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F.A. Shihan and ors. Vs. Abdul Alim Abed and ors. - Court Judgment

LegalCrystal Citation
Subject Trusts and Societies
CourtKolkata
Decided On
Reported inAIR1930Cal787
AppellantF.A. Shihan and ors.
RespondentAbdul Alim Abed and ors.
Cases ReferredBalla Mal v. Ata Ulla Khan
Excerpt:
- rankin, c.j.1. in 1876 shaikh jummon mistry, by a registered deed or towliatnama, made wakf of certain properties specified in the schedule thereto and laid down the rules and objects of the wakf. he stated that he had built a mosque on certain land and he dedicated other land for the purpose of a public burial ground. the main object of the wakf was the maintenance and. preservation of the mosque and burial ground and the income to arise from the dedicated properties was estimated at rs. 1,360 per annum. the deed contains provisions for an annual expenditure upon certain specified objects-directly charitable of a sum of rs. 285 apart from the allowance given to the mutwallis of the wakf. by the deed jummon mistry appointed himself and his second wife, sm. sundan bibi, to be the first.....
Judgment:

Rankin, C.J.

1. In 1876 Shaikh Jummon Mistry, by a registered deed or towliatnama, made wakf of certain properties specified in the schedule thereto and laid down the rules and objects of the wakf. He stated that he had built a mosque on certain land and he dedicated other land for the purpose of a public burial ground. The main object of the wakf was the maintenance and. preservation of the mosque and burial ground and the income to arise from the dedicated properties was estimated at Rs. 1,360 per annum. The deed contains provisions for an annual expenditure upon certain specified objects-directly charitable of a sum of Rs. 285 apart from the allowance given to the mutwallis of the wakf. By the deed Jummon Mistry appointed himself and his second wife, Sm. Sundan Bibi, to be the first mutwallis and an allowance was provided for himself of Rs. 30 per month and for his wife of Rs. 40 per month. The deed further provided that after Jummon's death his son Umar Ali was not to be mutwalli but was to get monthly allowance of Rs. 30 per month for lifetime from the wakf property. It seems that Sm. Sundan Bibi was much younger than her husband and the deed contained elaborate provisions with respect to the office of mutwalli to take effect in the event of Jummon Mistry's predeceasing Sundan Bibi. No provision was made for the event of Jummon Mistry surviving his wife save that it was declared as regards Umai Ali, the son:

He is not fit to be mutwalli of the properties hereby made wakf of during my lifetime or after my death, and he shall not be so, and I will not make him so, nor shall any Court make him so.

2. In or about 1879 Sundan Bibi died and in 1880 Jnmmon Mistry executed a second deed or towliatnama. By this be purported to annul and set aside those provisions of the deed of 1876 contained in paras. 5 to 11 thereof. In effect however by the terms of this deed, he dedicated the properties mentioned in the previous deed upon the same terms as before, save that he now declared that upon his death his son, Umar Ali, was to be mutwalli and to receive a salary of Rs. 60 per month. He provided also, as to Umar Ali that

when he will be unable to carry on the work, he will, aooordiag to his discretion, appoint a trustworthy, pious and wise person as mutwalli.

3. Jummon Mistry died in 1884. In 1908 Umar Ali, the son, by a registered deed purported himself to dedicate the same properties all over again - one property had been sold and substituted by another, but this fact may be disregarded. Two new properties were however brought in by Umar Ali - those marked Una and Chha in the schedule - the one being the family dwelling house and the other a piece of laud upon which a building was in course of erection. By this deed Umar Ali purported to make the two properties 'part of the wakf estate dedicated by my father.' He provided that after his death his sister Aberjan Bibi and his nephew's son Samiruddin were to be mutwallis. He further provided that on the death of either of these two, his daughter's son Abdul Alim Abed (the plaintiff in the present case) would be appointed mutwalli in his or her place. The deed further proceeded to declare that the mutwallis were after his death to make various substantial payments. Thus, they were to spend Rs. 500 every year on charities and distribute Rs. 500 annually to the poor on the occasion of Bakr-Id. On Umar Ali's death they were directed to give feasts at an expenditure of Rs. 1,000 and to spend Rs. 250 every year in giving feasts to the poor in his and his father's name. Not content with this, Umar Ali went on to provide that certain family expenses of his own were to be paid by the wakf, that certain family and ceremonial presents were to be given to relatives and that various allowances were to be given to various relations. In 1911 Umar Ali died leaving as his heirs his sister Aberjan Bibi and, one Karim Bux, a grandson of Jummon Mistry's brother.

