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Abdul Razack Sahib and ors. Vs. A. Abdul Hamid Said and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtChennai High Court
Decided On
Case NumberAppeal No. 652 of 1946
Judge
Reported inAIR1951Mad406; (1950)2MLJ282
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92, 151 and 152
AppellantAbdul Razack Sahib and ors.
RespondentA. Abdul Hamid Said and ors.
Appellant AdvocateJohn, ;Row and ;Sayed Bashirudeen Ahmed, Advs.
Respondent AdvocateV. Rajagopalachari, Adv.
Cases ReferredAbdul Majid v. Aktar Nabi
Excerpt:
- - the suit clearly fell within the scope of section 92, civil p. it is well settled that to determine whether a suit falls within rule 92, civil p. the plaint clearly proceeds on the footing thai the defendants are trustees though the plaintiffs allege that the defendants had committed breach of trust. the prayers fall clearly within the scope of clauses (d) and (h) of section 92. 2. learned counsel for the plaintiffs-appel-lants relied upon certain decisions in support of his contention that the suit did not fall within section 92, but none of the decisions has any real bearing on the question which falls to be decided in this case. as the appellants have substantially failed in the appeal, they shall pay thecosts of this appeal to the contesting respondents......allowed was a feecalculated under that rule. but in the concluding paragraph of the judgment), the learnedjudge had specifically fixed the pleader's feeat rs. 200. he might have been wrong in doingso, but the decree, if it has to be in conformitywith the judgment, could only provide for thepleader's fee as fixed in the judgment. now,assuming that the learned judge was mistakenin fixing the fee at rs. 200 in the judgment, theonly course open to the defendants to set thematters right was to apply for a review of thejudgment or to prefer an appeal to this court.sections 151 and 152, civil p. c., in our opinioncannot be invoked in substitution of the specificremedies of review and appeal. under thesesections, relief cannot be granted which properlyfalls within the scope of review and.....
Judgment:

Rajamannar, C.J.

1. The lower Court was right in dismissing the suit oh the ground that the sanction of the Advocate-General had not been obtained for its institution. The suit clearly fell within the scope of Section 92, Civil P. C. The plaintiff on behalf o all persons interested in a fund which they call the 'Mecca Mathinya Imthath Fund' prayed inter alia for a declaration that the defendants were the trustees of a trust known as Mecca Mathinya Imthath Fund, for a true and proper account of the funds collected by the defendants, for a direction tothe defendants to forward the funds collected by them to their proper destination and for the appointment of a receiver. It is well settled that to determine whether a suit falls within Rule 92, Civil P. C., we have to look at the plaint and the allegations therein and not to the written statement. The plaint clearly proceeds on the footing thai the defendants are trustees though the plaintiffs allege that the defendants had committed breach of trust. Because the defendants were repudiating the obligations on their part, the plaintiffs also wanted a declara-tion as to the trust nature of the funds collected by the defendants and their position as trustees. But the inclusion of such a prayer would not take the suit out of the category of suits falling under Section 92, Civil P. C. This is not a case in which the plaintiffs are suing to recover trust property from strangers or persons who according to the plaintiffs have no right to be in possession of the trust properties. On the other hand, the plaintiffs say tint the defendants are trustees and are lawfully in possession of the funds; only they charge them with dereliction of duty. The prayers fall clearly within the scope of Clauses (d) and (h) of Section 92.

