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Sitabai Ramchandra Jaltare and ors. Vs. Masjid Nurun Mohalla Jingerwadi - Court Judgment

LegalCrystal Citation
SubjectCivil;Trusts and Societies
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 7 of 1971
Judge
Reported inAIR1979Bom109; 1978MhLJ789
ActsCode of Civil Procedure (CPC), 1908 - Sections 2 - Order 22, Rules 2, 3, 4 and 10; Bombay Public Trusts Act, 1950 - Sections 56B, 56B(1) and 86(3); Madhya Pradesh Public Trusts Act, 1951 - Sections 5; Indian Limitation Act, 1908 - Article 181
AppellantSitabai Ramchandra Jaltare and ors.
RespondentMasjid Nurun Mohalla Jingerwadi
Appellant AdvocateS.N. Kherdekar, Adv.
Respondent AdvocateM.M. Qazi, Adv.
DispositionAppeal allowed
Excerpt:
a) the case debated on whether the suit could be continued by the legal representatives of the deceased plaintiff and it also dealt with the time frame for bringing new trustee on record -it was held that suit could be continued by another trustee and not by his own legal representatives and application for bringing new trustee on record could be made at any time during pendency of the suit;b) the case debated on whether the mosque in question was a public trust as registered by the assistant charity commissioner - it was held that it would have been proper for the district judge to issue a notice under section 56b of the bombay public trust act, 1951 to charity commissioner before setting aside his order and would have been in a better position to place all material before the court to.....ginwala, j.1. this appeal under the letters patent has been filed against the judgment of the learned single judge (mr. justice nain) in appeal no. 20 of 4967, allowing the said appeal and setting aside the order passed by the learned district judge on 13th april 1967 in miscellaneous judicial case no. 27 of 1965. the facts leading to the present appeal may shortly be stated as follows,2. at akot in district akola, there was a mosque popularly known as 'mas-jid nuran' or nurunbiki masjid. it appears that some immoveable property in the shop of open plot and built houses had been dedicated to this mosque. one awaliyabi, who purported to be the mutually of the mosque, brought a suit being civil suit no. 279-a of 1951 in the court of civil judge at akot against ramchandra narayan for.....
Judgment:

Ginwala, J.

1. This appeal under the Letters Patent has been filed against the Judgment of the learned single Judge (Mr. Justice Nain) in Appeal No. 20 of 4967, allowing the said appeal and setting aside the order passed by the learned District Judge on 13th April 1967 in Miscellaneous Judicial Case No. 27 of 1965. The facts leading to the present appeal may shortly be stated as follows,

2. At Akot in district Akola, there was a mosque popularly known as 'Mas-jid Nuran' or Nurunbiki Masjid. It appears that some immoveable property in the shop of open plot and built houses had been dedicated to this mosque. One Awaliyabi, who purported to be the Mutually of the mosque, brought a suit being Civil Suit No. 279-A of 1951 In the Court of Civil Judge at Akot against Ramchandra Narayan for possession of a piece of land, demarcated by letters ABCDEFJLM in the map accompanying the plaint on the allegation that this piece of land belonged and was in possession of the mosque and was in wrongful possession of the said Ramchandra, Ramchandra raised several contentions in his defence. The learned Civil Judge decided the suit on 17th November 1952 and held that the plaintiff in the suit was entitled to the possession of a site measuring 78 feet x 68 feet from out of the site which was the subject matter of the suit. The learned Civil Judge dismissed the suit with regard to rest of the site. Being aggrieved by this decision of the learned Civil Judge in the suit, Awaliyabi preferred an appeal before the learned District Judge at Akola which was numbered as Appeal No. 79-A of 1953 Ramchandra filed cross-objections in the appeal. When the appeal was pending before the learned District Judge, Ramchandra contended that the appeal could not be proceeded with because, even according to the plaintiff, i.e. Awaliyabi, the mosque was a public trust and unless the said public trust was registered as required by the provisions of the M. P. Public Trusts Act, 1951, the appeal could not be entertained. This objection on the part of Ramchandra was upheld by the then learned District Judge, who on 26th August 1955 passed an order in the following terms :-

'In view of the recent decision in Jiwan Bodh Deity v. Kesheorao (C. R. No. 188 of 1954, D/- 11-2-1955: 1955 Nag LJ 277, this appeal is 'filed' and be consigned to the Record Room. After the trust is registered, theappellant shall have the liberty to apply for proceeding with the appeal'.

