M.I Kadri v. Khubmiya Mahomedmiya ., Bombay High Court, Judgment, Law, casemine.com

Factual and Procedural Background

The Government-appointed committee to manage Mussalman wakf properties in Ahmedabad applied for the removal of the trustees (mutawallis) of the Shah Khub mosque in Ahmedabad. A scheme governing the mosque had been framed by the District Court in Suit No. 11 of 1898; the present applicants were not parties to that original suit. Two rules of the scheme were highlighted: Rule 1 (appointing the defendants and their heirs as trustees/managers during good conduct) and Rule 6 (stating the rules were subject to such modifications or additions as the Court might from time to time make).

An application (No. 254 of 1913, heard on 19 January 1916) sought additions to the rules; the District Judge made some additions but declined to remove the trustees. In First Appeal No. 139 of 1916, Batchelor, J. observed that if further trouble continued, the District Judge might consider removal of the mutawallis on a properly based application by persons prejudicially affected by laxity of management. Other earlier applications to the District Court (Nos. 201 of 1903, 96 of 1907 and 386 of 1908) were noted to indicate the practice of entertaining applications for modification or alteration of schemes.

The learned First Class Subordinate Judge disagreed with the view taken in Abdul Hakim Baig v. Burramiddin (as being inconsistent with a Bombay view in Damodarbhat v. Bhogilal), and held that applicants not parties to the suit had no right to apply for modification of the scheme and that consent of the Collector or the Advocate-General was necessary. The High Court (Patkar, J. and Broomfield, J.) considered these contentions and the applicable legal authorities and ultimately dismissed the appeal, while leaving applicants free to pursue applications under procedural provisions in the lower court.

Legal Issues Presented

Whether a court may, on application, modify a scheme framed under representative suit proceedings and, if so, whether that power extends to providing for or effecting the removal of trustees (mutawallis).

Whether persons who were not parties to the original representative suit may apply for modification of the scheme (including being brought on record under Order I Rule 10), and whether such addition requires the consent of the Advocate‑General or Collector.

Whether the order of the First Class Subordinate Judge refusing the requested relief is appealable to the High Court or otherwise subject to revision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Abdul Hakim Baig v. Burramiddin	The First Class Subordinate Judge held a view (not specified in detail in this opinion) which he did not agree with in contrast to the Bombay view in Damodarbhat v. Bhogilal.	The High Court notes that the First Class Subordinate Judge did not agree with this authority; the court (Broomfield, J.) stated they were not prepared to follow Abdul Hakim Baig and a related Madras authority on the main competency question.
Damodarbhat v. Bhogilal	Expresses the Bombay view that the remedy of applicants is to make an application for modification/alteration of the scheme to include provisions (for example, for removal of trustees).	The First Class Subordinate Judge followed this Bombay view. The High Court observed that the subordinate judge had followed Damodarbhat and did not find that he had failed to exercise jurisdiction; this influenced the decision to dismiss the appeal.
Chandraprasad v. Jinabharthi (Chandraprasad v. Jina-bharthi)	Holds that (a) a rule in a scheme giving liberty to apply for modification is not ultra vires, and (b) where such a rule exists it is permissible to apply for modification without the consent of the Advocate-General; also supports that a suit does not necessarily end with settlement of the scheme under Section 92 and that further applications to modify the scheme may be made.	The court relied on this decision to conclude that applications for modification may be made without Advocate‑General's consent and that applicants not formally parties might be brought on record under Order I Rule 10; it informed the view that the lower court's scheme could be amended by the District Judge in his discretion.
Chhabile Ram v. Durga Prasad	Held that where a person who was a party to such a suit dies, a person seeking to be brought on the record as successor must obtain the consent of the Advocate-General.	The opinion recounts this authority as adopting a contrary rule to the Madras and other High Courts; the High Court distinguished and declined to treat that decision as controlling for the present case.
Parameswaran Munpee v. Narayanan Namboodri (Madras)	Held the Court has power under Order I Rule 10(2) to add other persons interested in the trust as parties (not merely as legal representatives of deceased plaintiffs) and that consent of the Advocate‑General to such additions is not necessary.	The High Court noted this Madras view and treated it as persuasive; it cited this decision as supporting the proposition that consent of the Advocate‑General is not required to bring interested persons on record.
Gopi Das v. Lal Das (Lahore High Court)	Followed the Madras view that consent of the Advocate‑General is not necessary to add interested persons.	The High Court cited this decision as further support for the position that the consent of the Advocate‑General is not a prerequisite.
G.E Dooply v. M.E Moolla (Rangoon High Court)	Also followed the Madras view regarding addition of interested persons without Advocate‑General consent.	Referenced as another authority aligning with the Madras approach; used to support the court's conclusion on the permissibility of bringing applicants on record without Advocate‑General consent.
Anand Rao v. Ramdas Daduram (Judicial Committee)	Expressed a view consistent with the Madras/Lahore/Rangoon approach on adding interested persons and the non-necessity of Advocate‑General consent.	The Judicial Committee's view was cited as aligning with the position that consent is not necessary, reinforcing the High Court's view on this procedural matter.
Jeranehod v. Dakore Temple Committee	Held that the order passed by the learned Subordinate Judge was not an order in execution under Section 47 of the Civil Procedure Code.	The High Court applied this authority to conclude that the subordinate judge's order did not amount to an execution order under s.47 CPC, which bore on the question of appealability and available remedies.
Lambodar v. Dharonidhar	Held that no appeal lies to the High Court from an order passed by the District Judge as a persona designata under a scheme for management of a charitable institution; but noted an exception where the District Judge refused to exercise functions or completely failed to exercise discretion.	The court applied this precedent to find that the present appeal should be dismissed, since it was not satisfied the subordinate judge had failed to exercise jurisdiction or discretion as to warrant interference.
Veerara-ghavaohariar v. Advocate‑General, Madras	Cited alongside Abdul Hakim Baig as an authority the court was not prepared to follow on the competency question.	The High Court indicated it would not follow these Madras authorities on the main question of whether a court may modify a scheme and entertain applications by persons not original parties.
Prayag Doss Ji Varu, Mahant v. Tirumala Srirangacharlavaru	Example of a scheme providing expressly for applications by persons interested (not necessarily original parties).	Cited by Broomfield, J. to show that schemes may expressly permit applications by persons interested and therefore need not be restricted to original parties.

