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PETITIONER:

SUGRA BIBI

Vs.

RESPONDENT:

HAZI KUMMU MIA

DATE OF JUDGMENT:

13/12/1968

BENCH:

RAMASWAMI, V.

BENCH:

RAMASWAMI, V.

SHAH, J.C.

GROVER, A.N.

CITATION:

1969 AIR 884 1969 SCR (3) 83

CITATOR INFO :

R 1974 SC2141 (10)

ACT:

Civil Procedure Code s. 92(1)-Wakf providing for application

of some in income for charitable and religious etc purposes

and some for settlor's family-Suit for removal of Mutwalli

and appointment of another-When written consent of Advocate-

General necessary to maintainability of suit.

HEADNOTE:

E executed a Wakf deed in November 1936 in respect of his

property valued at Rs. 30,000 and appointed his son S and

his son-in-law, the respondent, as the Joint Mutwallis. It

was provided in the deed that upon the death of either of

them, the survivor was to, be the sole Mutwalli and would

have power to nominate his successor from the family line of

the settlor; if both died without nominating a successor,

the senior-most member among the lineal descendants of S and

the respondent was entitled to become the Mutwalli. The

Wakf deed provided inter alia for the expenditure of Rs. 500

annually for the maintenance and, upkeep of mosques etc and

for helping the poor and needy; it also made certain

provisions for the maintenance of the settlor's family and

gave power to the Mutwalli, if funds were available, to make

contributions for general charitable purposes. It further

provided for application of the whole income for charitable

purposes in the event of the total extinction of the

settlor's family.

S died in December 1960 and thereafter the respondent became

the sole surviving Mutwalli. The appellant, the widow of S,

filed a suit in July 1967 for a declaration that the

respondent was unfit to continue as Mutwalli of the Wakf

estate and should be removed from office; furthermore that

the son of the appellant through S be appointed as Mutwalli

and until he attained majority, a receiver should be

appointed for the Wakf estate. The respondent contested the

suit on the ground that the suit was incompetent as the

sanction of the Advocate-General was not obtained under s.

92 C.P.C. The Trial Court held that the suit was not

affected by the provisions of s. 92 and also ordered the

removal of the respondent. An appeal to the First Appellate

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Court was dismissed but the High Court allowed a revision

petition holding that the suit was not maintainable in view

of provisions of s. 92 C.P.C.

In appeal to this Court it was contended on behalf of the

appellant that s. 92 C.P.C. had no application for the

reason inter alia (i) that the Wakf deed of November 1936

did not create a public charitable or religious trust but

the trust was executed mainly for the benefit of the foun-

der's family; (ii) that the suit was not brought to

vindicate or establish a right of a public institution, i.e.

the trust, but to remedy an infringement of an individual

right or to vindicate the private right of the appellant.

The respondents contention was that s. 92 applied as the

reliefs sought by the appellant were exactly those

contemplated by the section.

HELD : The 'suit fell within the purview of s. 92 C.P.C. and

in the absence of the consent in writing of the Advocate-

General, it was not maintainable.

(i) In view of the provisions of the' Wakf deed, the mere

fact that there were certain provisions in favour of the

family of the, founder along

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with other provisions in favour of the public, the case

would not be taken out of the provisions of s. 92 C.P.C. A

substantial portion of the income of the Wakf properties was

to be spent for purpose of a charitable and religious nature

and the Wakf therefore fell within the purview of

s. 93. [88 E-F]

S. Massirat Hossain v. Hossain Ahmad Chowdhury 42 C.W.N.

345 and Vaidya Nath, Aiyyar v. Swaminatha Ayyar, 51 I.A.

282, referred to.

(ii) Even if a suit related to a public trust of a religious

or charitable nature and the reliefs claimed fell within

clauses (a) to (h) of subsection (1) of s. 92, the

provisions of that Section would not be attracted unless the

suit is of a representative character instituted in the

interest of the public and not merely for vindication of the

individual or personal rights of the plaintiff. However, in

the present case the Wakf was held to have been created for

a public purpose of a charitable or religious nature and the

reliefs claimed were not for enforcing any private right,-

but for removal of the defendant as a trustee as envisaged

in clauses (a) and (b) of s. 92 (1), the suit brought by

the appellant must be treated as a suit brought in a

representative capacity on behalf of all the beneficiaries

of the Wakf to which the provisions of s. 92 C.P.C. applied.

[90 G-91 B]

Budreedas v. Choonilal I.L.R. 33 Cal. 789 at p. 807, Appanna

V. Narasinga, I.L.R. 45 Mad. 113 and The Tirumalai-Tirupoti

Devasthananms Committee v. Udiavar Krishnayya Shanbhaga,

I.L.R. [1943] Mad. 619, referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 128 of 1966.

Appeal by special leave from the judgment and order dated

September 3, 1963 of the Assam High Court in Civil Revision

No. 21 (H) of 1962.

