Ahmed Adam Sait & Ors Vs.
Inayathullah Mekhri & Ors [1963] INSC 79 (29 March 1963)
29/03/1963 GAJENDRAGADKAR, P.B.
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION: 1964 AIR 107 1964 SCR (2) 647
CITATOR INFO:
F 1990 SC 444 (8)
ACT:
Public Religious Trust-Scheme-Suit to set
aside schemeBeneficiaries, not a particular sect of Muslim CommunityPlea of res
judicata-Character and nature of representative suit-Circumstances under which
a scheme can be set asideCode of Civil Procedure, 1908, (Act V of 1908), ss. 11
Exp. VI, 92, Or. 1. rr. 6, 8.
HEADNOTE:
The respondents filed a suit under s. 92 of
the Code of Civil Procedure, 1908 claiming to represent the Sunni Muslims
population of Bangalore and praying that_ a scheme should be settled for the
proper administration of the Jumma Masjid, Bangalore.
The plot on which the Masjid was built was
purchased about a century ago by a large number of Muslims consisting of
several groups from all walks of life. The mosque was constructed from the funds
given as gifts by a large number of Muslims. A grant of land made to the mosque
shows that the mosque and its properties were intended for the benefit of the
Muslim Community as a whole. For about 60 years the mosque and its properties
were under the management of nonCutchi Memons and prior to this the management
was not exclusively in the hands of Cutchi Memons but predominantly in the
hands of Dekkhani Muslims of the locality. In subsequent years on some
occasions the management was predominantly in the hands of the Cutchi Muslims
but the Dekkhani Muslims in Bangalore numbered about 30,000 and the Cutchi
Muslims never exceeded 300.
Prior to the present suit a suit under s. 92
was filed in 1924 and a scheme was settled and Trustees were appointed and they
had been in management ever since. In the said proceedings, the plaintifffs,
both in the application made to the Collector for sanction under s. 92 Code of
Civil Procedure and in the plaint, specifically averred that the Masjid in
question was an institution belonging to the Cutchi Memon Community 648 and
they purported to represent the interests of that Community and . no other.
There were some defendants in the suit who were non Cutchi Muslims but they
were sued as trespassers and their only interest in defending the suit was to
support their individual rights.
In the suit out of which the present appeal
has arisen the respondents claimed that the Masjid with its adjuncts belonged
to the whole Muslim Community of Bangalore and not exclusively to the Cutchi
Muslims, It was further claimed that the scheme framed under the earlier suit
was the result of collusion and that the said decree did not bind the nonCutchi
Memons and that the present trustees were guilty of mismanagement and breach of
trust. The appellants contended that the Cutchi Memons were the exclusive
beneficiaries and that the suit was barred by res judicata and denied the
allegations of collusion, breach of trust and mismanagement.
The trial court rejected the contentions of
the respondents and upholding the plea of res judicata raises by the appellants
dismissed the suit. Thereupon the respondents appealed to the High Court and
the High Court while rejecting the pleas of collusion and breach of trust
differed from the trial court on the question of res judicata. It found that
the Mosque and its adjuncts belonged to the whole of the Muslim community and
not exclusively to the Cutchi Memons. Therefore the High Court while agreeing
with the trial court that a scheme should not be lightly disturbed found that a
case had been made out for framing a new scheme and remanded the case to the
trial court. The present appeal is by way of special leave.
The first point raised in the appeal was that
the suit was barred by res judicata on the ground that a suit under s.92 Code
of Civil Procedure was a representative suit and the present respondents would
be bound by it whether, they were parties to it or not since they were
interested in the Trust. It was further contended that since both the courts
below had rejected the plea of mismanagement and breach of trust and since the
High Court had found that the present trustees were managing the trust
reasonably and in a responsible manner this Court should not lightly disturb
the said findings.
Held that the mosque and its adjuncts came
into, being, and continued to be an institution belonging to the Sunni, Muslim
Community of Bangalore and it cannot be he held that:
its management was exclusively in the hands
of Cutchi Memons at any time before 1924.
649 Reading ss. 11, 92 Exp. VI, 0. 1 rr. 6
and 8 of the Code of Civil Procedure it is clear that in determining the
question about the effect of a decree passed in a representative suit, it is
essential to inquire which interests were represented by the plaintiffs or the
defendants. If the decree was passed in a suit under s. 92 it will become
necessary to, examine the plaint in order to decide in what character the
plaintiffs had sued and what interests they bad claimed.
The basis of the principle that a decree
under s. 92 suit binds all persons interested in the trust, is that the
interests of all persons interested in the trust are represented in the Suit as
required by Exp. VI to s. I and if that basis is absent the decree cannot
create a bar of res judicata against persons claiming an interest not
represented in the. earlier suit.
The plaint in the earlier suit as well as the
application to the Collector for sanction proceeded on a clear and unambiguous
basis that the mosque belonged to the Cutchi Memons and the suit was instituted
on their behalf by persons who claimed to be interested in the mosque as Cutchi
Memons. Once it is found as it has been found in the present case, that this
basis of the claim made in the plaint was not well founded and that the mosque
belonged to all Sunni Muslims of Bangalore it would be difficult to accept that
the suit can be regarded as a representative suit so far as the interests of
the Muslim Community other than the Cutchi Memons residing in Bangalore are
concerned, Raja Anandrao v. Shamrao, [1961] 3 S.C.R. 930, Ramados v. Hanumantha
Rao, (1911) I.L. R. 36 Mad., 364 and Khaja Hassanulla Khan v. Royal Mosque
Trust Board,. 1. L. R.
