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Muhammad Abdul Majid Khan Vs. Ahmad Said Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAllahabad
Decided On
Judge
Reported in(1913)ILR35All459
AppellantMuhammad Abdul Majid Khan
RespondentAhmad Said Khan and ors.
Excerpt:
civil procedure code (1908), section 92 - waqf--suit for declaration of plaintiff's right as mutawalli and for possession--jurisdiction. - - , 98 is also clearly distinguishable......its members with the previous sanction in writing of the advocate-general, and does not apply to a suit brought by an individual to enforce his personal rights. in budree das mukim v. chooni lal johurry (1906) i.l.r., 33 calc., 789 woodroffe, j., stated: 'the suit contemplated by the section (i.e., section 539 of the old civil procedure code), is one of a representative character. it is obvious that the advocate-general, collector or other public officer can and do sue only as representing the public, and if, instead of these public officers, two or more persons haying an interest in the trust sue with their consent, they so sue under a warrant to represent the public as the objects of the trust. see lakshmandas raghunathdas v. jugalkishore (1896) i.l.r., 22 bom., 216. it follows from.....
Judgment:

Banerji and Ryves, JJ.

1. This was a suit brought by the plaintiff in the court of the Subordinate Judge of Moradabad for a declaration that he was entitled to the office of mutawalli of the trust property in suit, under the will of the founder of the waqf as against defendant No. 1, and for possession of the waqf property by the ejectment of defendant No. 1. The last mutawalli, Nawab Abdul Karim Khan, died on the 31st of August, 1908, On the death of Nawab Abdul Karim Khan, defendant No. 1 applied in the Revenue Court for the entry of his name in respect of the endowed villages. The present plaintiff and others entered objections, but the Revenue Court decided in favour of defendant No. 1, and an appeal against that decision was dismissed by the Commissioner. A dispute had arisen as to who was entitled to the office of mutawalli, and the contending parties referred the matter to arbitrators who made an award in favour of Nawab Muhammad Ibrahim Khan. Muhammad Ibrahim Khan applied to file the award in court. That application was disallowed and the appeal from that order to this Court was dismissed on the 1st of April, 1910. Subsequently, this suit was instituted by the present plaintiff, Nawab Abdul Majid Khan. Various defences were raised and several issues were framed, but the only point decided was that the suit as brought came within the scope of Section 92 of the present Code of Civil Procedure and was, therefore, beyond the jurisdiction of the court. The suit was accordingly dismissed. Hence this appeal. The only question to be decided in this appeal is whether Section 92 applies or not. In our opinion, the scope and application of Section 92, is very limited in character. In the first place it enables, by Sub-section (1), the Advocate-General, or two or more persons having an interest in a trust created for a public purpose of a charitable or religious nature, to bring a suit in the principal civil court of original jurisdiction or in any other court empowered in that behalf by the Local Government, within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, where there has been an alleged breach of such trust or where the direction of the court is deemed necessary for the administration of any such trust and then only to obtain a decree of one or more of the kinds specified in the section. Sub-section (2) of that section enacts that, save as provided by the Religious Endowments Act of 1863, no suit, claiming any 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. The suit contemplated by the section is one brought in the interest of the public, through the Advocate-General, or of a section of the public or community, interested in a particular public trust, through two or more of its members with the previous sanction in writing of the Advocate-General, and does not apply to a suit brought by an individual to enforce his personal rights. In Budree Das Mukim v. Chooni Lal Johurry (1906) I.L.R., 33 Calc., 789 Woodroffe, J., stated: 'The suit contemplated by the Section (i.e., Section 539 of the old Civil Procedure Code), is one of a representative character. It is obvious that the Advocate-General, Collector or other public officer can and do sue only as representing the public, and if, instead of these public officers, two or more persons haying an interest in the trust sue with their consent, they so sue under a warrant to represent the public as the objects of the trust. See Lakshmandas Raghunathdas v. Jugalkishore (1896) I.L.R., 22 Bom., 216. It follows from this that when a person or persons sue, not to establish the general rights of the public of which they are member or members, but to remedy a particular infringement of their own individual right, the suit is not within or need not be brought under the section'. And further on he says: 'In my opinion the present suit, so far as it is brought by the plaintiffs in their individual capacity as trustees to enforce their individual claim to be such trustees of the temple in suit, is not within the scope of the section'. In Ghelabhai Gaurishankar v. Uderam Icharam (1911) I.L.R., 36 Bom., 29 the plaintiff sought to eject the defendants as trespassers and prayed for possession of the trust property and for the appointment of a trustee by the court, for the settlement of a scheme for the administration of the trust and for such other reliefs as the court might see fit to grant. The court held that, so far as it was a suit to eject the trespasser from property which is the subject of a public religious trust, Section 539 of the old Civil Procedure Code did not apply, and that the suit rightly lay in the Subordinate Judge's court. On behalf of the respondent, great stress was laid on the case of Muhammad Ibrahim Khan v. Ahmad Said Khan (1910) I.L.R., 32 All., 503. Now the only point decided in this case is that the right to succeed to the trusteeship of waqf property is not a right which can be settled by a reference to arbitration. Lord Halsbury, L.C., in Quinn v. Leatham (190) A.C., 495, is reported to have said at Page 506 that 'a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it'. This case is therefore, not an authority on the question which is now before us. The case of Saiyid Ali v. Ali Jan (1912) I.L R.. 35 All., 98 is also clearly distinguishable. In that case, the mutawalli had been appointed by the District Judge, and it was therefore held that, as it was a suit for the removal of a duly appointed mutawalli, it could only be brought in conformity with the provisions of Section 92. In this case, the plaintiff says that he is the rightful mutawalli and that defendant No. 1 is wrongfully in possession of the waqf property. He does not ask for any of the reliefs specified in Section 92. He is not suing on behalf of the public or of any section of the public, but merely as an individual to enforce his own alleged individual rights.

2. In our opinion, such a suit does not come within Section 92 of the Civil Procedure Code and is, therefore, within the jurisdiction of the Subordinate Judge. We, therefore, allow the appeal, and, setting aside the decree of the lower court, remand the case to that court, under Order XLI, Rule 23, with directions to re-admit the suit under its original number and proceed to determine it on the merits. Costs here, and in the court below, will abide the result.


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