Debabrata Mukherjee and A. K. Nag, for the appellant.

Bishan Narain, V. D. Kisra and P. N. Bhardwaj, for the res-

pondent.

The Judgment of the Court was delivered by

Ramaswami, J. Late Haji Elahi Bux had one son named Mohammed

Shafi and had one daughter. The appellant is the widow of

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the said Mohammed Shafi. The respondent who is a nephew of

Haji Elahi Bux, married his daughter. The said Haji Elahi

Bux carried on a shoe business under the name and style of

"S. Mohd. Shafi Kammu Mian". He executed a Wakf deed dated

November 18, 1936 in respect of his property and appointed

his son Mohammed Shafi and his son-in-law, the respondent,

as the joint Mutwallis. According to the terms of the Wakf

deed on the death of a joint Mutwalli, the survivor was to

be the sole Mutwalli and had the power to nominate his

successor from the family line of the settlor. And in case

the sole Mutwalli died without nominating his successor, the

senior-most member among the lineal descendants of Mohammed

Shafi and Kammu Mia, if otherwise competent, was entitled to

hold the office of Mutwalli.

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Mohammed Shafi died on December 20, 1960, and thereafter the

respondent became the sole surviving Mutwalli. The

appellant filed a suit on July 7, 1961 in the Court of

Assistant to the Deputy Commissioner, United Khasi & Jaintia

Hills, Shillong, against the respondent for a declaration

that the respondent was unfit to continue as Mutwalli of the

Wakf estate and that he should be removed from the office of

Mutwalli and that Soleman the son of the plaintiff through

Mohamed Shafi be declared fit and be appointed as Mutwalli

of the Wakf estate and till he attained majority a suitable

Receiver should be appointed for the said Wakf estate. The

respondent contested the suit on the ground that sanction of

the Advocate-General was not obtained under s. 92, Civil

Procedure Code and the suit was therefore not competent. By

its order dated October 3, 1961, the trial Court decided

that the suit was not affected by the provisions of s. 92,

Civil Procedure Code and held that the suit was competent.

The trial court also ordered the removal of the respondent

from the office of the Mutwalli pending disposal of the

suit. The respondent filed an appeal in the court of Deputy

Commissioner, United Khasi & Jaintia Hills, Shillong but the

appeal was dismissed. The respondent took the matter in

revision before the High Court of Assam. By its judgment

dated September 3, 1963, the High Court allowed the revision

petition and held that the suit was not maintainable in view

of the provisions of s. 92, Civil Procedure Code.

This appeal is brought, by special leave, from the judgment

of the Assam High Court dated September 3, 1963 in Civil

Revision No. 21(H) of 1962.

The sole question to be considered in this appeal is whether

the suit of the appellant attracts the provisions of s. 92,

Civil Procedure Code and whether the suit can be maintained

without the sanction of the Advocate-General under s. 92 of

the Civil Procedure Code.

Section 92 of the Civil Procedure Code states

"(1) In the case of any alleged breach of any

express or constructive trust created for

public purposes of a charitable or religious

nature, or where the direction of the Court is

deemed necessary for the administration of any

such trust, the Advocate-General, or two or

more persons having -an interest in the trust

and having obtained the consent in writing of

the Advocate-General, may institute a suit,

whether contentious or not, in the principal

Civil Court of original jurisdiction or in any

other Court empowered in that behalf by the

State Government within the local limits of

whose jurisdiction the whole or any part of

the

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subject-matter of the trust is situate, to

obtain a decree-

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(cc) directing a trustee who has been removed

or a person who has ceased to be a trustee, to

deliver possession of any trust property in

his possession to the person entitled to the

possession of such property;

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust

property or of the interest there in shall be

allocated to any particular object of the

trust;

(f) authorizing the whole or any part of the

trust property to be let, sold, mortgaged or

exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as

the nature of the case may require.

It is evident that this section has no application unless

three conditions are fulfilled : (1) the suit must relate to

a public charitable or religious trust, (2) the suit must be

founded on an allegation of breach of trust or the direction

of the Court is required for administration of the trust,

and (3) the reliefs claimed are those which are mentioned in

the section.

It was contended on behalf of the appellant that the Wakf

deed executed by Haji Elahi Bux on November 18, 1936 did not

create a public charitable or religious trust but the trust

was executed mainly for the benefit of the family members of

the founder of the Wakf. The relevant provisions of the

Wakf deed dated November 18, 1936 are reproduced below :

"Whereas Hazi Elahi Buksh son of late Madda

Choudhury of village Kokaran Bazar, Rae-Berely

at present residing at Bara-bazar road,

Shillong, (hereinafter called the Settlor) is

the sole proprietor of the firm in Bara-bazar

Road in the Town of Shillong known as S. Mohd.

