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FazlehusseIn Haiderbhoy Buxamusa and ors. Vs. Yusufally Adamji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberO.C.J. Suit No. 1227 of 1946
Judge
Reported inAIR1955Bom55; (1954)56BOMLR955
ActsCode of Civil Procedure (CPC), 1908 - Sections 16, 17, 18, 19, 20, 92, 92(2) and 120 - Order 6, Rules 2 and 17 - Order 7, Rule 7 - Order 14, Rule 2; Constitution of India - Article 245; Religious Endowments Act, 1863
AppellantFazlehusseIn Haiderbhoy Buxamusa and ors.
RespondentYusufally Adamji and ors.
Appellant AdvocateM.P. Laud and ;J.M. Thakor, Advs.
Respondent AdvocateH.D. Banaji, ;M.L. Manekshah, ;S.T. Desai and ;K.K. Desai, Advs.
Excerpt:
.....section 92 - letters patent (bombay), clause 12--suit filed in high court for administration of foreign charity managed in foreign territory for removal of trustees who are non-resident foreigners and for appointment of new trustees etc.--part of property belonging to such charity within jurisdiction of high court--maintainability of suit--whether court can interfere with administration of such foreign charity--applicability of section 92 of code--whether clause 12 of letters patent excludes applicability of section 92--applicability of clause 12 in relation to jurisdiction of high court.;under section 92 of the civil procedure code, 1908, the high court is competent to entertain a suit for the administration of a charity and for removal of trustees and for appointment of new..........of sections 16, 17 and 20 do not apply to this court in the exercise of its ordinary original civil jurisdiction. the jurisdiction of the high court to decide a suit in the exercise of its original civil jurisdiction is required to be ascertained under clause 12, letters patent. ordinarily, therefore, if a question as to the jurisdiction of this court to entertain a civil suit is raised, the question would have to be decided by reference to the provisions of clause 12, letters patent and not sections 16, 17 and 20, civil p. c. but, suits under section 92, civil p. c. are not governed by those provisions of the civil p. c. but by the specific provisions contained in section 92, section 92 applies to all courts including the chartered high courts, and the application of that section.....
Judgment:

1. (After setting out the contentions of the parties, his Lordship proceeded:) Now at the date when the suit was filed the defendants were nationals of what then was British India and resided in the British Indian territory, but since the partition of India defendants Nos. 1 to 9 have been residents of territory which is beyond the territory of the Union of India, and I will assume for the purpose of argument that defendants Nos. 1 to 9 are not. residents of the Union of India and may be regarded as non-resident foreigners qua this Court. Again, when the suit was filed some of the properties belonging to the institution were in British India and some were outside British India.

Even though the charity was outside the country, the trustees were residing in British India and the management of the trust was also carried on in British India. Since the suit was filed, however, the position of the parties qua this Court has been fundamentally altered. Not only is the charity a foreign charity in the sense that the benefit which was available to the pilgrims when visiting Iraq, was to be obtained by them outside the limits of British India, but even the trustees who are administering the trust are not residents of the territory where the writ of the State under which the Court functions continues to run.

The effect of the change is of far-reaching importance to the constitution of the suit. As I will hereafter advert, this Court at the date when the suit was instituted have been in a position to grant directions to defendants Nos. 1 to 9 in personam, and if the plaintiff's case was established, those directions might have been enforced by directing the defendants personally to comply with the orders, but since partition this Court is incompetent to issue even personal directions against the trustees.

The defendants have not made this submission in their written statement and have not expressly claimed that this Court is incompetent to proceed with the suit on the ground that the reliefs claimed against them are not capable of being granted by this Court, because they are non-resident foreigners, and that the claim is made by the plaintiffs in respect of a foreign charity. However, even without a formal amendment the argument has been permitted to be raised that the Court is incompetent to try the suit when the defendants are non-resident foreigners and the charity in respect of which a claim for administration is made is a foreign charity.

2. Now, some of the properties of the institution, which for the purpose of the present argument I assume is a public trust of a religious or charitable nature, are within the limits of the ordinary original jurisdiction of this Court. It appears, however, that there are several other propertied of the institution which are situate outside the limits of the ordinary original jurisdiction of this Court and some are even outside the territory of the Indian Union, and possibly those properties constitute the bulk of the property of the institution.