In pursuance of this order, therefore, the record of the appeal was consigned to the Record Room.

3. On 30th April 1965 one Abdul Majid son of Abdul Rahman presented an application to the learned District Judge, purporting to be a Managing Trustee of the said mosque. After giving the history of the litigation upto the order which was passed by the learned District Judge on 26th August 1955, Abdul Majid submitted that Awaliyabi expired on 24th May 1958 and till her death the mosque was not registered as a public trust. He further submitted that later on the mosque came to be registered as a public trust under the provisions of the Bombay Public Trusts Act, 1950 and certificate of registration had been issued to him by the Assistant Charity Commissioner, Akola Region, Akola on 5th November 1963 and hence he had become the managing trustee of the said mosque and was entitled to present the application on behalf of the said trust. Abdul Majid further contended that since the mosque had been registered as public trust, it was entitled to carry on the appeal which had been consigned to the Record Room for want of registration under the above said order of the learned District Judge. By this application, therefore, Abdul Majid prayed that the record of the appeal should be sent for from the Record Room and he should be substituted as appellant in place of Awaliyabi and the appeal be proceeded with. Ramchandra, who was respondent in appeal, resisted this application by filing written statement on 25th August 1965. He raised several contentions and one of the contentions was that during her lifetime Awaliyabi has applied to the Registrar of Public Trusts under the M. P. Public Trusts Act on 10th July 1956 for registration of the trust as a public trust but the said application was dismissed by the Registrar on the ground that the trust was not a public trust. Ramchandra further contended that while applying for registration before the Assistant Charity Commissioner under the provisions of the Bombay Public Trusts Act, 1951, the applicant, viz., Abdul Majid had suppressed this fact from the Assistant Charity Commissioner and since the Registrar under the M. P. Act had already rejected Awaliyabi's application for registration of the trust as a publictrust, the Assistant Charity Commissioner had no power and jurisdiction to do otherwise and hence the order passed by the latter registering the trust as a public trust was without jurisdiction. Another contention raised by Ramchandra was that even if it was held that the mosque was a private trust and Awaliyabi was its Mutually, the application made by Abdul Majid for leave to proceed with the appeal was not tenable in view of the fact that legal representatives of Awaliyabi, who should have applied for being brought on record within 90 days of the death of the former, had not done so and hence the right to sue did not survive and the appeal abated. These were the two main contentions apart from others which Ramchandra raised against the application of Abdul Majid. Abdul Majid followed the first application by another application for 27th March 1967, purporting to have been filed under Order 22 Rule 10 of the Code of Civil Procedure. In substance the allegations in this application were practically the same as in the earlier application. The only difference being that by this application Abdul Majid prayed that he may be allowed to amend the appeal memo by substituting his name in his capacity as a Managing Trustee of the mosque in place of Awaliyabi. Ramchandra opposed this application also by filing written statement on 6th April 1967. Abdul Majid produced Certificate of Registration while Ramchandra produced four documents which included a certified copy of the order passed by the Registrar under the M. P. Public Trusts Act on the application of Awaliyabi and certified copy of the resolution passed on 26th December 1962 electing members to the Managing Committee of the mosque. It may be mentioned here that the name of Abdul Majid appears in the list of members given in the resolution and he is shown as a Managing Trustee.

