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Syed Hamid HossaIn Vs. Jonab Md. Karim Khaleeli and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 651 of 1962 and A.F.A.D. No. 1860 of 1962
Judge
Reported inAIR1970Cal505,75CWN256
ActsReligious Endowments Act, 1863 - Sections 5, 10, 14 and 23A; ;Bengal Wakf Act, 1934 - Section 78
AppellantSyed Hamid Hossain
RespondentJonab Md. Karim Khaleeli and ors.
Appellant AdvocateS.C. Mitter and ;Paramesh Chatterjee, Advs. in A.F.A.D. No. 1860 of 1962 and ;Ambika Charan Bhattacharjee, Adv. in A.F.O.D. No. 651 of 1962
Respondent AdvocateAruna Mukherjee, Adv. in A.F.A.D. No. 1860 of 1962 and ;Bhabesh Chandra Mitter, Adv.
DispositionAppeal allowed
Cases ReferredAkbar Raza v. Ali Meerza
Excerpt:
- salil kumar datta, j. 1. these two appeals arise out of two suits relating the affairs and administration of the hoogly imambarah. as, to some extent, common questions of fact and law are involved in the two appeals, on the prayer of the parties, the appeals have been heard analogously.2. the hoogly imambarah is a public and religious establishment founded by hazi mohammad mohsin of hallowed memory in 1806 who by a wakfnama dedicated vast properties to god almighty, for the benefit in particular of shia muslims as also for others purposes of public and charitable nature. formerly the imambarah was managed by the government through the board of revenue and the local agents. on the coming into force in 1863 of the religious endowments act (act xx of 1863), hereinafter referred to as the.....
Judgment:

Salil Kumar Datta, J.

1. These two appeals arise out of two suits relating the affairs and administration of the Hoogly Imambarah. As, to some extent, common questions of fact and law are involved in the two appeals, on the prayer of the parties, the appeals have been heard analogously.

2. The Hoogly Imambarah is a public and religious establishment founded by Hazi Mohammad Mohsin of hallowed memory in 1806 who by a wakfnama dedicated vast properties to God Almighty, for the benefit in particular of Shia Muslims as also for others purposes of public and charitable nature. Formerly the Imambarah was managed by the Government through the Board of Revenue and the local agents. On the coming into force in 1863 of the Religious Endowments Act (Act XX of 1863), hereinafter referred to as the said Act or Act XX of 1863, the management of the Imambarah vested in a Committee of Management appointed by the Government, under provisions of the said Act.

3. The relevant provisions of the Religious Endowments Act, 1863, material for the purpose of adjudication of the issues in these appeals, are as follows:

Section 7. 'Appointment of committees.

In all cases described in Section 3 of this Act the State Government shall once for all appoint one or more committees in every division or district to take the place, and to exercise the powers, of the Board of Revenue and the local agents, under the Regulations hereby repealed. Constitution and duties of committees.

Such committee shall consist of three or more persons, and shall perform all the duties imposed on such Board and local agents, except in respect of any property which is specially provided for under Section 21 of this Act.'

* * *

Section 9. 'Tenure of office.

Every member of a committee appointed as above shall hold his office for life, unless removed for misconduct or unfitness; Removal and no such member shall be removed except by an order of the Civil Court as hereinafter provided.' Section 10. 'Vacancies to be filled.

Whenever any vacancy shall occur among the members of a committee appointed as above, a new member shall be elected to fill the vacancy by the persons interested as above provided. Procedure.

The remaining members of the committee shall, as soon as possible, give public notice of such vacancy, and shall fix a day, which shall not be later than three months from the date of such vacancy, for an election ofa new member by the persons interested as above provided, under rules for elections which shall be framed by the State Government;and whoever shall be then elected, under the said rules, shall be a member of the committee to fill such vacancy. When Court may fill vacancy.

If any vacancy as aforesaid shall not be filled up by such election as aforesaid within three months after it has occurred, the Civil Court, on the application of any person whatever, may appoint a person to fill the vacancy or may order that the vacancy be forthwith filled up by the remaining members of the committee, with which order it shall then be the duty of such remaining members to comply; and, if this order be not complied with, the Civil Court may appoint a member to fill the said vacancy.