The question that arises then for decision is: Is this Court competent to entertain a suit for the administration of a charity and for removal of trustees and for appointment of new trustees, when the charity is to all intents and purposes a foreign charity, the management of the charity is carried on in a foreign territory and the trustees are non-resident foreigners, merely because some of the properties which belong to the charity are situate within the territorial jurisdiction of this Court and its income is collected and is required to be applied for purposes of the charity. For the decision of this question I have omitted from consideration the state of things which prevailed when the suit was filed and I have taken into consideration the state of things which exists when this issue as to jurisdiction is sought to be argued.

It is obvious that even if this Court had jurisdiction to entertain the suit as filed, if by reason of subsequent events the Court has lost jurisdiction to entertain or try the suit, this Court will not be justified in dealing with the suit with reference to circumstances as they existed at the date of the institution of the suit, but must proceed to decide the dispute on the footing that if the suit had been filed at this date, the Court would have been incompetent to grant the reliefs in respect of the properties and of the persons who are not within the limits of the jurisdiction of this Court. Normally a Court must have regard to circumstances existing as at the date when the issue of jurisdiction is tried and must decide it in the light of circumstances existing as at that date.

3. In considering the preliminary issue the Court must look to the averments in the plaint and consider any objections which the defendant may choose to raise against the maintainability of the action on those averments. The question of jurisdiction which is raised by way of a demurrer has always to be decided on the allegations made in the plaint and not on the contentions that the defendant may raise. It is true that if the jurisdiction of the Court depends upon the proof of a fact and the question as to the existence or otherwise of that fact is canvassed, the parties may lead evidence in support of their respective cases before the preliminary issue as to the jurisdiction of the Court is decided. But in the present case there is no scope for recording evidence for arriving at a conclusion as to the existence of any fact on the proof of which alone the Court's jurisdiction depends.

4. Now, the Court's jurisdiction to entertain a suit under Section 92, Civil P. C. depends only upon the existence within jurisdiction of property which is the subject-matter of the trust. The plaintiffs have claimed that some of the properties which are alleged to belong to the trust are situate within the limits of the jurisdiction of this Court, and that fact does not appear to have been centroverted by the defendants; consequently there is no scope for recording evidence at this stage for ascertaining whether this Court has jurisdiction to entertain the suit.

It is true that the plaintiffs have claimed in their suit that a part of the cause of action has arisen within the jurisdiction of this Court and they have applied for leave under Clause 12, Letters Patent and have obtained that leave. But in the view that I take in this suit, Clause 12, Letters Patent has no bearing on the question of jurisdiction. Section 92, Civil P. C. which deals with what may be called 'charity suits' is a complete code by itself in respect of suits relating to public trusts of a religious or charitable nature.

Section 92 provides under Clause (1) :

'In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other court empowered in that behalf by the Provincial Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree....'

for certain reliefs which are specified in that section.

Sub-section (2) of Section 92 provides :

'Save as provided by the Religious Endowments Act, 1863, no suit claiming any of the reliefs specified in Sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that Sub-section.'

Now, the section in terms states that the Court which is to have jurisdiction must be a principal Civil Court of original jurisdiction and within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate. This Court in the City of Bombay is the principal Civil Court of original jurisdiction, and if within the local limits of the jurisdiction of this Court the whole or any part of the subject-matter of the trust is situate then this Court would have jurisdiction to entertain the suit. Again, if within the jurisdiction of this Court the subject-matter of the suit or any part thereof is not situate, then notwithstanding the fact that the defendants or any of them were residing or carrying on business within the jurisdiction of this Court, this Court would have no jurisdiction to entertain the suit, nor would it have jurisdiction on the allegations that the cause of action or a part thereof has arisen within those limits.

In my view Clause 12, Letters Patent can only apply to those cases regarding which no provision is made in the Civil P. C. relating to the jurisdiction of this Court. Normally, the territorial jurisdiction of a Court has to be ascertained by reference to the provisions of Sections 16 to 20, Civil P. C., but by reason of the express provision made in Section 120, Civil P. C., the provisions of Sections 16, 17 and 20 do not apply to this Court in the exercise of its ordinary original civil jurisdiction. The jurisdiction of the High Court to decide a suit in the exercise of its original civil jurisdiction is required to be ascertained under Clause 12, Letters Patent.

