Madras High Court
M.M.S. Abdul Wahab vs A.P. Abdul Hameed And Ors. on 16 April, 1999
Equivalent citations: (1999)2MLJ735, 1999 A I H C 4037, (1999) 2 MAD LJ 735
ORDER S.M. Abdul Wahab, J.
1. When the stay petitions in all the civil revision petitions were taken up, all the advocates appearing in the civil revision petitions unanimously requested this Court to dispose of the civil revision petition itself as the civil revision petitions are relating to the management of an educational institution and the continuance of the selected trustees in office is only for three years, Therefore, all the civil revision petitions were taken up for final disposal.
2. These twelve civil revision petitions arise out of a common order dated 25.9.1998 in O.S. No. 6 of 1970 on the file of the Principal District Judge, Thanjavur.
3. The matter relates to the selection of hereditary and non-hereditary trustees to Athiramapattinam M.K.N. Madrasa Trust. The petitioners are applicants, who were not selected by the District Judge, Thanjavur. The respondents in these revision petitions are those who have been selected by the District Judge, Thanjavur, under the category of hereditary and non-hereditary trustees as well as the persons who also filed their applications for selection as well as the objections against the selection of the petitioners and the selected respondents.
4. As per the scheme in existence and framed in O.S. No. 6 of 1970, six trustees have to be selected from three hereditary branches, that is two from each of the three hereditary branches and three from the non-hereditary branch.
5. C.R.P. Nos. 3472, 3572 and 3615 of 1998 relate to the selection in the first branch. C.R.P. Nos. 3073 3243 of 1998 relate to the selection in the second hereditary branch. C.R.P. Nos. 2893, 3463 and 3502 of 1998 relate to the selection of the trustees in the third branch. While C.R.P. Nos. 2845, 3283, 3348 and 3616 of 1998 relate to the selection of the trustees in the non-hereditary branch.
6. C.R.P. No. 3527 of 1998 has been preferred by one H. Abdul Cader, who was applicant No. 2 in the first branch. C.R.P. No. 3615 of 1998 has been preferred by one M. Ahmed Ibrahim, who was applicant No. 5 in the first branch, for his non-selection, A.K. Ajmal Khan, who was applicant No. 4 in the first branch and who was selected as the trustee, is the respondent in both C.R.P. No. 3527 of 1998 and C.R.P. No. 3615 of 1998. In C.R.P. No. 3073 of 1998, which relate to the selection of the trustees in the second branch, there are nine respondents, S.A.M. Jamaludeen, the unsuccessful 10th applicant, is the petitioner in C.R.P. No. 3073 of 1998, while the second applicant A.M. Khader Mohideen, the fifth applicant A.M. Shamsudeen the unsuccessful third applicant A.M. Abdul Hadhi, fourth applicant A.M. Ibrahim, sixth applicant A.M.S. Shigabudeen, eighth applicant N. Abdul Malik and the ninth applicant A.M.N. Mohammed Junaid are respondents.
7. In C.R.P. No. 3243 of 1998, A.M. Zackaria, the first applicant in the second branch is the petitioner, while the second applicant A.M. Khader Mohideen and the fifth applicant A.M. Shamsudeen are respondents 1 and 4; who the unsuccessful applicant No. 3 A.M. Abdul Hadhi, 4th applicant, A.M. Ibrahim, 6th applicant A.M.S. Shigabudeen, 7th applicant Ajmalikhan, 8th applicant N. Abdul Malik, 9th applicant A.M.N. Mohammed Junaid and 10th applicant S.A.M. Jamaludeen are the respondents.
8. In C.R.P. No. 3472 of 1998, which also belongs to the first branch, the unsuccessful 9th applicant N. Abdul Malick is the petitioner, while the successful applicants Nos. 4 and 8, namely, A.K. Ajamal Khan and N. Mohamed Mohideen are the respondents.
9. In C.R.P. No. 2893 of 1998, relating to the third branch, the unsuccessful applicants 2 to 4, namely, R.S. Sherfudeen, K.S. Abdul Jabbar, and K.S. Abdul Sukkoor are the petitioners, while the successful applicants 7 and 8, namely, K. Naina Mohammed and N. Abubuckkar are the respondents 2 and 3, A.M. Shamsudeen, who is the 5th applicant and who has been selected in the second branch is the first respondent.