4. It appears that though from time to time the application filed by Abul Majid was fixed for hearing, arguments were heard by the learned District Judge on 6th April 1967. He then passed his order on 13th April 1967 under which he rejected the application filed by Abdul Majid on 30th April 1965. The learned District Judge held that since application was not made by the legal representatives of Awaliyabi for being brought on record, the appeal had abated. The learned District Judge was ofthe view that the case was governed not by Rule 10 but by Rule 3 of Order 22 of the Code of Civil Procedure. Secondly the learned District Judge also held that the order passed by the Assistant Charity Commissioner registering the mosque as a public trust was null and void in view of the fact that the Registrar under the M. P. Public Trusts Act had rejected the application of Awaliyabi for registration of the trust as a public trust and in view of this and by virtue of the provisions of Section 86 (3) (a) of the Bombay Public Trusts Act, the Assistant Charity Commissioner would have no jurisdiction to entertain any application for registration of the trust. For these reasons, therefore, the learned District Judge held that the application made by Abdul Majid was not maintainable and hence he rejected it.

5. Being aggrieved by this order passed by the learned District Judge, Abdul Majid preferred an appeal to this Court being appeal from Order No. 20 of 1967. The learned Single Judge set aside the finding of the learned District Judge both with regard to the abatement of the appeal as also the validity of the order of the Assistant Charity Commissioner. The learned Single Judge, held that Awaliyabi had not filed the suit in her personal capacity and there could be no question of continuation of the suit by her personal legal representative and that it could be continued by another representative of the trust. The learned Single Judge, therefore, held that when one trustee dies, resigns or otherwise ceases to be the trustee of a Trust, it would, be devolution of interest within the meaning of Order 22, Rule 10 of the Code of Civil Procedure and the suit could be continued by the person upon whom such interest devolved by leave of the Court. Hence, according to the learned Single Judge, the provisions of Order 22 Rule 10 of the Code applied to the present case and in that view of the matter it could not be said that the appeal had abated. With regard to the validity of the order of the Assistant Charity Commissioner, the learned Single Judge held that in view of the provisions of the Bombay Public Trusts Act and particularly the finality attached to the order passed under the Act the learned District Judge had no jurisdiction to hold an enquiry into the correctness of the said entries and he, therefore, set aside that finding of the learned District Judge. In the view which the learned Single Judgetook about the findings of the learned District Judge, he allowed the appeal, set aside the order passed by the learned District Judge on 13th April 1967 and allowed the application filed by Abdul Majid for leave to continue the appeal. He directed the learned District Judge to hear the appeal on merits. Being aggrieved by this order passed by the learned Single Judge, Ramchandra filed this appeal under the Letters Patent. During the pendency of the appeal Ramchandra expired and his legal representatives have been brought on record as appellants.

6. The first question which falls for consideration is whether the application which was made by Adbul Majid before the learned District Judge was governed by Rule 3 of Order 22 as held by the learned District Judge or by Rule 10 of Order 22, as held by the learned Single Judge. Relying on certain decisions referred to by him in his judgment, the learned District Judge was of the view that Order 22 Rule 10 is a residuary rule governing only those cases which are not provided for by the preceding rules and where devolution takes place by reason of death, the matter falls under Rule 4 where the death is of the defendant and Rule 10 will have no application to such a case. The learned District Judge was of the view that Rule 10 is an enabling one but not a device intended to get over the laches of the parties bound to move under Rule 3 or Rule 4. It appears that the learned District Judge was of the view that Order 22 Rule 10 will not apply to a case where the plaintiff or defendant dies and the suit has to be continued by other persons. The learned District Judge was of the view that in case of death of the plaintiff or the defendant, as the case may be. the proper provision to be applied would be Rule 3 or R. 4 of O. 22 and not Rule 10. It was in this view of the matter that the learned District Judge held that the present case was governed by Order 22 Rule 3 of the Code and not by Order 22 Rule 10. Having held so, the learned District Judge further found that the legal representative of Awaliyabi should have been brought within 90 days from her death and since this has not been done, the appeal had abated.