4. In 1912 Aberjan Bibi brought a suit (No. 36 of 1912) in the Court of the Subordinate Judge at Alipore against Samiruddin, whom Umar Ali had appointed to be joint mutwalli with her, Karim Bux and various other members of the family including the plaintiff, who was then a minor. This suit was for a declaration that the wakfs created by Jummon and Umar Ali were all invalid and for partition of all the properties comprised in the towliatnamas made by them on the footing that Umar Ali had succeeded to a two-thirds share and she to a one-third share of Jummon's property, and that she on Umar Ali's death had succeeded to a half-share of the properties left by him. Samiruddin was impleaded by reason that he had been appointed by Umar Ali to be a mutwalli of the wakf. The other defendants (including the plaintiff) were impleaded 'in the view that they may claim any rights to the said shares.' An order was obtained from the Court appointing Karim Bux to be guardian-ad-litem of the present plaintiff and also of three other persons who were minors on the strength of a petition of Aberjan Bibi to the effect that Karim Bux was their guardian, that he was maintaining and looking after them and that the interests of the minors and the interests of Karim Bux were not adverse to each other. Samiruddin, Karim Bux and Aminuddin filed a joint written statement on their own account. By this they refused to admit as true certain portions of the plaint and contended that, even although the wakfnamas be set aside, the approximate annual expenditure for the mosque should be declared a charge upon the properties comprised in the wakfaamas. They admitted that Aberjan and Karim Bux were the heirs of Umar Ali and stated that they had no objection to a partition being made of the properties other than those which the Court would assign for meeting the expenses of the mosque and the festival and other lawful expenses. Karim Bux, on behalf of the minors, filed an equally flabby defence, stating that the minors were prepared to accept whatever decision the Court would come to as to whether the wakfs were valid or not and claiming that if the wakfs were invalid they should nevertheless get the allowances given to them by the deeds and that there should be a charge on some one of the properties therefor.

5. At the hearing the plaintiff withdrew her claim for partition and the suit proceeded only as a suit for a declaration that the wakfs were invalid. Aberjan was examined on commission and cross-examined by the pleader who acted for all the defendants. In Court two witnesses were called for the plaintiff and two for the defendants. The learned Subordinate Judge found by his judgment, dated 6th September 1912, that the wakfnarnas were not meant to be acted on and that, with the exception of a small part of the income which they spent for their religious purposes Jumman and Umar Ali had spent the income for their own purposes. He held further that all the1 three deeds were invalid. He refused TO give any effect to the provisions contained therein for the maintenance of the defendants but, finding that certain small sums amounting to Rs. 212 per annum had been regularly spent for religious purposes he declared this sum to be a charge on the properties. Upon this Aberjan immediately filed a petition for review asking that the charge should be confined to a portion of the estate adequate in value to bear it and suggesting a certain property as suitable for the purpose. By this petition she also stated that a scheme for partition of the estate had been amicably arrived at by all the parties interested. A Solenama was filed on 5th October 1912, and by the decree of that date the Court declared that the wakfnamas were invalid and that the sums spent for religious purposes were to be a charge on the properties. It went on to declare that the Court having admitted a review of its original judgment and the parties having come to an agreement as to the partition of the properties in suit and for a scheme for the maintenance of the mosque certain properties were set apart for the maintenance of the mosque and to meet the charge above mentioned. It further ordered that certain properties were to go to Aberjan Bibi and certain other properties to Karim Bux as an agreed partition of their shares in the estate of Umar Ali.