(1948) Mad. 257, distinguished, There can be
no doubt that if a scheme is framed in a suit brought under s. 92 it should not
be changed unless there are strong and substantial reasons to do so. It must be
clearly shown not only that the scheme does not operate beneficially but that
it can by alteration be made to do so consistently with the object of the
foundation.
Attorney General v. Bishop of Worcestor
(1831) 63 L. R. 530 and Attorney General v. Stewart (1872) L. R. 14 Eq. 17.
The impugned scheme in the present suit
proceeded on the erroneous assumption that the Mosque belonged to Cutchi Memons
and that the said community alone was entitled to its exclusive administration.
This assumption has clearly introduced certain infirmities in the scheme. The
scheme must 650 be revised on the true basis that the Mosque does not belong
exclusively to the Cutchi Memons, but belongs to all the Sunni Musalmans of
Bangalore.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 308 of 1961.
Appeal by special leave from the judgment and
decree dated November 3, 1958 of the Mysore High Court in Regular Appeal No.
120 of 1950-51.
M. C. Setalvad, M. L. Venkatanarasimhaiah,S.
N. Andley, Rameshwar Nath and P. L. Vohra, for the appellants.
A. V. Viswanatha Sastri, M. S. K. Sastri and
M. S. Narasimhan, for respondent No. 1.
1963. March 29. The judgment of the Court was
delivered by GAJENDRAGADKAR J.-This appeal by special leave arises out of a
suit instituted by the respondents in the Court of the District Judge,
Bangalore under section 92 of the Code of Civil Procedure (O.S, No 2 of 1917).
The respondents claimed to represent the Sunni Muslim population of the Civil
and Military Station at Bangalore, and as such they prayed in their plaint that
a scheme should be settled for the proper administration of the jumma Masjid
which is situated on Old Poor House Road, C & m Station, Bangalore.
Their case was that the Masjid in question
along with its adjuncts such as Idgah, Makkhan, Madrassa, Kutubkhana and
Musafarkhana as well as large movable and immovable properties, constitutes a
Trust created for public purposes of a religious nature coupled with charity,
and that the Dakkhani Muslims as well as the Cutchi Memons residing in
Bangalore are the beneficiaries of the Trust and have an abiding interest in
its proper management, control and direction.
2 It appears that a similar suit had been
filed in 1924 (O.S.No.32 of 1924) in the same Court and in that suit a scheme
had been framed in 1927. Pursuant to the said scheme, Trustees were appointed
and they have been in management of the Trust properties since then. The respondents
alleged that in the said suit, it was represented that the Masjid belonged
mainly to the Cutchi Memons of Bangalore and that the Cutchi Memons were
entitled exclusively to its management. It is on this basis that the said suit
was prosecuted by consent and a scheme was drawn up by the court after
considering different schemes put before it by the respective parties. To that
suit seven defendants were impleaded; defendants 2 and 7 claimed the right of
management of the Trust under wills executed by the deceased Mutawalli Abdul
Gaffar. Defendant No.2 was then a minor and his mother was impleaded as
defendant No. 1 both in her own right and as guardian of defendant No.2.
Defendants 3 to 6 were the Executors under
the will of Abdul Gaffar on which defendant No.2 relied. All those defendants
were non-Cutchi Memons and the appellants who had filed the suit were Cutchi
Memons. While the said suit was pending, six persons who were Cutchi Memons
applied to be joined as defendants to the suit. Their case appears to have been
that no scheme need be framed. Their application was rejected by the District
judge, but on revision before the Court of Resident in Mysore, the District
judge's order was set aside and they were ordered to be impleaded. That is how
ultimately, 13 defendants were joined to the said suit.
While the administration of the Trust and the
management of its affairs and properties were thus entrusted to the Board of
Trustees appointed under the scheme., and the same was being continued after
the scheme decree was passed, an application was made by the present
respondents on January 22, 1945 under O. 1 r. 10 and sections 141 and 652 151
of the Code in which they prayed that they may be joined as parties to the
proceedings under the scheme and that the Trustees should be ordered to convene
a fresh meeting of the general body of worshippers of the Masjid and prepare a
list containing their names and submit the same to the Court irrespective of
whether they happen to belong to the Cutchi Memon jamayet or the Dakkbani
Muslim Community of Bangalore.
Their contention was that a meeting which had
been held in pursuance of the order on C. M. P. No. 242 of 1944 was invalid,
null and void, and so they wanted to be joined to the proceedings; they desired
that a fresh meeting should be called for the purpose of preparing a list of
worshippers as prescribed by the scheme. In support of this application, an
elaborate affidavit was filed in which they set out their grievance that the
management of the Trust which had been left exclusively in the hands of Cutchi
Memons was inconsistent with the scheme and on the merits, unjustified and
unfair.
This application was rejected by the learned
District fudge on July 20, 1915. The learned Judge, while rejecting the application,
observed that there was some force in the contention of the petitioners that
the suit in which the scheme was framed, was not fully representative and that
there were some "commissions in the proceedings" taken under the
decree Which may tend to show that the management of the Trust was not to be
exclusively by the members of the Cutchi Memon Community. In fact, he noticed
that the suit had been filed in very peculiar circumstances without impleading
the members of the Dakkhani Muslim Community. He however held that after the
framing of the scheme, the management had, in fact, been entrusted solely to
the Cutchi Memon Community and that it would be inappropriate to make any
change in the pattern of management in 653 the proceedings initiated by the application;
that can be done, he thought, in a regular suit. It is this order that has led
to the present suit by the respondents.
