Patna High Court
Babu Syed Diljan Ali vs Bibi Akhtari Begum on 21 April, 1925
Equivalent citations: 88IND. CAS.1035, AIR 1925 PATNA 544
JUDGMENT B.K. Mullick, J.
1. The Subordinate Judges of Bhagalpur having on the 24th March 1924 returned the plaintiff's plaint dated the 30th April 1923 for presentation to the proper Court, this appeal is preferred by the plaintiff under Rule 1, Clause (a) of Order XLIII, of the C.P.C. The litigation arises out of a wakfnamah executed by Mir Imam Bux in the year" 1874 who dedicated certain immoveable property for the maintenance of a certain masjid and khankah at Bhagalpur and appointed the plaintiff's father Syed Mehdi Hussain to be the mutwalli thereof. The plaintiff's case is that Mehdi Hussain was succeeded as mutwalli by his widow Bibi Umda Begum who upon her death left only one daughter Bibi Muhammadi Begum who was of unsound mind. The defendant is one of the surviving daughters of Muhammadi Begum and upon her mother's death she took possession of the trust properties on the allegation that she was entitled to succeed thereto as mutwalli. The plaintiff, however, denied her claim alleging that he was entitled to be the mutwalli as the heir of Mir Imam Bux upon the failure of the line of Syed Mehdi Hussain and on the 13th March 1914 he instituted a suit in the Court of the Subordinate Judge of Bhagalpur for a declaration of his title to the mutwalliship and for recovery of possession. The suit was dismissed in the Trial Court but was decreed in the High Court on the 5th March 1919. The defendant Bibi Akhtari Begum thereupon appealed to the Privy Council who on the 30th December 1922 set aside the judgment of the High Court and restored that of the Subordinate Judge. There upon application having been made on the 20th April 1923 to execute the decree of the Privy Council the plaintiff in order to avoid making restitution of the trust properties of which he had taken possession since the High Court decree, he thought himself of filing on the 30th April 1923 the plaint out of which this appeal arises. In this plaint he alleges that under the powers reserved to the founder or his heirs by the wakfnamah he on the 28th February 1923 has dismissed the defendant from the post of mutwalli on the ground of misappropriation, slackness and negligence, and he asks for the following reliefs:
(a) That the Court may be pleased to decide that the plaintiff being the heir of the donor is entitled to dismiss the defendant from the post of mutwalli on the ground of his misappropriation, slackness and negligence (kheanat, susti, gaflat) under the terms of the deed of endowment aforesaid.
(b) That the Court may be pleased to decide that the defendant has committed acts mentioned in paras. 23 to 32 of this plaint and was and is liable to dismissal from the post of mutwalli under the terms of the deed of endowment foresaid.
(c) That, on adjudication of above matters the Court may be pleased to decree in favour of the plaintiff declaring that the defendant has been dismissed from the post of mutwalli of the mosque and khankah situated at Takiya Shah Mohammad Saidque Jafri and of the endowed properties appertaining thereto.
2. An application was made after the institution of the suit for an interlocutory order for an injunction to restrain the execution of the Privy Council decree, of in the alternative for the appointment of a Receiver. Both prayers were rejected and possession was duly delivered.
3. Thereafter objection having been taken to the maintainability of the suit, the Subordinate Judge on the 24th March 1924 held that he had no jurisdiction to entertain the plaint on the ground that it was in effect an application for the removal of a mutivalli for misfeasance or breach of trust or neglect of duty and that by reason of Section 14 of the Religious Endowments Act (XX of 1863) the proper Court for presentation was the principal Civil Court of the District.
4. On behalf of the appellant it is contended that his suit is neither under Section 14 of the Religious Endowments Act nor under Section 92 of the C.P.C., but one for the enforcement of a civil right cognizable by a Civil Court under the general law as declared by Section 9 of the C.P.C.
