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Mohammad Abdul Wahid Khan Vs. Radha Kishun and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All581; 121Ind.Cas.267
AppellantMohammad Abdul Wahid Khan
RespondentRadha Kishun and anr.
Cases ReferredBala Krishna Udayar v. Vasudeva Ayyar A.I.R.
Excerpt:
.....of their lordships of the privy council and the question that had to be answered was whether a district judge could direct the committee of management, who had failed to make an election to the committee, within the statutory period to hold an election for the purpose of filling up a vacancy. to direct the district judge to take up the application and give his advice or opinion to the applicant, on the ground that the district judge failed to exercise a jurisdiction that was vested in him by law. 15. a case like this may easily arise. the high court may think it fit to set aside the advice of the district judge and put the trustee in possession of better advice. the daughter of the dedicator, who is the trustee and, presumably the principal beneficiary under the waqf, is satisfied..........permission to sell a portion of the property of village lohari khadar. she had arranged with one radha kishen, one of the opposite parties in this case, that a 14 biswa share should be sold to radha kishen for the sum of rs. 13,500. the learned district judge granted the permission sought. radha kishen, as a matter of precaution, made an application to the district judge, on 2nd september 1927 asking him to take steps to ensure that there was no litigation in future with respect to the property purchased by himself. he said, in the petition, that the property was waqf and people might, thereafter, raise all sorts of objections to the sale. radha kishen, therefore, proposed that the district judge should issue a notification stating that so much property was being sold for so much, to.....
Judgment:

Mukerji, J.

1. This is an application to revise an order of the District Judge of Moradabad, made on 13th September 1927 under the following circumstances. A certain Mahomedan gentleman made a waqf of his property for the benefit of his descendants, on 20th August 1915. The aforesaid property was subject to heavy encumbrances. The mutawalli for the time being, Mt. Jafri, who was the daughter of the dedicator, made an application to the District Judge of Moradabad, seeking his permission to sell a portion of the property of village Lohari Khadar. She had arranged with one Radha Kishen, one of the opposite parties in this case, that a 14 biswa share should be sold to Radha Kishen for the sum of Rs. 13,500. The learned District Judge granted the permission sought. Radha Kishen, as a matter of precaution, made an application to the District Judge, on 2nd September 1927 asking him to take steps to ensure that there was no litigation in future with respect to the property purchased by himself. He said, in the petition, that the property was waqf and people might, thereafter, raise all sorts of objections to the sale. Radha Kishen, therefore, proposed that the District Judge should issue a notification stating that so much property was being sold for so much, to such and such person and calling upon any person, who might be interested to do so, to file any objection before the Court. The District Judge acceded to this request and a notification was issued. Abdul Wahid Khan, the applicant before this Court sent in a letter to the District Judge saying that he had heard that the property was being sold and he offered to pay Rs. 16,000 for the share 14 biswas, for the sale of which the District Judge had already granted permission for Rs. 13,500 The learned Judge directed Abdul Wahid Khan to appear before him on the 8th September, which date he had fixed for the appearance of persons who might be interested in the sale of the property. On that date, as the order sheet shows, in the presence of Radha Kishen and his counsel and Jafri Begum's counsel, the Judge accepted Abdul Wahid's offer of Rs. 16,000 for the sale of 14 biswas share. The same day, apparently, after Abdul Wahid Khan had left the Court, Radha Kishen made an application to the District Judge that without foregoing his right to bring a suit to obtain a specific performance of the contract for the sale that may exist in his favour, he was offering the sum of Rs. 16,000, for the property. The learned District Judge in the absence of Abdul Wahid Khan, made the following order:

This is not unreasonable. I have no objection to the sale in favour of Radha Kishen for Rs. 10,000. My only reason for preferring Abdul Wahid was that he was offering a larger sum.

2. Abdul Wahid Khan, having come to know of this later order, presented a petition to the District Judge on 13th September complaining that the order in favour of Radha Kishen had been made ex parte, in his absence. He offered, by his petition, to pay Rs. 18,000 an amount being in excess of Radha Kishen's offer, by Rs. 2,000. He pointed out that it was to the interest of the waqf property that it should fetch as much price as was possible. On the same day, the learned Judge passed the order complained of. The learned Judge said that he had accepted Abdul Wahid's offer, because, at the time, his was the highest offer; but as Radha Kishen made the same offer and as there was a 'sort of agreement' between the mutawalli and Radha Kishen the learned Judge had agreed that Radha Kishen should make the purchase. The learned Judge refused the application of Abdul Wahid Khan but made the remark that it was always open to Abdul Wahid to file a suit against the mutawalli.

3. It is urged on behalf of Abdul Wahid Khan that the learned Judge should not have altered his order of 8th September 1927, in the applicant's favour which had been passed in the presence of all parties and after hearing all parties, and that, in any case, the subsequent offer of Rs. 18,000 made by the applicant should have been accepted.