Precedent

Rule or Principle Cited For

Application by the Court

Abdul Hakim Baig v. Burramiddin

The First Class Subordinate Judge held a view (not specified in detail in this opinion) which he did not agree with in contrast to the Bombay view in Damodarbhat v. Bhogilal.

The High Court notes that the First Class Subordinate Judge did not agree with this authority; the court (Broomfield, J.) stated they were not prepared to follow Abdul Hakim Baig and a related Madras authority on the main competency question.

Damodarbhat v. Bhogilal

Expresses the Bombay view that the remedy of applicants is to make an application for modification/alteration of the scheme to include provisions (for example, for removal of trustees).

The First Class Subordinate Judge followed this Bombay view. The High Court observed that the subordinate judge had followed Damodarbhat and did not find that he had failed to exercise jurisdiction; this influenced the decision to dismiss the appeal.

Chandraprasad v. Jinabharthi (Chandraprasad v. Jina-bharthi)

Holds that (a) a rule in a scheme giving liberty to apply for modification is not ultra vires, and (b) where such a rule exists it is permissible to apply for modification without the consent of the Advocate-General; also supports that a suit does not necessarily end with settlement of the scheme under Section 92 and that further applications to modify the scheme may be made.

The court relied on this decision to conclude that applications for modification may be made without Advocate‑General's consent and that applicants not formally parties might be brought on record under Order I Rule 10; it informed the view that the lower court's scheme could be amended by the District Judge in his discretion.

Chhabile Ram v. Durga Prasad

Held that where a person who was a party to such a suit dies, a person seeking to be brought on the record as successor must obtain the consent of the Advocate-General.

The opinion recounts this authority as adopting a contrary rule to the Madras and other High Courts; the High Court distinguished and declined to treat that decision as controlling for the present case.

Parameswaran Munpee v. Narayanan Namboodri (Madras)

Held the Court has power under Order I Rule 10(2) to add other persons interested in the trust as parties (not merely as legal representatives of deceased plaintiffs) and that consent of the Advocate‑General to such additions is not necessary.

The High Court noted this Madras view and treated it as persuasive; it cited this decision as supporting the proposition that consent of the Advocate‑General is not required to bring interested persons on record.

Gopi Das v. Lal Das (Lahore High Court)

Followed the Madras view that consent of the Advocate‑General is not necessary to add interested persons.

The High Court cited this decision as further support for the position that the consent of the Advocate‑General is not a prerequisite.

G.E Dooply v. M.E Moolla (Rangoon High Court)

Also followed the Madras view regarding addition of interested persons without Advocate‑General consent.

Referenced as another authority aligning with the Madras approach; used to support the court's conclusion on the permissibility of bringing applicants on record without Advocate‑General consent.