7. As already seen the learned Single Judge differed from the learned District Judge with regard to the application of Order 22 Rule 3 to the present case.The learned Single Judge observed that Order 22 Rule 3 would apply only if on the death of the plaintiff the suit is to be continued by the legal representatives of the plaintiff but not to the case where the plaintiff was a trustee. According to him, on the death of the plaintiff, who filed the suit in his capacity as a trustee, or his resignation or otherwise ceasing to be trustee, the person, who could continue the suit would not be his personal legal representative but another trustee of the said trust. The learned single Judge observed that Awaliyabi had not filed the suit in her personal capacity and hence there could not be any question of her personal legal representatives continuing it and it could be continued by another representative of the trust, in our opinion, the view taken by the learned single Judge, with respect, appears to be laying down the law correctly in this respect. In Thirumalai v. Arunachella : AIR1926Mad540 , the appeal was filed by nine trustees. But during the pendency of the appeal two of them died and one retired. It appears that an application was made for bringing on record the trustees who had been appointed in place of one of them who had expired and the other who had retired. This application had been filed beyond the period of 90 days from the death of one of trustees and from the date of retirement of the other. It was contended that the new trustees, who had been appointed in place of the above said two trustees were their legal representatives within the meaning of clause (11) of S. 2 of the Code and hence the application not being filed within the prescribed time, could not be entertained. oN these facts it was held that the new trustees were not legal representatives of those who had died or retired and it was held that the application for bringing the new trustees on record would fall under Order 22 Rule 10, because the interest of the deceased trustees devolved on these persons by the act of the electors done in pursuance of the scheme framed by the Court and it was a case of devolution of interest during the pendency of the suit. In Keshab Rai v. Jyoti Prosad : AIR1932Cal783 a Division Bench of the Calcutta High Court held that Rules 2, 3 and 4 of Order 22 of the Code relate to cases of devolution in interest on the death of a plaintiff or defendant when such plaintiff or defendant was suing or was being sued respectively in his personal capacity, that these rules do notapply when a suit is brought by or against a person in his representative character and to such a suit the provisions of Order 22 Rule 10 of the Code will be applicable. Again in Kishori Lal v. The Collector ILR (1955) All 128 a Division Bench of the Allahabad High Court held that Order 22 Rule 4 of the Code is applicable to those cases where a person who is brought on the record as legal representative inherits the property from the deceased party, but where a person is brought on the record as legal representative in order to represent an estate which was formerly represented in a suit by another person, Order 22 Rule 10 of the Code will apply. Lastly in Roshan Lal v. Kapur Chand a Division Bench of the Punjab High Court has held that where a suit is brought by trustees and some of them die during the pendency of the suit, the new trustees can be added as parties under Order 22 Rule 10 of the Code and newly appointed trustees are not representatives of the deceased trustees within the meaning of Order 22 Rule 3. It would, therefore, appear that it is well settled that Order 22 Rule 3 of the Code applies to cases where the plaintiff leaves behind the estate which could be inherited by his heirs or successors and if they are brought on record, then the provisions of Order 22 Rule 3 will apply. However, the case would be different where the suit is brought by the plaintiff not in his personal capacity but in his representative capacity as a trustee or otherwise, in that case when he dies, his own legal representative would not automatically become trustees and would not be legal representatives within the meaning of Clause (11) of S. 2 of the Code. Only those trustees who are elected or appointed under the scheme of the trust can step in his shoes and continue the suit. Such a new trustee could not by any stretch of imagination be said to be legal representative of the deceased trustee. In any case, the right of the deceased plaintiff to act as a trustee would not pass on to the new trustee on the death of the deceased trustee. The new trustee would get his right not by virtue of death of the previous trustee but because of his being elected or appointed as a trustee under the scheme of the trust. Obviously, therefore, when a suit is filed by a person in his capacity as a trustee or representing a trust or any interest and if he dies, the suit can-not be continued by his own legal representatives but will have to be continued by another trustee or a person who is appointed or elected to manage the trust. In short, therefore, interest as a trustee will not devolve on a new trustee because of the death of the previous trustee but because of his being elected or appointed as such, Now obviously such a case will not be covered by Order 22 Rule 3, which contemplates the legal representatives of the deceased plaintiff being brought on record. Since the new trustee would not be a legal representative of the deceased trustee, in that sense there is no question of the new trustee applying for being brought on record under the provisions of Order 22 Rule 3 of the Code. Obviously such a case would be covered by Rule 10 of Order 22 of the Code, In this view of the matter, therefore, it is not possible to say that the conclusion to which the learned single Judge has arrived is not correct.