(Explanation.-- In this section 'Civil Court means the principal Court of original civil jurisdiction in the district in which the mosques, temples or establishments for which the committee has been appointed or any of them are situate.)'

Section 11. 'No member of committee to be also trustee, etc., of mosque, etc.

No member of a committee appointed under this Act shall be capable of being, or shall act, also as a trustee, manager, or superintendent of the mosque, temple or other religious establishment for the management of which such committee shall havebeen appointed.'

* * * *

Section 13. 'Duty of trustee, etc., as to accounts;

It shall be the duty of every trustee, manager and superintendent of a mosque, temple or religious establishment to which the provisions of this Act shall apply to keep regular accounts of his receipts and disbursement in respect of the endowments and expenses of such mosque, temple or other religious establishment; and of the committee.

and it shall be the duty of every committee of management, appointed or acting under the authority of this Act, to require from every trustee, manager and superintendent of such mosque, temple or other religious establishment, the production of such regular accounts of such receipts and disbursements at least once in every year; and every such committee of management shall themselves keep such accounts thereof.' Section 14. 'Persons interested may singly sue in case of breach of trust, etc.

Any person or persons interested in any mosque, temple or religious establishment, or in the performance of the worship or of the service thereof, or the trusts relating thereto, may, without joining as plaintiff any of the other persons interested therein, sue before the Civil Court the trustee, manager or superintendent of such mosque, temple or religious establishment or the member of any committee appointed under this Act, for any misfeasance, breach of trust or neglect ofduty, committed by such trustee, manager, superintendent or member of such committee in respect of the trusts vested in, or confided to, them respectively; Powers of Civil Court.

and the Civil Court may direct the specific performance of any act by such trustee, manager, superintendent or member of a committee,

and may decree damages and costs against such trustee, manager, superintendent, or member of a committee,

and may also direct the removal of such trustee, manager, superintendent or member of a committee.'

By Section 78 of the Bengal Wakfs Act, 1934 (Bengal Act XIII of 1934) after Section 23 of the Religious Endowments Act, 1863, the following section was inserted: Section 23A. 'Powers of Civil Court to be exercised by the Board of Wakfs in Bengal.

Notwithstanding anything contained in this Act, the powers of the Civil Court under Sections 5 and 10 shall be exercised in respect of any wakf property in Bengal by the Board of Wakfs appointed under the Bengal Wakfs Act, 1934.'

4. In 1956, there were five members of the Committee of Management and two of them on September 4, 1956 tendered their resignation from membership of the Committee of Management. The resignation was accepted by the said Committee at the meeting of its remaining members on September 21, 1956, leaving the plaintiffs Nos. 1 and 2 and the defendant No. 1 in Title Suit No. 65 of 1960 (mentioned hereinafter) as the remaining members of the Committee of Management. The case in the plaint of the said suit is that at another meeting of the remaining members of the Committee held, on October 14, 1956, the plaintiff No. 1 was entrusted with the scrutiny of the voters' list for the purpose of holding an election, under Section 10 of the Act XX of 1863. The defendant No. 1 kept away from the plaintiffs Nos. 1 and 2 and as a result, the election for filling up the vacancies could not be held. It was alleged that the defendant No. 1 with the object of securing the control of the management and administration of the Imambarah, illegally and without notice manoeuvred an election with the help of a few local residents of Hoogly on November 4, 1956 and got his friend and relation, the defendants Nos. 2 and 3 elected as members of the Committee. On November 18, 1956, the said defendants posing as members of the Committee elected the defendant No. 1 as its President and the defendant No. 4 was also appointed by them as the Manager of the Imambarah.

5. The Imambarah was enrolled at the Office of Commissioner of Wakfs, under provisions of the Bengal Wakfs Act, 1934 and the plaintiffs Nos. 1 and 2 filed applications praying for his intervention in the affairs of the Imambarah and for filling up the vacancies in the Committee of Management in exercise of the powers under Section 23A inserted in Act XX of 1863 as aforesaid. The Commissioner declared the election of the defendants Nos. 2 and 3 as members in the Committee as ultra vires and set aside the same directing the remaining members to elect two members in a meeting convened for the purpose. In pursuance thereof, the plaintiffs Nos. 1 and 2 at a meeting, convened for the purpose on April 15, 1957 selected the plaintiffs Nos. 3 and 4 as members of the Committee of Management. This selection was subsequently ratified by the Wakf Commissioner and the Board of Wakfs. At a subsequent meeting, the plaintiffs and the defendant No. 1 elected the plaintiff as President of the Committee. The plaintiffs claimed the right and authority to act as the Committee of Management with the right to carry on the administration of the Imambarah but the defendant No. 1 managed to get control of the Imambarah and prevented the plaintiffs and their manager from achieving a peaceful and efficient management and had been misconducting himself by realising rents and profits of the establishment and committing, in breach of trust, misappropriation of the Imambarah funds.