5. The first question, therefore, is, what is the meaning of the plaint and the reliefs claimed therein. As it stands the plaint does not expressly ask for any relief of a civil nature or for the adjudication of any contest as to a right of property or an office. It is not understood why any Court should decide whether the plaintiff is entitled to dismiss the defendant or declare that the defendant was and is liable to dismissal from the post of the mutwalli or that she has in fact been dismissed. If the wakfnamah creates a right in the plaintiff to dismiss the defendant the plaintiff is at liberty to exercise that right without the intervention of the Court and there is no reason why the Court should be asked to declare that he has in fact exercised that right. If the defendant accepts the dismissal, there is nothing further to be done. If she does not, then it is open to the plaintiff to ask for the administration of the trust and for her removal and the suit would then be one cognizable under Section 9 of the C.P.C. by the Civil Court.
6. The declarations asked for by the plaintiff cannot even be construed as coming within the purview of Section 42 of the Specific Relief Act. If the plaintiff had desired a declaration as to some legal character, which had been denied, and if consequential relief had not been possible, the Subordinate Judge would have had jurisdiction to take cognizance but here there is no such case.
7. The fact is that in essence the plaint is one for the removal of the trustee and for the administration of the trust. When he asks the Court to declare that the defendant has been duly dismissed he means either that the Court is required to remove her in the event of refusal to vacate, or otherwise arrange for the administration of the trust. It is inconceivable that a person of the plaintiff's experience in litigation would have filed a plaint which does not ask for any relief of a J civil nature and, in my opinion, the Subordinate Judge was right in holding that the object of the suit being to protect the endowment against misfeasance, breach of trust, or neglect of duty, Section 14 of the Religious Endowment's Act is applicable.
8. But it is said that this section cannot apply because the Act has no application to trusts established after 1863. It is said that the authorities, which hold that Section 14 of the Act is general and that it applies to endowments created both before and after 1863, were obiter dicta, but it is clear that this contention cannot be accepted. See Dhurrum Singh v. Kishen Singh 7 C. 767 : 4 Shome L.R. 206 : 9 C.L.R. 410 : 3 Ind. Dec. (N.S.) 1042, Fakurudin Sahib v. Ackeni Sahib 2 M. 197 : 4 Ind. Jur. 280 : 1 Ind. Dec. (N.S.) 409, Sheoratan Kunwari v. Ram Pargash 18 A. 227 : A.W.N. (1896) 37 : 8 Ind. Dec. (N.S.) 858 and Sivayya v. Rami Reddi 22 M. 223 : 8 Ind. Dec. (N.S.) 159. By Regulation XIX of 1810 all public endowments in this Province were declared to be under the control and superintendence of the Board of Revenue which was entitled to take charge of their properties and to administer the same, although it sometimes did not do so. In respect of some of the endowments the Local Government had the power to nominate or confirm the manager or superintendent. In. others the Local Government did not appoint but had powers of supervision. Act XX of 1863 made rules for the management of both these classes. Regulation XIX if not repealed would' have been applicable to endowments created after 1863 also and it is reasonable to suppose, therefore, that Act XX of 1860 which repealed it was intended to have the same scope, and that while some parts of it provided for endowments over which the Local Government were then exercising control, Section 14 was intended to have wider scope and to apply to endowments coming into existence in the future.