Ordinarily, therefore, if a question as to the jurisdiction of this Court to entertain a civil suit is raised, the question would have to be decided by reference to the provisions of Clause 12, Letters Patent and not Sections 16, 17 and 20, Civil P. C. But, suits under Section 92, Civil P. C. are not governed by those provisions of the Civil P. C. but by the specific provisions contained in Section 92, Section 92 applies to all Courts including the Chartered High Courts, and the application of that section is not excluded by anything contained in the Letters Patent. It is true that Clause 12 of the Letters Patent states that the High Court at Bombay in the exercise of its ordinary original jurisdiction shall be empowered to receive, try and determine suits of every description when certain conditions are fulfilled. It does appear that there is a conflict between the terms of Section 92 of the Civil P. C. and Clause 12, Letters Patent, but in the event of a conflict between the Letters Patent and the Civil P. C., the latter statute must prevail. Clause 44, Letters Patent provides that the provisions of the Letters Patent are subject to the legislative powers of the Union Parliament.

5. The jurisdiction of this Court must be ascertained solely by reference to the existence or otherwise of property which is the subject-matter of the suit and not by reference to other considerations, such as the residence of the defendants or the cause of action or a part thereof arising within the jurisdiction of the Court. I am supported in that view of the case by a decision of the Calcutta High Court reported in -- 'Padampat Singhanya v. Narayandas Jhunjhunwalla' : AIR1932Cal444 (A).

In that case Mr. Justice Buckland has observed (p. 445) :

'..the words in the section (Section 92), referring to the subject-matter of the trust, are referable to both courts mentioned. If that view is correct, this section must be taken as overriding Clause 12 of the Letters Patent, which permits a suit to be instituted in this Court if the defendants at the time of the commencement of the suit shall dwell or carry on business or personally work for gain within the local limits of its ordinary original jurisdiction, for otherwise one would have to ignore the mandatory provisions of Sub-section (2).'

Admittedly three of the properties which are alleged to be the subject-matter of the trust are situate within the limits of this Court's jurisdiction, & prima facie this Court would have jurisdiction to entertain the suit and decide it.

6. But it is argued on behalf of the defendants that the provisions of the Civil P. C. can only apply within the limits of the State and they cannot have any extra territorial operation, and that a State by legislating cannot confer jurisdiction upon Municipal Courts, to deal with immoveable property outside their jurisdiction, except in the limited class of cases which may fall within what may be termed the 'equity jurisdiction'; nor can it exercise any powers against persons who are not domiciled in the country and Who do not submit to the jurisdiction of the Municipal Court.

Mr. Banaji on behalf of defendants Nos. 1 to 9 has further contended that the present suit is one substantially for administration of a foreign trust and for removal of the defendants, who are non-resident foreigners from the management of the trust and for an account against them, and that such a suit is not maintainable, because this Court is incompetent to administer foreign trusts and is also incompetent to give personal directions to defendants Nos. 1 to 9 since they are neither the nationals of India nor are the residents of India.

7. Now, it is true that all jurisdiction is in a sense territorial. No State by legislation can confer upon its Courts the authority to deal with the rights and obligations in respect of land not situated within its limit, nor against persons not residing, permanently or temporarily, within the realm.

In -- 'Sirdar Gurdyal Singh v. Rajah of Faridkote', 21 Ind App 171(B), their Lordships of the Privy Council observed (p. 185) :

'..All jurisdiction is properly territorial, and 'extra territorial jus dicenti, impune non paretur'. Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory, and it may be exercised over moveables within the territory; and, in questions of 'status' or succession governed by domicile, it may exist as to persons domiciled, or who when living were domiciled, within the territory. As between different provinces under one sovereignty (e.g. under the Roman Empire) the legislation of the sovereign may distribute and regulate jurisdiction; but no territorial legislation can give jurisdiction which any foreign Court ought to recognise against foreigners, who owe no allegiance or obedience to the Power which so legislates.