In the present suit, the respondents joined
the five appellants and others as defendants and claimed reliefs against them.
Their case was that the scheme decree which was passed in the earlier suit was
the result of collusion and that the said decree did not bind the non-Cutchi
Memons who were the beneficiaries of the Trust. According to them, though the
Cutchi Memons were entitled to claim the benefit of the Trust, the predominant
interest in the Trust was of the Dakkhani Muslims who had built the Mosque and
contributed substantially to its financial progress and prosperity. They
further pleaded that the five appellants who were in charge of the
administration of the Trust were guilty of breach of trust. According to them,
even the scheme which was framed in the earlier suit did not confer a monopoly
of management on the Cutchi Memons as appears to have been assumed in making the
appointment of Trustees ever since the said decree was passed, and it was urged
that if on a correct interpretation, the scheme did confer such a monopoly, it
should be held to be bad in law. It is on these allegations that the
respondents wanted the Court to settle a scheme taking into account all the
worshippers of the Masjid both Dakkhani Muslims and Cutchi Memons, and
recognising the right of the Dakkhani Muslims also to manage the Trust and its
affairs. As a consequential relief the respondents claimed that the appellants
be removed from their position as Trustees and that a Committee of Trust
appointed under the old scheme should be dissolved and new Trustees should be
appointed in its place. That, in short, is the nature of the claim made by the
respondents in their present suit.
654 The appellants disputed the respondents'
claim on several grounds. It was urged by them that the Cutchi Memons were
entitled to the exclusive management of the Masjid and its affairs; it was
pleaded that the present claim was barred by res judicata and that the
respondents had not any interest in the Trust and as such., had no locus standi
to file the present suit under section 92 of the Code. The allegation of
collusion made by the respondents in regard to the earlier suit was traversed
and it was contended that if an-;
relief was intended to be asked in respect of
the modification of the said scheme, the proper remedy was an application under
clause 25 of the scheme itself and not the present suit. The charge that the appellants
had committed a breach of trust was seriously disputed and emphasis was laid on
the fact that even if a case for change in the scheme was made out that case
should not be accepted unless there are over-riding considerations to do so.
On these pleadings, the learned District
judge framed appropriate issues. He held that the respondents had not shown
that they had sufficient interest to bring the suit under s. 92 of the Code. He
also found that their plea that the decree in the earlier suit had been
obtained by collusion had not been established, nor ha they succeeded in
showing that the Trustees under the said scheme had committed a breach of
trust. In regard to the contention of res judicata raised by the appellants, he
held that the decree passed in the earlier suit was a bar to the
maintainability of the present suit, and he expressed the opinion that the
reliefs claimed by the respondents by their present action could have been
claimed by them by an application under clause 25 of the scheme. Then the
learned judge considered the question as to whether the scheme should be
modified and he took the view that in such matters, it was necessary to
exercise utmost caution before disturbing a settled scheme. Since no
satisfactory reason had S 655 been shown by the respondents in support of their
case that the scheme should be changed, the trial Judge rejected their claim
and dismissed the suit.
The respondents challenged this decree by
preferring an appeal in the High Court of Mysore. The High Court agreed with
the trial Court in rejecting the respondent's case that the decree in the
earlier suit had been obtained by collusion and that the Trustees appointed
under the said scheme had committed breach of trust. It, however, differed from
the trial Court on the question of res judicata. It took the view that the plea
of res judicata could not be sustained and so, it came to the conclusion that
the present suit under s. 92 was competent. The High Court agreed with the
trial Court that in law, a scheme once settled should not be lightly disturbed
or modified, but in its opinion a case had been made out for framing a new
scheme, because it was satisfied that the Mosque in question really belonged to
the whole of the Sunni Mu-slim Community of C & M Station, Bangalore, and
the basis of the earlier suit that the Cutchi Memons were entitled to the
exclusive management of the said Mosque, its properties and its administration
was not wellfounded. On these findings, the High Court set aside the decree
passed by the trial Court and remanded the case to the said Court to take
further proceedings in the light of the appellate judgment for the purpose of
framing a new scheme. It is against this order that the appellants have come to
this Court by special leave.
Before dealing with the merits of the
contention which have been urged before us by Mr. Setalvad on behalf of the
appellants, it is necessary to set out briefly the history of the Mosque with
which we arc concerned, and the background of the incidents which have led to
the institution of the present suit. The finding recorded by the High Court in
regard to the history of the Mosque, its origin and further 656 development,
and the part played by the Dakkhani Muslim Community in both the matters, has
not been disputed before us, and so, we must proceed to deal with tile appeal
on the basis that the said finding truly and correctly represents the facts
proved in this case. It is in the light of the said finding, therefore, that we
propose to set out the history of the institution and the background of the
dispute.
It is not disputed that the Mosque came into
existence as a relatively small structure more than 100 years ago and that it
was rebuilt in its present form some time about 1885.