Anand Rao v. Ramdas Daduram (Judicial Committee)

Expressed a view consistent with the Madras/Lahore/Rangoon approach on adding interested persons and the non-necessity of Advocate‑General consent.

The Judicial Committee's view was cited as aligning with the position that consent is not necessary, reinforcing the High Court's view on this procedural matter.

Jeranehod v. Dakore Temple Committee

Held that the order passed by the learned Subordinate Judge was not an order in execution under Section 47 of the Civil Procedure Code.

The High Court applied this authority to conclude that the subordinate judge's order did not amount to an execution order under s.47 CPC, which bore on the question of appealability and available remedies.

Lambodar v. Dharonidhar

Held that no appeal lies to the High Court from an order passed by the District Judge as a persona designata under a scheme for management of a charitable institution; but noted an exception where the District Judge refused to exercise functions or completely failed to exercise discretion.

The court applied this precedent to find that the present appeal should be dismissed, since it was not satisfied the subordinate judge had failed to exercise jurisdiction or discretion as to warrant interference.

Veerara-ghavaohariar v. Advocate‑General, Madras

Cited alongside Abdul Hakim Baig as an authority the court was not prepared to follow on the competency question.

The High Court indicated it would not follow these Madras authorities on the main question of whether a court may modify a scheme and entertain applications by persons not original parties.

Prayag Doss Ji Varu, Mahant v. Tirumala Srirangacharlavaru

Example of a scheme providing expressly for applications by persons interested (not necessarily original parties).

Cited by Broomfield, J. to show that schemes may expressly permit applications by persons interested and therefore need not be restricted to original parties.

Court's Reasoning and Analysis

The High Court's analysis proceeded in several linked steps, drawing on the terms of the existing scheme, prior practice, and authorities on representative suits and the amendment/addition of parties:

Interpretation of scheme rules: The court observed Rule 6 ("these rules shall be subject to such modifications or additions as this Court may from time to time see fit to make") and treated that clause as a liberty to apply for modification. On the basis of the decision in Chandraprasad v. Jinabharthi, the court held that such a rule is not ultra vires and that where such a rule exists it would be permissible to apply for modification without the consent of the Advocate‑General.

Two principal difficulties: The court identified two obstacles to the applicants' present application: (a) the applicants were not parties to the original representative suit in which the scheme was settled; and (b) the scheme did not expressly provide for removal of trustees.

On who may apply: The court reasoned that the proper persons who can apply under the liberty reserved in the scheme are generally the parties to the suit. However, where the original parties are dead, colluding, or negligent in applying, the court may in its discretion bring the applicants on the record under Order I Rule 10. The court expressly stated that for such an application the consent of the Advocate‑General is not necessary, relying on precedents (including Madras, Lahore, Rangoon and Judicial Committee authorities) that support adding interested persons without such consent.

On amendment of the scheme: The court held that applicants may apply to the lower court for amendment of the scheme to include a provision for removal of trustees if necessary, but whether such an amendment should be allowed is within the discretion of the District Judge under the scheme.

On appealability and revision: Considering authorities such as Jeranehod and Lambodar, the court concluded that the Subordinate Judge's order was not an execution order under s.47 CPC and that no appeal lay under the circumstances. The court also noted an exception indicated in Lambodar where intervention might be proper if the District Judge entirely failed to exercise discretion, but found no such failure on the facts of the present case.

Broomfield, J.'s additional observations: Broomfield, J. agreed generally with Patkar, J.'s conclusions, restating support for the view in Chandraprasad that the court can entertain applications to modify schemes. He expressed that the subordinate judge could have permitted amendment of the application to pray for modification providing for removal of trustees and concurred that bringing applicants on record ex majore cautela was desirable while recognizing legal doubt on whether the suit remains perpetually pending.

Holding and Implications

HOLDING: The appeal was dismissed. The High Court declined to interfere in revision with the order of the lower court and dismissed the appeal with costs.

Implications:

The direct effect is that the High Court refused to grant the relief sought on appeal and did not disturb the First Class Subordinate Judge's order.

The court left the applicants with an available procedural route: they may apply to the lower court under Order I Rule 10 to be brought on the record as persons interested in the representative suit and may apply for amendment or alteration of the scheme (for example, to include a provision for removal of the trustees). Whether such amendment should be allowed remains within the district judge's discretion.

The High Court indicated its view that the consent of the Advocate‑General or the Collector is not necessary for an application to be brought on the record under Order I Rule 10 in circumstances where the applicants are truly persons interested in the trust; the court relied on several authorities supporting that position. However, the judgment does not purport to lay down a novel binding rule beyond its holdings on the facts; it mainly clarifies the procedural remedies available to interested persons and affirms the discretionary role of the District Judge in allowing amendments to a scheme.

