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M.M. Jaffar Kermani Vs. M.M. Hassan Kirmani and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 35 of 1976
Judge
Reported inAIR1978Mad121; (1978)1MLJ103
ActsWakf Act, 1954 - Sections 15, 44 and 45; Code of Civil Procedure (CPC) , 1908 - Sections 92
AppellantM.M. Jaffar Kermani
RespondentM.M. Hassan Kirmani and anr.
Appellant AdvocateV. Ratnam and ;T. Srinivasan, Advs.
Respondent AdvocateK. Chandramouli, Adv.
DispositionAppeal dismissed
Cases ReferredIn V. L. N. S. Temple v. Pattabhirami
Excerpt:
.....rendered both reliefs sought inter-linked - contention that plaintiff ought to have approached 'wakf' board untenable on reason that 'wakf' board's power of general superintendence does not include power to direct 'muthavalli' to render account - no bar on trustee to file suit for accounts - defendant ought to have complied with provision of prior compromise by which he agreed to render accounts and pay due to plaintiff - held, relief sought by joint 'muthavalli' granted. - - according to the plaintiff, the first defendant did not even perform the ceremonies which he was obliged to perform as per the objects of the wakf and failed to render proper accounts for the collections made by him from the trust property. section 44 enables a person interested in a wakf to make an..........the death of his wife and his two sons, it transpires that the plaintiff was in possession of the suit property for a considerable length of time. the first defendant initiated proceedings before the wakf board and sought for a direction regarding accounting of the income from the wakf property from the plaintiff. the wakf board however in the interest of amity directed that the plaintiff and both the defendants should act as joint mutha-vallies under the supervision of one amin khalihi. the plaintiff questioned this order of the board in a writ petition no. 404 of 1961 on the file of this court. the writ petition was dismissed. the plaintiff filed w. a. no. 3 of 1963. a compromise was entered into in the said writ appeal and the memorandum of compromise is as follows :--'memorandum of.....
Judgment:

Ramaprasada Rao, J.

1. The first defendant in O. S. No. 1606 of 1968 on the file of the City Civil Court. Madras, is the appellant, Haji Mirza Ali Naki Sahib Kirmani, executed a wakf deed whereunder he set apart his property bearing door No. 73, Sembudoss Street, for certain religious and charitable purposes. After earmarking a portion of the income from the said property for certain purposes accepted in Muslim Law, he directed that the surplus income be taken over by the Muthavalli. The first Muthavalli was the Wakif himself, and thereafter he constituted his wife and sons as joint muthavallis. He had two sons and the plaintiff is the son through one such son and defendants 1 and 2 are sons of the second son of the wakif. The Wakif died in 1927 and after the death of his wife and his two sons, it transpires that the plaintiff was in possession of the suit property for a considerable length of time. The first defendant initiated proceedings before the Wakf Board and sought for a direction regarding accounting of the income from the wakf property from the plaintiff. The Wakf Board however in the interest of amity directed that the plaintiff and both the defendants should act as joint mutha-vallies under the supervision of one Amin Khalihi. The plaintiff questioned this order of the Board in a writ petition No. 404 of 1961 on the file of this Court. The writ petition was dismissed. The plaintiff filed W. A. No. 3 of 1963. A compromise was entered into in the said writ appeal and the memorandum of compromise is as follows :--

'MEMORANDUM OF COMPROMISE'.

The parties hereby agree to and compromise as follows:--

1. M. M. Hassan Kirmani (Appellant) M. M. Jaffer Kirmani (2nd respondent) and M. M. Sadique Kirmani, shall be the joint Muthavallis of the Haji Mirza Ali Nacki Kermani Wakf and M. M. Jaffer Kermani shall be the managing muthavalli of the said wakf.

2. M. M. Jaffer Kermani, shall be in charge of the rental collections from the several tenants in occupation of the wakf property and shall be accountable to the wakf for the said collections.

3. The receipts for the rents collected shall be issued by M. M. Jaffer Kermani (Managing Muthavalli) in the name of the wakf.