The oral evidence led by the parties in
support of their respective contentions is as often happens, not very
satisfactory, and so, the High Court dealt with this part of the case on
documentary evidence. The respondents have produced numerous documents to prove
their case that in the original building of the Mosque, in its reconstruction
in 1885 and in its progress from year to year, the Dakkhani Muslims have played
a dominant part, though it is conceded by them that later on the Cutchi Memons
were also actively associated with the affairs of the Mosque and have made
contributions to its prosperity and progress. The earliest document on the
record (Ext. K) which is a sale dead executed on January 4, 1823 shows that the
generality of the people wished to construct a Masjid, and so, the open plot
covered by the sale-deed was purchased. The purchasers were a large number of
Muslims consisting of several groups described as traders, bakers, sweetmeat
makers, Coppersmiths, rope-makers, mutton butchers, beef butchers, gardeners
and other Muslims. That shows the very broad.
basis of the cross-section of the Muslim
community which joined in purchasing the open plot on which the mosque was
built. Then followed a gift deed executed on November 1, 1923 (Ext. L') which
was a voluntary undertaking given by a large number of Musalmans to contribute
funds in the 657 construction of the Mosque. A grant of land made on October 4,
1830 (Ext. YYYY) clearly brings out that the Mosque and its appurtenances were
intended for the benefit of the whole Muslim Community represented by the local
Kazi. In about 1850, Abdul Khuddus appeared on the scene and it is common
ground between the parties that he was actively associated with the institution
for about half a century. He appears to have been a very influential person in
the locality and helped to popularise the institution and acquired considerable
properties for it; thereby, he rendered the mosque useful to the community in
various directions. Abdul Khuddus was in management of the Mosque till 1905
when he died. He was followed by his son Abdul Gaffar who died in 1922. It
appears that Abdul Gaffar left behind him two wills under which two different
claims for the Mutavalliship of the Mosque were made. About this time' the
eariler suit of 1924 was instituted. It is thus not disputed that for nearly 60
years and more, Abdul Khuddus and his son who were non-Cutchi Memons were in
management of the Mosque and as we have already noticed, prior to 1850 when
Abdul Khuddus came on the scene, the management does not appear to have been in
the hands of the Cutchi Memons exclusively, but it was predominantly in the
hands of the Dakkhani Muslims of the locality.
On June, 29, 1880, a Power of Attorney was
executed by the jamayat in favour of Abdul Khuddus in order to enable him to
enter into transactions on behalf of the Mosque. Of the ten presons who
executed the Power of Attorney, three were Cutchi Memons and the rest Dakkhani
Muslims. This document shows that Cutchi Memons had by then associated
themselves with the administration of the affairs of the Mosque and formed part
of the jamayat which owed allegiance to the Mosque but amongst the Trustees who
executed the Power of 658 Attorney in favour of Abdul Khuddus, the proportion
was 3:
On December 29, 1892, a sale deed was
executed by one Thulsibayama (Ext. HHHH) conveying her house property in favour
of Abdul Khuddus. Abdul KhUddus was described as the Head Trustee of the
jumma.Masjid. The other Trustees mentioned in the document who numbered 13,
represented the Dakkhani Muslims and the Cutchi Memons in the proportion of
7:6. It is true that on some occasions, the Headmen appeared to have been
predominantly Cutchi Memons; for instance. the document pertaining to the
transfer of Fazel Mahomed Asham Sait's right to Jumma Masjid (Ext. UUU) was
executed in favour of six Headmen all of whom appear to be Cutchi Memons; but
as the High Court has observed, this can have no special significance since in
this document, Abdul Khuddus himself is not mentioned and that may show that the
Headmen did not include the main person who was looking after the Masjid.
However, one fact is significant that the Dakkhani Muslims numbered about
30,000 and the Cutchi Memons never exceeded 300 and this fact has to be borne
in mind in dealing with the question of the administration of the properties
belonging to Jumma Masjid, and, so it would be clear that though the Cutchi
Memons were associated with the administration of the Trust, they were not at
all in its exclusive management. Before his death Abdul Khuddus had executed a
Power of Attorney in favour of his son Abdul Gaffar on June 14, 1905, and as we
have already seen, Abdul Gaffar stepped into the management. Thus, the
documentary evidence which the High Court has accepted supports its finding that
the Mosque came into being and continued to be an institution belonging to the
whole Sunni Muslim Community of Bangalore and that it could not be held that
its management was exclusively in the hands of Cutchi Memons at any 650 time
before 1924. Having regard to the very prominent and Powerful part played by
Abdul Khuddus in the development of the Mosque and its properties, it is not
surprising that the Mosque came to be known as "Khuddus Saheb's
Mosque." This description of the Mosque is found in a document executed on
June 7, 1884 (Ext. RRRRRR-1). Subsequently, when the Cutchi Memons filed a suit
in 1924, they alleged that the Mosque was known as the Sait's Mosque, but that
is undoubtedly a later development.
It maybe conceded that the several jamayats
of Muslims residing in Bangalore in different localities have their separate
mosques, and as often happens, the Muslim residents of a particular locality
generally offer prayers in the mosque situated in the locality and in that
sense, owned by the jamayat of the said locality. The position of the Jumma
Masjid with which we are concerned, however, appears to be that of a central
Mosque to which allegiance is owed by all the Sunni Muslims of Bangalore. In
fact, evidence adduced in this case clearly shows that the Cutchi Memons
constituting a Jamayat by themselves have a mosque of their own in Fraser town.
