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Jan Ali and anr. Vs. Ram Nath Mundul and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal32
AppellantJan Ali and anr.
RespondentRam Nath Mundul and ors.
Excerpt:
religions endowments - pleading--form of suit--civil procedure code (act x of 1877), sections 30 and 539--reg. xix of 1810--act xx of 1863. - .....joining as plaintiff any of the other persons interested therein, sue before the civil court the trustee, manager, &c.;, &c;, for any misfeasance, breach of trust, or neglect of duty, &c;, and the civil court may direct the specific performance of any act by such trustee, manager, and so forth, and may also direct the removal of such trustee, manager, &c.; now, the only part of the prayer of this plaint which falls within the purview of this section, is so much of it as must be construed to be a request that the defendant no. 1 be removed from his office of mutawalli, and so much of the fourth prayer as asks that the expenses of performing the acts of the wuqf be defrayed from the profits of the properties mentioned in the schedule annexed to the plaint. for the present we reserve.....
Judgment:

Prinsep, J.

1. Now, the first and indeed the only question which we have to decide is, whether the plaintiffs were competent to institute and maintain this suit. They seem to have thought that the suit was within the provisions of Section 529 of the Code of Civil Procedure; and they made an application to, and obtained the sanction of, the Advocate-General before instituting their suit. Now, the first observation that occurs to us on this point is, that a considerable portion of the prayer of the suit is clearly outside the provisions of Section 539, and that, in so far as regards so much of the prayer as does not fall within the provisions of this section, for reasons to be given hereafter, the plaintiffs were not entitled to institute this suit. But it appears to us that, even so far as regards that portion of the prayer of the plaint which falls directly within the provisions of Section 539, the plaintiffs are not persons to whom the provisions of that section can be held to be applicable. The section provides, that 'in case of any alleged breach of any express or constructive trust created for public charitable purposes, or whenever the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, acting ex-officio, or two or more persons having a direct interest in the trust and having obtained the consent in writing of the Advocate-General, may institute a suit in the High Court or the District Court, &c.;' Now, this suit was not instituted by the Advocate-General. It was instituted by two persons who obtained the sanction of the Advocate-General in writing. Then arises the question--Were these two persons 'persons having a direct interest in the trust' within the meaning of this section. We think that this question must be answered in the negative. The only interest which the plaintiffs allege in their plaint is, that they are followers of the Moslem religion; that they live in the village of Gopalpore; and that they had been in the habit of attending prayers in the mosque. We think that, assuming the facts here stated to be correct, they do not constitute a direct interest in the trust. It is scarcely necessary to support this by argument, but we may refer to Section 15 of Act XX of 1863 (The Religious Endowments Act), in which a clear distinction is drawn between persons having a direct or 'immediate interest,' and persons 'having a right of attendance, or having been in the habit of attending, at the performance of the worship or service of any mosque, temple,' and so forth. It is quite clear, that, according to the intention of the Legislature as shown in this section, persons who are in the habit of attending prayers at a Mahomedan mosque are not persons who have a direct interest in the endowment. Then arises the question whether the provisions of The Religious Endowments Act XX of 1863, are applicable to the present case. This is a question of some nicety, but we think that if this Act be read with the old Regulation to which it refers, any difficulty that may at first sight suggest itself will disappear. Section 181 of the Act enacts, that no suit shall be entertained under this Act without a preliminary application being first made to the court for leave to institute such suit. The word 'Court,' according to the definition, means the principal Court of original civil jurisdiction in the district; and it is admitted that no preliminary application was made to the District Judge in the present case for leave to institute this suit. then what are the suits which may be instituted under the Act? Section 14 provides, that any person or persons interested in any mosque, temple, or religious establishment, &c.;, may, without joining as plaintiff any of the other persons interested therein, sue before the Civil Court the trustee, manager, &c.;, &c;, for any misfeasance, breach of trust, or neglect of duty, &c;, and the Civil Court may direct the specific performance of any act by such trustee, manager, and so forth, and may also direct the removal of such trustee, manager, &c.; Now, the only part of the prayer of this plaint which falls within the purview of this section, is so much of it as must be construed to be a request that the defendant No. 1 be removed from his office of mutawalli, and so much of the fourth prayer as asks that the expenses of performing the acts of the wuqf be defrayed from the profits of the properties mentioned in the schedule annexed to the plaint. For the present we reserve consideration of the other prayers of the plaint. Now, the words of Section 14 are very general in their terms, and the question arises, what is meant by the trustee, manager, or superintendent of a mosque mentioned in Section 14; does it mean the trustee, manager, or superintendent of any mosque, or the trustee, manager, or superintendent of a mosque to which the provisions of Act XX of 1863 are applicable. We think the latter construction is the proper one. Then what are the mosques to which the provisions of Act XX of 1863 are applicable? In order to answer this question, we must examine, not only the Act itself, but the old Regulation, XIX of 1810. The preamble to this Regulation is as follows: 'Whereas considerable endowments have been granted in land by the preceding Governments of this country and by individuals for the support of mosques, Hindu temples, colleges, and for other pious and beneficial purposes; and whereas there are grounds to suppose that the produce of such lands is in many instances appropriated contrary to the intentions of the donors, to the personal use of the individuals in immediate charge and possession of such endowments; and whereas it is an important duty of every Government to provide that all such endowments be applied according to the real intent and will of the grantor,' &c.; Now, it is clear from this preamble, that the mosques with which the Regulation is concerned, are mosques for the support of which endowments have been granted in land by preceding Governments of this country and by individuals. The Regulation then goes on to vest, by Section 2, the general superintendence of all these lands in the Board of Revenue. Section 3 declares it to be the duty of the Board of Revenue to take care that all endowments made for the maintenance of establishments of the above description be duly appropriated to the purpose for which they were destined by the Government or the individuals by