In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced 'in absentem' by a foreign Court, to the jurisdiction of which the Defendant has not in any way submitted himself, is by international law an absolute nullity. He is under no obligation of any kind to obey it; and it must be regarded as a mere nullity by the Courts of every nation except (when authorized by special local legislation) in the country of the 'forum' by which it was pronounced.

These are doctrines laid down by all the leading authorities on international law; among others, by 'Story' (Conflict of Laws, 2nd ed.,Sections 546, 549, 553, 554, 556, 586), and by Chancellor Kent (Commentaries, Vol. 1, p. 234, note c, 10th Ed.).'

It is clear on the authority of the judgment of their Lordships of the Privy Council that this Court would always be entitled to deal with questions which arise in respect of immoveable property situate within the limits of the State, subject of course to the laws procedural or otherwise which may be passed by the Indian Legislature. But so far as the personal obedience of the defendants to any directions which this Court may choose to give, it can only be as against the nationals of this country or against foreigners who may submit themselves to the jurisdiction of this Court. According to the rules of international law, however, to which all legislation of a State must be deemed subject, a decree against a nonresident foreigner issuing personal directions would be regarded as a nullity outside the limits of the State.

8. In the present case, the charity is a foreign charity; it is administered in a foreign country, and even the trustees are residing in a foreign country, and normally this Court would not be entitled to administer that charity or to give directions with regard to administration of that charity to persons who are not subject to its process. The question then is : Does the fact that some of the properties are within the jurisdiction confer jurisdiction upon this Court to entertain the present suit and to interfere with the administration of a foreign charity by exercising jurisdiction over the defendants who are non-resident foreigners, or even to grant any other relief?

9. In support of his submission Mr. Banaji for the defendants refers to Diccy's Conflict of Laws, 6th edn., ch. III, r. 21, p. 151, where it is stated:

'The court has no jurisdiction to administer a foreign charity under the supervision of the court or to settle a scheme for such a charity.'

A similar statement made in Halsbury's Laws of England (Hailsham Edition), Vol. IV, Article 212, p. 304, and a decision of this Court in -- 'Shivnarayan Sarupchand v. Bilasrai Juharmal, AIR 1942 Bom 208(C), are also relied upon. The head-note in -- 'Shivnarayan's case (C), states:

'The High Court of Bombay has no jurisdiction to remove trustees of a charity functioning in an Indian State and to appoint new trustees.

Where, however, immoveable property belonging to a charity in an Indian State but situated within the jurisdiction of the High Court is being misapplied, the High Court can interfere to protect that property by granting an injunction restraining misappropriation of the property or by appointing a receiver to hold the property subject to the orders of the Court having jurisdiction to administer the charity.'

Now, the case of -- 'Shivnarayan Sarupchand v. Bilasrai Juharmal', (C), was taken in appeal to the Privy Council. The Judgment of their Lordships of the Privy Council is reported in -- 'Bilasrai Joharmal v. Shivnarayan Sarupchand', . Their Lordships of the Privy Council confirmed the decree passed by this Court, and in confirming the decision of this Court observed that it would be Highly inconvenient that this Court should interpose its authority upon particular questions arising in the course of administration of a foreign trusts-acting intermittently according as they may be invoked by particular complaints in preference to the Courts of the country in which the charity was meant to operate.

Their Lordships regarded the question as one more of discretion of the High Court than of the inherent want of jurisdiction of the Court to entertain the suit for the relief asked for. Their Lordships observed that they were satisfied that there was no defect or want of jurisdiction of the Court to entertain the suit. They observed that once it was admitted that part of the cause of action arose within the jurisdiction (so as to satisfy the requirements of Clause 12, Letters Patent), no great importance attached to the place where the trust was created or its money invested, if there was no question of preserving or recovering its property, and if the only question was as to the country whose Court should supervise the conduct of the charity and the application of its funds.

They also stated that the High Court at Bombay had proceeded upon settled principles correctly to exercise its discretion, and they supported that view by observing that it would be a matter of very great inconvenience and would render the administration of that trust intolerable. Their Lordships of the Privy Council drew a distinction between the jurisdiction to entertain the suit as framed, which may depend upon the allegations made in the plaint, and the jurisdiction to grant the relief.