This fact was admitted, though with reluctance and then too not clearly, by
Haji Saleh Mohamed Sait whom the appellants examined on their behalf. It also appears
from the evidence of the said witness that the bulk of Nikahs in the Jumma
Masjid (Ext.Y-6) consists of those Muslims other than Cutchi Memons and that
rather shows that amongst the usual worshippers at the Jumma Masjid the nonCutchi
Memons occupied an important place. It is in the light of these facts that the
controversy between the parties in the present litigation has to be judged.
It appears that about 1.920, when the
non-cooperation movement was in full force, there was a 660 sharp division in
the Cutchi Memon Community a,% well as the Dakkhani Muslims at Bangalore. The
majority of the community sympathised with the non-co-operation movement and
applauded those who took part in it, whereas the minority led by Haji Sir
Ismail Sait disapproved of the movement and publicly denounced it-. That led to
the usual development of excommunication of the minority, and so, Haji Sir
Ismail Sait filed a suit No. 6/1921 to vindicate his right of access to the
Mosque for performing religious ceremonies and claimed an injuncion against the
managers of the Mosque restraining them from interfering with the exercise of
his right in that behalf. During the pendency of the suit, however, Abdul
Gaffar died on January 9, 1922. That tended to accentuate the division in the
Community and it was this sharp division in the Community which was further
complicated by the rival claims made by two different persons who had set up
two different wills of Abdul Gaffar that led to Suit No. 32/1924 being filed.
In that suit, it was claimed that the Mosque was primarily developed by the
Cutchi Memons and that the Cutchi Memons were entitled to the exclusive
management of the affairs of the Mosque. The defendants who had been impleaded
to that suit first appeared to resist the claim. We have already seen who these
defendants were. They were interested in supporting their individual rights in
respect of the management of the Mosque and it appears that they reached an
amicable settlement with the plaintiffs and ultimately submitted to a preliminary
decree directing that the scheme be framed.
Those defendants who were non Cutchi Memons
did not represent the non-Cutchi Memon Community as such and were interested
only in their personal rights based upon the wills executed by Abdul Gaffar. After
the parties agreed that the scheme should be drawn up, the District judge
directed them to file their respective schemes. The Court then examined the
said schemes and finally 661 framed its own scheme. Thereafter, Trustees have
been appointed under the Scheme from time to time and the administration of the
Trust and the management of its properties has remained in the hands of
Trustees who have always been Cutchi Memons. That, in short, is the history of
the commencement and the development of the Mosque and of the facts leading to
the present dispute.
The first point which has been pressed before
us by Mr. Setalvad is that the present suit is barred by reason of the fact
that in the earlier suit instituted under s. 92 of the Code a scheme had
already been framed by a court of competent jurisdiction and the decree by
which the said scheme wAs ordered to be drawn binds all parties interested in
the Trust. A suit under s. 92, it is urged, is a representative suit, and so,
whether or not the present respondents actually appeared in that suit, they
would be bound by the decree which had framed a scheme for the proper
administration of the Trust. In support of this argument, reliance is placed on
the decision of this Court in Raja Anandrao v. Shamrao (1), where it is
observed that though the Pujaris were not parties to the suit under s. 92, the
decision in that suit binds the pujaris as worshippers so far as the
administration of the temple is concerned, because a suit under s. 92 is a
representative suit and binds not only the parties thereto, but all those who
are interested in the Trust. Mr. Setalvad has also relied on the two decisions
of the Madras High Court, (1) in Ramados v. Hanumantha Rao (2) and (2) in Khaja
Hassaanullah Khan v. Royal Mosque Trust Board (3) . The effect of those two
decisions is that a decree passed in a suit filed under s. 92 framing a scheme
is binding on all and it prevents every person whether a party to the suit or
not from asserting in a subsequent suit rights which conflict with or attack
the scheme.
In assessing the validity of this argument,
it is necessary to consider the basis of the decisions that (1) (1961] 3 S.C.R.
930, 940. (2) (1911) I.L.R. 36 Mad.
(3) I.L.R. (1948) Mad. 257.
662 a decree passed in a suit under s. 92
binds all parties.
The basis of this view is that a suit under s
. 92 is a representative suit and is brought with the necessary sanction
required by it on behalf of all the beneficiaries interested in the Trust. The
said section authorises two or more persons having an interest in the Trust to
file a suit for claiming one or more of the reliefs specified in clauses (a) to
(h) of sub-section (1) after consent in writing there prescribed has been
obtained. Thus, when a suit is brought under s. 92, it is brought by two or
more persons interested in the Trust who have taken upon themselves the
responsibility of representing all the beneficiaries of the Trust.
In such a suit, though all the beneficiaries
may not be expressly impleaded, the action is instituted on their behalf and
relief is claimed in a representative character.
This position immediately attracts the
provisions of explanation VI to s. 11 of the Code. Explanation VI provides that
where persons litigate bona fide in respect of a public right 'or of a private
right claimed in common for themselves and others, all persons interested in
such right shall, for the purposes of this section, be deemed to claim under
the persons so litigating. It is clear that s. 1 1 read with its explanation VI
leads to the result that a decree passed in a suit instituted by persons to
which explanation VI applies will bar further claims by persons interested in
the same right in respect of which the prior suit had been instituted.
