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Mohd. Ahsan Ali Khan and ors. Vs. Syed Ibrar HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All765
AppellantMohd. Ahsan Ali Khan and ors.
RespondentSyed Ibrar HusaIn and ors.
Excerpt:
.....that even if a revision were to be allowed there are no grounds for interference. 132 the district judge may defer to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but his primary duty is to consider the interests of the general body of the public for whose benefit the trust is created, and he may in his judicial discretion vary any rule of management which he may find either net practicable or not in the best interests of the institution. the learned judge in this case in considering that the committee had selected the best available person to act as trustee was exercising the discretion vested in him and cannot be said to have acted either [without jurisdiction or with any illegality or material irregularity in the exercise.....sulaiman, ag. c.j.1. this appeal has been tiled by the dismissed trustees from an order of the district judge approving of the appointment of another trustee to fill a vacancy in pursuance of a scheme settled by the high court in a suit under section 92, civil p.c. under the scheme that was settled it was provided that in the event of a vacancy occurring by death, retirement, resignation or removal a now mutawalli should be appointed by the committee with the approval of the district judge. this was ordered on 26th april 1916.2. a vacancy occurred on account of the resignation of the previous trustee. the committee considered various names and appointed one person as trustee. the learned judge asked the committee to reconsider the claims of the various available candidates and finally.....
Judgment:

Sulaiman, Ag. C.J.

1. This appeal has been tiled by the dismissed trustees from an order of the District Judge approving of the appointment of another trustee to fill a vacancy in pursuance of a scheme settled by the High Court in a suit under Section 92, Civil P.C. Under the scheme that was settled it was provided that in the event of a vacancy occurring by death, retirement, resignation or removal a now mutawalli should be appointed by the committee with the approval of the District Judge. This was Ordered on 26th April 1916.

2. A vacancy occurred on account of the resignation of the previous trustee. The committee considered various names and appointed one person as trustee. The learned Judge asked the committee to reconsider the claims of the various available candidates and finally approved of the appointment of Mr. Zaidi as the trustee.

3. The learned advocate for the appellants contends that the order passed by the District Judge was an order in execution of the decree originally passed, and therefore was a decree within the meaning of Section 47, Civil P.C. and is appealable as such. By way of precaution a prayer has been added in the memorandum of appeal that, if do appeal has, it should be treated as an application in revision.

4. We are satisfied that the order passed by the Court below was not an order under Section 47, Civil P.C., and therefore no appeal lies. No doubt under the scheme the appointment of the trustee was subject to the approval of the District Judge, but the District Judge could not act suo motu without the committee having moved in the matter in the first instance. The power given to the Judge to approve of the appointment or to disapprove of it cannot be treated as an executable part of the scheme settled by the High Court so as to make the present application one in execution.

5. In the case of Sevak Jeranohod Bhogilal v. Dakor Temple Committee a scheme had been settled for the management of a temple which provided for the appointment of a temple committee em. powering the committee to make rules for the guidance of its business and for the management of the temple. These rules when sanctioned by she District Judge were to have the same force as if they were part of the scheme. The committee framed a set of rules which with certain alterations were ultimately sanctioned by the District Judge. Certain parties who felt aggrieved by the rules as sanctioned presented an application to the High Court for their modification. It was bald by their Lordships of the Privy Council that no appeal lay to the High Court against the order of the District Judge sanctioning these rules as the said order was not passed under Section 47, Civil P. C. We think that the principle underlying this decision applies to this case as well. The approval given to the appointment by the District Judge cannot be treated as a decree within the meaning of Section 47 read with Section 2, Civil P. C, so as to make it appealable.

6. The next question is whether a revision lies from the order of the District Judge. The answer to that question would depend on whether the order passed by the Judge was in his judicial or administrative capacity. It is quite obvious that it instead of the District Judge, the District Magistrate or some other person had been appointed as the final referee with whose approval the appointment had to be made it could hardly be said that the act of the referee would be a judicial act. At the same time there may be a scheme of which certain parts when carried out may involve a judicial act of the District Judge. In the present case we do not think it necessary to finally decide this point because we are satisfied that even if a revision were to be allowed there are no grounds for interference. The learned Judge was not bound to accept the wishes of the founder of the wakf in the choice of the trustee. The trust was for public purposes, and, as observed by their Lordships of the Privy Council in Mahommed Ismail Ariff v. Ahmad Moolla Dawood A.I.R. 1916 P.C. 132 the District Judge may defer to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but his primary duty is to consider the interests of the general body of the public for whose benefit the trust is created, and he may in his judicial discretion vary any rule of management which he may find either net practicable or not in the best interests of the institution. The learned Judge in this case in considering that the committee had selected the best available person to act as trustee was exercising the discretion vested in him and cannot be said to have acted either [without jurisdiction or with any illegality or material irregularity in the exercise of his jurisdiction. The case therefore does not fall within the purview of Section 115, Civil P.C.

7. We accordingly reject this appeal with costs.


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