6. In these circumstances, the plaintiffs instituted on June 26, 1958, Title Suit No. 38 of 1958 renumbered as Title Suit No. 59 of 1959, again renumbered as Title Suit No. 65 of 1960 in the Second Court of the Munsif at Hoogly, inter alia praying for declaration that the defendants Nos. 2 and 3 are not members of the Committee of Management as their purported election was illegal and ultra vires, that the plaintiff No. 1 is the President and the plaintiffs are the members of the said Committee.

7. The suit was contested by the defendants who filed a joint written statement. The various allegations in the plaint were denied and it was stated that as the plaintiffs Nos. 1 and 2 were avoiding election and attempting to pass away the time limit of three months for election to the Committee of Management, the defendant No. 1 being pressed by general Muslims, with the knowledge and consent of the plaintiffs Nos. 1 and 2, invited applications from intending candidates fixing election on November 4, 1956, by publication of notice in 'Hindusthan Standard' of October 26, 1956 and the defendants Nos. 2 and 3 were duly elected at the election held on November 4, 1956. Before the election, all notices were duly served and due publicity as required was given and the defendants Nos. 2 and 3 were validly elected as members of the Committee of Management while the defendant No. 1 was duly elected as President. The Commissioner of Wakfs or the Board of Wakfs had no jurisdiction to set aside the election of defendants Nos. 2 and 3 and of the defendant No. 1 as President or to direct the filling up the vacancies in the Committee bynomination. The suit, in the circumstances should be dismissed.

8. On the same day i.e. June 26, 1958, the plaintiffs filed another suit under Section 14 of the Religious Endowments Act, 1863 with a leave petition, subsequently registered as Suit No. 26 of 1958, alleging that on the basis of an illegal election held on November 4, 1956, the defendant No. 1 in conjunction with other defendants put up obstacles to the plaintiffs' taking over charge of the Imambarah and after the death of the Manager Manzoor Ali on January 26, 1957, purported to act as the member-in-charge of the institution. The plaintiffs, after the reconstitution of the Committee in April, 1957 were eager to take up the reins of the Imambarah and the defendant No. 1 actively joined all meetings till August 25, 1957, when he started keeping away from the meetings of the Committee. The plaintiff No. 1 advanced a sum of Rs. 2,000 to the defendant No. 1 for the Mohurram ceremony for which no account was received. It was, further, alleged that the defendant No. 1 misappropriated from Imambarah funds Es. 50 per month as his salary from December 1, 1956 for supervising Kidderpore estate and Rs. 95 as his salary as General Supervisor of the Imambarah. He further occupied the Mahal Sarai, the building for residence of the Manager, and electric bills during his occupation for Rs. 144.74 p. were kept pending resulting in disconnection of the electricity. There were further unauthorised expenses by the defendant No. 1 and he had kept the keys of important places of Imambarah with him and was attempting to make it a close preserve of his. Further specific allegations against the defendant No. 1 were that he misappropriated Rs. 1305 as alleged emoluments, defied the statutory committee, set up a rival committee, working as its rival president, appointed self-seeking intruders to assist him, misappropriated income of the Imambarah by collecting rent while withholding accounts and prevented the Manager to work. The plaintiffs in the circumstances prayed for removal of the defendant No. 1 from the membership of the Committee of Management of the Imambarah, for direction on him to vacate the premises called Mahal Sarai and to surrender all keys, for accounts and a decree for the trust money misappropriated.