6. In 1915, another suit (No. 190 of 1915) was brought in the same Court by Samiruddin who, it may be noticed, Was the son of Karim Bux and the person appointed by Umar Ali to be joint-mutwalli with Aberjan Bibi of the wakfs. Associated with him as plaintiffs were, inter alia one Hormat Ali the Imam of Jummon Mistry's mosque, and three other persons coming to be members of the congregation. Aberjan, Karim Bux, Aminuddin and the present plaintiff, Abdul Alim Abed, were among the defendants, Abdul Alim Abed being still a minor and being described as 'pro forma defendant for the purpose of decision in his presence.' This suit was for the purpose of obtaining a declaration of the validity of the wakfs and that the properties of the schedules to the plaint belonged to the wakfs; that Samiruddin and Aberjan Bibi were the mutwallis and that the decree of 1912 was not binding. It also asked for possession of the properties to be given to Samiruddin as mutwalli jointly with Aberjan and for incidental reliefs. Abdul Alim Abed (the present plaintiff) objected to the guardian proposed for him and asked the Court to appoint an officer of the Court to be guardian on his behalf. The Court appointed the Sheristadar as such guardian. A written statement was filed or his behalf alleging that the suit of 1912 was fraudulent and collusive, that the wakfnamas were valid and operative and that Aberjan should be removed from the post of mutwalli. A case was made that in the suit of 1912 Abdul Alim was not properly represented and that he was not bound by the decree. In other respects Abdul Alim Abed supported the plaintiff Samiruddin. The Suit was contested by Aberjan and two other defendants who had been impleaded as transferees from her of some of the wakf properties. No less than 21 issues were framed by the Court, and in the judgment dated 27th November 1916 they were dealt with at length. The main case of the plaintiff Samiruddin was that at the time of the suit of 1912 he had been insane, and this defence was rejected on the evidence. As regards the suit of Samiruddin and the plaintiffs who sued as members of the congregation it was held that the prayer for recovery of possession of the properties and vesting the same in trustees was incompetent and not maintainable by any of the plaintiffs by reason that the suit had not been brought with the consent of the Advocate-General under Section 92 of the Code. The prayer to set aside the previous decree of 1912 was however held to be competent to plaintiffs 1 to 4 who had been parties to the previous suit. On the merits the wakfnamas were held to be invalid. It was held that Samiruddin's minor sons impleaded in the suit of 1912 were properly represented by Karim Bux and that in the suit of 1912 no fraud or collusion had taken place. Accordingly the suit was dismissed. From this decree an appeal was on 12th January 1917 preferred to the High Court by Samiruddin and his minor sons. This appeal they withdrew, it being certified by the Court that the withdrawal of the appeal was for the benefit of the minors concerned.

7. In 1921 Abdul Alim Abed, claiming to have attained majority on 30th May 1918, brought the present suit impleading 22 defendants. Aberjan Bibi, Samiruddin, Karim Bux and other members of the family are among the defendants. Defendants 17, 18, 20, 21, and 22 are transferees of properties from Aberjan, and in appeal No. 187/27 they are the appellants before us. The appellants in appeal No. 196/27 are Aberjan, defendant 1, and Badruddin Ahmed a transferee from her, who had also been a defendant in the suit of 1915.

8. The plaint doss not purport to be brought by the plaintiff on behalf of any person other than himself. It mentions the deed of 1876 but states that before it was acted on or was in operation, the deed of 1880 was executed by Jummon Mistry. It refers to the deed of 1908 and to the direction given by Umar Ali that on the death of either Aberjan or Samiruddin the plaintiff was to become mutwalli. It states, untruly, that on the death of Umar Ali. Aberjan was his only heir and that Karim Bux was no relation of Jummon and Umar Ali. It alleges that the suit of 1912 was fraudulent and collusive and that Karim Bux was appointed to be guardian-ad-litem with a view to preventing any real contest. As originally drawn it concluded with three prayers: (1) for a declaration that the second and third (not the first) wakfnamas were valid and operative; (2) that the decree of 5th October 1912, may be declared to be a nullity; (3) that if necessary the said decree be set aside. This last prayer was however deleted, it having been held by the Subordinate Judge that the inclusion of this prayer rendered the plaint liable to be stamped as a plaint claiming a declaration with consequential relief, that is with a fee calculated ad valorem on the value put by the plaintiff on the relief sought by him. The plaintiffs object in striking out the third prayer was to get the benefit of Article 17, Schedule 2, Court-fees Act under which a fixed fee of ten rupees was then payable upon a plaint to obtain a declaratory decree where no consequential relief is claimed.