2. Learned counsel for the plaintiffs-appel-lants relied upon certain decisions in support of his contention that the suit did not fall within Section 92, but none of the decisions has any real bearing on the question which falls to be decided in this case. In Jamaluddin v. Mujtaba Hussain, 25 ALL. 631: 1903 A. W. N. 120 the only prayer was for a declaration that the property in suit was endowed property and could not be inherited as ordinary property. The learned Judge pointed out that Section 539 of the then Code corresponding to Section 92 of the present Code provided for a case in which there was an alleged breach of any express or constructive trust created for public, charitable or religious purpose or whenever the direction of the Court is deemed necessary for the administration of any such trust. But the suit before them was not brought for any of the purposes enunciated in Section 539, nor was it instituted for the granting of any such further or other reliefs as mentioned towards the end of that section. The learnei Judges, therefore, held that the suit was maintainable without the sanction of the Advocate-General, Erelappa Mudaliar v. Balakrishniah : AIR1927Mad710 was concerned with a suit brought under Section 92, Civil P. C. All that the learned Judges decided there was that to a suit under Section 92, a person who sets up title adverse to the trust could also be impleaded as a defendant though a decree could not be passed against him to deliver possession of the property. We need not referin any detail to the Full Bench decision in the Tiruamlai Tirupati Devastanam Committee v. Krishnayya, I. L. R. (1943) Mad. 619 : A. I. R. 1943 Mad. 466 which cannot possibly have even the remotest bearing on the point now in dispute. In Ganpati v. Kaniyalal, 13 Pat. 65 : ) which was also relied upon, it was held that as none of : AIR1933Pat246 the reliefs prayed for in the case was of the nature set out in Clauses (a) to (h) of Sub-section (1) of Section 92, there was no bar on account of the absence of the consent of the Advocate-General. It may be mentioned that in that case the suit was for a declaration that the property in dispute belong to the general public and for eviction of the defendant from the same and for a permanent injunction restraining the defendant from obstructing the general public from performance of pooja therein. There was no indication whatever in the plaint in that case that the defendant was treated as a trustee. In the present case, it has already pointed out that the entire plaint proceeds on the assumption that the defendants were trustees. There is nothing in Abdul Majid v. Aktar Nabi : AIR1935Cal805 which in any way assists the appellants. On the other hand, the ratio decidendi of that case is directly against the contention of the appellants. The learned Judges held that in a suit under Section 92, it was competant for the Court to decide whether the trust in respect of which the suit was brought was a public charitable trust so as to attract the application of the section. No doubt it was held that in a suit under Section 92, Civil P. C., no declaration of title or decree for possession could be obtained against total strangers to the trust. But where the relief is claimed against even constructive trustees and trustees de son tort the suit would fall within Section 92.

3. It follows that the learned Subordinate Judge was right in holding that the suit was not maintainable without the sanction of the Advocate-General.

4. The objection was taken to an amendment of the decree in respect of the pleader's fee payable. The learned Judge in dismissing the suit with costs of the defendants (one set) fixed the pleader's fee at Rs. 200 to be divided equally between the two sets of defendants. The decree quite properly embodied this direction. On 12-10-1946, nearly two months after the delivery of the judgment, an application was filed on behalf of the defendants (I. A. No. 324 of 1946) praying that the decree may be amended by allowing one set of pleader's fee based on the jurisdictional value of Rs. 30,000. The application was opposed, but the learned Judge granted the application because he was convinced that the pleader's fee should have beencalculated according to Rule 37 (b) (1), LegalPractitioners' Fees Rules. We do not wish tosay anything on the applicability of that ruleto this case. It may be the learned Judge wasright in thinking that the pleader's fee whichshould have been properly allowed was a feecalculated under that rule. But in the concluding paragraph of the judgment), the learnedJudge had specifically fixed the pleader's feeat Rs. 200. He might have been wrong in doingso, but the decree, if it has to be in conformitywith the judgment, could only provide for thepleader's fee as fixed in the judgment. Now,assuming that the learned Judge was mistakenin fixing the fee at Rs. 200 in the judgment, theonly course open to the defendants to set thematters right was to apply for a review of thejudgment or to prefer an appeal to this Court.Sections 151 and 152, Civil P. C., in our opinioncannot be invoked in substitution of the specificremedies of review and appeal. Under thesesections, relief cannot be granted which properlyfalls within the scope of review and appeal.The learned Judge was in error in allowing theapplication for amendment of the decree. Thedecree in so far as it was amended shall be setaside and the decree as originally framed shallbe restored. As the appellants have substantially failed in the appeal, they shall pay thecosts of this appeal to the contesting respondents.


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