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TMI Blog1941 (8) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... engal, defendant 7. The case made in the plaint was to the following effect : In, the year 1806, Haji Mohammad Mohsin, a Shia Mussalman created by deed a wakf of extensive properties embracing a zemindary estate in Jessore known as the Syedpur estate, the Imambara building, and bazar land in Hooghly. The wakfnamai allocated the income between certain objects in the following properties: Three-ninths for the expenses of religious ceremonies in the imambara, and for repairs to the imambara and to a cemetery; 2. Two-ninth as the remuneration of two mutwallis; 3. Four-ninth for the upkeep of the establishment, salaries of servants, and monthly stipends to certain specified persons. 4. The wakif died in 1813. In 1818 the Board of Eevenue, Bengal, purporting to act under Regn. 19 of 1810 took possession of the Syedpur Trust estate. In 1835 the Government of India apportioned the income in a certain manner. In 1875 the Board of Revenue purporting to act under Act 20 of 1863 (The Beligious Endowments Act), assumed power of disposal over the usufruct of the wakf estate, and diverted five-ninths of the income to purposes foreign to those of the wakf. The Government of Bengal purporting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1939 respectively three applications were filed for permission to amend the plaint. Paragraph 1 of each of these applications contained the following statement: That it appears that in the cause title of the above suit the plaintiffs have not been described in their representative capacity although from the body of the plaint it appears that they are suing not only in their individual capacity but also on behalf of the members of the Shia Community. 6. The plaintiffs in these applications prayed for the insertion of the words "for self and on behalf of the members Of the Shia community" after the word "plaintiff" in the cause title, and for insertion of the words "as members of the Shia community" in para. 11 after the word "plaintiffs." The question of amendment and the pleas in bar were heard together on 25th March 1939. The learned Subordinate Judge held that the suit was barred under Section 92 of the Code as the consent of the advocate general had not been obtained before the institution of the suit, and the suit had not been instituted in the proper Court. He further held that the suit had not been validly instituted in as much as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly indicating that the Imambara is a private Imambara, and that the trust is for the members of the sub-sect of Shias to which the founder belonged; We may say at once that we are satisfied that there are no such words in the deed, The second paragraph opens with the words: Whereas I have neither children nor grandchildren nor other relatives who would be my legal heirs and whereas it is my earnest wish to keep up and continue the ceremonies and the expenses that are good and have been all along prevailing in this family such as Fatiha of Hazarat (on them be peace and blessings) and other ceremonies besides these I therefore do hereby dedicate purely for the sake of God all the above properties...as a permanent wakf for the expenses, details of which are given herein.... 8. The second paragraph contains the words: The abovenamed mutwallis after paying the Government revenue shall divide the remaining proceeds of the said Mahals into nine shares, three shares of which they shall first of all disburse in Fatiha ceremonies of the Head of the creation, the last of the Prophets and of the sinless Imams (on all of them be the blessings and peace of God) and in the expenses app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aith of the wakif and his community." Paragraph 9 states that "the interest of the Shia Muslims, who are the beneficiaries of the aforesaid wakf have suffered greatly. In prayer (a) of the plaint a declaration is asked for that the wakf "was meant for the upkeep of the Mohsinya Imambara at Hughly, the ceremonies and functions observed therein according to the Shia faith and for the benefit of the Shia community." It is reasonably clear that one of the main purposes of the suit was to establish the exclusive right of the Shia community to the benefit of the founder's bounty. As laid down in Delroos Bano Begum v. Nawab Syud Asngur Ally Khan ('75) 15 Beng. L.R. 167 at p. 184, "A public endowment for religious uses is one which distributes its benefits to all men of all classes professing a defined form of religion." 12. We have been invited to remand the case in order to enable the Court below to determine whether this is a suit in respect of a public trust, for it is said that there are no materials on the record to enable this Court to decide that question. It was never argued in the trial Court that this was not a suit in respect of a public t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set out before. 