1. This appeal arises out of a suit under Section 92 of the C.P.C. in respect of a Muhammadan endowment.
2. The plaintiffs who are certain Muhammadan residents of Howrah brought a suit on the allegations that a lady of the name of Asurannessa Bibi on the 27th September 1881 executed a wakfnama dedicating certain immoveable properties by way of wakf and appointing one Haji Talebullah as mutwalli, that subsequently the said mutwalli having mismanaged the properties and misappropriated the income thereof, she executed a deed of towliatnama on the 16th September 1887 whereby she removed the son of Talebullah from the mutwalliship,(Talebulla having died in the meantime) and took up the management in her own hands, that about, three years afterwards, on the 24th August 1890, she executed another deed by which she appointed the defendant as mutwalli, laid down certain rules for the management of the properties and for succession in the office of mutwalli and that the defendants had been mismanaging the properties and misused the income thereof. In the 12th paragraph of the plaint it is stated that the defendants should be removed from the management of the wakf for their gross neglect, misconduct and breach of trust and because their appointment itself is not valid as the said Asurannessa Bibi had no right to execute the deed dated the 27th August 1890.
3. The defendants pleaded inter alia that the suit was not maintainable on the ground amongst others that certain persons interested had not been joined as parties defendants, and there was a denial of the allegations made by the plaintiffs on the merits of the case.
4. The learned District Judge of Howrah has dismissed the suit on the preliminary ground that having regard to the allegations in the plaint the suit as framed is not maintainable. The learned Judge relied upon the statement contained in the 12th paragraph of the plaint mentioned above. He was of opinion that the object of the suit was to have it declared that the towliatnama of 21th August 1890 was inoperative, that the plaintiffs having challenged that deed as invalid they alleged that the deed which created the defendants mutwallis was not an express trust at all and that the suit, therefore, could not be maintained against the defendants under Section 92 of the Code when there was no trust. There is, however nothing in the plaint to show that the object of the suit was to have the towliatnama declared inoperative or that the plaintiffs set up any revocation of the trust. The trust was originally created in 1881 and far from there being any revocation of that trust it was referred to and confirmed by the deed of 1890, in which it was expressly stated that the properties had been absolutely dedicated to the service of God and that therefore, according to the Muhammadan Law the 'rights, interests, character and incidents of wakf have become attached to them. The words 'a deed of revocation dated the 16th September 1887' in the plaint and in the towliatnama of 1890, evidently meant that the mutwalli had been removed and the management of the properties was taken in her own hands by the lady herself. There was no revocation of the trusts originally created.
5. With regard to the allegation in the plaint that the appointment of the defendants was not valid, the learned Vakil for the appellants has drawn our attention to the case of Budree Das Mukim v. Chooni Lal Johurry 33 C. 789 : 10 C.W.N. 581 in which it was held that where the defendant claims under a trust, a suit under Section 92 is maintainable even though the plaintiffs challenge the appointment of the defendant as a trustee.
6. The learned Vakil for the respondent has relied upon the cases of Ayatannessa Bibi v. Kulper Khalifa 22 Ind. Cas. 677 : 41 C. 749 : 19 C.W.N. 234 and Gholam Mowlah v. Ali Hafiz 47 Ind. Cas. 111 : 28 C.L.J. 4. It is not necessary, however, to discuss these cases because the learned Vakil for the appellants says that he has no objection to the passage objected to by the defendants being struck out as it is unnecessary. In these circumstances we think that the plaint should be allowed to be amended.
7. We accordingly set aside the decree of the lower Court and send the case back to that Court in order that the plaintiff may put in an application for amendment of the plaint by striking out the passage 'because their appointment itself is not valid as the said Asurannessa Bibi had no right to execute the deed dated the 24th August 1890.' On such application being made, the Court below will allow the amendment to be made and will re-frame the issues with reference to the amended plaint. The Court below will also allow the plaintiffs to make an application for adding the persons who may be necessary to be added as parties defendants.
8. The security which has been furnished by the appellants for costs of the respondents in this appeal is discharged.
9. The costs of this appeal will abide the result, the hearing-fee being assessed at three gold mohurs,
10. (May 19, 1924)
11. The application for amendment must be made within such time as may be allowed by the Court below.