4. In answer to this contention on behalf of Abdul Wahid Khan, the learned Counsel for the respondents has urged, first, that no revision is competent, the High Court having no power to revise an order of the District Judge passed under the Charitable and Religious Trusts Act (Act 14 of 1920), and secondly that in any case, the opinion of the District Judge, which was granted under Section 7 of the Act preferring Radha Kishen to Abdul Wahid was a matter entirely within the discretion of the Judge and that for that reason, it was not open to correction by the High Court, even if the High Court had the power to interfere.

5. As regards the first point, I am clearly of opinion that the contention has no force, whatsoever. The power to interfere in revision has been granted to the High Court under Section 115, Civil P.C. The conditions that must exist to enable the High Court to call for the record of any case are these:

(1) There should be a case decided by a Court.

(2) That Court should be subordinate to the High Court.

(3) And there should be no appeal allowed by the law.

6. There can be no doubt that the powers which may be exercised by the District Judge and the acts that he may perform under Act 14 of 1920, are exercised and performed by the Judge as a 'Court.' The section with which we are immediately concerned is Section 7 of the Act. It says that where a trustee wants advice or direction, he might apply to the 'Court.' The word 'Court' is defined in the Act itself (vide Section 2 as amended by Act 41 of 1923) as the Court of the District Judge or any other Court empowered in that behalf by the High Court in the exercise of its original civil jurisdiction. Thus, the officer whose order is complained of is a Court subordinate to the High Court and one of the conditions is thus complied with.

7. The second condition that is necessary is that there should be a case decided, The Civil Procedure Code does not define the word 'case,' nor does it say what it means by the word 'decided' in Section 115. In my opinion the words 'a case decided by a Court' mean 'a matter which has been disposed of effectually by the Court and not merely for the time being.' Thus, a purely ad interim order or an order that does not effectually dispose of the matter before the Court, would, not be a 'case decided.'

8. As regards the third point, it is conceded that the law does not allow any appeal against an order made or advice given by the District Judge under Section 7 of the Act 14 of 1920. This is specifically mentioned in Section 12 of the Act.

9. The first two questions of jurisdiction and meaning of the words 'case decided' came up for judicial interpretation before their Lordships of the Privy Council, in the well-known case of Bala Krishna Udayar v. Vasudeva Ayyar A.I.R. 1917 P.C. 71. That case arose under the Act 20 of 1863, the Religious Endowments Act. Section 10 of that Act was the subject-matter for the consideration of their Lordships of the Privy Council and the question that had to be answered was whether a District Judge could direct the committee of management, who had failed to make an election to the committee, within the statutory period to hold an election for the purpose of filling up a vacancy. The District Judge had declared that the person so elected, under his orders, by the members of the committee, should be one of the members of the same. This order was impeached before the High Court and the High Court in the exercise of its revisional jurisdiction under Section 115, Civil P.C. set it aside. Before their Lordships of the Privy Council it was contended that the High Court had no jurisdiction because its revisional power did not extend over the Judge and further, the matter before the Judge was not 'a case decided.' There Lordships of the Privy Council disallowed both these contentions. To start with, their Lordships pointed out that if a civil Court should act absolutely and whimsically in the matter of its jurisdiction, and there being no appeal allowed, there would be no remedy if the High Court were not empowered to interfere. Having pointed this out, their Lordships examined the law. Their Lordships examined the provisions of Act 20 of 1863 and came to the conclusion that the acts performed by the District Judge were performed by him as a Court of law and not merely as a persona designate, whose determinations were not to be treated as judgment of a legal tribunal. I have already pointed out that in this case before us, the Judge acts as a Court of law and, therefore, under Section 3, Civil P.C, the District Judge's Court is a Court subordinate to the High Court. Thus, one of the conditions laid down in Section 115, Civil P.C. exists. On the second question of what was a 'case' decided, their Lordships remarked that there was no definition of the word case in the Code. Then they said.

It cannot, in their Lordships' view, be confined to a litigation in which there is a plaintiff who seeks to obtain a particular relief in damages or otherwise, against a defendant who is before the Court. It must, they think, include an ex parte application such as that made in this case, praying that persons in the position of trustees or officials should perform their trust or discharge their official duties. Their Lordships concur, therefore, with the High Court, in thinking that the matter adjudicated upon was a case within the meaning of Section 115 of the Code.

10. It will be noticed that in the opinion of their Lordships of the Privy Council, an ex parte application might amount to a case and the disposal of it would, necessarily, be a case decided.

11. Applying the law laid down by their Lordships of the Privy Council to the case before us, I have no hesitation in saying that when a trustee makes an application to the District Judge to obtain his opinion or advice, a case is presented before the District Judge for his 'decision'. Suppose in such a case, the District Judge says,

I am overwhelmed with criminal work; let the applicant go to the Government Pleader for advice.

12. Can it be contended for a moment, that the High Court will have no power under Section 115, Civil P.C. to direct the District Judge to take up the application and give his advice or opinion to the applicant, on the ground that the District Judge failed to exercise a jurisdiction that was vested in him by law.

13. I come to the conclusion that the acts of the District Judge under Act 14 of 1920 are open to correction by the High Court under its revisional jurisdiction exercisable under Section 115, Civil P.C.