14. Prayer (a) is for a declaration of a comprehensive character which must extend to saying "that it was not intended by the wakif that any portion of the wakf be spent on secular uses." Prayer (b) is for an injunction to compel the Province of Bengal to act in accordance with this declaration. The effect of these two prayers is to ask for a direction which will prevent Government from appropriating any portion of the income for secular purposes, and which will compel it to spend the entire usufruct on the upkeep of the Imambara, on the ceremonies and functions observed therein, and for the benefit of the Shia community. As secular uses are to be denied "the benefit of the Shia community," presumably means those benefits which the members of that community may derive from the upkeep of the Imambara and the ceremonies and functions observed therein according to the Shia faith. Admittedly, the relief sought does not come under Clauses (a), (b), (c), (d), (f) or (g). On behalf of the appellants, it has been contended that it cannot be considered to be a relief within Clause (e) or even Clause (h). The former clause is in these terms "declarin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case come within Clause (h) as being a relief of the same nature as the reliefs indicated in Clauses (a) to (g)? The ejusdem generis doctrine-has been described in the words of Lopes L.J. in Smelting Co. of Australia v. Commissioners of Inland Revenue (1897) 1 Q.B. 175 as meaning, "that where general words immediately follow or are closely associated with specific words, their meaning must be limited by reference to the preceding words" Here attention has to be directed to the words of Clause (e) set out above. Is the relief asked for of the same nature as the apportioning of the income of property between particular objects 1 That is not what is asked for, but it is prayed that Government be compelled to cease spending the income of this wakf on secular objects, and be directed to apply the entire income to religious purposes upon which at the present time, only a portion of that income is being expended. In our judgment the one act would be in its nature, and probably also in its method of execution, essentially similar to the other act. Government has been doing something which has caused a diversion of the income to secular objects. Government is now to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way curtail that right. As Section 539 of the old Code which has been replaced by Section 92 of the present Code, was amended so as to apply to trusts for religious purposes in the year 1882, the section cannot apply to the present suit which concerns exclusively religious purposes. It is further urged that the prohibition ? contained in Sub-section (2) of Section 92 does not affect this suit because that sub-section was first enacted in the Code of 1908. These propositions are sought to be supported upon the principle enunciated in Abdur Rahim v. Abu Mahomed Barkat Ali Shah ('28) 15 A.I.R. 1928 P.C. 16, and referred to above, that it is unlikely that in a Code regulating procedure the legislature intended without express words to abolish substantive rights which existed at that time. 19. We cannot assent to the proposition that the cause of action in the present suit arose when Government first intervened in the administration of the trust. That question has to be determined in the first instance by what is stated in the plaint. In the plaint in this suit there is no indication of the time when the cause of action first arose, and no relief is prayed for in respect of the pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, i.e., strangers to the trust. They are aware that the Courts in India have differed considerably on the question whether third parties could or should be made parties to a suit under Section 539, but the general current of decisions was to the effect that I even if such third parties could properly be made parties under Section 539, no relief could be granted as against them. In that state of the previous law, their Lordships cannot agree that the Legislature intended to include relief against third parties in Clause (h) under the general words "further" or other reliefs. 22. In our judgment, the appellants have failed to make out a case for holding that the cause of action upon which this suit was founded was a right which was in existence prior to 1882, or that if it so existed, it was not affected by the amendments of the Code which took place in that year and in the year 1908. It was then argued that whatever other character this suit may bear, it is nevertheless a suit in which the plaintiffs seek to establish their individual right to something, and that to that extent it is not a suit governed by Section 92. The argument was somewhat involved, but if we have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Subordinate Judge has held that the consent required by this sub-section is not a necessary condition for the validity of the suit because there is no denial of the statement in para. 11 of the plaint that the Commissioner of Wakfs, Bengal, is not directly in charge of this wakf. There is nothing however in the section, to indicate that the wakf must be in the direct charge of the Commissioner, and we are of the opinion that as Section 92, Civil P.C., applies this suit is also barred by Section 73(2), Bengal Waqfs Act. The appeal accordingly fails and is dismissed with costs. R.C. Mitter, J. 25. I agree but I wish to say a few words on the question as to whether the suit is barred by the provisions of Section 92, (2), Civil P.C., in