8. However, even if it is assumed that the present case is governed by Order 22 Rule 10 of the Code, the question still remain, whether the application made by the new trustee would be governed by any period of limitation. Even though, Shri Kherdekar appearing for the respondents before the learned single Judge had submitted that such an application would be governed by Article 181 of the Indian Limitation Act, 1908, he has very fairly conceded before us that such an application would not be governed by any period of limitation, It is not, therefore, necessary to decide this point in this appeal. However, in Baijnath Ram v. Mt. Tunkowati : AIR1962Pat285 Full Bench of the Patna High Court held that unlike Rules 3 and 4, of O.22, no limitation is prescribed for presentation of an application under Order 22 Rule 10, and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant has devolved and hence the right to make an application under the latter rule is a right which accrues from day to day and can be made at any time during the pendency of a suit and there is no abatement under that rule. A similar view has been taken by a Single Judge of the erstwhile Nagpur High Court in C. Wright Neville v. E. H. Freser . It would, therefore, appear that once It is held that the application is governed by O. 22Rule 10 of the Code, then such an application could be made at any time during the pendency of the suit or appeal, but while granting leave to the applicant to proceed with the suit or appeal, the Court would consider the question on merits. However, the application cannot be thrown out simply because it is not made within a particular period,

9. In the present case no doubt Awaliyabi had filed the suit in her own name. But the various recitals in the plaint make it abundantly clear that she was filing the suit as a Manager (Mutually) or Wahiwatdar of the mosque in question. The plot for the possession of which she had filed the suit was not claimed by her as her own property but as that belonging to the mosque. It is, therefore, clear that Awaliyabi had filed the suit as representing the mosque. As held by the Privy Council in Masjid Shahid Gani v, Shiromani Gurudwara , suits cannot competently be brought by or against mosque. Now if that is so naturally the suit will have to be filed by the Mutually, Manager or Wahiwatdar of the mosque in his own name but representing the interest of the mosque. Obviously, therefore, when a Manager, Mutually or Wahiwatdar of a mosque files a suit for recovery of the property of the mosque, he does so in a representative capacity and not in his personal capacity, Now when Awaliyabi expired, the right to sue did not automatically survive to her personal legal representatives because they do not become Mutual or Managers of the mosque ipso facto by the death of Awaliyabi. The suit could be continued only by a person or persons who would be duly appointed or elected as Mutually or managers of the mosque. This could be soon after the death of Awaliyabi or it could have been after some time and the persons who would be appointed in place of Awaliyabi would, therefore, ba entitled to continue the proceedings in their capacity as Mutually or managers. It is, therefore, clear that if Adbul Majid had been elected or appointed as Manager or Managing Trustee, as he says, of the mosque after the death of Awaliyabi he could apply for permission to continue the appeal under Order 22 Rule 10 of the Code, Certainly such an application could not have been made by personal legal representative of Awaliyabi under Order 22 Rule 3 of the Code, In our view, therefore, the learned District Judge was not right when he heldthat the case was governed by Order 2? Rule 3 and not by Order 22 Rule 10. The learned District Judge ought to have, therefore, considered the application which had been made by Abdul Majid as falling under Order 22 Rule 10 of the Code and he should have enquired if the interest of Awaliyabi as Manager, Mutually or Wahiwatdar of the mosque had devolved on Abdul Majid either by appointment or by election, Unfortunately this has not been done because the learned District Judge was of the view that the application fell within the purview of Order 22 Rule 3 and the appeal had abated because no application had been filed within the period prescribed by that Rule.