V.B/R.K

Disposition: Appeal dismissed.

M.I Kadri v. Khubmiya Mahomedmiya .

Patkar, J.:— In this case an application was made by the committee appointed by Government to manage the Mussalman wakf properties in Ahmedabad city for the removal of the trustees of the mosque of Shah Kubh situated in the city. A scheme with regard to this religious institution was framed by the District Court in Suit No. 11 of 1898, but the applicants were not parties to the original suit. Rr. 1 and 6 of the scheme were as follows:

“1. The defendants and their heirs shall during their good conduct he the trustees and the manager of the Shah Khub mosque and of the property belonging to the said mosque including the shops described in the plaint.

“6. These roles shall be subject to such modifications or additions as this Court may from time to time see fit to make.”

2. An application No. 254 of 1913, was made on 19th January 1916, to make certain additions of the rules, and the District Judge made certain additions but declined to remove the trustees. In First Appeal No. 139 of 1916 Batchelor, J., observed as follows:

“The learned District Judge refers to the trouble which this mosque has already caused him, and if further trouble of the same kind is continued later, it seems to me it will be for the District Judge to consider whether it will not be right to remove the mutawallis from their appointment on a properly based application coming from persons prejudicially affected by laxity of management.”

3. There were other applications to the District Court, applications Nos. 201 of 1903, 96 of 1907 and 386 of 1908 to which it is unnecessary to refer except for the purpose of indicating the practice of this Court and subordinate Courts to entertain applications for modification or alteration of schemes from time to time. The learned First Class Subordinate Judge did not agree with the view in Abdul Hakim Baig v. Burramiddin (1), on the ground that it was in conflict with the Bombay view expressed in Damodarbhat v. Bhogilal (2), but following the latter case held that the remedy of the applicants was to make an application first for the modification and alteration of the scheme so as to include in it a provision for the removal of the trustees, if necessary. The learned Judge however though he disagreed with the view taken in Abdul Hakim Baig v. Burramiddin held that it was not competent to make the present application without the consent of the Collector or the Advocate-General, and he further held that as the present applicants were not parties to the suit they had no right to apply for a modification of the scheme.

4. According to the decision in Chandra-prasad v. Jinabharthi (3), I think that the rule in the scheme giving liberty to apply for a modification of the scheme is not ultra vires, and that where such a rule giving liberty to apply exists, it would be permissible to make an application for the modification of the scheme without the consent of the Advocate-General.

5. The difficulties in the way of the present applicants are first that the applicants were not partied to the original suit in which the scheme was settled, and, secondly, that there is no provision in the scheme authorizing the Court to remove the trustees, if necessary. The scheme settled by the District Court in a representative suit is binding on all persons interested in the religious endowment within the meaning of Expln. 6, section 11 of the cpc. Batchelor, J., in appeal No. 139 of 1916 expressed the opinion that it would be for the District Judge to consider whether it will not be right to remove the mutawallis from their appointment on a properly based application coming from persons prejudicially affected by laxity of management. I think however, that the proper persons who can apply under the liberty reserved in the scheme are the parties to the suit. If however the previous parties are dead, or are colluding with the defendants or negligent in applying, it would be permissible for the Court to bring the applicants on the record under O. 1, R. 10, and I think for such an application the consent of the Advocate-General is not necessary. In Chhabile Ram v. Durga Prasad (4), it was held that where a person who was a party to such a suit trader S. 92 dies, another person making an application to be brought on the record must obtain the consent of the Advocate-General. This view ‘has not been” followed by the Madras High Court in Parameswaran Munpee v. Narayanan Namboodri (5), where it was held that the Court, has power under Cl. R. 10, Cl. (2) to add other persons interested in the trust as parties, not because they are the legal representatives of the deceased plaintiff but because they had become parties to the representative suit by the very fact of its having been instituted on behalf of all persons interested in the trust, and that the consent of the Advocate-General to such an addition is not necessary. The Madras view has been followed by the Lahore High Court in Gopi Das v. Lal Das (6), and by the Rangoon High Court in G.E Dooply v. M.E Moolla (7). To the same effect is the view taken by the Judicial Committee in Anand Rao v. Ramdas Daduram (8). If the conclusion, which I have reached in the case of Chandraprasad v. Jina-bharthi referred to above, that a suit does not come to an end after the scheme is settled under S. 92, and that applications can be made from time to time to modify or alter the scheme, is correct, it would follow that the proper remedy of the present applicants is to make an application to the lower Court to bring them on the record under Cl. R. 10, on the ground that they are really parties to the representative suit by the very fact of its having been instituted on behalf of all persons interested in the trust, and I do not think that the consent of the Advocate General or the Collector is necessary for such an application. It would be permissible for the applicants also to apply for an amendment of the scheme so as to include a provision for the removal of the trustees if necessary. Whether such amendment should be allowed or not is solely within the discretion of the District Judge under the scheme.