9. The defendant No. 1 contested the suit and filed his written statement denying the allegations of appropriation and of commission of any breach of trust or duty. The election of the two members to the committee was held, 'as stated above, in compelling circumstances on due notice and publicity and with consent of plaintiffs Nos. 1 and 2 and was not ultra vires. The Commissioner had no right to intervene after the election and the alleged selection of the plaintiffs Nos. 3 and 4 as members of the committee was illegal. The plaintiffs' claimto the administration of the Imambarah was denied and it was asserted that the defendants Nos. 1 to 3 had been performing all religious ceremonies with great difficulty in absence of funds as the plaintiffs Nos. 1 and 2 had withheld from them the funds of the estate and were non-cooperating with them. There was no subversive act committed by him and on the death of Manjur AH who was the Manager, the defendant No. 1 in pursuance of a resolution of the committee was compelled to act as member-in-charge for a few months. The sum of Rs. 2000 received from the plaintiff No. 1 was duly spent in holding the religious ceremonies. The sum of Rs. 1305 as his emoluments was received on the authority of the resolutions of the committee and the defendant No. 1 was not aware of any legal impediment in accepting the same. The defendant No. 1 stated that he resided in a portion of Mahal Sarai with the permission of the Manager and the electric charges were not for his personal use, while all alterations of misappropriation were emphatically denied. The defendant denied that the keys of the Imambarah were with him or that he arrogated to himself the powers of the committee. There was no act of misconduct by him and the plaintiffs were not entitled to any reliefs in the suit.

10. It appears that the Official Trustee was appointed Receiver of the Imambarah by order of the Court and pursuant thereto, on August 29, 1957, took charge of its properties and assets. The said Receiver has been since in possession thereof. At the trial of both suits, the parties adduced evidence oral and documentary. The learned Munsif in Title Suit No. 65 of 1960 held that the plaintiffs were not entitled to the declarations firstly that the defendants Nos. 2 and 3 are not members of the committee as their election to the Committee was not legal and valid or secondly that the plaintiffs Nos. 3 and 4 are members of the committee. On admission it was declared that plaintiffs Nos. 1 and 2 are members of the committee and except as stated above, the plaintiffs' suit was dismissed. The plaintiffs preferred an appeal therefrom and the said appeal was allowed in part granting a further declaration that the defendants Nos. 2 and 3 were not members of the committee and the defendant No. 4 was not the Manager of the Imambarah. It was also found in agreement with the trial court that the appointment of the plaintiffs Nos. 3 and 4 as members to the committee was illegal. The defendants preferred the present Second Appeal in this Court against the said decision, while the plaintiffs filed a cross-objection against the finding about the appointment of the plaintiffs Nos. 3 and 4 to the committee which was held as being illegal.

11. The other suit, for removal of the defendant No. 1 from the committee, was heard before the District Judge, Hoogly andwas decreed. The defendant No. 1, in addition was directed to refund all moneys drawnby him as Supervisor from the Imambarah from December, 1956 together with Rs. 144. 74 as electric charges. Further, there was to be thorough checking of accounts from January, 1957 till the Receiver Official Trustee took charge, in order to determine if the defendant No. 1 is liable to refund any amount to the Trust Estate. The Receiver Official Trustee was to continue in-possession until further orders. The defendant No. 1 has preferred this appeal before us against the said decision.

12. Both the second appeal with its cross-objection and the first appeal have been heard analogously before us on the prayer of the parties and this judgment will govern the above proceedings.

13. As the appeals were opened, it was disclosed that the plaintiff No. 1 died on or about May 18, 1970 and as there was no dispute over it, a note be made accordingly. A point then arose as to the competency of the appeal in absence of the deceased plaintiff. It will be seen that the plaintiffs instituted the suit as persons interested in the Hoogly Imambarah and also as members of the committee. Each of the plaintiffs has his individual and distinct right even as person interested to challenge the election of the defendants Nos. 2 and 3 and to have declarations claimed in the suit relating the election as also the right to move for removal of a member of the committee and allied reliefs. Death of one of the plaintiffs does not alter the position, as the right of the remaining plaintiffs individually to sue subsists even in absence of any other plaintiff. The appeals were therefore competent in absence of substitution of the plaintiff No. 1 which is unnecessary and not called for in the circumstances.