Explanation VI thus illustrates one aspect of constructive res judicata. Where
a representative suit is brought under s. 92 and a decree is passed in such a
suit, law assumes that all persons who have the same interest as the plaintiffs
in the representative suit were represented by the said plaintiffs and,
therefore, are constructively barred by res judicata from reagitating the
matters directly and substantially in issue in the, said earlier suit.
A similar result follows if a suit is either
brought or defended under O. I, r. 8. In that case, 663 persons either suing or
defending an action are doing so in a representative character, and so, the
decree passed in such a suit binds all those whose interests were represented
either by the plaintiffs or by the defendants. Thus, it is clear that in
determining the question about the effect of a decree passed in a
representative suit, it is essential to enquire which interests were
represented by the plaintiffs or the defendants. If the decree was passed in a
suit under s. 92, it will become necessary to examine the plaint in order to
decide in what character the plaintiffs had sued and what interests they had
claimed. If a suit is brought under O. 1 r. 8, the same process will have to be
adopted and if a suit is defended under O. 1 r. 8, the plea taken by the
defendants will have to be examined with a view to decide which interests the
defendants purported to defend in common with others. The decision of this
question would be material in determining the correctness of the argument urged
by Mr. Setalvad before us.
Let us, therefore, examine the plaint filed
in the earlier suit of 1924. Before filing the said suit, an application had
been made to obtain sanction of the Collector as required by s. 92. In that
application, the petitioners had specifically averred that the Masjid in
question was an ancient and important institution belonging to the Cutchi Memon
Community and there were properties attached to it worth over a lac of rupees :
the net income from them being about Rs. 2,400/per annum. On this basis, the
petitioners claimed that they were interested in the Trust and wanted a scheme
to be framed. It would thus be clear that the application for sanction
proceeded on the narrow and specific ground that the Mosque belonged to the
Cutchi Memon Community and the interest which the petitioners purported to
represent was the interest of the Cutchi Memon Community and no other, 664
After permission was obtained from the Collector, the suit was filed. In the
plaint, the same position was adopted.
It was averred that the Mosque had been
mainly founded by the Cutchi Memon Mohammadens residing at Bangalore and it was
alleged that the Mohmmaden communities other than the Cutchi Memon had
established other independent mosques for their use and benefit and for the
last over a century, the Cutchi Memons had been maintaining and managing the
said Mosque. The plaint further claimed that the plaintiffs as members of the
Cutchi Memon Community were interested in the proper management of the suit
Mosque and that as Mohammadens and members of the said Community they had the
right to perform therein their daily and usual prayers as well as funeral and
other special prayers. Consistently with this attitude, the plaint in its
prayer clause claimed, inter alia, that a scheme should be framed safeguarding
the rights and privileges of the Cutchi Memon Community. It is thus clear that
the plaint, like the application for the sanction 0f the Collector proceeded on
a clear and unambiguous basis that the Mosque belonged to the Cutchi Memon
Community and the suit was instituted only on behalf of the Cutchi Memon
Community by persons who claimed to be interested in the Mosque as Cutchi
Memons. There is, therefore, no doubt that the plaintiffs in the said suit did
not claim and in fact, did not represent the interests of any community other
than the Cutchi Memon Community. Once it is found as it has been in the present
case, that this basis of the claim made in the plaint was not well-founded and
that the Mosque belongs to all the Sunni Mohmmadens of Bangalore, it would be
difficult to accept the argument that the suit instituted on the narrow basis
to which we have just referred can be regarded as a representative suit so far
as the interest of Muslim Communities other than the Cutchl Memon Community
residing in Bangalore are concerned. These 665 who filed the said suit
expressly pleaded that no other community was concerned or interested in the
said Trust and, therefore, it would be idle for them now to contend that they
purported to represent the interests of the other communities.
It is true that defendants 1 to 7 who had
been impleaded in that suit were non-Cutchi Memons, but as we have already
observed, these defendants were sued as trespassers and their only interest in
defending the suit was to support their individual right to manage the
property. The written statements filed by them leave no doubt at all that they
did not purport to represent non-Cutchi Memons residing in Bangalore. Their
pleas centered round the rights which they claimed under the wills of Abdul
Gaffar. Similarly, the written statements filed by defendants 8 to 13 in that
suit cannot be pressed into service for supporting the argument that non-Cutchi
Memons' interests were represented. These defendants were Cutchi Memons and. in
substance, they agreed with the plaintiffs in that suit that the Mosque
belonged to Cutchi Memons alone. No doubt, they made some other pleas disputing
some of the allegations made in the plaints, but those pleas have no relevance
on the point with which we are concerned. It is thus clear that the allegations
made in the plaint, as well as the averments made by the respective defendants
in their written statements do not justify the contention that the earlier suit
was either filed by persons who could claim to represent non-Cutchi Memons, or
was defended by persons who could make a similar claim. If that be so, the very
basis on which the binding character of a decree passed in a suit under s. 92
of the Code rests disappears; we have already seen that the basis of the
principle that a decree under s. 92 suit binds all persons interested in the
trust, is that the interests of all persons interested in the Trust are
represented in the suit as required by 666 explanation VI to s. 11; and if that
basis is absent, the decree cannot create a bar of res judicata againt persons
claiming interest not represented in the earlier suit.
In the case of Raja Anandrao (1), this Court
has no doubt observed that a decree passed in a representative suit tinder S.