4. The tenants shall pay the rents only on the production of the receipts signed by the aforesaid, M. M. Jaffer Kermani (Managing Muthavalli).

5. The rental collections so made shall be deposited in a scheduled bank in the name of the wakf and the bank account shall be operated by M. M. Jaffer Kermani (Managing Muthavalli in charge).

6. The Muthavallis shall perform the Majlises every year during Muharram as enjoined under the wakf Deed dated 17th Sept., 1919 for a sum not exceeding Rs. 600/- (Rupees six hundred only).

7. The Muthavalli in charge of rental collections shall pay the Corporation taxes and other public charges for the wakf property and extend a sum not exceeding Rs. 200/- towards incidental charges viz., postage and rental collection charges and Rs. 300/- towards repairs.

8. The balance, after meeting the above expenses shall be divided among the Muthavallies or their respective heirs after them, at the end of every year in the following manner :-

(a) M. M. Jaffer Kermani) 60%

(b) M. M. Sadique Kerrnani)

(c) M. M. Hassan Kirmani 40%

9. A sum of Rs. 40/- (Rupee Forty) only shall be paid every month to Sri M. M. Hassan Kirmani and a sum of Rs. 60/- (Rupees Sixty only) to Jaffer Kermani and Sadique Kermani on or before the 15th of every succeeding month, and which sum shall be given credit to at the time of taking of accounts as mentioned in para. 8 above.

10. If there is change in the Mutha-valliship the balance after meeting the expenses shall be distributed according to the terms of the wakf deed dated 17th Sept., 1919.

11. The accounts shall be audited every year by competent auditor. The account books shall be kept open for inspection to the muthavallis.

12. In the event of any portion falling vacant it shall be let out with the consent of all the muthavallis, preference must be given to the Muthavalli, not in occupation of any portion of the wakf property.

13. The room in the second floor shall be used for keeping the panjas.

14. The Muthavallis are at liberty to put up additional pucca constructions in the open terrace.

15. The rental advance received by M. M. Hassan Kirmani, from the tenants at the time of the commencement of the tenancy shall, when refunded to the tenants at the termination of tenancy and on the production of the receipts issued by M. M. Hassan Kirmani, be debited to the account of M. M. Hassan Kirmani.

16. The accounting between the parties shall commence only from 1st October, 1964. There shall be no accounting by M. M. Hassan Kirmani in respect of the past transactions, during his period of Muthavalliship and no claim shall be made against him in respect thereof.

17. All public charges due on the property upto 30th Sept., 1964 shall be paid only by M. M. Hassan Kirmani and if any payment is made by the wakf in respect of the same, the same shall be debited to the respective shares of M. M. Hassan Kirmani.

18. M. M. Hassan Kirmani shall continue to occupy the following portions (already in his occupation) in the wakf property viz., one hall, and adjoining room, the adjoining kitchen situate on the north-eastern portion and a room on the southern side above the garage, besides the bath room and lavatory in the ground floor.

19. A sum of Rs. 50/- (Rupee fifty per month) shall be debited to the account of M. M. Hassen Kirmani towards the rent payable for the aforesaid portion in his occupation at the time of taking of accounts as stated in para. 8.

20. In case of disputes between the Muthavallis the same shall be referred to the Wakf Board or to Khan Bahadur Ameen Khaleeli if the parties so desire.

21. This compromise shall come into force with effect from 1-10-1964. Dated Madras this the 20th July, 1964. Sd. M. M. Jaffer Kirmani, Respondent.

Sd. S. M. Amjad Nainar, Counsel for Respondent.

Sd. M. M. Hassan Kirmani, Appellant.

Sd. K. Chandra Mouli, Counsel for Appellant.

Sd. M. M. Sadique Kirmani, Joint Mutha-valli.