9. It is to be noticed that the reliefs granted under Section 14 of Act XX of 1863 are slightly different from those accorded under Section 92 of the C.P.C. The power of appointing a new trustee and of making a scheme for the administration of the property is restricted to Section 92 only and in the present case if the object of the plaintiff is to provide for the administration of the estate after the removal of the defendant, Section 92 would appear to be the proper machinery of securing it. The respondent, therefore, contends that the plaintiff should first obtain the sanction of the Advocate General and join some other person with him as plaintiff as required by the provisions of Section 92. I agree that this would have been the proper course, but if the plaintiff chooses to adopt the procedure of Section 14 of Act XX of 1863 rather than Section 92 of the C.P.C., the risk is his and the Court cannot make any objection. The Subordinate Judge appears to have thought that as the plaintiff was suing alone and had not obtained the sanction of the Advocate General or other officer empowered to give sanction under Section 92, C.P.C., it was his intention to cast the suit as one under Section 14. Probably the learned Judge was right but even if he had held the suit to be one under Section 92, C.P.C., then also would he have been compelled to return the plaint. But the appellant's reply is that he has a right to sue independently of the Religious Endowments Act and Section 92 of the C.P.C. He contends that so far as Act XX is concerned it is cumulative and not restrictive and that so far as Section 92 of the C.P.C, is concerned it deals only with suits brought in a representative capacity, and that it does not affect a suit to enforce a right conferred by the deed of endowment itself. He relies-upon cases decided previously to 1908 and in particular upon Budree Das Mukim v. Chooni Lal Johurry 33 C. 789 : 10 C.W.N. 581 in which it has been held that the founder of an endowment or his heirs have the right to sue the trustees for the due performance of the trust and to remove them and to appoint new trustees without invoking the aid of 8. 92. These cases, however, are no longer law and the second clause of Section 92 makes it clear that the section is mandatory and the reliefs specified in the section can only be enforced now by resort to the procedure of the section. Neither the founder nor his heirs is now entitled to sue for the removal of the trustee and the appointment of a new trustee if he alleges a breach of trust or requires directions for the administration of it. The jurisdiction of the High Court over suits relating to the management of trust property has been derived from the Supreme Court and was in the first instance independent of the C.P.C. As for the mofussil Courts, their jurisdiction appears to have been based upon justice, equity and good conscience. But that jurisdiction in respect of both sets of Tribunals is now affirmed and controlled by Act XX of 1863 and Section 92 of the C.P.C. The fact is, that the trustee, though by a legal fiction, is vested with the legal ownership of the property and the Legislature will not allow the Civil Court to divest him unless and until certain preliminaries have been strictly observed. In one sense a suit for the removal of a trustee may not strictly: speaking be a suit of a civil nature, and perhaps for that reason the Legislature has removed all doubts by enacting the Statutes above referred to and has declared that no such suit can now be instituted, except under the special jurisdiction conferred thereby.
10. It is contended that Venku Chettiar v. Doraisami Chettiar 6 Ind. Cas. 761 : 14 L.W. 38 : (1921) M.W.N. 439 is authority to the contrary. But that case was one between an admitted trustee and one who was not a trustee for the recovery of trust property and submission of accounts. Such a suit would obviously be cognizable by the ordinary Civil Court without any preliminary formalities. So would a suit for the establishment of the right to act as mutwalli.
11. But it is otherwise where the appointment of a trustee has been recognized and it is sought to remove him for a breach of trust. But, says the appellant: "I may not wish to sue for breach of trust and I may have the right to dismiss the mutwalli for mere misconduct not amounting to a breach of trust. Why may I not enforce my right to remove him?" The answer is that we are not concerned now to discuss a hypothetical case and whether in certain events a declaratory suit will lie. What we have to decide here is whether the plaint as it stands is one which can be entertained by the Subordinate Judge. I have no doubt that the answer is in the negative. The Subordinate Judge has held the plaint to be an application within the purview of Section 14 of Act XX of 1863. It is for consideration whether if and when the application has been admitted, the principal Civil Court will be aide to give the relief which the plaintiff seeks. If the Court is not competent to appoint or cause to be appointed a new trustee, he will probably not, remove, the defendant and will probably direct the appellant to sue under Section 92 of the C.P.C. Therefore it is for consideration whether the plaintiff will be better advised to adopt the procedure under Section 92, C.P.C. instead of that under Section 14 of Act XX of 1863. However, it is not for us to advise the plaintiff as to how he should proceed. All that, we can do is to affirm the Subordinate Judge's order and to dismiss the appeal with costs.
Ross, J.
12. I agree.