9. I will not endeavour to set out the effect of the numerous written statements or the purport of 21 issues framed by the trial Judge. It will be sufficient to explain that the defendants contend (1) that all the three wakfriamas were invalid according to the law obtaining prior to the Mussalman Wakf Validating Act (6 of 1913); (2) that the plaintiff was properly represented in the suit of 1912, that no fraud or collusion existed in that suit, and that the decree is binding upon him; (3) that the suit of 1915 concludes the plaintiff upon the question of the validity of the wakf not only because he was a party thereto but also (a) because both the mutwallis were parties thereto so that the wakf estate was completely represented and (b) because it was a suit brought by certain members of the congregation on behalf of themselves and the Mahomedan public entitled to frequent the mosque; (4) that whether the wakfs were valid or invalid the transferee defendants have got a good title to the properties both as purchasers for value without notice and by reason of possession adverse to the wakf estate for more than 12 years. These are the main defences, but it is also contended that the plaintiff has not so framed his suit as to enable him in any event to get a declaration of the invalidity of the decree of 1912 and also that a mere declaration to the effect that the second and third wakfnamas were valid and operative and created a valid wakf of the properties therein mentioned should not be given to the plaintiff in the presence of the transferees, or even as against Aberjan Bibi.

10. The learned Subordinate Judge, by his judgment of 27th June 1927, has dealt elaborately with all the issues. The effect of his judgment is to hold firstly that all the three towliatnamas were valid and effective deeds; that the plaintiff was validly appointed by Umar Ali to succeed to the office of mutwalli upon the death of Aberjan or Satniruddin; that in the suit of 1912 the plaintiff was not properly represented as the in terest of Karim Bakhsh was adverse and as no real contest was made on his behalf and the suit was a collusive suit; that the decision in the suit of 1915 does not estop the plaintiff from asserting the validity of the wakf deeds and the invalidity of the decree of 1912. In these circumstances the learned Judge has held that the plaintiff is emitled to obtain a declaration that the decree of 1912 is a nullity as against the plaintiff notwithstanding that he has asked for no other relief in respect of this decree. He has held also that the plaintiff is entitled to a declaration that the towliatnamas of 1880 and 1908 were valid and operative and created a valid wakf of the properties therein mentioned notwithstanding that he has not asked for a declaration that the transferee defendants' purchases are null and void or that they have no title to the properties purchased by them, and notwithstanding that he has asked for no consequential relief.

11. First, as to the decree of 1912. It appears to me reasonably plain that the plaintiff is entitled to relief in respect of this decree and that it is not binding upon him. For some reason of his own (probably with a view to exaggerate the fraud committed in the course of that suit), the plaintiff attempted to dispute that Karim Bakhsh was an heir of Umar Ali. On that footing the application for review and that agreed partition between Aberjan and Karim Bakhsh of Umar Ali's estate embodied in consent in the decree of 5th October 1912, would amount to a very obvious fraud. But in truth Karim Bakhsh was the one person who, with Aberjan, stood to gain by a declaration that the wakfnamas were invalid. The Court was induced by a false statement that he had no adverse interest to appoint as guardian ad litem a person who could be relied upon to make no real defence of the wakfs. Again that he did in fact make no real defence of the wakfs is evident; and when the wakfs were out of the way he took prompt steps to secure for himself the advantage of a share in the wakf property. I agree with the4earned Subordinate Judge in finding that the present plaintiff was not properly represented in that suit and that the suit was a collusive suit. As he was only one of the parties to the decree complained of, relief in the form of a declaration that the decree is a nullity against him is, I think, proper and sufficient. It can be contended that the binding character of the decree of 1912 so far as regards the plaintiff was an issue in the suit of 1925, though the binding character of the decree upon the minor sons of Samiruddin was in issue. Nor can it be contended that the transferee-defendants in the present suit are not parsons in whose presence the binding character of the decree of 1912 can be investigated. Though not parties to that decree they are privies, having taken title from Aberjan and they would be prima facie entitled to rely upon that decree on any question as between the plaintiff and themselves with reference to than title.