Shafi & Kamoo Mia, together with all

properties, movable or immovable and all funds

investments and profits belonging and

appertaining thereto, as well as of the

properties in whomsoever's name standing

described in the schedule hereto :-

And whereas the said Settlor is desirous that

his said properties shall be permanently

dedicated for

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religious purposes and for the maintenance of

his relations and descendants from generation

to generation, as well as for the poor and

meritorious.

Now be it known that the said Settlor , by

these presents divests himself of the

ownership of the said firm together with all

properties movable or immovable and all funds

investments and profits belonging or

appertaining thereto, as well as the

properties described in the schedule hereto,

all which shall hence forward vest absolutely

in Almighty God for the purposes hereinafter

specified, and shall constitute a Wakf Estate

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to be administered in the following manner

(6) Out of the income of the Estate, a sum

of Rs. 500 shall be annually spent for the

maintenance and upkeep of Mosques and

Madras and for helping the poor and needy.

(7) The mutwalli shall give to Ali Mastaque

(Nanka) the Settlor's son by his nika wife,

Noju Bibi since divorced, a monthly allowance

of Rs. 10 (ten) or in the alternative -and at

his option, a consolidated sum not exceeding

Rs. 1000 (Rs. One thousand) but the sons and

descendants of the said Ali Mastaque (Nanka)

shall have no claim whatsoever against the

estate for maintenance or any other purpose

nor shall he or they have any right to the

office of Mutwalli.

(8) The mutwalli shall be entitled to

reasonable remuneration not exceeding Rs. 50

(fifty) per month.

(11) Whatever remains after defraying the

above expenses the mutwalli shall be at

liberty to spend for his own maintenance and

the maintenance of the Settlor's family and

descendants from generation to generation as

provided in paragraph 10.

(13) On the total extinction of the settler's

family line, the whole income of the estate

after defraying the expenses as provided for

above, shall be spent for helping the poor and

meritorious, and for promoting the cause of

Moslem education in such manner as the

mutwalli, in his discretion, may determine.

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(14) The mutwalli shall have no power to sell

or give away any portion of the estate except

for justifying legal necessity.

(16) The mutwalli shall have power, if funds

permit, to make reasonable contributions to

funds and institutions created or maintained

for general charitable purposes.

And it is hereby further declared that all

properties movable, immovable, and all funds,

investments and profits bought, created or

made with money belonging to or accruing out

of the estate, or in any manner appertaining

thereto, shall for all purposes, be annexed to

the Wakf by these presents founded and shall

'be administered and enjoyed in the same

manner and be in all respects liable to the

same incidents as the estate itself.

And be it known that the present market value

of the properties included in the deed is Rs.

30,000 (Rupees thirty thousand only).

In witness whereof, I Hazi Elahi Baksh, the

Settlor above named do hereby set my hand the

ninth day of November, 1936."

Having examined the various clauses of the Wakf deed, we are

of opinion that the mere fact that there are certain

provisions in favour of the family members of the founder

along with some other provisions in favour of the public,

the case will not be taken out of the provisions of s. 92,

Civil Procedure Code. The reason is that there is a

substantial portion of the income of the Wakf properties to

be spent for purposes of charitable and religious nature.

The proper test for holding whether the Wakf would fall

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within the purview of s. 92, Civil Procedure Code is to

examine whether the Wakf has been created substantially for

a public purpose. Applying the test to the present case, we

are of opinion that the Wakf created 'by Haji Elahi Bux on

November 18, 1936 falls within the purview of s. 92, Civil

Procedure Code. This view is borne out by the decision of

the Calcutta High Court in S. Massirat Hossain v. Hossain

Ahmad Chodhury.(1) That case related to a wakf estate, the

net annual income of which was about Rs. 1,300 and out of

this a sum of Rs. 353 was set apart for public purposes of a

charitable or religious nature, It was held by the learned

Judges that the amount by no means was a trifling or a

disproportionate pro-

(1)42 C .W. N. 3 4

89

vision in favour of the public and consequently the suit was

maintainable under s. 92 of the Civil Procedure Code.

Reliance was placed by the High Court in support of its

decision upon the pronouncement of the Judicial Committee in

Vaidya Nath Aiyyar v. Swaminatha Ayyar(1) where the founder

of the trust directed by his will that two-thirds of the

income of his property would go to his wife and the

remaining one-third would go first towards the discharge of

certain debts and thereafter to establish a Chatram for the

feeding of the poor. There was a further provision that

after the wife's death, two-thirds of the income given to

her would be applied to charity and one-third, to the

members of the family. On these facts the Judicial Com-

mittee 'agreed with the findings of the court below that the

Chatram so established was a public trust.

