Case: Sugra Bibi Vs. Hazi Kummu Mia

of certain debts and thereafter to establish a Chatram for the feeding of the poor. There was a further provision that after the wifes death, two-thirds of the income given to her would be applied to charity and one-third to the members of the family. On these facts the Judicial Committee agreed with the findings of the Court below that the Chatram so established was a public trust.8. It was, however, contended on behalf of the appellant that the suit was brought not to vindicate or to establish a right of the public institution i.e., the trust, but to remedy an infringement of an individual right or to vindicate the private right of the appellant. It was said that the suit was therefore not within the purview of Section 92 of the Civil Procedure Code. The argument was stressed that in deciding whether Section 92. Civil Procedure Code is attracted the Court must go beyond the reliefs prayed for and have regard to the capacity in which the plaintiff is suing and for the purpose for which the suit is brought. For the respondent it was pointed out that the reliefs sought for by the appellant in the present suit are exactly those contemplated by Section 92 of the Civil Procedure Code. The reliefs prayed for are: (1) removal of the respondent from the office of Mutwalli and appointment of soleman, appellants son, as Mutwalli in his place, and(2) till the said Soleman attains majority appointment of a Receiver for the management of the Wakf estate. It is true that the facts that a suit relates to public trust of a religious or charitable nature and the reliefs claimed fall within Clauses (a) to (h) of sub-section (1) of Section 92. Civil Procedure Code would not by themselves attract the operation of the Section unless the suit is of a representative character instituted in the interests of the public and not merely for vindication of the individual or personal rights of the plaintiff. As was stated by Woodroffe. J., in Budreedas v. Choonilal, (1906) ILR 33 Cal 789 at p. 807:"It is obvious that the Advocate-General, Collector or other public officer can and do sue only as representing the public, and if, instead of these officers, two or more persons having an interest in the trust sue with their consent, they sue under a warrant to represent the public as the objects of the trust. It follows from this, that when a person or persons sue not to establish the general rights of the public, of which they are a member or members, but to remedy a particular infringement of their own individual right, the suit is not within or need not be brought under the section."9. This principle was accepted as sound by a Full Bench of the Madras High Court in Appanna v. Narasingha, ILR 45 Mad I13 =(AIR 1922 Mad 17 ) (FB). In that case, a suit was instituted by a trustee of a public religious trust against a cotrustee for accounts and the Full Bench decided that it did not come within Section 92 of the C. P. Code, the claim being to enforce a purely personal right of the plaintiff as a trustee against his co-trustees. The same view was taken by the Madras High Court in Tirumalai Tirupati Devasthanams Committee v. U. Krishnayya Shambhaga, ILR (1943) Mad 619 = (AIR 1943 Mad 466 ) (FB). In this case the general trustees of a public temple filed a suit against the trustees for the recovery of moneys which the latter had collected on behalf of the former praying for a decree directing accounts and inquiries. It was held that the right to collect moneys was entirely independent of Section 92 of the Civil Procedure Code and no sanction of the Advocate-General was necessary for the institution of the suit. Leach, C. J., who delivered the judgment of the Court observed as follows :-"After hearing the arguments of learned Counsel in the present case we can see no reason for disagreeing with anything said in Shanmukham Chetty v. Govinda Chetty, ILR (1938) Mad 39 = (AIR 1938 Mad 92 ). On, the other hand we find ourselves in full agreement with the opinion of Varadachariar, J., that, in deciding whether a suit falls within Section 92, the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit is brought. The judgment of the Privy Council in Abdur Rahim v. Mahomed Barkat Ali, ILR 55 Cal 519 = (AIR 1928 PC 16 ) lends no support for the opinion expressed by the Full Bench in Janaki Bai v. Thiruchitrambala Vinayakar, ILR 58 Mad 988 = (AIR 1935 Mad 825 ) (FB)."10. Applying the principle laid down in these authorities, we are of opinion that in the present case the suit brought by the appellant must be treated as a suit brought by her in a representative capacity on behalf of all the beneficiaries of the Wakf. As we have already stated, the Wakf created by Haji Elahi Bux was a Wakf created for a public purpose of charitable or religious nature. The reliefs claimed by the appellant in the suit are not reliefs for enforcing any private rights but reliefs for the removal of the defendant as trustee and for appointment of a new trustee in his place. The reliefs asked for by the appellant fall within cls. (a) and (b) of Section 92 (1) of the Civil Procedure Code and these reliefs claimed by the appellant indicate that the suit was brought by the appellant not in an individual capacity but as representing all the beneficiaries of the Wakf estate. We are accordingly of the opinion that the suit falls within the purview of the provisions of Section 92, Civil Procedure Code and in the absence of the consent in writing of the Advocate-General the suit is not maintainable.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. It is evident that this Section has no application unless three conditions are fulfilled: (1) the suit must relate to a public charitable or religious trust, (2) the suit must be founded on an allegation of breach of trust or the direction of the Court is required for administration of the trust, and (3) the reliefs claimed are those which are mentioned in the section.It was, however, contended on behalf of the appellant that the suit was brought not to vindicate or to establish a right of the public institution i.e., the trust, but to remedy an infringement of an individual right or to vindicate the private right of the appellant. It was said that the suit was therefore not within the purview of Section 92 of the Civil Procedure Code. The argument was stressed that in deciding whether Section 92.Applying the principle laid down in these authorities, we are of opinion that in the present case the suit brought by the appellant must be treated as a suit brought by her in a representative capacity on behalf of all the beneficiaries of the Wakf. As we have already stated, the Wakf created by Haji Elahi Bux was a Wakf created for a public purpose of charitable or religious nature. The reliefs claimed by the appellant in the suit are not reliefs for enforcing any private rights but reliefs for the removal of the defendant as trustee and for appointment of a new trustee in his place. The reliefs asked for by the appellant fall within cls. (a) and (b) of Section 92 (1) of the Civil Procedure Code and these reliefs claimed by the appellant indicate that the suit was brought by the appellant not in an individual capacity but as representing all the beneficiaries of the Wakf estate. We are accordingly of the opinion that the suit falls within the purview of the provisions of Section 92, Civil Procedure Code and in the absence of the consent in writing of the Advocate-General the suit is not maintainable.