12. It is contended, however, for the appellants that the plaintiff having brought this suit namely for a declaration an having struck oat his original prayer that the decree may be set aside, paid court-fee under Article 17, Schedule 2, Court-fees Act, and refused to pay court-fee under Section 7, Clause (4)(c) of that enactment, his suit is not in order. It is said that the declaration given to him offends against the provisions of Section 42, Specific Relief Act, which provides that no Court shall give any mere declaratory relief where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The argument is that the setting aside of a decree is itself substantial relief, that it may be prefaced by a declaration, but that the plaintiff cannot ask in such a case for a mere declaration that the decree is not binding upon him.

13. Upon this argument I would observe that there is both principle and authority for saying that so far as regards the decree of 1912 the present suit is not governed by Section 42, Specific Belief Act. In Robert Fischer v. Secy. of State [1898] 22 Mad. 270 Lord Macnaghten said of this section:

There can be no doubt as to the origin and purpose of that section. It was intended to introduce the provisions of Section 50, Chancery Procedure Act of 1852 as interpreted by judicial decision. Before the Act of 1852 it was not the practice of the Court in ordinary suits to make a declaration of right except as introductory to relief which it proceeded to administer. But the present suit is one to which no objection could have been taken before the Act of 1832. It is in substance a suit to have the true construction of a statute declare and to have an act done in contravention of the statute, rightly understood, pronounced void and of no effect. That is not the sort of declaratory decree which the framers of the Act had in their mind.

14. In Pratab Singh v. Bhaduti Singh [1913] 35 All. 487 the appellants sued for a declaration that a compromise of certain preemption suits and decrees passed thereunder, made on their behalf when they were minors, were not binding on them having been obtained by the fraud of the respondent and in proceedings in which they were practically unrepresented. The Subordinate Judge having decreed the suit on appeal the members of the Court of the Judicial Commissioner differed upon the question whether the declaration sought should be refused as a matter of discretion under Section 42, Specific Relief Act. Before the Judicial Committee it was contended for the respondent that the suit having been filed for the purpose of obtaining a declaratory decree only was bad in form inasmuch as it did not pray that the decree should be set aside; but that assuming that it was rightly framed in asking only for a declaratory decree, the Court had a discretion as to the granting or refusing such a declaration. The Judicial Committee observed that Rs. 42, Specific Belief Act, did not apply to the case and that it was not a question of exercising a discretion under that section and that they gave to the appellant a decree setting aside the decree complained of and declaring that the agreement of compromise and the decree complained of were not binding upon the appellants or either of them and that they were entitled to such rights as they had before the suit was dismissed on 15th December 1899.

15. It appears to me that a decree of the character which has been given by the Subordinate Judge in the present case is not one as to which the additional powers conferred by the Act of 1852 were required by the Court of Chancery. The injury complained of is that the Court has against the plaintiff declared that the wakfnamas were invalid. If this declaration be rescinde' by the Court, so far as he is concerned, the plaintiff obtains that measure of relief which he asks. He is not obliged to investigate the position as between the other parties to the suit; nor is he as one person against whom the decree was made, obliged either to remain bound by the decree or to rip up the transactions had between the other parties to the suit. Though a declaration that the decree is not binding upon him is in itself substantial relief in a case such as the present the question whether it comes within Article 17, Schedule 2, Court-fees Act, is a question upon which there are several decisions in favour of the plaintiff:Bagala Sunddri Debi v. Prosanna Nath Mukherjee [1917] 35 I.C. 797, Shrimant Sagjirao v. S. Smith [1896] 20 Bom. 742.

16. Thus in Zinatunnessa v. Gobinda Nath [1903] 30 Cal. 788 the plaintiffs sued to have it declared that a certain decree was inoperative against them. The Subordinate Judge had refused to allow them to sue upon payment of a fixed court-fee prescribed by Article 17. The High Court decided that the suit was for a declaratory decree without consequential relief and that the court-fee paid was sufficient. Assuming however that the question of the amount of the court-fee payable is a matter of any doubt, it seems to me to be quite improper that the plaintiff's claim to relief in this suit should, in the circumstances, fail. The Court-fees Act is a taxing statute. Not only has it to be construed with strictness, but, as Sir Lawrence Jenkins pointed out in Rachappa Subrao v. Sidappa Venkat Rao A.I.R. 1918 P.C. 188, the Court-fees Act was passed not to arm a litigant with a weapon of technicality against his opponent but to secure revenue for the benefit of the State; and in Faizulla v. Mauladad A.I.R. 1929 P.C. 147, where a question of the sufficiency of the court-fees came before the Privy Council, Lord Shaw made these observations:

