Case: Sugra Bibi Vs. Hazi Kummu Mia

1. Late Haji Elahi Bux had one son named Mohammed Shafi and had one daughter. The appellant is the widow of the said Mohammed Shafi. The respondent who is a nephew of Haji Elahi Bux, married his daughter. The said Haji Elahi Bux carried on a shoe business under the name and style of "S. Mohd. Shafi Kammu Mian." He executed a wakf deed dated November 18, 1936 in respect of his property and appointed his son Mohammed Shafi and his son-in-law, the respondent as the joint Mutwallis. According to the terms of the Wakf deed on the death of a joint Mutwalli, the survivor was to be the sole Mutwalli and had the power to nominate his successor from the family line of the settlor. And in case the sole Mutwalli died without nominating his successor, the seniormost member among the lineal descendants of Mohammed Shafi and Kammu Mia, if otherwise competent, was entitled to hold the office of Mutwalli. Mohammed Shafi died on December 20, 1960, and thereafter the respondent became the sole surviving Mutwalli. The appellant filed a suit on July 7, 1961 in the Court of Assistant to the Deputy Commissioner, United Khasi and Jaintia Hills, Shillong, against the respondent for a declaration that the respondent was unfit to continue as Mutwalli of the Wakf estate and that he should be removed from the office of Mutwalli and that Soleman the son of the plaintiff through Mohammed Shafi be declared fit and be appointed as Mutwalli of the Wakf estate and till he attained majority a suitable Receiver should be appointed for the said Wakf estate. The respondent contested the suit on the ground that sanction of the Advocate-General was not obtained under Section 92, Civil Procedure Code and the suit was therefore not competent. By its order dated October 3, 1961, the trial Court decided that the suit was not affected by the provisions of Sec. 92, Civil Procedure Code and held that the suit was competent. The trial Court also ordered the removal of the respondent from the office of the Mutwalli pending disposal of the suit. The respondent filed an appeal in the Court of Deputy Commissioner, United Khasi and Jaintia Hills, Shillong but the appeal was dismissed. The respondent took the matter in revision before the High Court of Assam. By its judgment dated September 3, 1963, the High Court allowed the revision petition and held that the suit was not maintainable in view of the provisions of Section 92, Civil Procedure Code.

Reasoning: 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.