14. It was urged before us, as in the courts below, on behalf of the defendants appellants that the words 'remaining members' of the committee in Section 10 of the said Act, to fill a vacancy occurring, also mean 'a single member'. The words 'remaining members' also appear in Rule 8 of the Election Rules framed by the Government of Bengal in 1865, and the remaining members have to fix an early date for election of a new member to fill up the vacancy. Reliance was placed, in support, on Section 13 of the General Clauses Act (Act X of 1897), which provides inter alia that in all Central Acts, unless there is anything repugnant in the subject or context, words in the singular shall include the plural, and vice versa. The trial court was of the opinion that the plaintiff No. 1 was deliberately obstructing the holding of the election with the object to disfranchise the electors and to procure the patronage of the Wakf Board to put in his nominee. It was obviously a serious mischief and it was the duty of the Court to make such interpretation of a statute aswould suppress the mischief and advance the remedy. In support, the following passage quoted in Maxwell's 'Interpretation of Statutes' (11th Edition P. 109) was referred to:

'The Office of the Judge is to make such construction as will suppress the mischief and advance the remedy and to suppress all evasions for continuance of the mischief,' In view of the consent of the plaintiff No. 2 to the holding of the election by the defendant No. 1 and on the due publicity of the election, the learned Munsif was of opinion that the Court should give a reasonable interpretation to the words 'remaining 'members' as 'a single member' and it was held that the election held by the defendant No. 1 was advancing the purpose of the statute and its rules.

15. The first appellate court however referred to the decision in Shambatta v. Chera-koodlu Narayana Bhatta : AIR1951Mad917 , where it was held, with reference to Section 13 of the General Clauses Act, as follows:

'The definition applies only if there is nothing repugnant in the subject or context. The function of an interpretation clause is not, as is very often supposed, to substitute one set of words for another or to apply the meaning of the term under all circumstances but merely to declare what may be included in the term when the circumstances required that it should be so interpreted.'

It may be noted that the interpretation clause in Section 2 of the Act, relating to 'number' and 'gender' were repealed by Repealing and Amending Act, 1914, (Act X of 1914). As has been pointed out by the appellate court, Section 13 always refers to the context' and on a reading of the entire provisions in the Act, there is no warrant for the proposition that the words 'remaining members' would also include 'a single member'. If the remaining members fail to discharge their obligation, there is an elaborate procedure laid down in Section 10 to meet the contingency. On the other hand, if any single member is deemed as authorised to hold an election and elect separate members, there would be a chaos and mischief and the object of the statute would be frustrated. There is no doubt the remaining members of the committee by themselves or due to the obduracy of any member may fail to hold the election within the statutory period and such failure is certain to lead to disfranchisement of the electors. Rut for such contingency, the remedy is provided for in the statute, though thereby electors are deprived of their right to elect. The function of the Court is however to declare the law and not to alter it was pointed out by the Privy Council in Balkrishna v. Vasudeva, 22 Cal WN 50 (60) = (AIR 1917 PC 71 at p. 75) while considering Section 10 of the said Act. We hold, in agreement with the first appellate court, that interpretation of 'remaining members' as 'a single member' in Section 10 ofthe Act would be repugnant in the context of other provisions of the said Act.

16. The Committee of Management, as we have seen, is a body corporate and as it appears, the committee is not dissolved by the vacancy occurring among its members and it becomes a select body with statutory powers to fill the vacancy. This brings us to the most formidable argument advanced before us by Mr. Syama Charan Mitter, the learned Advocate for the appellants. Mr. Mitter contended that it is not necessary that all the remaining members of the committee individually should agree to a decision in the affairs of a corporate body and the decision is always of the majority of its members, as otherwise, it would be impossible for any corporate body to act if it must have the consent of every individual member and accordingly a major part of them may always do any corporate act. Reliance was placed on the decision in the case of Attorney General v. Davy, (1741) 26 ER 531 where the following observations occur:

'It cannot be disputed, that wherever a certain number are incorporated, a major part of them may do any corporate act; so if all are summoned, and part appear, a major part of those that appear may do a corporate act, though nothing be mentioned in the charter of the major part.

This is the common construction of charters, and I am of opinion that the three are acorporation for the purpose they are appointed, and that the major part of them maydo any corporate act; this was a corporateact, and the choice too was confirmed, andconsequently not necessary that all the threeshould join......'

We were also referred to the following passage in M.P.S. Syed Muhammad v. Syed Sultan Moideen Sahib, AIR 1937 Mad 597.