But upon the second point, an important point of procedure their Lordshipa think it right to add the following: granted that a fee had been paid which was insufficient in amount what was the duty of the Court? In such a case as the present it appears to be prominently one for the exercise by the Judicial, authority of the descretion for giving an opportunity to add to the amount lodged the extra Rs. 70 or Rs. 80 required... Even accordingly, if the mistake insisted on had been made, this in the opinion of the Board was a plain case for rectifying that mistake if it could be done and the Courts are fortunately furnished with an easy method of doing so: Section 149, Civil P.C.

17. I do not think it necessary to utilize the provisions of Section 149 in the present case; were it necessary I should have had no hesitation in go doing. In the trial Court the plaintiff succeeded in obtaining the relief desired upon the court-fee which he had in fact paid. It appears to me that the view taken by the plaintiff was at least reasonable and that the plaintiff has not been unreasonable merely because he has resisted the attempts of the defendants to utilize the provisions of the Court-fees Act as an obstruction to his prayer. In a doubtful case such as the present it is reasonable to refuse to pay ad valorem court-fee until it is decided that the fee is payable.

18. The second declaration made by the decree under appeal is that the towliatnamas, dated 21st June 1880 and 11th November 1908 were valid and operative and created valid wakf of the properties therein mentioned. It will be observed that the plaintiff did not ask for or obtain a declaration of the validity of the towliatnama of 1876. It will also be observed that while transferees from Aberjan have been impleaded, the plaintiff has not asked for a declaration that their title was bad, or that the property in their hands is the property of the wakf. By their written statements the transferee-defendants set up questions of limitation and claim to be entitled to protection as purchasers for value without notice. These defences are reflected in the issues which were settled, particularly in Issues 14 and 17. The learned Subordinate Judge has held upon these issues as follows:

These issues do not really arise in the case. The plaintiff, as I have said, cannot ask for possession, and has not asked for it. There is no prayer even for any declaration that the transfers were inoperative or created no title. I therefore, decline to try them in this suit.

19. On behalf of the plaintiff-respondent notice of cross-objections was given in these appeals, contending that the Subordinate Judge ought to have decided the question regarding the validity of the transfers and come to a definite finding in favour of the plaintiff. At the hearing of these appeals however Mr. Brojolal Chakrabarty, for the plaintiff-respondent, expressly disclaimed this contention and the cross-objections were withdrawn. His argument was that if he got a declaration that the wakfnamas were valid instruments he would be able to get proper mutwallis appointed thereunder and that it would be for them to recover possession of the properties from the transferees or from Aberjan. In my opinion it would be indefensible to give to the plaintiff, in the presence of the transferees, any declaration which would be in its nature a mere first instalment of an attack upon their title. If a Mahomedan, anxious to protect a wakf estate, is prepared, as against third parties, to establish that they have wakf property in their hands a declaration to this effect may certainly be given upon the terms set forth in Section 42, Specific Relief Act. Thus in what is now the leading authority upon this question - the case of Abdul Rahim v. Muhammad Barkat Ali A.I.R. 1928 P.C. 16 - the declaration given was that the property in suit was wakf property and not the personal property of the defendants. If however the plaintiff does not profess to establish that he had any grievance against the defendants, it is difficult to see how he can be entitled to ask that a declaration that certain trusts for the benefit of the Mahomedan community in which the transferees may not be in the least interested were validly created should be given at all. Still less is it reasonable to give such a declaration on the basis that the plaintiff wants relief piecemeal. It is as though, without claiming any title to certain property, the plaintiff were to sue a purchaser thereof for a declaration that document No. 6 mentioned in his abstract of title was not a valid conveyance. I have no doubt that such a suit is bad and that it would be a bad exercise of the discretion vested in the Court under Section 42, Specific Relief Act, were we to uphold against the transferees of Aberjan the declaration which has been given as to the towliatnamas. So far as this part of the case is concerned, I am of opinion that the plaintiff's suit fails as against the transferees, it being quite unnecessary, in my opinion, to discuss in their presence, the validity or otherwise of the deeds of 1876, 1880 and 1908 or any of them, This disposes of Appeal No, 187 where the appellants are all transferees from Aberjan. The appeal must be allowed and the decree of the Subordinate Judge varied by deleting the first of the two declarations which it contains namely that the towliatnamas of 21st June 1880 and 11th November 1908 were valid and operative and created a valid wakf of the properties therein mentioned.