10. Shri Kherdekar appearing for the appellants next submitted that the learned Single Judge was in error in holding that the learned District Judge had no jurisdiction to hold an enquiry into the correctness of the order passed by the Assistant Charity Commissioner by which he came to register the mosque as a public trust. Shri Kherdekar submitted that the certified copy of the order passed by the Registrar under the M. P. Public Trust Act, which had been filed by Ramchandra in the proceedings before the learned District Judge, would clearly show that an application had been made on behalf of Awaliyabi for registration of the mosque as a public trust but on a report from the S.D.O., the Registrar had rejected this application. Shri Kherdekar submitted that the Registrar rejected the application of Awaliyabi because, in his view, the mosque was not a public trust. According to Shri Kherdekar, if this was so, this finding or the order of the Registrar was saved and remained unaffected by virtue of clause (a) of subsection (3) of Section 86 of the Bombay Public Trusts Act, 1950, and the Assistant Charity Commissioner would not have any power or jurisdiction to enquire into the nature of the trust and held it as a public trust in the face of the finding to which the Registrar under the M.P. Act had come. For this proposition Shri Kherdekar relied on the decision of the Supreme Court in Hasan Nurani Malak v. S. M. Ismail : [1967]1SCR110 . Shri Kherdekar submitted that this legal position had been properly appreciated by the learned District Judge, but the learned Single Judge had taken a different view without considering the effect of Section 86 (3) of the Bombay Public Trusts Act and particular-ly the above said decision of the Supreme Court. Shri Kherdekar submitted that on the face of it and in view of the facts stated above, the order passed by the Assistant Charity Commissioner was without jurisdiction and hence could not be acted upon. He submitted that Abdul Majid claimed to be a trustee of the mosque on the basis of his appointment by the Assistant Charity Commissioner and if that order is held to be invalid, then obviously Abdul Majid would have no right to maintain the application and in that view of the matter, he could not be allowed to proceed with the appeal. Shri Qazi, the learned counsel for the respondent, contended that what is saved under S. 86 (3) (a) of the Bombay Public Trusts Act is anything which is duly done under the M. P. Public Trusts Act. Shri Qazi submitted that the very document on which reliance was sought to be placed by Shri Kherdekar would indicate that the Registrar had not himself made the enquiry, as required by Section 5 of the M. P. Public Trusts Act but had passed the order, on which the appellants were relying, on a report from the S. D. O. According to Shri Qazi, therefore, it could not be said that the rejection of the application of Awaliyabi by the Registrar on the ground that it was not a public trust, could not be said to be an act duly done under the M. P. Act. He, therefore, urged that this line of approach would not be correct and it could not be said that the Assistant Charity Commissioner was debarred from holding an enquiry because of the order passed by the Registrar. However, in reply to this argument of Shri Qazi, Shri Kherdekar has drawn our attention to the observations of a Division Bench of this Court in Appeal No. 9 of 1961, where a similar question arose in a suit filed under Section 8 of the M. P. Public Trusts Act. In that case the Division Bench observed that though the Registrar had been held to be a persona designate and the order passed by him did not appear to have been passed on the evidence recorded by him or in his presence, that by itself would not introduce any such illegalities as would be relevant in the suit and at best that could be said to be an error in exercise of the jurisdiction, which would furnish a good ground for rejecting the validity of the order in superior Court. The Division Bench observed that it was difficult to hold that the order became a nullity or void on this ground alone, i.e. on the ground thatthe evidence had not been recorded by the Registrar by himself or in his presence. In view of these observations of the Division Bench, therefore, it is not possible to uphold the submissions made by Shri Qazi. However, we find that the objections which had been raised by Ramchandra with regard to the validity of the order of the Assistant Charity Commissioner had been disposed of by the learned District Judge summarily. It does not appear that the learned District Judge, while coming to the conclusion that the order passed by the Assistant Charity Commissioner was a nullity, had applied his mind to the fact that in passing the order the Registrar had acted duly under the Provisions of the M. P. Public Trusts Act. It was necessary to go into this aspect of the case since the learned District Judge was setting aside the Order passed by the Assistant Charity Commissioner under the Bombay Public Trusts Act. If the learned District Judge was of the view that the order of the Assistant Charity Commissioner was bad because of the earlier order passed by the Registrar, in the fitness of things he would have done better to give a notice to the CharityCommissioner as required by Sub-section (1) of Section 56B of the Bombay Public Trusts Act. In that case the CharityCommissioner would have been in a better position to place all the material before the court to come to the conclusion whether the Registrar had passed the order legally and with jurisdiction. If it was possible to show that the order passed by the Registrar itself was without jurisdiction, then certainly it could not have been saved under Section 86 (3) (a) of the Bombay Public Trusts Act and on that account the order of the Assistant Charity Commissioner could not be held to be null and void as has been done by the learned District Judge. In short, therefore, we are of the view that before passing such an order it should have been proper for the learned District Judge to give a notice to the Charity Commissioner and give him an opportunity for being heard since it was the order of the Assistant Charity Commissioner which was being set aside so summarily.

