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Ettiyat Ahmed Kutty and ors. Vs. Vayalikath Ayithraman Kutty and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in173Ind.Cas.586
AppellantEttiyat Ahmed Kutty and ors.
RespondentVayalikath Ayithraman Kutty and ors.
Cases Referred and Noor Muhammad Saib v. Karima Bibi Ammal
Excerpt:
.....by trustee--representative suit by worshippers or beneficiary for injunction, declaration or possession--competency--relief, nature of--trustee, if party. - t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article..........affairs of the mosque; but it is not stated who the kamavans are defendant no. 1 alleges that the suit property does not belong to the mosque and it is not trust property. he further set up title to the suit property in defendant no. 26 as mutawalli and denied the title of the plaintiffs to sue as it was the mutawalli alone that could maintain such a suit. defendant no. 26 was impleaded as a party defendant to the suit. while supporting defendant no. 1 in the contention that he is mutawalli of the mosque and that the affairs of the mosque are under bis control, defendant no. 26 in his written statement alleges that the suit property does not belong to the mosque, that the mosque had no right over it at any time and that it is not useful in any way for the mosque. he. has also contended.....
Judgment:

Venkataramana Rao, J.

1. This second appeal is against the decree of the learned Subordinate Judge of South Malabar dismissing the plaintiffs' suit which is a representative action filed on behalf of the Mussalmans of Feroke for an injunction directing defendant No. 1 to demolish and remove the structure put up in the plot which is claimed to be an adjunct of the Jemath Mosque at Feroke, for possession of the same by the plaintiffs on behalf of the mosque and the Mussalman public of Feroke and for granting all other reliefs to the plaintiffs for and on behalf of the mosque which the Court may deem fit to grant. The ground of the claim is that the Jemath Mosque belongs in common to the Feroke Musalman public, that the dead bodies are buried in the paramba of the mosque and that the plaintiffs congregrate at the said mosque for worship. The necessity for the institution of this suit is alleged to be a trespass by the defendant in that he has put up a shed and has been attempting to build a stone structure besides opening a teashop therein.

2. It is stated in the plaint that the karnavans or elders have been managing the affairs of the mosque; but it is not stated who the kamavans are Defendant No. 1 alleges that the suit property does not belong to the mosque and it is not trust property. He further set up title to the suit property in defendant No. 26 as mutawalli and denied the title of the plaintiffs to sue as it was the mutawalli alone that could maintain such a suit. Defendant No. 26 was impleaded as a party defendant to the suit. While supporting defendant No. 1 in the contention that he is mutawalli of the mosque and that the affairs of the mosque are under bis control, defendant No. 26 in his written statement alleges that the suit property does not belong to the mosque, that the mosque had no right over it at any time and that it is not useful in any way for the mosque. He. has also contended that the Mussalmans who assemble in the Jemath Mosque are not entitled to recover the suit property.

3. The points in controversy that arose on the pleadings were whether the suit property is trust property belonging to the mosque or private property as asserted by the defendants and whether the plaintiffs are competent to sue for all or any of the reliefs claimed in the plaint. The learned District Munsif who tried the suit came to the conclusion that the property is trust property attached to the mosque, that defendant No. 1 was a trespasser, and that plaintiffs Nos, 2, 4, 5, 6 and 8 were the elders who were in management of the affairs of the mosque without their being appointed as such by anybody. He, however, thought that a mandatory injunction was not necessary and he therefore gave a decree for possession on behalf of the general public of Feroke by directing defendant No. 1 to remove the basement on the plot which he erected in contemplation of the stone structure intended to be pat up by him. The learned Subordinate Judge dismissed the plaintiff's suit on the ground that the plaintiffs as worshippers of the mosque cannot maintain the suit for possession of the mosque property.

