1. Dispute over land status as wakf or secular property — previous compromise decree declaring part secular — subsequent suit for declaration of entire area as wakf. (Para 1 )
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1927 Supreme(SC) 94
Privy Council
Sir Lancelot Sanderson, Sir John Wallis, Ameer Ali, Justice Sinha, JJ.
Abdur Rahim and others -Appellant
Versus
Syed Abu Mahomed Barkat Ali Shah and others -Resopndent
Privy Council Appeal No. 56 of 1925 : Calcutta Appeal No. 2 of 1924
Decided On : 02-12-1927
Advocates Appeared:
Watkins and Hunter, W.W. Box and Co, B. Dube, G.B. Lowndes, A. Majid, L. DeGruyther
Watkins and Hunter, W.W. Box and Co, B. Dube, G.B. Lowndes, A. Majid, L. DeGruyther
Section 92 CPC mandates specific procedures only for reliefs listed in sub-section (1); suits for other reliefs, like declarations of wakf against third parties, are maintainable without the Advocate-General's sanction. Compromise decrees in such amended representative suits bind only consenting parties, not the general public.
Headnote:(A) Civil Procedure Code, 1908 - Section 92 - Suits relating to public charitable or religious trusts - Maintainability - The mandatory provisions of Section 92(1) and (2) apply only to suits claiming the specific reliefs enumerated in sub-section (1). A suit seeking a declaration that property is wakf and for restraint of possession against third parties does not fall within the scope of Section 92 and can be maintained without the sanction of the Advocate-General. The phrase "further or other relief" in Clause (h) of Section 92(1) must be interpreted as relief of the same nature as those listed in Clauses (a) to (g).
(B) Civil Procedure Code, 1908 - Section 11, Explanation 6 - Res judicata - Representative suits - A compromise decree in a suit that was amended to include strangers to the trust and to seek reliefs not covered by Section 92 ceases to be of a representative character in a manner that binds the general public. Such a decree is binding only upon the parties who consented to the compromise and does not operate as res judicata against the public.
Facts of the case:
A dispute arose regarding land containing a mosque, which had been declared as a religious endowment (wakf). Previous litigation included a partition decree and a subsequent compromise decree in a suit filed under the procedure for public trusts, wherein only a portion of the land was declared wakf and the remainder was treated as secular property. Subsequent plaintiffs filed a suit seeking a declaration that the entire property was wakf, asserting that the previous decrees were not binding upon them.
Findings of Court:
The suit is maintainable without the sanction of the Advocate-General as the reliefs sought are not specified in Section 92(1) of the Code of Civil Procedure. The previous compromise decree does not bind the public or the current plaintiffs.
Issues: Whether a suit for declaration of wakf property is maintainable without the sanction of the Advocate-General under Section 92(2) of the Civil Procedure Code, and whether a compromise decree in a representative suit binds the public under Explanation 6 to Section 11 of the Code.
Ratio Decidendi: The court held that Section 92 is not a bar to suits seeking reliefs not listed in sub-section (1), as the legislature did not intend to abolish substantive rights existing prior to the Code. Additionally, when a representative suit is amended to include third parties and reliefs outside the scope of Section 92, a resulting compromise decree binds only the consenting parties and not the public at large.
Result: Appeal allowed.
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Lord Sinha:-
This litigation arises in connexion with an ancient mosque standing on a portion of holding 221 in the Government Khas Mehal of Dihi Panchannagram, near Calcutta. In a proceeding under Reg. 2 of 1819 between the Government of India as plaintiff and one Syed Miron Munshi of Kalinga as defendant, the whole holding, then 3 bighas 11 cottas and 3 chhataks in area (a portion has since been acquired under the Land Acquisition Act), was declared by the revenue authorities to be revenue-free as property dedicated long ago to religious uses, i.e., a wakf, of which the said Miron Munshi was the then mutwali. The mosque stood on a portion of this area and the rest of it was let out to tenants, the rents being appropriated for the expenses of the mosque.
Mir Miran or Miron Munshi continued to hold this area of land as mutwali of the mosque until his death about 70 years ago, and after him his son, Sheikh Mahommad Jan, succeeded him as mutwali. Mahomed Jan died about 50 years ago, and thereafter his widow, Rukia Bibi, assumed the office of mutwali. On the 27th October 1902, she executed a deed whereby she purported to nominate her son Mir Ramjan Ali as her successor in the mutwaliship.
Disputes having arisen, the heirs of Mahommad Jan instituted in 1907 a suit No. 78 of 1907 in the Court of the Subordinate Judge of 24 Parganas, on the basis that holding 221 was the secular property of Mahommad Jan and asking for partition thereof. A preliminary decree for partition was actually made in that suit in 1908. On the 18th July 1910, a suit No. 48 of 1910 was filed in the Court of the District Judge of 24 Parganas with the sanction of the Advocate-General under S. 92, Civil P. C. of 1908 by seven Mahommedans as plaintiffs against Rukia Bibi as defendant. It was sought by that suit to obtain the removal of Rukia Bibi from the office of mutwali, for accounts and for settling a scheme for the management of the said properties. The plaint in that suit was subsequently amended on the 15th December 1910 :
(1) By the addition of all the heirs of Mahomed Jan as defendants, who, it was alleged, were claiming the property as their personal property ; and
(2) by adding a prayer for the declaration that the property in suit was wakf property and not the personal property of the defendants.
No sanction of the Advocate-General was obtained for these amendments, and apparently the Advocate-General had nothing further to do with that suit at any later stage.
On the 15th September 1911, a petition of compromise was filed in that suit on behalf of plaintiffs 1, 2, 3 ; 4, 5 and 7 (i.e., all the plaintiffs except plaintiff 6, named Rahimbuksh). The first two paragraphs of the petition were as follows :
That your petitioners have on consideration of all the circumstances and facts as disclosed in the evidence produced in the case and which the parties may produce on their, behalf have decided that it would be to their best interest and in the interest of public for whose benefit the plaintiffs brought this suit to compromise the suit on the following terms and conditions :
That out of the disputed property the portions shown in the plan herewith filed and marked A, B, C, D, measuring 1 bigha 1 cotta 8 chhattaks, 24 square feet (1 bigha 1 cotta 8 chhattaks and 24 square feet) should be declared a valid Mahomedan public 'religious and charitable endowment, a wakf.
The rest of the petition dealt with the appointment of new mutwalis and the future succession to the mutwaliship. On the 16th September 1911, the following order was passed on the petition by the District Judge.
The compromise has now been accepted by all parties to the suit. The terms are set out in the petition filed by the plaintiffs on the 15th September, to which a plan is attached. My previous order refers to a petition filed on behalf of ten defendants.
A permission (petition ?) has now been filed on behalf of the remaining three defendants. Let a decree be drawn up in terms of the petition-a copy of