11. Even assuming that the order of the Assistant Charity Commissioner was null and void because of reasons advanced by Shri Kherdekar, the necessary consequence would not be that the application filed by Abul Majid would beuntenable and rejected on that count. The effect of nullity of the order of the Assistant Charity Commissioner would only be that the mosque could not be said to be a public trust. But the fact would remain that if it is not a public trust, it would be a private trust and if it is a private trust, it would be open to a Mutually or manager, who succeeded Awaliyabi, to apply for being brought on record and to continue the proceedings. It is not as if the Registrar held that the mosque was not even a private trust or that it was a private property of Awaliyabi, so much so that the suit could be continued only by the legal representatives of Awaliyabi and none else. II Awaliyabi had applied for the mosque being registered as a public trust under the provisions of the M. P. Public Trusts Act and if that application was rejected by the Registrar, the only thing which could be inferred from these facts would be that the Registrar was of the view that it was not a public trust. At the same tune, the character of the mosque as a trust would not be affected. Hence, even though the learned District Judge held that the order of the Assistant Charity Commissioner was bad as being without jurisdiction, he could not have rejected the application filed by Abdul Majid merely on that ground. In that case he would have to consider the question as to in what capacity Abdul Majid was in a position to maintain and continue the proceedings in appeal. It would be necessary to enquire as to how Abdul Masjid came to become the managing trustee of the mosque as he claimed. In our view, therefore, in either case the application filed by Abdul Majid could not have been rejected by the learned District Judge once it is held that the application was governed by the provisions of O. 22 R. 10 and not O. 22 R. 3 of the Code. Since we have come to the conclusion that the application was governed by O. 22 R. 10, the question whether the interest of deceased Mutually had devolved on Abdul Majid would have to be considered and enquired into and, in our opinion, therefore, it is necessary to remand the case for this purpose. The learned District Judge may issue a notice to the Charity Commissioner under Section 56B of the Bombay Public Trusts Act with regard to the validity of the order passed by the Assistant Charity Commissioner. The learned District Judge would also enquire into the question as regards the title ofAbdul Majid to be a managing trustee of the mosque. If he comes to the conclusion that the order of the Assistant Charity Commissioner is bad, but at the same time Abdul Majid has been validly appointed or elected as a trustee, Mutually or manager of the Trust, he would consider if he, that is, Abdul Majid, should be granted leave to proceed with the appeal.

12. In the result, therefore, the appeal is allowed. The orders passed by the learned Single Judge and the learned District Judge are hereby set aside and the case is remanded to the District Court for disposal in accordance with law and in the light of the observations above. In the circumstances of the case, we do not make any order as to costs.

13. Appeal allowed.


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