The memorandum of compromise to which both the plaintiff and defendants 1 and 2 were parties, was implemented and acted upon by the parties until the plaintiff came to Court in 1968. Under the compromise, the plaintiff and the defendants were constituted as joint Mutohavallis and the first defendant was put in charge of rental collections of the wakf property and he was put in general management of the same. A sum of Rs. 600/- was set apart for the purpose of the object of the wakf and the net rental income was to be divided between the parties et the end of each year, the plaintiff being entitled to a 40% and the defendants together to the balance of 60%. The plaintiff was allowed to continue in possession of a portion of the wakf property and he was to be charged a monthly rent of 50/- for such occupation. As is seen from the memorandum of compromise, the accounts were to be audited every year and the plaintiff was to be paid a sum of Rs. 40/-a month and the defendants Rs. 60/- a month. The plaintiff's complaint was that he was not paid the monthly sums as contemplated in the memo. According to the plaintiff, the first defendant did not even perform the ceremonies which he was obliged to perform as per the objects of the wakf and failed to render proper accounts for the collections made by him from the trust property. He alleges that he was not allowed to inspect the accounts and that there was no audit of the same, though the compromise memo provided for such annual audit. He, therefore, filed the present action for a direction to the first defendant to render an account of the income and expenses of the wakf and also for direction against the first defendant to pay the amount due to the plaintiff on ascertainment The first defendant's case was that he was compelled to enter into the compromise in the writ appellate Court and the compromise itself is not legal or valid and that it is not open to the parties to go behind the terms of the wakf deed. He maintains that he was rendering a true and proper account to the State Wakf Board as required under Section 36 of the Wakfs Act. He refers to various types of litigations indulged in between him and the plaintiff from time to time and would emphatically contend that he never suppressed any accounts from the view of the plaintiff and that he was managing the wakf property diligently and denies that he is liable to render an account of the income from the wakf premises. He sought for a dismissal of the suit. The second defendant adopted the written statement of the first defendant. The trial Judge dismissed the suit. On further appeal by the plaintiff, the appellate court also dismissed the suit but for different reasons. Thereafter the plaintiff carried the suit in second appeal to the High Court, and Sethuraman, J., heard the second appeal, allowed the same and passed a decree for accounting as against the first defendant in the terms asked for, It is as against this, the first defendant has come up in appeal.

2. Mr. Ratnam appearing for the appellant contends that the learned single Judge, who decided the second appeal, was wrong in having directed an account, since there was not even a notice before suit for inspection of the accounts, He relies upon the observation of the first appellate Court to the effect that it is not the case of the plaintiff that the first defendant did not make the account books available for inspection at the premises of the wakf. His second contention was that an accounting is not necessary, as the plaintiff was only interested in the payment of the amount due to him from the trust as per the compromise memo and a general accounting appears to be unnecessary. Thirdly, his contention was that it was not usual for one trustee to seek for accounts from another trustee as they by necessary implication are presumed to be in general management of the wakf property, though for administrative purposes, the first defendant is in charge of the same, He also claims that accounts were being audited and sent to the plaintiff and the plaintiff cannot, therefore, have any complaint. Contending contra, learned counsel for the respondent would say that the litigation and the misunderstandings between the parties as disclosed from their conduct ever since 1961 by itself is a pointer to the fact that the first defendant would not care to the interests of the plaintiff or to the proper management of the trust and, therefore, he is not only accountable but should render an account as called for. Even to grant the second relief asked for in the plaint, namely, a quantification of the amount payable by the first defendant to the plaintiff in accordance with the memo of compromise a general accounting is necessary and, therefore, the judgment of the learned Judge directing such an account is correct and cannot be interfered with. Regarding the third objection, it is contended that even if no negligence is alleged as against a managing trustee, the innocuous prayer for rendering an account of the trust properties in the management of the managing trustee is necessary not only in the general interest of the wakf concerned, but also for the adjustment of equities between the parties. The vague objection raised by the learned counsel for the appellant that under the Wakf Act, the Wakf Board is expected to generally supervise all wakf and this provision by itself is sufficient to non-suit the plaintiff is answered by the fact that in particular circumstances a specific suit for account as between the co-trustees is possible and ought not to be rejected in limine if the circumstances warrant such an accounting.