4. It is contended in this second appeal by Mr. Sitarama Rao on behalf of the plaintiffs that the view of the learned Subordinate Judge was wrong and that even assuming they are not competent to maintain the suit for possession on the allegations in the plaint, the learned Subordinate Judge was not warranted in dismissing the suit, I may at once state that the learned Judge did not go into the question whether the property was trust property or not, whether there was any mutawalli for the mosque or whether there were any accredited managers for the institution who were in management de facto of the mosque property, because in the view he took, he considered it unnecessary to go into those questions The principles which regulate the right of suit by a worshipper in relation to trust property are now well settled. Where there is a lawful trustee for an institution, he is the person competent to institute a suit in relation to the property of the institution, to take the necessary steps for safeguarding and preserving it and to eject a trespasser and recover possession there of for the trust; but the recovery of the property is only for and on behalf of the institution which he represents. But where a trustee has alienated the trust property and therefore would not proceed to recover possession of the same or has disabled himself otherwiss from maintaining a suit in respect there of or declines to institute a suit, it cannot be said that the institution is without a remedy. The worshippers, who are the beneficiaries entitled to participate in the benefits of the institution, are entitled to maintain a suit for preserving the trust property or restoring the property to the trust either by instituting a suit for declaration or for an injunction or even for possession; but whether the worshippers are entitled to claim all or any of the reliefs which a trustee is entitled to do in a properly framed suit would depend on the circumstances of each case.

5. It is desirable and necessary to make the trustee a party to the suit and where he is made a party, it is open to the Court to mould the relief as the circumstances may require. If the suit is one brought for possession by the worshippers, the Court can, after declaring the property to be trust property and setting aside the alienation, direct delivery of possession to the trustee. In cases where there is no trustee, it, is open to the Court to direct delivery of possession to the worshippers on behalf of the trust; vide Rengasami Naidu v. Krishnaswami Aiyar : (1923)44MLJ116 . Again, in certain circumstances, it is competent to the worshippers to maintain an action for a declaration that a certain property is trust property and for an injunction restraining the defendant from interfering with their right of worship, which is a personal right, without making the trustee a party to the suit. This would not offend the principle that a trustee alone is competent to maintain a suit to eject a trespasser: vide Kuvarbai v. Mir Alam Khan 7 B 170 where a relief of injunction was given to worshippers in a caste temple.

6. Applying these principles, the question in this case is, is the present suit by the plaintiffs for all or any of the reliefs claimed by them maintainable? The title to the suit property is in dispute. A declaration, therefore, whether the property is trust property is absolutely necessary before the plaintiffs can get any other relief by way of an injunction or for possession, and the plaintiffs are entitled to claim that relief and the suit involves the granting of that relief. If the property is declared to be the trust property, the next question that arises is, whether the defendant is a trespasser and if he is, he has to be ejected from the trust property in order to safeguard the interests of the trust. Therefore that relief also the plaintiffs can claim. The fact that by reason of the institution having a trustee, a Court might refuse to grant delivery of actual possession to a worshipper, would not take away his right to maintain a suit for ejectment of a trespasser of trust property, where the circumstances would entitle a worshipper to claim that relief. The right of a worshipper to maintain a suit in ejectment ought not to be confused with the relief of actual possession which the Court may or may not give him: vide Srinivasacharlu v. Subuddhi 23 M.L.J. 348 ; 17 Ind. Cas. 589. That it is competent to a worshipper to maintain a suit in ejectment is too well established, though I have stated that the form in which the appropriate relief should be moulded would depend upon the circumstances of the case. In Zafaryab Ali v. Bakthwar Singh (4) a relief by way of an injunction for removal of a building was granted in respect of a mosque property. ln Muhammad Alum v. Akbar Hussain 32 A. 631 ; 6 Ind. Cas 835 ; 7 A.L.J. 797 the learned Judges cite with approval Zefaryab Ali v. Bakthwar Singh 5 A. 497; A.W.N. 1883 91 and also a passage of Ameer Ali in his work on Muhammadan Law, where the learned author observes:

Every Muhammadan who derives any benefit from a wakf or trust is entitled to maintain an action against the mutawalli to establish his rights thereto or against the trespasser to recover any portion of the wakf property which has been misappropriated.

