

By S., 55 (1), the Board was enabled to institute a suit to. secure any of the reliefs in S. 14 of the Religious and Charitable Endowments Act

and S. 62 of the Code of Civil Procedure, 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 I

court or the consent in writing of the Advocate General notwithstanding such a requirement under S- 18 f the Religious Endowments Act, and S 92

of the Civil Procedure Code. S. 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 under S. 55JI), without the consent in writing of the ,Board. However, the proviso to S. 55 (2)created an

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

or order there under. S. 55 (2),as it then stood, was interpreter by -a Full Benched of the Kerala High Court in Mohammed Jacoo Sait Vs.

District Collector of Trichur District and Others, as curtaining a private party''s right of suit by requiring him to comply with both sub-sec,. (2) of S.

55 of the Act and S. 92 C.P.C. In other words, with reference to suits by parties other than the Board. S. 55.42) of the Act was interpreted as.,

intended .to: supplement and not supplant S.. 03 .C.P.C. and in this view, it was held that the objection that the Collector had no jurisdiction to

proceed with the enquiry into an application for leave to institute a suit under S. 92 which S. 55 (2) of the Wakf Act had earlier been enacted, S.

55 was amended by S. 19 of Act 34 of 1964. In the statement of objects and reasons for this amendment, after referring to the interpretation of S.

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 S. 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 S

19 of Act 34 of 1964. S. 55 of the Act was substituted as under-

Institution of suits under S. 92 of the Code. of Civil Procedure, 1908.

(1) A suit to obtain any of the reliefs mentioned in Section 92 of the CPC 1908 relating to any Wakf may, notwithstanding, anything t.6 the

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

(2) No suit to obtain any of the reliefs referred to in S. 92 of the CPC 1908 relating to any Wakf Shall be instituted by any person or authority

other than the Board without the consent in writing of the Board and for the institution of any such -suit, it shall not be necessary t6 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 under S. 55 (1) of the Act institute a suit to obtain any of the reliefs

mentioned in S. 92 C.P.C. in relation to any Wakf without obtaining the consent in writing of the Advocate General (now leave of court) referred

to in S. 92 -C.P.C., not withstanding such a requirement in S. 92 C.P,C. S. 55 (2) consists of two parts. By its earlier part, S. 55 (2) of the Act

prohibits the institution of stilts by any person or authority other than the Board claiming the reliefs under S. 92 C.P.C .relating to any Wakf

without, the consent. in writing of the Board. The latter portion-of S. 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) not withstanding what is contained in S. 92

C.P.C. That would mean that say person or authority other than the Board can with the consent in writing of the Board institute a quit praying for

the reliefs referred to in S. 92 C.P.C. 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 Gen eral (now leave of court) as provided under S. 92 C.P.C. Thus, S. 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 under-S. 92 C.P.C., ''If the

Board should institute such a, suit for any of the reliefs under S. 92 C.P.C.,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 under S. 92 C.P.Q If a person or authority other than the Board

should institute such a suit for any of the reliefs under S. 92 C.P.C., 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 S. 92 C.P.C, as it then stood or leave of

court as now provided in S. 92 C. P. C.. The proviso to S. 55 (2) of the Act excepted suits against the Board from the operation of S. 55 1,2)

and this dispenses with the requirements as to consent in writing of the Board prior to the institution of any suit by any person or authority in cases

where ouch 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 S. 92 C.P.C. The use of the expression ''such'' in the proviso contemplates a suit of that

nature praying for the reliefs referred to in S. 55 (2) of the Act. - We may now refer to S. 15 of the Act. Under S. 15 (2) (d) - and (e) of the Act,

the Board is empowered to settle schemes 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. S. 15 (3) of the Act confers a right of quit on a person interested in the wakf or affected by such settlement or direction to set aside

such settlement or direction and it in declared that the decision of the civil court thereon shall be final. The proviso to S 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 in"" upon the consent in writing of the Board to so

challenge its order settling a scheme or giving directions would be a travesty of sound principle. It wo0d 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 under S 92 CF.C. Apart from such and similar cam go exempted from the operation of S. 56 (2), it would be otherwise

necessary to secure the consent in writing of the Board as required by S. 55 (2) and a failure to do an would attract the bar to the institution of the

suit and the aft cannot be maintained. Bearing in mind the afore said mid scope of S 55 of the Act it is seen that in this cm, though the appellant had

secured the consent in writing of the Advocate General as then required wider S. 92 C.P.C., as it then stood the consent in writing of the Board an

contemplated under. S. 55 (2) had not been obtained. The reliefs prayed for relate to it reliefs available under S. 92 C.P.C 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 See. 55 of the Act

to enable the appellant to claim that the suit falls within the scope of the proviso to S. 55 (2) of the. Act. The proviso to S. 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 ii not maintainable without the consent in writing of the Board,

though an 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 S. 55 (2) of the Act. Accordingly, we dismiss

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

Appeal dismissed