3. As regards the first contention that there was no warning to the first defendant to render an account before the plaintiff came to Court, Mr. Ratnam is not quite right when he wanted to rely upon the observations of the appellate Judge, who said that it was not the plaintiff's case that the first defendant did not make the account books available for inspection. This is clear from the fact that the plaintiff in para 11 of the plaint after referring to the obligation of the first defendant to get the accounts audited every year, alleged:

'The 1st defendant who is in charge of the Wakf income has not allowed the plaintiff to inspect the accounts or have them audited after giving notice to the other trustees'.

4. In the written statement of the first defendant there was of course a denial, but the matter was not pursued further to enable the Court to infer that the plaintiff was kept mostly in the dark about the accounts of the wakf. In a suit for accounts, the cause of action arises de die in diem. A suit notice prior to an action for accounts might help the plaintiff to subserve the benefits of his action. But the absence of such a suit notice cannot be the criteria to hold that such a suit is not maintainable in law or in fact. No doubt, the issuance of a suit notice prior to the filing of a suit for accounts would act as a step in aid to the furtherance of the cause of the plaintiff. But that cannot be viewed as a fatality so as to non-suit him on that ground alone.

5. Coming to the next contention, we are unable to agree with Mr. Ratnam that the grant of the second prayer sought for in the plaint does not necessarily involve a direction to the first defendant for accounting. In order to quantify the amount due to the plaintiff which process involves an ascertainment of such quantum, an accounting is necessary. Such an accounting can only be by directing the first defendant to account for the income and expenses relating to the wakf property. The second prayer is very much inter-linked with the direction sought for against the first defendant to render an account. In this sense both the reliefs are inseparable. Ascertainment of the amount due to the plaintiff is possible only after scrutiny of the accounts and ascertaining the net income available for division as between the plaintiff and the defendants. In order to reckon the amount due to the plaintiff accounting by the first defendant is obviously necessary.

6. The learned Judge after finding that the compromise is binding on both the plaintiff and defendants and after having held that the suit was mintainable went into the question whether a suit for accounts as filed by a co-trustee is possible. Regarding the findings of the learned Judge on the first two points, posed by him, it has not been canvassed before us. Even otherwise, we are of the view that in a Letters Patent Appeal such; a concurrent finding cannot be a subject-matter of issue.

7. The last question, therefore, that looms large in this case is that in the absence of any allegation as to mismanagement or negligence on the part of a co-trustee whether a bare suit for accounting by one trustee against another is maintainable. Mr. Ratnam's conten-tion is that such a suit having regard to the provisions of the Wakf Act ought not to be entertained. Section 15 of the Wakf Act, 1954, hereinafter referred as the Act, refers to the functions of the Board. Sub-section (2) of Section 15 generally refers to such functions without prejudice to the power of general superintendence of all Wakfs in the State which vested in the Board by reason of Section 15 (1) of the Act. Sub-clause (b) of Sub-section (2) of Section 15 says that the functions of the Board inter alia shall be to ensure that the income other property of wakfs are applied to the objects and for the purposes for which such wakfs were created or intended. Section 44 enables a person interested in a wakf to make an application to the Board complaining about mismanagement and if the Board is satisfied that there are reasonable grounds for believing that the affairs of the wakf are being mismanaged, it shall take such action thereon as it thinks fit. Section 45 of the Act prescribes the methodology by which such an enquiry can be undertaken by the Board. On the strength of these provisions Mr. Rathnam contends that it is open to the plaintiff to approach the Wakf Board for relief. It should not be however forgotten that the power of general superintendence vested in Section 15 or even the specific power to safeguard the income of wakf property which is also vested in the Wakf Board would not enable the Board to direct a muthavalli to render an account to a co-muthavalli. The powers of general superintendence referred to in Section 15 (1) ought not to be so liberally construed so as to vest in the Board an authority analogous to the power vested in a competent judicial authority to compel one trustee to render an account to a co-trustee as regards the income from the trust properties. The Board has undoubtedly the power not only in exercise of their visitorial jurisdiction contemplated under Section 15 (1) of the Act, but also in exercise of their suo motu powers under Section 45 or in exercise of such .powers on invitation of a third party to enquire into the alleged mismanagement of wakf by a particular muthavalli or trustee. Such an enquiry is possible only on reasonable information obtained by them regarding the alleged mismanagement or on a complaint made in writing supported by an affidavit by a person interested in the wakf alleging such acts of omissions and commissions on - the part of a muthavalli. We are unable to agree with the learned counsel for the appellant that the powers envisaged in Sections 15 (1) and 15 (2) (b) of the Act would enable the Board to grant the relief to the plaintiff asked for in these civil proceedings.