10. In C.R.P. No. 3463 of 1998, the unsuccessful 6th applicant, S. Mohammed Mohideen is the petitioner, while the selected 7th and 8th applicants-K. Naina Mohammed and N.Abubucker and the unsuccessful applicants 1 to 5, namely, S.J. Abdul Jaleel, K.S. Sharfudeen, K.S. Abdul Jaffar, K.S. Abdul Sukkur and S. Mohammed Aslam and 9th applicant K.S. Sheffudeen, 10th applicant S.J. Ahamed Thambi, 11th applicant N. Umar, and 12th applicant N. Mohamed Ali are the respondents.
11. In C.R.P. No. 3502 of 1998, S. Mohammed Aslam, the 5th applicant in the third branch is the petitioner. The successful 7th applicant K. Naina Mohamed and 8th applicant N.Abubucker are the respondents 6 and 7, while the unsuccessful applicants are respondents 1 to 5 and 8 to 10.
12. C.R.P. No. 3616 of 1998 which belongs to non-hereditary branch had been preferred by A.M. Abdul Khader, the 11th applicant in the non-hereditary branch, while A.P. Abdul Hameed, the successful first applicant in that branch is the only respondent.
13. C.R.P. No. 2845 of 1998 has been preferred by the unsuccessful 15th applicant M.M.S. Abdul Wahab in the non-hereditary branch, while A.P. Abdul Hameed, the successful first applicant in the non-hereditary branch is the first respondent the successful 9th applicant M.S. Kader Mohaideen. 13th applicant Dr. M. Ibrahim and the unsuccessful applicants 2, 7, 8, 10 and 16 i.e., M. Abdul Majeed, S.Naina Mohammed, N. Ahamed Ameen, M. Mohammed Meera Labai and S. Pakurudeen Jamal are the respondents.
14. In C.R.P. No. 3283 of 1998, which relate to. the non-hereditary branch, the 12th applicant M.A.H. Mohideen is the petitioner, while the successful applicant, No. 1-A.P. Abdul Hameed, 9th applicant M.S. Kadir Mohideen and 13th applicant Dr. M. Ibrahim and the unsuccessful applicants 2, 8, 10 and 16th namely, M. Abdul Majeed, N. Ahmed Ameen, M. Mohammed Meera Labai and S. Fakrudeen Jamal are the respondents.
15. In C.R.P. No. 3348 of 1998, the unsuccessful 4th applicant Dr. M.S. Mohammed Meera Sahib is the petitioner, while the three successful applicants, namely, applicants 1, 9 and 13, i.e., A.P. Abdul Hameed, M.S. Kader Mohideen and Dr. M. Ibrahim, are the respondents.
16. We will take up the civil revision petitions of each branch separately, The arguments by the counsel were also advanced separately. We will take up the first branch first. Before we go to discuss the order on merits, it is better to briefly look into the history of the trust in question. The WAKIF. has created two WAKF. deeds dated dated 16.12.1900 and 6.4.1901. Under the first WAKF DEED, Mohamadia Veda Patasala was established. Two properties were dedicated for its maintenance. First there were three trustees, including the WAKIF Hajee Mohideen Thambi Marakayar, the two brothers and a brother's son. After them as per the first WAKF deed, their sons and after them the grandsons and their descendants were to be the trustees. However, there were only three trustees and each trustee representing the senior most male member of the branch.
17. The relevant portions of the WAKF deed relating to the management of the Trust are extracted below:
For the management of No. 1 Madrasa and the property given for its maintenance, myself, my brother Sheik Salath Labbai Marakayar and Mohamed Mohideen Marakayar son of my deceased brother Naina Mohammed Labbai Marakayar are the present trustees or managers. After them, in regard to Ahamed Thambi Marakayar his sons in the order of seniority should manage after his lifetime. After them, the grandsons of Ahamed Thambi Marakayar in the order of seniority should manage in succession. Therefore, their respective male descendants in the order of seniority should be trustees or managers. As regards Sehu Salath Labbai Marakayar, his sons in the order of seniority should manage in succession. Thereafter the r respective male descendants in the order of seniority should be trustees or managers. As regards Mohammed Mohideen Marakayar his brothers in the order of seniority be trustees or managers. Thereafter the sons of Mohideen Marakayar, as also the sons brothers should in the order of seniority be trustees or Managers. Thereafter, their respective grandsons in the order of seniority should manage. After the grandsons their respective male descendants in the order of seniority should be trustees or managers. The number of trustees should be three one for the each of the above mentioned three families and they should jointly manage perpetually the Madarasa item No. 1 and the properties No. 2 given for its maintenance.
Myself and the other three trustees mentioned in paragraph 3 above and their successors should manage the Madarasa item No. 1 and its property No. 2 and all the accretions thereto strictly according to the rules mentioned hereunder.