6. The nest question is whether an appeal is competent. Having regard to the decision in Jeranehod v. Dakore Temple Committee (9), the order passed by the learned Subordinate Judge is not an order in execution under section 47 of the cpc. In Lambodar v. Dharonidhar (10) it was held that no appeal lies to the High Court from an order passed by the District Judge as a persona designata under a scheme for management of a charitable institution. It was however observed at p. 67, that the case where the District Judge has declined to exercise the functions imposed upon him by the scheme or in the exercise of those functions entirely failed to exercise any discretion in the matter, stood on a different footing. I am not prepared to say in the present case that the lower Court failed to exercise jurisdiction vested in it by law. I would therefore dismiss the present appeal with costs and would decline to interfere in revision with the order of the lower Court, without prejudice however to the right of the present applicants to apply to the lower Court under O. 1, R. 10, Cl. (2), to bring them on the record and to make an application for amendment, or alteration of the scheme so as to include in it a provision for the removal of the trustees, if necessary, and for any other relief.

Broomfield, J.:— On the main question as to the competency of the Court to modify a scheme on application and to remove trustees, if the scheme as originally framed or as modified gives this power, we have taken the view favourable to the appellants in our judgments in Chandraprasad v. Jina-bharthi , where we have held that we are not prepared to follow Abdul Hakim Baig v. Burramiddin and Veerara-ghavaohariar v. Advocate-General, Madras (11). In this respect we are in agreement with the First Class Subordinate Judge.

7. The special-difficulties in this case are: (1) that the scheme ‘does not provide for the removal of trustees and (2) that the applicants are not parties to the suit. As to the first point, I am of opinion that the Court might have permitted the application to be amended so as to pray for such a modification of the scheme providing for the removal of trustees when necessary and also the removal of the present trustees. It would seem that the two matters must be considered together, as the Court would not be likely to consider it necessary to modify the scheme in that way unless satisfied that the present trustees are unsatisfactory. But this must be treated as an application in revision. We cannot say that the First Class Subordinate Judge has been guilty of any irregularity in the exercise of his jurisdiction seeing that on this point he has merely followed the decision of this Court in Damo-darbhat v. Bhogilal .

8. As to the second point the First Class Subordinate Judge has clearly fallen into some confusion of thought. In para. 13 of his judgment he has stated that the decision of the Madras High Court in Abdul Hakim Baig v. Burranziddin cannot be followed because it is in conflict with Domodarbhat v. Bhogilal . In para. 14 however, he relies on the same Madras case and holds on the strength of it that the proper course would be to apply to the Advocate-General for permission to obtain a specific relief and that after the Advocate-General gives permission an application may be made. S. 92 however does not apply to applications at all. So when once it is held that an application under a scheme is maintainable, S. 92 cannot make the consent of the Advocate-General or Collect a condition precedent. If a scheme may be modified from time to time on application to the Court, so that the Court in effect assumes the administration of the trust, it appears to me to be necessary to hold as a corollary that any person interested in the trust may apply to the Court, and not only the original parties, who in course of time will all disappear. A scheme may provide for applications being made by persons interested (not necessarily parties to the suit) as was done in Prayag Doss Ji Varu, Mahant v. Tirumala Sriranga-charlavaru (12). The scheme which has been framed in the present case imposes no limitation as to the person who can make the application, nor indeed does it even require that an application should be made at all. The provision in the scheme is:

“These rules shall be subject to such modifications or additions as this Court may from time to time see fit to make.”

9. My learned brother holds that it is necessary that the persons applying should be formally made parties to the suit. That implies that the suit is to be regarded as perpetually pending, a view which in my opinion is open to doubt for the reasons I have given in my judgment in Chandraprasad v. Janabharthi . With great respect I doubt the legal necessity of this procedure which I think moreover might easily lead to complications in the administration of a scheme. However as long as there remains any doubt as to the legal position it is clearly desirable that persons making applications should be formally brought upon the record ex majore cautela. Subject to the above remarks therefore I agree with the order proposed by my learned brother.

V.B/R.K

10. Appeal dismissed.

First Appeal No. 354 of 1928

M.I Kadri v. Khubmiya Mahomedmiya .

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

M.I Kadri v. Khubmiya Mahomedmiya .

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