92 binds not only the parties thereto, but all those who are interested in the
Trust, and Mr. Setalvad has naturally relied upon this observation in support
of his plea of res judicata : but it would be unreasonable to treat the said
observation as laying down a broad and unqualified proposition like the one
which Mr. Setalvad had submitted before us. The context in which the
observation has been made must be borne in mind and that context clearly shows
that the earlier suit had been filed in respect of a Hindu Temple and it was
plain from the recitals in the plaint filed in that suit that the plaintiffs
who had brought the said suit represented the interests of all worshippers and
devotees of the said temple, including the worshippers who had brought the
subsequent suit. In other words, in accepting the plea that the subsequent suit
brought by the worshippers was barred by res judicata, this Court affirmed the
finding that the interests of the said worshippers had been represented in the
earlier suit, and so, it made no difference to the binding character of the
decree passed in that suit that the said worshippers personally did not appear
in the earlier litigation. This decision, therefore, proceeds on the basis that
the party who was held precluded from filing a subsequent suit was
constructively represented in the earlier litigation and the provisions of
explanation VI to s. 11 therefore, applied. It is thus clear that the
observations made in Raja Anandrao's case (1) do not support Mr. Setalvad's
contention in the present appeal.
(1) [1961] SS. C. R 930, 940.
667 That takes us to the next question as to
whether it would be appropriate to change the scheme in the present litigation
even though the present suit may not be technically barred by res judicata. Mr.
Setalvad contends that it is a wellrecognised principle of law that a scheme in
regard to a public trust once framed should not be altered lightheartedly
unless there are substantial reasons to do so and he has strenuously relied on the
finding of the High Court that the Trustees appointed under the scheme ever
since it was framed have, on the whole, managed the trust properties and its
affairs in a reasonable and responsible manner and that the allegations of
breach of trust which had been made against them in the present suit have been
held not to be proved by both the courts below. There can be no doubt that if a
scheme is framed in a suit brought under s. 92, it should not be changed unless
there are strong and substantial reasons to do so. This position is well
established and cannot and has not been disputed before us.
As observed by Halsbury, when a scheme has
been settled by the Charity Commissioners, the Court will not interfere with it
unless the Commissioners have acted ultra vires, or the scheme contains
something wrong in principle or in law, or by reason of changed circumstances,
the continuance of the charity under the constitution established by the scheme
has become impracticable. This principle was laid down as early as 1851 in the
case of the Attorney-General v. The' Bishop of Worcester (1), where it was held
that schemes which have been settled under the directions of the Court are not
to be disturbed upon merely speculative view or in matters of discretion or
regulation upon which judges or AttorneysGeneral may differ in opinion, or
except upon substantial grounds and clear evidence, not only that the scheme
does not operate beneficially, but that it can by alteration be made to do so
consistently with the object of the (1) [1831] 68 B. R. 539.
668 foundation. The same principle was
reiterated in 1872 in the case of Attorney-General v. Stewart (1).
There are, however, two considerations which
must be borne in mind in dealing with Mr. Setalvad's argument on this point. It
is not disputed that even after a scheme is framed in a suit properly
instituted under s. 92, if supervening considerations justify its alteration or
modification, the bar of re,,; judicata cannot then be pleaded against such
alteration or modification. Besides, in the present case, it has now been
discovered that the scheme framed in 1927 proceeded on the erroneous assumption
that the Mosque belonged to the Cutchi Memon Community and that the said
community alone was entitled to its exclusive administration. It may be that
the parties who conceded in that suit that the said assumption was right did
not collude, but, nevertheless, the said assumption has clearly introduced a
serious infirmity in the scheme. Speaking numerically, the interests of the non-Cutchi
Memons who numbered about 30,000 were ignored and attention was paid
exclusively to the interests of Cutchi Memons who never numbered more than 300.
Once it is found that the Mosque is a Central Mosque and the Dakkhani Muslims
residing in Bangalore were responsible for the constructions of the Mosque and
were vitally interested in offering worship in the Mosque and in taking part
in, the administration of the Mosque, its affairs and properties, it would be
difficult to resist the respondents' case that the scheme framed in 1927 must
be revised bearing in mind the interests of all those who are interested in the
Mosque. Therefore, we are satisfied that the High Court was right in coming to
the conclusion that 'the scheme must be revised on the true basis that the
Mosque does not belong exclusively to the Cutchi Memons, but belongs to all the
Sunni Musalmans of Bangalore.
(1) ( 1872) L. R. 14 Eq. Cases 17.
669 The next question which we have to
consider is whether it is necessary that the order of remand passed by the High
Court should be confirmed and the District judge directed to frame a new scheme
in the light of our decision. We are inclined to take the view that it is not
necessary to frame an entirely new scheme in the circumstances of this case. We
have already referred to the fact that the High Court was satisfied that the
scheme has worked, on the whole satisfactorily. We have examined the 25 clauses
of the scheme and have heard the learned counsel for both the parties in regard
to the modification's which these clauses may need and we are satisfied that if
suitable changes are made in clauses (iv), (v), (xxiv) and (xxv), that would
meet the requirements of justice and fair administration of the Mosque, its
affairs and its properties. Broadly stated, the scheme framed in 1927 provided
for the appointment of a Committee of five Trustees who were to hold office for
seven years commencing from the date on which the scheme came into force.