20. In appeal No. 196 the appellants are Aberjan and Shaikh Badruddin. It is necessary to consider whether the declaration as to the to wliatnamas being valid can be maintained against Aberjan who it appears, still retains some portions of the dedicated properties. The question is whether or not the plaintiff is able to seek further relief than a mere declaration of title. If he is, the proviso to Section 42 makes the suit bad. Under Section 92, Civil P.C., a suit claiming reliefs of the kind there in specified has to be brought with the sanction of the Advocate-General and in a particular Court. The plaintiff in the present suit is not able to seek such relief, at all events according to his case, which is that Aberjan is a mutwalli of the wakf. In Jamaluddin v. Mujtaba Hussain [1903] 25 All. 631, where the suit was against certain defendants two of whom were alleged to be mutwallis to have it declared that the property Was wakf, the case of the defendants was that the property was their individual property. It was held of Section 539 of the Code of 1882 that the section presupposes the existence of a trust, that a plaintiff applying to the Advocate-General for liberty to institute a suit has to satisfy him of the existence of a trust; accordingly that a suit instituted solely for having it declared by the Court that certain property is wakf is not a suit within this section, being in no way a: suit for the administration of the wakf property or for the removal of the; trustees of that property or for any of; the other purposes referred to in the section. This decision has been followed in Khursaidi Begum v. Secy. of State A.I.R. 1926 Pat. 321 and Miran Bux v. Allabux A.I.R. 1927 Lah. 350. It is in consonance with Abdul Rahim's case A.I.R. 1928 P.C. 16 supra and may be taken as correct. None of these cases however purport to dispense with the necessity of compliance with the proviso to Section 42, Specific Belief Act.

21. In Maulavi Muhammad v. Jagat Ballav Ghose A.I.R. 1923 Pat. 475, a Division Bench of the Patna High Court, in a case on alls fours with the present case, decided that the plaintiff being entitled to consequential relief, was not entitled to sue for a mere declaration. Now it is clear that the plaintiff, as a member of the Mahomedan community or otherwise, was not entitled to ask at the date of the suit that possession of the wakf property be made over to himself. But I think that in the present case it is idle to contend that the plaintiff was unable to claim any consequential relief independently of the reliefs mentioned in Section 92 of the Code. According to his case Aberjan had for many years been treating the wakf property as her own and she was insisting upon her right so to do. An injunction to restrain her from diverting the wakf property to her own use, an order that she should make over joint possession with herself of what remained in her hands to her co-mutwalli Samiruddin, these may be given as instances of reliefs which the plaintiff upon his own ease was not unable to seek. A suit for mere declaration that the wakfs were valid wakfs, brought upon a fixed courts fee payable under Article 17, Schedule 2, Court-fees, Act, is, in my opinion, incompetent.

22. It seems to me that the plaintiff has three courses open to him in such a case as the present. He may disregard the decree of 1912 without taking any proceeding to set aside, relying upon general principles of law and Section 44, Evidence Act. Again he may bring a suit merely for a declaration that the decree is not binding upon him and that he is remitted to his rights as they stood before the decree of 1912 was pronounced. In the third place, he may attack the decree of 1912, seek to reopen the matters therein dealt with claiming such orders from the Court as are necessary to undo whatever was wrongly done by that decree and to give him such relief with reference to the subject-matter of the suit as he is en-titled to. Such a suit, for example, was that of Carew v. Johnson [1805] 2 S.C.H. & L.E.F. 280. Thus in the present case, the decree of 5th October 1912 gave certain properties to Aberjan and certain properties to Karim Bux; it gave certain rights of management on the mosque to Aberjan alone and gave her the right to prescribe arrangements to take effect after her death. The plaintiff in the present suit, without in any way contravening the provisions of Section 92 of the Code, might ask for directions which would undo the effect of the decree of 1912 and put him in enjoyment of such rights as he claims whether personally or as a member of the Mahomedan community. In the present suit however he seeks to adopt a course different from any one of the three courses which I have mentioned. He is not content with a decree which would merely cancel the decree of 1912 so far as it purports to bind himself; he wants in addition a mere declaration of the validity of the wakf deed. This is not, in my judgment, the proper way of dealing with the matter and this additional declaration must be refused.