The words "and they should jointly manage perpetually" are very significant.
18. The management has to be only in the hands of the three founders and their descendants in the order of seniority. The word "perpetually" indicate the period of office for the trustees is not admitted. But unfortunately as on today, I find that outsiders have also are allowed to enter into the management as non-hereditary trustees. That apart, the period of trusteeship for the hereditary trustees is limited upto the age of 70. These two limitations imposed are quite contrary to the intention of the WAKIF. Normally when the courts interpret the trust deed or WAKF deed, they should give due importance to the wishes of the WAKIF. As it is said that when a WAKF deed, trust deed or a Will is interpreted by a court of law the expressions or the words used in such documents should be understood as if the author of such documents expressed his intention or speaks from his grave. As far as possible and only in extraordinary and exceptional cases, the intention of the author of a document of the nature mentioned above should be deviated with great care and caution. But in my humble view, I do not find any justification for deviating from this salient proposition of interpretation of the document, namely, the WAKF deed in the present case. I have only indicated that by march of time the circle of descendants of WAKF's have expanded and deserve to become a trustee from the families of the descendants is on the increase. Instead of introducing the outsiders, the three trustees to be selected from the non-hereditary category can also be from among the descendants. Thus raising the number of hereditary trustees from 6 to 9. As regards the period also i.e., limitation of 3 years, should also be removed. If there are three and more trustees, it cannot be said that there will mismanagement by all of them. In such a case the court can interfere and remove the trustee or constitute another Board of Trustees if the management as a whole is bad from among the descendants by selecting the next group of the senior most members from the three families.
19. At the end of paragraph 3 of the first WAKF deed, the voice of the WAKIF choose as follows:
After the grandsons their respective male descendants in the order of seniority should be trustees or managers. The number of trustees should be three one for the each of the abovementioned three families and they should jointly manage perpetually...
The wish of the WAKIF is very imperative that the management should be only in the hands of the male descendants in the order of seniority and it must be perpetual. But unfortunately, the present scheme has almost changed the management of the trust as if it is a public one leading to constant fight in court, whenever the selection is made. If only we follow the wishes of the WAKIF that the management should be by the trustees from each of the three families in the order of seniority perpetually, the election of the management committed the constant and continued litigation, in challenging the election by way of C.R.R and special leave petition in the Supreme Court will be avoided. But unfortunately in the present set of scheme, whenever the selection is made, the aggrieved non-selected candidates rush to the High Court and never fail to move the Supreme Court. However, I am not concerned or called upon to have a review of the schemes already settled. It is for the descendants of the WAKlF's, in the three branches to move the court to modify the scheme in accordance with the wishes and desires of the original WAKIF and his brothers. Till such modification is brought out, I have to follow the scheme as it stands today as finally modified as on 30.8.1978 in O.S. No. 6 of 1970 in A.S. No. 992 of 1978 dated 5.8.1987, on which date a learned single Judge of this Court, in the said appeal reduced the tenure of hereditary trustees to a mere three years equating the hereditary trustees in this regard with the outsiders called non-hereditary trustees.
20. Now we will consider the merits of the civil revision petitions. The learned Counsel appearing for the respondent, M/s. Selvaraj, S.F. Mohammed Yousuf, R.N. Amernath, raised the following contentions. 1. Some of the civil revision Petitions are not maintainable as they have not impleaded all the applicants in the respective branch; 2. The scope of the civil revision petitions is limited as per Section 115 of Civil Procedure Code, this Court cannot interfere in the selection made by the District Judge as there are no illegality or irregularity and error of jurisdiction; (3) Even if the selection of some of the candidates is set aside this Court cannot make a selection of its own and the matter has to go back to the District Judge for reassessment and selection.
21. Now I have to consider these contentions one by one, first as these contentions are like preliminary objections and relevant for the disposal of the civil revision petitions.
22. As regards the contention that this Court's jurisdiction is limited in these civil revision petition and interference is possible only as provided under Section 115 of Civil Procedure Code, first of all I must clarify the position. The revision petitions are not against the orders passed in interlocutory applications. Further, the orders passed are not relating to an interim arrangement during the pendency of a proceeding to be concluded finally after elaborate trial etc. The order has been passed in the suit itself. The adjudication by the District Judge is not by way of any interim arrangement. It is a final adjudication of the rights of applicants to become members of the trust and continuation as trustees for a period of three years. Their claims for the present tenure 1998-2001 is concerned, it is a final adjudication. Therefore, strictly speaking the concept of civil revision petitions are not applicable to these petitions though they are called and numbered as civil revision petitions.