whom such endowments were granted. Sections 4, 5, and 6 contain provisions as to the mode in which this duty is to be performed. Section 8 enacts that, in order to enable the Board of Revenue to carry into effect the duties entrusted to them by this Regulation, local agents shall be appointed subject to the authority and control of the Board. Section 9 declares the Collectors of districts to be ex-officio agents. Section 10 makes it the duty of these local agents to obtain full information, from the public records and by personal enquiries, respecting all endowments. Section 11 makes it the duty of these agents further to ascertain and report the names, together with other particulars, of the present trustees, managers, or superintendents of the several institutions, foundations, or establishments described in the Regulation, whether under the designation of mutawalli or any other, and by whom and under what authority appointed or elected. Section 12 directs the local agents to report to the respective Boards all vacancies or casualties which may occur, with full information as to the pretensions of claimants. Section 13 directs that, in those cases in which the nomination to the office of trustee, manager, or superintendent rests with Government or a public officer, the agents are to recommend fit persons to fill up the vacancies. Section 14 directs the Board of Revenue, on receipt of the report and information required by the above section, to appoint the person or persons nominated for their approval, or make such other provision for the trust, superintendence, and management as to the Board may seem proper. Now it is notorious, that, after the passing of that Regulation, the Collectors of districts furnished to the Board of Revenue information regarding some of those Hindu and Mahomedan endowments with which the Regulation was concerned; and in some instances, the Board of Revenue took over the management of the land which formed the subject of the endowment; but in the large majority of instances, the Board of Revenue did not take charge of the land which had been granted by individuals for the support of mosques, Hindu temples, &c.; Nearly half a century afterwards, the Government, for reasons to which it is unnecessary to advert here, came to the conclusion that they ought to divest themselves of the management of the lands which they had taken under their charge in accordance with the provisions of that Regulation; and it was to effectuate this purpose that Act XX of 1863 was passed by the Legislature. The preamble to this Act is as follows: 'Whereas it is expedient to relieve the Board of Revenue, and the Local Agents in the Presidency of Fort William in Bengal and the Presidency of Fort Saint George, from the duties imposed on them by Reg. XIX of 1810 of the Bengal Code, so far as those duties embrace the superintendence of lands granted for the support of mosques or Hindu temples, and for other religious uses; the appropriation of endowments made for the maintenance of such religious establishments; the repair and preservation of buildings connected therewith, &c;, &c.; Then Section 3 of the Act deals with the case of every mosque, temple, or other religious establishment to which the provisions of either of the Regulations specified in s. I are applicable, and the nomination of the trustee, manager, or superintendent whereof at the time of the passing of the Act is vested in, or may be exercised by, the Government. If this section is read with the sections of the Regulation to which I have already referred, it is perfectly clear that the trustee, manager, or superintendent mentioned in Act XX of 1863 is the trustee, manager, or superintendent of those mosques to which the provisions of Reg. XIX of 1810 were applicable; and, as I have already pointed out, it is clear from the preamble to that Regulation that the mosques to which the provisions of the Regulation are applicable, are mosques for the support of which endowments had been granted in land by the Government of the country or by individuals. The question then arises--Is the mosque with which we are now concerned a mosque for the support of which an endowment in land has been granted by Government or by individuals? and when we refer to the wuqfnamah at page 8 of the paper-book, it is impossible to answer that question otherwise than in the affirmative. But it may be contended that the provisions of Act XX of 1863 ought to be limited merely to those mosques, Hindu temples, &c;, the land granted for the endowment of which had actually been taken under the management of the Government. Returning to Section 3, I have already pointed on that the class of cases to which this section is applicable, is that class of cases in which the trustee, manager or superintendent was appointed by Government; and as to this class of cases, the Local Government was to make special provision as provided in the Act. These special provisions are found in Sections 7, 8, 9, 10, 11, and 12; and briefly they are to this effect, that the Government should appoint, once for all, one or more committees in every division or district, and should transfer to those committees all the land or other property which previously had been under the management of the Revenue officers of Government. Then Section 4 deals with another class of cases, the class of cases in which the trustee, manager, or superintendent was not appointed by Government, nor was the appointment subject to the confirmation by Government. As to this class of cases, the provisions applicable are contained in Sections 4, 5, and 6 of the Act. We have already referred to the preamble. Section 1 is merely a repealing section. Section 2 contains general definitions. Section 3 and Sections 7 to 12 inclusive are concerned with that class of cases in which the trustee, manager, or superintendent was appointed by Government. Sections 4, 5, and 6 are concerned with another class of cases in which the trustee, manager, or superintendent was not appointed by Government. Then comes Section 13, which enacts: '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,' and so forth. Now, who are the trustees, managers, or superintendents of religious establishments to whom the provisions of this Act apply? It appears to us that if we read the language of Sections 3 and 4, it is impossible to come to any other conclusion than that the trustee, manager, or superintendent to whom the provisions of the Act apply is a trustee, manager, or superintendent of a mosque, temple, or other religious establishment to which the provisions of Reg. XIX of 1810 apply; and, as I have already pointed out, the mosque, temple, or other religious establishment to which the provision of Reg. XIX of 1810 applies, is a mosque, temple, or other religious establishment for the support of which endowments have been granted in land by the Government or by individuals. The conclusion, then, to which we are led is, that the same construction must be put upon Sections 13 and 14 of the Act, and that the mosque, temple, or religious establishment there mentioned is, not any mosque, temple, or religious establishment whatever, but any mosque, temple, or religious establishment for the support of which endowments in land have been made by the Government or private individuals. So far then as concerns that portion of the prayer of the plaint which falls within the provisions of Section 14 of Act XX of 1863, we think that this suit could not have been instituted without obtaining the sanction required by Section 18 of the Act.