Clause (iv) then made a provision for the appointment of fresh Trustees at the
completion of the seven years' period prescribed by cl. (i). This clause reads
thus:,,Six months before the completion of the seven years mentioned above, the
committee of trustees shall prepare a list of male adult worshippers, and submit
the same to the Court within a month thereafter; and the Court shall as soon as
convenient nominate from among the worshippers a committee consisting of 15
worshippers. Each member of the committee of worshippers shall hold office for
ten years from the date of his appointment; and any vacancy arising among them
for any of the reasons specified in clause 3 supra shall be filled up by the
Court. And this committee shall elect from among their number 5 (five) persons
to 670 perform the duties of trustees after the expiry of seven years
aforesaid." Clause (v) which is also relevant reads thus:
"The trustees so elected shall hold
office for a term of five years and whenever any vacancy arises among the
elected trustees by reason of death or resignation or if any member shall be
absent from the Bangalore C & M Station for a continuous period of six
months, or be an un-discharged insolvent or be convicted of any criminal
offence involving moral turpitude or refuses or in the opinion of the Court
becomes unfit or incapable of acting as trustee or ceases to be a member of the
committee of worshippers the same shall be filled up by the committee of
worshippers, from amongst themselves the person so appointed to hold office for
the remaining period of five years.
The procedure described in clause (4) shall
be adopted for electing trustees for each successive period of five
years." It is obvious that clause (iv) has worked itself out; but it
provides for the basic structure for the appointment of Trustees, and we are
inclined to think that basic structure must now be alterad in view of the fact
that the number of worshippers is very much larger than was then assumed.
'Worshippers' in the context, would mean not
Musalmans who are entitled to offer worship, because that view would take in
Musalmans not only from Bangalore but from all over the country. The
'worshippers', in the context, should include persons who usually worship in
the said Mosque. In our opinion, it is not necessary to make any list of male
adult worshippers as provided by cl. (iv), nor should a Committee of
worshippers be appointed as contemplated by it. We think, it is desirable that
the appointment of 671 five trustees from time to time should be made by the
District judge from amongst the worshippers of the Mosque, the class of
worshippers being determined in the sense which we have just clarified It
appears that after the scheme came into force, trustees were appointed, when
necessary, by a kind of election. We have no doubt that this course should be
avoided. We would, therefore, insert in place of cls.
(iv) and (v), cl. (iv) in these words :
"The district judge of Bangalore should
nominate five persons from amongst male adult worshippers of the mosque as
trustees to look after the mosque, its affairs and its administration. The
trustees so nominated shall hold office for a term of five years and whenever
any vacancy occurs among them either by reason of death, or resignation, or
otherwise, the District.Judge shall fill that vacancy by nominating another
Trustee in that behalf. The remaining trustees will continue to function till
the vacancy is filled." The result would be that cl. (iv) & (v) as
they stand would be removed and cl.. (iv) as we have formulated will take their
place, and the remaining clauses will be renumbered accordingly.
Clause (xxiv) which gives the right to demand
copies of the rules and or translations thereof in Urdu language only to the
members of the cutchi Memon Community will now be available to all the Sunni
Musalmans residing in Bangalore.
Therefore, the modification in the clause
would be that in place of the words "any member of the Cutchi Memon
Community" shall be substituted the words "any Sunni Musalman of
Bangalore".
Clause (xxv) which enables the Trustees to apply
for advice or direction to the District Court as 672 occasion may arise, should
be so amended as to enable the Trustees or any person interested in the Trust
to apply for modification of the scheme. Clause (xxv) so amended would read
thus:"The Trustees. may apply for advice or direction, and the Trustees or
any person interested in the Trust may apply for modification of the scheme to
the District Court of the C & M Station, Bangalore, as occasion may
arise." By modifying the clause in this way, we wish to make it clear that
if in future an occasion arises for changing or altering the terms of the
scheme, it should not be necessary to file a separate suit.
Before we part with this appeal, there is one
point to which we may incidentally refer. During the course of the hearing of
this appeal, an argument was urged before us by both the parties as to the true
denotation of the word "worshippers" used in cl. (iv). Mr. Setalvad
contended that in the context of the pleadings filed by the parties in that suit
and in the light of cl. (xxiv), it was clear that the word
"worshippers" must mean only worshippers from the Cutchi Memon
Community. If that argument is upheld, it would emphatically bring out the fact
that in the suit, the only interest that was represented was that of the Cutchi
Memons and that would clearly help to negative the plea of res judicata. On the
other hand, if the word "worshippers" received a larger denotation,
it may show that the scheme binds all the worshippers interested in the Trust, but
it would immediately raise the question of clarification of the scheme because
in the administration of the scheme, the word "worshippers" has
consistently received the narrow interpretation, and the Trustees as well as
the committee of worshippers has always been constituted out of members of the
Cutchi Memon Community and no others, so that on this 673 alternative basis,
the plea of res judicata may be upheld ;
but an occasion will clearly arise for either
clarifying the scheme or medically changing it so as to make the other
worshippers eligible for appointment as Trustees.
In the result, we reject all the contentions
raised by the appellants and confirm the findings recorded by the High Court in
favour of the respondents. We are, however, not inclined to affirm the order of
remand passed by the High Court, because we have held that the scheme framed in
1927 should be left as it is with the modifications which we have indicated in
our judgment. Therefore, the order of remand passed by the High Court is
reversed and the respondents' claim for a modified scheme allowed. The appeal
is dismissed with the above modifications. The appellants will pay the costs of
the contesting respondents throughout.
Back
