Marjan Et Al., V. Burah Et Al.,

1948 Present . Canekeratne and Nagalingam JJ.

MARJAN et al., Appellants, and BURAH et al., Respondents

S. C. 38-D. C. Inty. Tangalla, 198

Charitable trust-Muslim Intestate Succession and Wakfs Ordinance-Application under-Governed by summary procedure-Misjoinder of parties and causes of action-Cap. 50-Sections 15 and 16-Civil Procedure Code. ss. 373, 374, 376.

Jurisdiction-Power of Court to set aside its own decree-Judgment in rent-Absence of notice to party interested-Right of such party to impeach the judgment.

(i) The Muslim Intestate Succession and Wakfs Ordinance creates a class of cases in regard to which the procedure should be what is designated by the Civil Procedure Code as summary procedure.

Each distinct trust must form the subject of a separate application and two or more separate trusts cannot be combined in one application.

(ii) When a Court has jurisdiction of the subject matter and the parties its judgment cannot be impeached collaterally for errors of law or irregularities in procedure.

(iii) A judgment which is in the nature of a judgment in rem cannot be sought to be set aside by a party interested in it on the mere ground that no notice, actual or constructive, was given to him concerning the proceedings which terminated in the judgment. Where, however, the judgment is obtained by fraud or collusion and by virtue of such judgment certain property belonging to a third party is removed in his absence, such third party can, without bringing a separate action, apply to hare the judgment set aside in the same proceedings.

APPEAL from a judgment of the District Judge, Tangalla.

N. E. Weerasooria, K.C with M. H. A. Aziz, S. W. Walpita and S. Sharvananda, for the petitioner-appellants.

H. V. Perera, K.C., with C. Renganathan, for the intervenient respondent.

M. M. K. Subramaniam for the 2nd respondent.

Cur. adv. vult.
 

September 30, 1948. NAGALINGAM J.-

The Kataragama Mosque situated at Kataragama is the subject of the dispute which has given rise to this appeal. Acting under section 16 of the Muslim Intestate Succession and Wakfs Ordinance, Cap. 50, five persons hereinafter called " the petitioners " applied to Court for leave to make an application under section 15 of the Ordinance for certain reliefs claimable thereunder in respect of not only the Kataragama Mosque but also of a Takkiya, referred to by them as Quadiriya Takkia, situated at Hambantota. To this application the trustees proposed were made respondents, and as they were subsequently appointed such, they will for the sake of convenience be referred to hereinafter as trustees.

The application was allowed by Court and the petitioners in pursuance thereof filed an application under section 15 praying inter alia that the Quadiriya Takkia and Kataragama Mosque be declared subject to a Wakf or trust, that the trustees who alone were respondents to their application be appointed members of a Board of Trustees, that the properties belonging to the said trust be vested in the Board of Trustees so constituted, and that the scheme of management proposed by them be settled by Court. The Court granted the prayer of the petitioners as prayed for and entered a decree in terms thereof dated, 13th March, 1946. Armed with this order of Court: the trustees appear to have taken charge of the movable properties lying in the Kataragama Mosque.

Shortly afterwards, two persons intervened, one claiming to be the priest in charge (referred to hereinafter as the priest intervenient) and the other claiming to be the owner of the Mosque (referred to hereinafter as "the owner intervenient) and applied to Court, the former to have "all proceedings including the decree entered on 13th March, 1946, as far as they effect the mosque situated in Kataragama and its temporalities be declared null and void, and be set aside ", and the latter to have " further proceedings in the case rela

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