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IN THE HIGH COURT OF ALLAHABAD
M. P. SINGH
AMBRISH KUMAR SINGH - Appellant
Versus
RAJA ABHUSHAN BRAN BRAMHSHAH - Respondents
CIV. REVN. 884 Of 1987
Decided On : 02/15/1988
TRUST - SUIT FOR REMOVAL OF MUTAWALLI - LEAVE TO INSTITUTE SUIT - INTEREST OF PLAINTIFFS - SECTION 92, C. P. C. - AMENDMENT - SCOPE AND EFFECT - COURT'S JURISDICTION - ERRORS OF FACT OR LAW - REVISION - JURISDICTIONAL ERROR - MATERIAL IRREGULARITY.
Fact of the Case:
Plaintiffs filed a suit for removal of the defendant as Mutawalli of a trust and appointment of a new Mutawalli. The defendant filed a revision petition challenging the grant of leave to institute the suit under Section 92 of the Code of Civil Procedure (C. P. C.).
Finding of the Court:
The court held that the plaintiffs had an interest in the trust and were entitled to file the suit. The court also held that the amendment to Section 92 of the C. P. C. did not require the court to give notice to the proposed defendants before granting leave. The court further held that the District Judge had applied his mind before granting leave and that there was no jurisdictional error or illegal exercise of jurisdiction.
Issues: 1. Whether the plaintiffs had an interest in the trust and were entitled to file the suit? 2. Whether the amendment to Section 92 of the C. P. C. required the court to give notice to the proposed defendants before granting leave? 3. Whether the District Judge had applied his mind before granting leave? 4. Whether there was any jurisdictional error or illegal exercise of jurisdiction?
Ratio Decidendi: 1. The court held that the plaintiffs had an interest in the trust as contemplated under Section 92 of the C. P. C. and they had got a right to file the suit. 2. The court held that the amendment to Section 92 of the C. P. C. did not require the court to give notice to the proposed defendants before granting leave. 3. The court held that the District Judge had applied his mind before granting leave and that there was no jurisdictional error or illegal exercise of jurisdiction.
Final Decision: The court dismissed the revision petition and held that the suit was maintainable.
( 1 ) THIS is defendants revision arising out of an order dated 12-8-1987 passed by the learned District Judge, Varanasi granting leave under S. 92 of the C. P. C. to institute a suit against the applicant.
( 2 ) ON 13-9-1980 Rani Bed Saran Kuari widow of Raja Keshaw Saran Shah executed a deed of endowment whereunder she transferred Taluq Chandauli, Kothi, garden and land to the idols installed in the temple. In order to benefit the ends of her husband and herself she gave a specification of various expenses on the specified objects and further provided that Shivala, as specified in the deed, shall be maintained for ever and that she and heirs and successors of the Agori Barhar Raj will be bound by the same. A copy of the deed has been filed as Annexure-1 along with the counter-affidavit. For the purposes of the present case only paras 6 and 9 are relevant whose English translation is being quoted below : (refer to page 119 of the Paper Book prepared by the High Court in First Appeal : No. 36 of 1943, which was placed before this Court by the counsel for the applicant ). "paragraph No. 6 :- Just as I stay in the enclosure of the Shivala in my lifetime, in the same way my successors and all the Hindu public of the Raj belonging to Pargana Agari Barhar and other relatives of Barhar estate, such as the Maharajah of Basti, the Maharajah of Bhinga, the Maharajah of Bijaipur, the Maharajah of Khajuragaon, andMaharajah of Manda, the Maharajah of Deonga, the Maharajah of Najholi, the Maharajah of Nahson, the Raja of Deora, the Raja of Nagath and the Maharajah of Dumraon shall be empowered to stay there whenever they come to Kashi for a Sojourn or on a pilgrimage. It shall be necessary to observe the respect and honour due to the Shivala. In the same way it shall be incumbent upon the Pujari and the other employees attached to the temple to respect and honour my successors and relative like myself and others according to the status. Paragraph No. 9 : if there should arise any defect in the management specified above or in case my successors and representatives of the Barhar estate should not make proper arrangement for the protection, and management and maintenance of alms house and businesses referred to above or in case the arrangements made by them should be objectionable and should not (sic) be contrary to the object (one word illegible) and not (sic) according to the wishes of me the executant, the persons who have any concern with the property dedicated to the Shivala, with reference to this document or those who may be benefited by the existence and enforcement of the aforesaid arrangements, and the Maharajah of Benares shall have power to seek remedy in the proper manner and according to law through the officer of the time and the court, to get any competent and capable person appointed as manager and Mutawalli of the waqf property and Shivala or to obtain the dismissal of such appointed persons as may become man of bad character and incapable or may not perform the duties entrusted to them according to my wishes, and to get some capable person appointed in his place. Moreover, in exercise of my powers and proprietary title enjoyed by me the executant in the waqf property and the Shivala, I the executant do further covenant and wish that besides the aforesaid persons all the members of the Hindu religion on whom respect and worship of the Shivala are obligatory shall, in case they find after my lifetime any proceeding of management relating to the Shivala or the waqf property, contrary to my wishes and objects and the contents of this document, have the power, in a body or individually, to find means to remove the objectionable points through court or other necessary proceedings that may he required according to the law in force at the time. " suit No. 422 of 1986 has been filed by five plaintiffs against the defendant-applicant. Along with the plaint an application under S. 92, C. P. C. dated 5-11-1986 was also
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