'The very wording of Section 10 shows that it has reference only to the remaining members of the committee and not to the committee. A corporation is more than the sum of its members and has certain powers as a body not possessed by the members of the corporation. The reference in Section 10 to the remaining members emphasizes the fact that the remaining members are not the committee; and so it is not the corporate body of the committee that fills up this vacancy but the surviving members. Nevertheless, it seems to me that these four remaining members were a select body given statutory powers under the section to fill up the existing vacancy; so that the nature of this body is very similar to that of a corporation with one sole object and power. In Halsbury, Vol. 8, p. 53 (2nd edn.). Article 90, are set out the powers of a select body; and it is seen that in important respects a select body resembles a corporation, in that acts can be performed, for example, not merely by the members acting unanimously but by a majority of those present if more than the majority of the members are present.'

On the above principle Mr. Mitter argues that in the instant case, the election was called by the defendant No. 1 with consent of the plaintiff No. 2. In a select body with three members, the act, calling the election was an act of the majority of the two members and necessarily the election must be held to be legal and valid when the courts found it was duly proclaimed and notified and one dissenting minority member is not entitled in law to frustrate the election.

17. There can be no dispute and it is settled law that the act of the majority of the members of a corporation or a select body is the act of such corporation and body. It is also the position that a corporation or select body can only do acts at meetings duly convened for the purpose unless a special method is authorised by the constitution. There must therefore be meetings of the members of such bodies duly notified and held where the matters are brought up for consideration and resolutions taken thereon by the majority members present authorising a course of action. Such acts become the acts of the corporation or of the particular body and shall prevail over the opinion of the dissenting minority members, unless the constitution otherwise provides for particular majority.

18. It is not the case of the appellants that there is any provision in the rules of the Committee of Management that its resolutions or those of the Select Body can be adopted by circulation. We also do not find that any meeting of the remaining members of the committee was duly or even called for deciding the steps to take for filling up the vacancy. Accordingly the act of the defendant No. 1 in holding the election, even though with the consent of the plaintiff No. 2, does not amount to an act of the majority of the members of the committee. There is, therefore, no escape from the position that the election held by the defendant No. 1 on November 4, 1956 was without any authority of law and was thus invalid and the defendants Nos. 2 and 3 thereby did not become members of the committee of Management. The appointment of the defendant No. 4 as Manager of Imambarah, made by the defendants Nos. 1, 2 and 3 purporting to act together as the committee as also the appointment of the defendant No. 1 as President of the Committee are also; for the same reason, illegal and invalid.

19. The appellants have also relied on Exhibit B, the notice inviting candidates and notifying the election for filling up the vacancy issued by the defendant No. 1, published in the 'Hindusthan Standard', an English daily newspaper, on October 26, 1956, which was counteracted by the plaintiff No. 1 by inserting an advertisement in the same paper on November 1, 1956. The said notice Exhibit B was issued, under Rule 8 of the Election Rules which provides that the remaining members are to givenotice of the date of election with all possible publicity, by beat of drum and by written proclamation suspended at the door of the mosque. The appellate court has found that 'the election was duly proclaimed and notified. The Exhibit B, in our opinion, suffers from the fatal infirmity in that it did not disclose the authority, as it could not, by which the election was being held. We have also seen that the election held by the defendant No. 1 was without the legal sanction of the select body of the committee in absence of any resolution of the select committee and the due publication of the notice did not as it could not, legalise the election otherwise invalid for want of legal sanction and authority.

20. The appeal filed by the defendants in the premises fails and is dismissed. There will be no order as to costs in this appeal.