view of the fact that the consent in writing of the Advocate. General or of the Local Government has not been obtained by the plaintiffs. This question depends upon the following considerations, namely, (1) Whether the suit is in substance one which falls within Sub-section (1) of that section and (2) whether Sub-section (2) thereof is applicable. As the suit was decided in the Court, below on preliminary issues pleaded in bar we must procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion, e.g., Shias or even a subseet of Shias, would not make any difference in the matter and would not make the wakf a trust of a private character. The observations in the following cases, and many others which I need not refer to, support the view I am taking : Puran Atal v. Darshan Dass ('12) 34 All. 468 at p. 473; Md. Kazim v. Abi Saghir ('32) 19 at, Dhoribhai v. Pragdasji ('38) 25. 29. The learned advocate for the plaintiffs appellants has also contended before us that for deciding the question as to whether the wakf in question is a public or a private one we must construe the wakfnama also, because it is a part of the plaint. On the wakfnama his contention is that it is a private one, for according to him the purpose was to maintain the family rites and religious ceremonies of the wakif in his private Imambara and to provide pensions to some named individuals on whose death the money ear-marked for them was to be spent on those religious ceremonies only. I cannot accept this construction of the wakfnama. In the first place the religious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, may be, has an individual persona right in a public trust, which is alleged to have been, infringed by the trustee one important test is, whether, apart from" the Infringement of the rights of the general body, there is; some damage special to the plaintiff in which the other members of the general body are not concerned. In the plaint there is no allegation of such special damage. No allegation that the plaintiffs, have been prevented by the defendants or any one of them from taking part in thee rites and, ceremonies performed in the Imambara, or from joining the congregational prayers or from participating in the hissyas and rewards flowing from the institution. Even assuming that individual rights of the five plaintiffs have been asserted in para. 11, no infringement of those rights is pleaded and no relief in respect of the same has been prayed for in the plaint. If the plaintiffs had claimed relief for the infringement of their individual rights, that part of their suit would not have been affected by the bar imposed by Section 92, but the reliefs prayed for by the plaintiffs indicate conclusively that it is only a suit by the plaintiffs in their representative cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of money can only be applied to religious purposes only. They want a declaration from the Court to that effect and further pray for an order from the Court directing the trustees to spend the income on religious purposes only. In substance they want the trust to be managed in a certain way and they want in substance the application of the cy-pres doctrine to the surplus income. I consider the essence of the Clause (e) as also of Clause (g) to be directions from the Court concerning the management of the trust. A direction that in the administration of the trust the trustee should do a certain thing or abstain from doing a certain thing is not alien to a scheme of management. The reliefs claimed in this suit therefore come within Clause (h) of Section 92 (1). I do not consider it to be a sound argument at all that Clause (h) contemplates a general prayer in addition to one or some of the prayers mentioned in Clauses (a) to (g) that must be made in the plaint. This contention is against the construction put upon Clause (h) by the Judicial Committee of the Privy Council in Abdur Rahim v. Abu Mahomed Barkat Ali Shah ('285) 15 A.I.R. 1928 P.C. 16. As I understand the judgment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is. 34. The next line of argument is that Sub-section (2) of Section 92 bars only those suits falling within Sub-section (1) in which any of the reliefs mentioned in Clauses (a) to (g) are claimed. It is said that if the relief claimed therein comes only within the general Clause (h), Sub-section (2) would not be a bar. For this argument stress is laid on the word "specified" used in Sub-section (2). My learned brother has dealt in detail with this part of the argument of the appellants' advocate. I do not wish to repeat his reasons with which I concur. I wish only to point out that if the construction sought to be put upon that sub-section by the appellants' advocate had been correct, it would not have been at all necessary for the Bight Hon'ble Lord Sinha to examine whether the relief claimed in 55 I. A. 96,2 could come within Clause (h) of Section 92(1). The last two paragraphs at the bottom of p. 102 of Abdur Rahim v. Abu Mahomed Barkat Ali Shah ('285) 15 A.I.R. 1928 P.C. 16 imply that the Judicial Committee of the Privy Council considered the phrase "reliefs specified in Sub-section (1)" occurring in Sub-section (2) to cover not only the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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