14. On the merits, the question is whether we should interfere and if so, how? At one stage of the argument it was contended, on behalf of the respondents, by their learned Counsel that it was always open to the trustee seeking the District Judge's advice not to follow it and that, therefore, if the High Court substituted its advice in place of the District Judge's advice, the applicant (Jafri Begum) could always refuse to follow the High Court's opinion or advice and further, that, therefore, the High Court should not interfere with the District Judge's advice. This, in my opinion, is a very unsound argument. It is true, Section 7, Charitable and Religious Trusts Act (Act 14 of 1920) does not say what is going to happen in case the applicant decides not to follow the District Judge's advice after seeking it. All that it does say is that a trustee, acting on the advice, shall be deemed to have discharged his duty as such trustee, in the matter in respect of which the petition was made. Because the legislature thought that it was not necessary for it to impose a penalty on the trustee, it does not follow that the District Judge should refuse to give his advice or direction or that the High Court, where it finds that the advice is entirely unsuitable, should not substitute its own advice or opinion in the matter. I need hardly point out that I am assuming that the High Court would interfere only in suitable cases and not at random or arbitrarily.

15. A case like this may easily arise. A trustee states his case in his petition and receives advice from the District Judge which is manifestly to the detriment of the trust property. The trustee may take upon himself the responsibility of ignoring that advice without bringing on himself any charge of committing breach of trust. He may also come up in revision before the High Court and show that the District Judge, in giving the advice, has not really considered the matter at all, has not applied his mind to the case and has thereby, in the exercise of his jurisdiction, acted with material irregularity. The High Court may think it fit to set aside the advice of the District Judge and put the trustee in possession of better advice. In my opinion, it is impossible to say that suitable cases may not arise in which, an exercise of the revisional jurisdiction of the High Court might be desirable. It may be pointed out, that in framing Section 12 of the Act (Act 14 of 1920) the legislature intentionally confined themselves to appeal and said nothing about revision. Section 12 runs as follows:

No appeal shall lie from any order passed or against any opinion or advice or direction given under this Act.

16. Having regard to the decision of the Privy Council, in Bala Krishna Udayar v. Vasudeva Ayyar A.I.R. 1917 P.C. 71, quoted above, we cannot take it that the legislature were ignorant of the existence of revisional jurisdiction in the High Court when they framed the Section 12. They might have said that neither an appeal nor a revision shall lie. The omission of the word revision confirms my opinion that a revision is not shut out.

17. Coming to the merits of the case before us, the position seems to be this. Radha Kishen has already obtained a sale-deed in his favour from Mt. Jafri. It was executed on 12th September 1927 and registered on 13th September 1927, the latter being the date of Abdul Wahid's application offering Rs. 18,000. I do not approve of the learned Judge's preference of Radha Kishen to Abdul Wahid and in my opinion, Abdul Wahid, having offered Rs. 16,000 in the presence of Radha Kishen's counsel, and the learned Judge having accepted the same, it was not open to the Judge to accept the subsequent offer to Radha Kishen of Rs. 16,000. Ordinary business methods should have been followed. There was no question of an agreement being in existence with Radha Kishen, because the entire negotiation was, by consent, to be subject to the Judge's advice and opinion. At the instance of Radha Kishen himself, the notification was issued, inviting people to come and offer objections to the proposed sale to Radha Kishen. If Radha Kishen was going to buy the property cheap by paying rupees 2,500 less than the fair price, it was certainly open to the District Judge to advise Mt. Jafri not to accept that offer, and to advise her to accept Abdul Wahid's, for Rs. 16,000. Abdul Wahid's subsequent offer of Rs. 18,000 is of no consequence, coming as it did, five days later.

18. The District Judge, no doubt, acted somewhat improperly when he advised Mt. Jafri to accept Radha Kishen's belated offer of Rs. 16,000. But did he act illegally or with material irregularity? As I have said, he was wrong, his advice was not sound. But that does not mean that he exercised his jurisdiction illegally or with material irregularity. He did consider the matter carefully, though I may not be in agreement with him, in the result. We cannot correct in revision, a mere error of judgment. On this ground we cannot interfere. There is another aspect of the case. Suppose it is a case in which we may interfere under the law. But we are not bound to interfere, unless we think that we ought to interfere. The question is, whether we should undo all the transactions that have already taken place; undo the sale, undo the mutation and undo all that has happened during over the last year and half, during which presumably, Radha Kishen has been in possession. The daughter of the dedicator, who is the trustee and, presumably the principal beneficiary under the waqf, is satisfied with the District Judge's order. We find that none, but the intending purchaser Abdul Wahid Khan, is interested in questioning the order. In the circumstances, I do not think that I should interfere and advise Jafri Begum to cancel the sale in favour of Radha Kishen and to execute a new sale in favour of Abdul Wahid Khan, for the same amount as has been paid by Radha Kishen.

19. In the result, I would dismiss the application, but under the circumstances without costs. The order impeached was certainly of doubtful propriety, and the contention of the respondents that the High Court had no revisional jurisdiction has been found to be untenable. I would make the parties pay their own costs of the present application.

Young, J.

20. I agree.


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