2. We now come to deal with the other prayers in the plaint which do not fall within the provisions of Section 14 of the Religious Endowments Act. These prayers are, that the property mentioned in the schedule to the plaint may be declared to be wuqf; that the mortgage and the izara, and the sale under the mortgage, may be set aside, and that a competent person may be appointed by the Court as mutawalli. Now, so far as regards these prayers, we think that the plaintiffs were not authorized to institute this suit merely by reason of their having that interest which is set out in para. 10 in the plaint,--that is, an interest created by their being followers of the Moslem religion, living in the vicinity of the mosque, and being in the habit of attending the musjid. That interest is common to them with a large number of other persons--common to them with, we will not say, all the Mahomedan population of the country, but certainly with all the Mahomedan residents in the vicinity; and we think that this is a case which falls within the provisions of Section 30 of the Code of Civil Procedure. That section enacts, that 'where there are numerous parties having the same interest in one suit, one or more of such parties may, with the permission of the Court, sue, or be sued, or may defend in such suit, on behalf of all parties so interested.' It may be quite possible that if these plaintiffs had applied to the Court under the provisions of Section 30, they would have obtained permission to institute this suit; but not having obtained that permission, they certainly were not entitled to institute the suit; and, under these circumstances, we think that the ground of objection taken by the defendants in the second paragraph of their written statement, and which forms the subject of the second issue, was a good objection; and that this suit was properly dismissed by the District Judge. We, therefore, dismiss this appeal with costs in this Court and in the Court below.

1[Section 18: No suit shall be entertained under this Act without a preliminary application being first made to the Court for leave to institute such suit. The application may be made upon unstamped paper. The Court, on the perusal of the application, shall determine whether there are sufficient prima facie grounds for the institution of a suit, and if in the judgment of the Court there are such grounds, leave shall be given for its institution.

In calculating the costs at the termination of the suit, the stamp duty on the preliminary application shall be estimated, and shall be added to the costs of the suit. If the Court shall be of opinion that the suit has been for the benefit of the trust, and that no party to the suit is in fault, the Court may order costs, or such portion as it may consider just, to be paid out of the estate.]


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