It was, however, contended on behalf of the appellant that

the suit was brought not to vindicate or to establish a

right of the public institution i.e., the trust but to

remedy an infringement of an individual right or to

vindicate the private right of the appellant. It was said

that the suit was therefore not within the purview of s. 92

of, the Civil Procedure Code. The argument was stressed

that in deciding whether s. 92, Civil Procedure .Code is

attracted the Court must go beyond the reliefs, prayed for

and have regard to the capacity in which the plaintiff is

suing and for the purpose for which the -suit is brought.-

For the respondent it was pointed out that the reliefs

sought for by the appellant in the present suit are exactly

those contemplated by s. 92 of the ,Civil Procedure -Code.

The reliefs prayed for ,are : (1) removal ,of the respondent

from the office of Mutwalli and appointment of Soleman,

appellant's son, as Mutwalli in his place, and (2) till the

said Soleman attains majority appointment of -a Receiver for

the management of the Waif estate. It is true that the

facts that a suit relates to public trust of a religious or

charitable 'nature and the reliefs claimed fall within cls.

(a) to (h) of sub-s. (1) of s. 92, Civil Procedure Code

would not by themselves attract the operation of the

section, unless the suit is of a representative character

instituted in the interests of the public and not merely for

vindication of the individual or personal rights of the

plaintiff. As was stated by Woodroffe, J. in Budreedas v.

Choonilal (2 ) :

"It is obvious that the Advocate-General,

Collector or Other public officer can and do

sue only as representing the public, and if,

instead of these officers, two or more persons

having an interest in the trust sue with their

consent, they sue under a warrant to represent

the public as the objects of the trust. it

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follows from this, that when a person or

persons sue not to establish

(1) 51 I.A. 282. (2) I.L.R. 33 Cal.

789 at 807.

L 7 Sup. CI/69-7

90

the general rights of the public, of which

they are a member or members, but to remedy a

particular infringement of their own

individual right,. the suit is not within or

need not be brought under the section

This principle was accepted as sound by a Full Bench of the

Madras High Court in Appanna v. Narasigna(1),. In that

case, a suit was instituted by a trustee of a public,

religious trust against a co-trustee for accounts and the

Full Bench decided that it did not come within s. 92 of the

Civil Procedure Code, the claim being to enforce a purely

personal right of the plaintiff as a trustee against his co-

trustees. The same view was taken by the Madras High Court

in The Tirumalai-Tirupati Devasthanams Committee v. Udiayar

Krishnayya Shanbhagal(2);. In this case the general

trustees of a public temple filed a suit against the

trustees for the recovery of moneys which the latter had

collected on behalf of the former praying for a decree

directing accounts and inquiries. It was held that the

right to collect moneys was entirely independent of s. 92 of

the Civil Procedure Code and no sanction of the Advocate-

General was necessary for the institution of the suit.

Leach C. J. who delivered the judgment of the Court observed

as follows :

"After hearing the arguments of learned

Counsel in the present case we can see no

reason for disagreeing with anything said in

Shanmukham Chetty v. Govinda Chetty (I.L.R.

1938 Mad. 39). On the order hand we find

ourselves in full agreement with the, opinion

of Varadachariar, J. that, in deciding whether

a suit falls within section 92, the Court must

go beyond the reliefs -and have regard to the

capacity in which the plaintiffs are suing and

to the purpose for which the suit is brought.

the judgment of the Privy Council in Abdur

Rahim v. Mahomed Barkat Ali [(1927) I.L.R. 55

Cal. 519 (P.C.] lends no support for the

opinion expressed by the Full Bench in ranki

Bai v. Thiruchitrambala Vinayakar [(1935)

I.L.R. 58 Mad. 988 (F.B.)]"

Applying the principle laid down in these authorities, we

are of opinion that in the present case the suit brought by

the appellant must be treated as a suit brought by her in a

representative capacity on behalf of 'all the beneficiaries

of the Wakf. As we have already stated, the Wakf created by

Haji Elahi Bux was a Wakf created for a public purpose of

charitable or religious nature. The reliefs claimed by the

appellant in the suit are not reliefs for enforcing any

private rights but reliefs for the removal of the defendant

as trustee and for appointment of a

(1) I. L.R. 45 Mad. 11 3. (2) I.L.R.[1943] Mad.619.

91

new trustee in his 'place. The reliefs asked for by the

appellant fall within cls. (a) and (b) of s. 92(1) of the

Civil Procedure Code and these reliefs claimed by the

appellant indicate that the suit was brought by the

appellant not in an individual capacity but as representing

all the beneficiaries of the Wakf estate. We are

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accordingly of the opinion that the suit falls within the

purview of the provisions of s. 92, Civil Procedure Code and

in the absence of the consent in writing of the Advocate-

General the suit is not maintainable.

For these reasons we hold that the judgment of the High

Court of Assam dated September 3, 1963 is right and this

appeal must be dismissed. There will be no order as to

costs of this appeal.

R.K.P.S. Appeal dismissed.

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