7. In Fahimul Huq v. Jagat Ballav 2 Pat. 391 ; 74 Ind. Cas. 403; A.I.R. 1923 Pat. 475 ; 4 P.L.T. 675 Mullick, J., observes thus:

It is now settled that a beneficiary of a trust in respect of a Muhammadan wakf interested in the maintenance of a mosque or other' charitable institution may, without having recourse, to the provisions of Rule 8, O.I. Civil Procedure Code, and without other beneficiaries, sue for recovery of possession of property wrongfully alienated by the trustee and for the incidental declaration that the properties are the subject of the trust and that they cannot be alienated.

8. The same view was taken in Ashraf Ali v. Muhammad Nurajjama : AIR1919Cal179 . So far as the cases in our High Court are concerned, the view has always been taken that it is competent to a worshipper to maintain a suit in ejectment against the alienee in possession of the trust property and direct delivery of possession of the trust property to the trustee after declaring the alienation invalid: Subramania Iyer v. Nagaratna Naicker 20 M.L.J. 151 ; 5 Ind. Cas. 901. The principle underlying such a suit has been that the suit is really on behalf of the trust and the worshippers must be deemed to be suing in right of the trustee as pointed out in Chidambaranatha Thambiran v. Nallasiva Mudaliar 41 M. 124 ; 42 Ind Cas. 366; A.I.R. 1918 Mad. 464 ; 33 M.L.J. 357 ; 22 M. L.T. 218 ; 6 L. W. 666 ; but in cases where possession cannot be awarded to the plaintiffs on the ground that there is a lawful trustee and that such a trustee has not been made a party to the suit, the suit cannot be dismissed, for other reliefs can be granted; for example, a declaration that the property is trust property: vide Kaji Hassan v. Sagun Balakrishna 24 B. 170 ; 1 Bom. L.R. 649.

9. The cases relied on by Mr. Kuttikrishna Menon do no more than lay down that actual possession cannot be given to a worshipper if there is duly constituted representative for the institution: Kamaraju v. Asan Ali Sherif 23 M. 99 and Noor Muhammad Saib v. Karima Bibi Ammal 27 M.L.J. 270 ; 25 Ind. Cas. 559: A.I.R. 1915 Mad 697 ; 16 M.L.T. 165. In this cese it is alleged in the written statement the defendant No. 26 is the mutawalli. If he is really found to be the mutawalli, there is nothing to prevent possession being delivered to him. It is also stated that plaintiffs Nos. 2,4, 5, 6 and 8 are persons in de facto management of the mosque and its property, and if so, there is nothing to prevent the Court delivering possession to them. But if it is found that there is no mutawalli or plaintiffs Nos. 2, 4, 5, 6 and 8 are not the de facto managers, the Court may award possession to the plaintiffs on behalf of the trust so that when appropriate proceedings are instituted for the management of the trust property and a trustee is appointed, they may hand over possession to him.

10. It seems to me, therefore, that the plaintiffs are competent to maintain this suit. The decree of the lower Appellate Court is, therefore, set aside and the learned Subordinate Judge is directed to dispone of the other issues in the case, namely, whether the property is trust property or not, whether 26th defendant is the mutawalli and is in possession and management of the mosque find its property and whether plaintiffs Nos. 2, 4, 5, 6 and 8 are de facto managers of tie mosque and its property. It is competent to him to remand the case to the lower Court for findings on the questions as to who is the mutawalli and who are the de facto managers and dispose of the appeal after the receipt of the said finding. The plaint has not been happily worded and it is partly responsible for the view which the learned Subordinate Judge took in the lower Court. In the circumstances, therefore, I direct each party to bear his own costs in this appeal. The order of costs made by the lower Court will stand. Leave to appeal refused.


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