21. Mr. Bhabesh Chandra Mitter, the learned Advocate appearing for the plaintiff respondent No. 3, (the plaintiff No. 1, the other cross-objector being dead), supported the cross-objection contending that the courts below erred in holding the appointment of the plaintiffs Nos. 3 and 4 as members to the committee as illegal. It is settled law, on the authority of the decision of Akbar Raza v. Ali Meerza, AIR 1949 Cal 272, that the Civil Court has jurisdiction in all matters arising out of Section 10 of the Act and the said jurisdiction is not ousted by Section 92 of the Bengal Wakf Act, 1934. The Civil Court has thus the jurisdiction, in addition, to examine the validity of the acts of the Board under Section 10 thereof relating the election and filling up of vacancies to the Committee. In fact the question is academic when we find that the plaintiffs themselves had moved the Civil Court for a declaration that the election of defendants Nos. 2 and 3 in the committee was illegal and invalid and further that the election of the plaintiffs Nos. 3 and 4 thereto was legal and valid. It, however, appears that the Commissioner of Wakfs cancelled the election of the defendants Nos. 2 and 3 and directed the remaining members to elect two members within a month. This order was forwarded to the Board for information and approval. It further appears that the plaintiffs Nos. 1 and 2 alone pursuant to the said order selected the plaintiffs Nos. 3 and 4 as members to the committee and the Board of Wakfs approved the action of the Commissioner, and the said appointment by selection. Section 78 of the Bengal Wakf Act, 1934 amended Sections 5 and 10 of Act XX of 1863, in its application to Bengal providing that the powers of Civil Court under the said section shall be exercised in respect of any wakf property by the Board of Wakfs. We do not find any power or authority entrusted to the Commissioner of Wakfs to cancel any election and direct fresh election by selection by the remaining members, while in fact two plaintiffs out of three remainingmembers made the fresh appointments to the committee. In view of Section 23-A, the Board of Wakfs and not its Commissioner, was competent to hold that there was no election within the statutory period and to appoint a person to fill the vacancy or to direct the remaining members to fill up the vacancy and in default it could itself appoint a member to fill the vacancy. As has been held by the first appellate court, the procedure was erroneous all through and was not cured by ratification or approval by the Board of the illegal and unauthorised acts of the Commissioner. In agreement with the Courts below, we hold that the appointment of the plaintiffs Nos. 3 and 4 was illegal and invalid.

22. The cross-objection, in the circumstances, fails and is dismissed, without any order as to costs.

23. We now come to the appeal against the decree passed by the learned District Judge, decreeing the plaintiffs' suit for removal of the principal defendant being the defendant No. 1 from membership o the committee for misconduct and unfitness. The plaintiffs in the plaint charged the defendant No. 1 as purporting to act as the member-in-charge of the Imambarah preventing the plaintiffs from participating in the management and administration of the institution. He was further charged for having acted and accepting Rs. 50/- per month as salary for supervising Kidderpore Estate and Rs. 95/-as salary as General Supervisor, for non-payment of Rs. 144.74 P. as charges for electricity for his personal use, and misappropriation of Rs. 1,305/- as his emoluments out of the funds of the Imambarah, for defying the statutory committee and also for illegal occupation of the Manager's residence. Mr. Bhabesh Chandra Mitter contended with emphasis that the action of the defendant No. 1 amounted to misfeasance and malfeasance as also breach of trust and in acting and receiving emoluments for acting as trustee or manager, there was direct violation of the provisions of Section 11 of Act XX of 1863 involving forfeiture of his office of membership to the committee. The charges have been established according to the trial Judge who decreed the suit.