8. As regards the right of the plaintiff to call for account, Clause 16 of the memorandum of compromise which is binding on the parties refers to such accounting between the parties and makes it clear that such accounting shall commence from 1st Oct. 1964. This clause, therefore, expressly provides for inter se accounting. Even otherwise, it is by now well established that if a suit did not fall within the ambit of Section 92(1) of the Civil P. C. it was not hit by the provisions of Sub-section (2) thereof. In a case where the subject-matter is governed bv the Wakf Act, and in the absence of any embargo on the filing of a suit in ordinary civil courts for rendition of accounts by one trustee to another under the provisions of the Act, it is easy to conceive that such a suit for accounts is maintainable by one trustee as against the other and there is no bar to it.

9. We are here concerned with a wakf which does not involve the vindication of the rights of the public in a public charitable trust. The objectives of the wakf are limited and has no wide public application. In such circumstances, a suit by one trustee against a co-trustee praying inter alia for an account of the trust properties in their hands is maintainable, even though the suit is not instituted under Section 92 of the Code of Civil Procedure. This is the dicta of the Full Bench of our Court in Appanna v. Narasingha, 41 MLJ 608 : AIR 1922 Mad 17 .

10. In Thirugnanasambandham Pillai v. Ramachandram Pillai : AIR1953Mad744 Subba Rao, J., as he then was, categorically laid down that a suit by one Managing Trustee for rendition of accounts against the other trustees during the period of his turn would be maintainable without the sanction of the Advocate General. He referred to an earlier decision of Court in Tirumalai Tirupati Devasthanam Committee v. Krishnayya : AIR1943Mad466 .

11. In V. L. N. S. Temple v. Pattabhirami : [1967]1SCR280 the Supreme Court made it clear to which also Subba Rao, C. J., was a party that no trustee can get discharge unless he renders account of his management and this liability is irrespective of any question of negligence or wilful default. That was a case in which an account was sought for from the Ex-trustees by the present trustees. Even though the Supreme Court said in that case that the present trustee can demand rendition of accounts from the Ex-trustee in respect of their management without alleging against them any acts of negligence or default, for a greater reason, we are of the view that a co-trustee, who in terms of a compromise decree has obliged himself to render an account to the other trustee, should not only in terms of memorandum of compromise but also in law be obliged to render an account to the trustee, who demands for it. This is so because that failure to render en account which would be a due process for the quantification of the amount due to the 'demanding trustee' is likely to prejudice him and affect his rights. Not only for the reason that there is no prescription under Section 92 of the Code of Civil Procedure for the institution of such actions, but also for the reason that failure to give a direction to a co-trustee in management to render an account will affect vested rights and cause prejudice to the person seeking for such an account and thirdly, as in the instant case, the first defendant has obligated himself under the compromise decree to so account, the appellant cannot seek for interference with the judgment of Sethuraman, J.

12. The learned Judge has also found on merits that since 1967-68, the accounts have not been either audited or submitted to the Wakf Board.

13. For all the reasons stated above, this Letters Patent Appeal is dismissed, but there will be no order as to costs.


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