23. Even under the Civil Procedure Code some interlocutory orders are treated as final orders and appeals are provided under Section 104(1) read with Order 43 of Civil Procedure Code. When such is the position, when final adjudication is made with reference to the claims for an office with a fixed tenure, by no stretch of imagination, the adjudication can be called an interlocutory measure only. It is true that as per Clause 4(d)(ii) of the scheme that selection by the court shall be final subject only to the powers of the High Court under Section 115 of Civil Procedure Code and Article 226 of the Constitution of India and under the Supreme Court under Article 32 of the Constitution of India. It is really surprising that a clause in the scheme decree stands in the way of this Court exercising its jurisdiction as a Court of Appeal. It is further surprising, how a clause in a scheme can confer jurisdiction upon the High Court and the Supreme Court to exercise their powers under Articles 226 and 32 of the Constitution of India. Articles 226 and 32 are constitutional rights given to a citizen when his fundamental rights are eroded or when there is a violation of the principles of natural justice or in some other cases. The superior courts can exercise their powers under Article 226 and under Article 32 only as conferred by the aforesaid Articles. If by an agreement some persons join together and request the Superior Courts for adjudication of their disputes are the superior courts are bound to exercise their jurisdiction under Article 226 and Article 32? Can a Subordinate Court confer jurisdiction upon the superior courts by their orders and when such orders are passed, Are the superior courts bound by the same?
24. The dispute relates to rights of some persons to become members in a trust. This is a civil right. As this civil right relates to a trust, jurisdiction is conferred upon the District Court with reference to the adjudication of this kind otherwise the other Subordinate Courts will be in a position to exercise their jurisdiction depending upon the value of the suit. The scheme came to be framed by the District Court as provided by Section 92 of the Civil Procedure Code. Section 92 of the Code has conferred power upon the principal original civil court. Further the said section enables the State Government to empower any other court. As the State Government has not chosen to empower any other court except the principal civil court, namely, the District Court, the District Court is to adjudicate the claims of persons aspiring to have administrative control over the trust. Section 92(1)(g) of the Code empowers the principal court namely, the District Court to settle the scheme. That is why, the principal civil court namely, the District Court in a district has to entertain the cases relating to the trust. Section 96 of the Code confers jurisdiction upon a court authorised to hear the appeals from the original decision of a Subordinate Court. The court authorised to hear the appeals from the orders and decisions of the District Court is the High Court. The authorised court contemplated under Section 96(1) of the Code is the High Court. The present order in question was passed by the Principal District Judge, Thanjavur in O.S. No. 6 of 1970. It is treated as an order and not a judgment. Section 96(l) of the Code states that an appeal shall lie from a decree passed by any court. Section 2 of the Code defines the decree as follows:
decree means an adjudication conclusively determining the rights of parties to all or any matter in controversy in the suit.
25. It is no doubt true that they applied to the District Court as per the scheme and they are bound by the terms of the scheme. But we are concerned with the remedies available to parties who have moved the civil court for adjudication of their civil rights. When a particular remedy is provided under the Civil Procedure Code, such a right cannot be abridged or taken away by a clause contained in a scheme framed by a court. When a party has a larger or wider remedy under the procedural law, namely, Civil Procedure Code, can it be limited or abridged by a court of law?
26. The Court of law has only to adjudicate upon the rights of parties following the procedure. It has no right or jurisdiction to curtail, limit or abridge a right vested in an enactment, i.e., the court cannot amend or alter the provisions contained in an enactment. Therefore, the limiting of the rights of parties in this proceedings to file a civil revision petition as contemplated under Section 115 of Civil Procedure Code is not valid in law. Therefore, it is not possible to agree with the contention of the learned Counsel for the respondents that only Section 115 of Civil Procedure Code is applicable and therefore this Court has no jurisdiction to reassess the claims of the parties.
27. The learned Counsel for the respondents cited number of decisions with reference to the scope of Section 115 of Civil Procedure Code, They are as follows:
1. Sathyanarayan v. Mallikarjun . 2. Pandurang v. Maruti A.I.R. 1996 S.C. 153. 3. D.L.F. Housing etc. Co. v. Sarup Singh . 4. M/s. Bhojraj Kunwarji Oil Mill and Ginning Factory v. Yograjsinha . 5. M/s. Lakshmi Bangle Stores v. Union of India (1991) 1 L.W. 14. 6. National Institute of Mental Health & Neuro Sciences v. K.K. Roman . 1. A. Haleem and ten Ors. v. M.S. Tajudeen and eight Ors. (1993) 1 L. W. 502.