24. Mr. Ambica Charan Bhattacharjya, the learned Advocate appearing for the defendant No. 1 the appellant before us, has contended that the defendant No. 1 is not guilty of any malfeasance and misfeasance and had not committed any acts of mala fide or breach of trust warranting forfeiture of his membership. As to the allowances of Rupees 50/- as Supervisor for Kidderpore properties, this was sanctioned by the committee with the plaintiffs Nos. 1 and 2 as its members on 1-7-1956 long before the dispute arose. According to the plaintiff No. 1, this allowance was stopped by the committee by its resolution dated October, 14, 1956 and even so withdrawalcontinued till about August, 1957. The defendant No. 1 stated that he was not aware of the said resolution, he admittedly not having attended the meeting and he stopped the drawing when the irregularity was made known to him. The defendant No, 1, ac-cording to him, had to act as the Supervisor of the Imambarah, as the previous manager became ill before his death and died on January 26, 1957 and no suitable manager was available. The defendant further contended that he was sanctioned a sum of Rs. 75/- in December, 1956, by the committee at its meeting held on December 16, 1956, enhanced to Rs. 95/- also by the committee at its meeting held on January 23, 1957 for acting as a Supervisor. Undoubtedly a member of committee under Section 11 is not entitled to act as a trustee or manager and without doubt the defendant's acting as Supervisor of the Imambarah was in violation of the provisions of Section 11 of the Act. With an ailing Manager and on his death on January 26, 1957 and in absence of the suitable manager and in the background of the disputes of the rival committees for which the plaintiff Nos. 1 and 2 cannot avoid a responsibility, we find some good reason for the defendant No. 1 taking up the office of and acting as the Supervisor of the Imambarah till its possession was taken by the Official Trustee on August 29, .1957. Even though we do not support the conduct of the defendant, in view of the contingency in which he was required to work, we do not think that he was guilty of such misconduct as to be punished with the extreme penalty of forfeiture of his membership for his acting as Supervisor. As to the amounts accepted by him as his emoluments on the basis 'of resolutions of the committee there can be no doubt that such withdrawals were unauthorised and illegal and the defendant No. 1 must refund the amount drawn on the basis thereof, as has been held by the trial Court. It also appears to us that at least notices of meetings of the committee held on December 16, 1956 and February 17, 1957 were sent to the plaintiffs Nos. 1 and 2 vide (Exhibits F, F/1 and G). There is no statement by the plaintiff No. 1 in his evidence about non-receipt of notices of the committee meetings sanctioning the emoluments to the defendant though he said that he was not aware of any such resolutions. It cannot, therefore, be said that the plaintiffs were kept unaware of the meetings of the committee convened by the defendant No. 1 which undoubtedly establishes his bona fide belief in the legal constitution of the committee with the other members elected on the basis of the election held by him, though ultimately the election was held by the Civil Court to be invalid and illegal.

23. It . is admitted that the sum of Rs. 2,000/- advanced by the plaintiff No. 1 was received back by him. As to amount of Rs. 1509/6/8P as cash in hand onJanuary 1, 1957 in the hands of the thenManager, there is no evidence, according to the trial Court, that it came in the hands of the defendant No. 1 or he misappropriated it and we also agree that the resolution writing off the amount was not legal or authorised. In the context of the death of the said Manager in the meantime, we are not in a position to impute any mala fides or misconduct to the defendant No. 1 in writing off a debt due from a dead person by a resolution of the said committee.

26. It appears that there are further allegations of misappropriation of the funds of the Imambarah by the defendant. There is no firm finding in respect thereof by the trial Court except some tentative findings. It appears that an Account Commissioner was appointed but his work was suspended by order of the Court. We are in full agreement with the trial Court that there should be a thorough examination of the account of the Imambarah during the period from January 1957 till August 29, 1957 when the Receiver Official Trustee took over the charge of the estate, to determine if the defendant No. 1 misappropriated any amounts from the Imambarah funds which he would be liable to refund. If the examination of accounts discloses any act of misappropriation of the fund of the Imambarah by the defendant No. 1 it will be open to persons interested to take such steps as they may be advised in the circumstances.

27. Upon the materials on record we are in agreement with the trial Court that the defendant took up the office of being almost the in-charge of the Imambarah which Section 11 of the Act XX of 1863 expressly prohibits. In the contingency created by the illness and death of the then Manager and in absence of a suitable Manager being available and in the background of the unfortunate disputes between the remaining members of the original committee and in the circumstance then prevailing we are not in a position to hold the Defendant No. 1 guilty of such misconduct or unfitness as to remove him from the membership of the committee for acting as Supervisor of the Imambarah and receiving emoluments for his service in bona fide belief that he was entitled to the same being sanctioned by the erstwhile committee or for non-payment of electric charges which claim was disputed by him. We are, however, in agreement with the trial Court that the defendant No. 1 must refund to the Imambarah all emoluments he had received from the funds of Imambarah together with the sum of Rupees 144.74 P. due on account of electric charges.

28. In the circumstances the appeal is allowed in part and the judgment and decree under appeal is affirmed subject only to the modification of the order removing the defendant No. 1 from the member of the committee which is hereby set aside. As thevacancies, in view of our findings, are yet to be filled up and as there has been a further vacancy caused by the death of the plaintiff No. 1, we direct that the Receiver Official Trustee shall continue to be in possession of the Imambarah till the vacancies in the committee of Management are filled up and the said committee takes charge from the Receiver Official Trustee.

S.K. Chakravarti, J.

29. I agree.


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