10. In my view there is no inconsistency in the observations made in -- 'Shivanarayan Sarupchand's case (C)', and the statement of law made in Dicey's Conflict of Laws and Halsbury's Laws of England and the view expressed by their Lordships of the Privy Council. The Appellate Bench of this Court was of the view that the Court was entitled to entertain the suit, but having entertained the suit, it would not exercise its jurisdiction so as to remove trustees or to appoint new ones, and that view was affirmed by the Privy Council.

11. The expression 'jurisdiction' is used in the authorities relied upon by Mr. Banaji not in the sense of territorial or inherent authority to entertain an action, but is used in the sense of sanction behind the judgment in its operation beyond the limits of the territory in which the Court functions. The context in which the expression is used makes it abundantly clear that it was not sought to lay down that a claim in which 'inter alia' a relief seeking to remove trustees of a foreign charity and to interfere with the administration of a foreign charity is asked cannot be entertained.

If that view is right, then obviously this Court has jurisdiction to entertain the suit on the allegations made in the plaint, that there are certain properties which are the subject-matter of the trust which are situate within the jurisdiction of this Court, though the Court in the exercise of its authority will not interfere with the administration, of a foreign trust and will not exercise its equity jurisdiction in respect of non-resident defendants.

12. The jurisdiction of the Court to entertain the suit being granted, as to what orders may ultimately be passed is a matter which has to be decided at the time of the hearing of the suit. As observed by the Privy Council ha -- 'Bilasrai Johar-mal v. Shivnarayan Sarupchand', (D), (p. 41):

'That the Court will protect and preserve the funds of the charity by the exercise of its jurisdiction over the trustees or other persons is very certain.'

In the present suit the plaintiffs have claimed reliefs for declaration of title of the trust, for removal of trustees, and appointment of new trustees for vesting the property in new trustees, for accounts and for framing scheme and for further and other reliefs. Even if this Court be incompetent to grant the reliefs, which interfere with the administration of the trust in the foreign countries, such as framing a scheme, removal of trustees and appointment of new trustees and corresponding reliefs, this Court can at least protect the property within its jurisdiction for the benefit of the trust, and to that end pass all such consequential orders as may be necessary.

13. It must be observed that the application for leave to file the suit under Clause 12, Letters Patent was not necessary aS indicated earlier, the jurisdiction of this Court depended upon the existence or otherwise of properties within the jurisdiction of this Court and not upon any part of the cause of action arising within that jurisdiction. It is true that their Lordships of the Privy Council in -- 'Bilasrai Juharmal v. Shivnarayan Sarupchand', (D), appear to have proceeded upon the assumption that the jurisdiction of the Court in that case was derived by reason of the leave granted under Clause 12, Letters Patent, that leave not having been challenged at the trial.

It does not appear to have been pointed out to their Lordships that the suit as filed was not governed by Clause 12, Letters Patent, but the jurisdiction of the Court was derived from the terms of Section 92, Civil P. C., part of the property in the suit being admittedly within the jurisdiction of this Court. If the jurisdiction of this Court depends upon the existence of property within the local limits of its jurisdiction, it matters little whether defendants Nos. 1 to 9, who are trustees, do or do not reside in Bombay or within the territories of the Indian Union. The fact that there are some properties within the jurisdiction of this Court will be sumcient to enable this Court to entertain the suit and to try the suit.

It is true that in the exercise of jurisdiction vested in this Court to deal with charities, this Court will not pass orders which may be inconsistent with rules of private international law or seek to Interfere with the administration of a foreign charity in respect of properties which are not within the limits of its jurisdiction, or pass orders against a non-resident foreigner in the nature of personal directions which this Court would not be in a position to enforce. But those are matters which are to be considered by the Court which hears the suit, but on the plaint as framed I am unable to say that this Court has no jurisdiction to entertain this suit. Prayers (a), (h) and (1) in any case can be granted by this Court, and consequently in the absence of any inherent want of jurisdiction in this Court to try the suit, the issue as framed must be answered as follows: This Court has jurisdiction to proceed with the trial of the suit as framed.

14. Order accordingly.


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