28. In M/s. Lakshmi Bangle Stores v. Union of India (1991) 1 L.W. 14, there is light upon the scope of Article 227 of the Constitution of India. The other cases are also on the scope of Section 115 of Civil Procedure Code. These cases, no doubt state that a court exercising revisional power cannot exercise it unless there is an error apparent on the face of record or there is a material irregularity and while exercising its powers it cannot reappraise the evidence. As I have already indicated the power that is exercised by this Court in these revisions is not strictly the power conferred to it under Section 115 of Civil Procedure Code. That apart, I have found that the District Court has committed serious irregularities in its selection especially with reference to the first, third and non-hereditary branch. It has applied different standards to assess the merits and demerits of the applicants. In one case, a person who has served already for a term is given a chance.
[Paras. 29 to 45 omitted - Ed.]
46. In the above back-ground, we will take up the civil revision petitions relating to the first branch, namely, C.R.P. Nos. 3527, 3615 and 3472 of 1998.
[Paras. 47 to 53 omitted- Ed.]
54. The learned District Judge, as I have indicated above, has not properly considered the merits and demerits of the claims of the applicants in this branch. Therefore, the next question that needs consideration is whether this Court can interfere with the selection made by the District Judge and make a fresh selection by itself.
55. The learned Counsel for the respondents M/s. Selvaraj and S.F. Mohamed Yousuf, vehemently contended that this Court exercising its power under Section 115 of Civil Procedure Code cannot set aside the selection made by the District Judge and make a selection of its own. I have already answered this question negatively, Now I will consider the selection made in the other three branches also and find whether any irregularities have been committed by the learned District Judge.
[After discussing on merits the selection made in the other 3 branches his Lordship concluded].
86. Let us go back to the first branch. I have already discussed the merits, hence, C.R.P. No. 3527 of 1998 to be is allowed. The selection of the 4th applicant is set aside. The 7th applicant in the first branch is 65 years old, he has been acting as trustee during the last 27 years. The objection worth consideration is that he is having drinking habit. But this allegation has not been proved. The non-selection of these candidates tantamounts to removal, it may be even considered as stigma, after serving the institution for 27 long years, sixty year old gentleman should not be inflicted with such stigma as this will almost be the last term, he should be allowed to continue in office. Apart from mere allegations that there was no proper administration of the trust, there is no proof. If there was any irregularity committed by him and if really he has the drinking habit, he would not have been continued for such a long 27 years. It shows that he deserves to be continued for the only remaining term during his life time. As I have already indicated, the rich experience coupled with age will be very much useful and it will benefit the trust. But he is not before this Court. Hence in the place of the 7th applicant, the next better candidate H. Abdul Kader, the second applicant is selected.
87. In C.R.P. No. 3472 of 1998 and C.R.P. No. 3615 of 1998, the two applicants N. Abdul Malick and M. Ahmed Ibrahim, are not so meritorious as the other selected candidate N. Mohamed Mohideen. A reference to the particulars given above shows this clearly. Therefore, C.R.P. Nos. 3472 and 3615 of 1998 are rejected.
88. As I have already discussed and found that there is no necessity for interference with reference to the selection made in the second branch, C.R.P. Nos. 3073 and 3243 of 1998 are dismissed.
89. As regards the third branch, I have found that S. Mohammed Mohideen deserves to be selected in the place of the 7th applicant-K. Naina Mohamed. Therefore, C.R.P. No. 3463 of 1998 alone is allowed. C.R.P. No. 2893 of 1998 is dismissed. C.R.P. No. 3502 of 1998 is already dismissed.
90. In the fourth branch C.R.P. Nos. 2845 and 3248 of 1998 are allowed and C.R.P. Nos. 3348 and 3616 of 1998 are dismissed. As a result of the above. The following persons are the selected trustees:
I Branch: 1. H. Abdul Kader (2nd applicant); 2. N. Mohamed Mohideen (8th applicant).
II Branch: 1. A.K. Kader Mohideen (2nd applicant); 2. A.M. Shamsudeen (5th applicant).
III Branch: 1. S. Mohamed Mohideen (6th applicant); 2. N. Abubucker (8th applicant).
IV Branch: 1. M.A.H. Mohideen (12th applicant); 2. Dr. N.M. Ibrahim (13th applicant); 3. M.M.S. Abdul Wahab (15th applicant).
In all the civil revision petitions there will be no order as to costs. Consequently, the connected civil miscellaneous petitions are all dismissed.