23. In appeal No. 196 therefore I reach the same result as in appeal No. 187. The appeal succeeds so far as regards the first of the two declarations given by the Subordinate Judge.

24. It remains to consider how far it is desirable or proper to deal with the other questions which arise in the case. In the suit of 1915 the Subordinate Judge, though he held the suit to be incompetent as regards the prayer for recovery of possession of the wakf properties, proceeded to deal with all the issues framed with the result that grave questions arise as to how far this decision operates as res judicata in subsequent litigation. If a plaintiff asks for a bare declaration when consequential relief can be claimed, and if, after holding that the suit is incompetent upon this ground, the Court proceeds to decide the questions propounded to it by the plaintiff, it is apt to find that it has given to the plaintiff with one hand what it has refused to give him with the other. In Tarakant Banerjee v. Pudumoni Dassi [1966] 10 M.I.A. 476 and Muhammad Suleimman v. Birendra A.I.R. 1922 P.C. 405 the Judicial Committee expressed the opinion that in appealable cases the Court should, as far as may be practicable, pronounce its opinion on all the important points. In appeal 196 therefore I think it right to indicate my opinion upon certain of the questions discussed before us, but I desire to make it clear that these observations are made solely out of deference to the learned Subordinate Judge who has dealt so fully with the case and out of deference to the opinion of the Judicial Committee to which I have referred. They are not intended as decisions operating as estoppel between the parties.

25. In the first place I am of opinion that the deed of 1876 was a valid one and that the deed of 1880 was in essence a mere affirmation of the previous deed and good as such. Both as to Jummon's wakf and Umar Ali's wakf of 1908 I accept the conclusion of the Subordinate Judge as to their validity. They satisfy the test laid down in Balla Mal v. Ata Ulla Khan .

26. Secondly upon the question whether the suit of 1915 operates as res judieata on the question of the validity of wakf, I am opinion that the plaintiff was not bound by it as being a decision between co-defendants. I am further of opinion that the position of Samiruddin was that having been one of the colluding parties to the 1912 litigation tie, in 1915, set up a false story about his lunacy because he wanted to reverse his previous course of conduct. The Subordinate Judge did not think that this part of the case was competent to any plaintiff in view of Section 92 of the Code. It does not seem to be that he was litigating bona fide in the interests of the trust. So far as regards the four plaintiffs who sued as members of the the congregation, in view of the fact that no order was obtained making them representatives under Order 1, Rule 8 or the fact that the Court held that no one of the plaintiffs could on this part of the case maintain the suit by reason of Section 92 of the Code, it cannot in my opinion, be contended that the Court treated these plaintiffs as in fact representative plaintiffs or informally sanctioned their conduct in claiming to represent other people. I am not therefore prepared to hold that the decree of 1915 estops the plaintiff from bringing the present suit with reference to the wakfnamas.

27. In the third place it seems to me reasonably plain that the appointment by Umar Ali of the plaintiff as mutwalli in succession to Aberjan or Samiruddin was altogether bad. Umar Ali had no power under the Muhomedan law or under his father's deed to appoint anyone as a remote mutwalli. As regards Jummon Mistri's wakf the plaintiff's case must stand or fall as a suit on behalf of the Muhomedan public. Hindu debuttars and Mohamedan wakfs are not, I am inclined to think, on the same footing and I doubt whether the fact that the plaintiff is a member of the family of the founder has, in the case of a Mahomedan, any bearing upon his right to bring such a suit as the present.

28. With these explanations, I would allow these appeals so far only as, regards the declaration that the towliatnamas dated 21st June 1880, and 11th November 1908, were valid and operative and created a valid wakf of the property therein mentioned. This declaration must be set aside as again8t the appellants. I think there should be no order as to the costs of these appeals.

Mukerji, J.

29. I entirely agree.


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