Muhammad Ibrahim Khan v. Ahmad Said Khan

Knox and Karamat Husain, JJ.:— The following genealogical table will show the relation of the parties:—

Gulam Chishti Khan by his will, dated 10 Safar, 1284, H., corresponding to the 16th June, 1897, created a waqf of certain immovable property “to defray the expenses of the poor, the faqirs, the orphans, the needy and the indigent; and to defray the expenses of other good deeds.” Regarding the trusteeship of the endowment, he in his will said:—“I covenant that as long as I am alive I shall continue to spend with my own bands and of my own authority, the income derived from the said villages for the sake of God, and that after me one of my male descendants who is qualified shall continue to spend it generation after generation in the way and manner in which I was doing.”

During his lifetime, Ghulam Chishti Khan continued to manage the waqf property. After his death, his son, Abdul Karim Khan, succeeded to the trusteeship. Abdul Karim Khan died on the 31st August, 1908. Muhammad Ibrahim Khan the plaintiff, Abdul Majid Khan and Abdul Said Khan, the defendants, could not agree as to who should be the trustee of the property. Under a registered agreement of the 19th February, 1909, the parties referred their dispute to arbitration. The arbitrators made their award, and the plaintiff under section 20, schedule. It of the Code of Civil Procedure, applied to file the award in court. Objections were taken by the defendants. The learned Subordinate Judge in his order, dated the 12th August, 1909, came to the conclusion that the award was void in law and disallowed the application with costs. The plaintiff has appealed from that order to this Court. At the hearing of the appeal an objection is taken on behalf of the respondents that the question of succession to the trusteeship of such a charity as had been created by the will of Ghulam Chishti Khan, could not be referred to arbitration, and that the learned Subordinate Judge had therefore no jurisdiction to entertain the application for filing the award in court. This point was not taken before the court below, but as it is a very important point and will affect the administration of charities, we granted permission to argue the point.

For a satisfactory decision of the question raised, the following points have to be determined:—

Is the charity created by the will of Ghulam Chishti Khan a public or a private charity?

If it is a public charity, what are the prerogatives of the Crown with reference to it?

As the term charity has been imported from the English Law, it is desirable to give a definition of that term as understood in that law. The preamble to the Statute 43 Elizabeth C. IV contains an enumeration of charitable objects. The relief of aged, impotent and poor people is among these objects. See Tudor on Charities, page 36, 4th edition. The same author on page 37 says:—“The purposes which have been held charitable within the language or spirit of this preamble, may be grouped under four heads:— (1) the relief of poverty, (2) education, (3) the advancement of religion, (4) other purposes beneficial to the community not falling under any of the preceding heads. These may be conveniently termed ‘general public purposes.’” * * * “In the first place it may be laid down as a universal rule that the law recognizes no purpose as charitable unless it is of a public character, † that is to say, a purpose must, in order to be charitable be directed to the benefit of the community or a section of the community.‡ The distinction between a public purpose and one which is not public is often fine. The principle deducible from the cases seems, however, to be as follows:—If the intention of the donor is merely ta benefit specific individuals, the gift is not charitable, even though the motive of the gift may be to relieve their poverty or accomplish snipe other purpose in reference to those particular individuals which would be charitable if not so confined; on the other hand, if the donor's object is to accomplish the abstract purpose of relieving poverty, advancing education or religion, or other purpose charitable, within the meaning of the Statute of Elizabeth, without reference to any particular individuals and without giving any particular individuals the right to claim the funds, the gift is charitable.”

Lord Halsbury, L.C, in Commissioners of Income Tax v. Pemsal says:—“To come now to the particular bequests before us, and, to the use of the word; charitable, in the particular Act we are construing, I would say, without attempting an exhaustive definition or even description of what may be comprehended within the term ‘charitable purpose’, I conceive that the real ordinary use of the word ‘charitable’ as distinguished from any technicalities whatsoever, always does involve the ‘relief of poverty.”

Applying the tests as set out above, to the purposes for which the endowment was made by Ghulam Chishti Khan, there can be no doubt that; the waqf created a trust for public purposes of a charitable nature.

If we look at the question from the standpoint of the Hanafi law, the purposes' will, no doubt, be regarded ‘as charitable’ inasmuch as the term ‘charity’ under that law has a more general import than under the English law, see I.L.R, 19 Calc. 412, at page 434.

The purposes for which the waqf was made, being of the nature of a public charity, it is necessary to show what the prerogative of the Crown with respect to such charities is. We find it stated in Tudor on Charities, page 362, 4th edition, in the following terms:—“It is the prerogative of the Crown to protect the interests of infants, lunatics and charities. In the case of charities, Lord Eldon lays down the law as follows:—‘It is the duty of the King as parens patriæ, to protect property devoted to charitable uses, and that duty is executed by the officer who represents the Crown for all forensic purposes. On this foundation rests the right of the Attorney-General in such cases to obtain by information the interposition of a Court of Equity. This duty of the King falls under the direction of the Court of Chancery, being part of the general equitable jurisdiction. And, inasmuch as charitable trusts are matters which concern the public, it is one of the functions of the Attorney-General, representing the king in his character of parens patriæ, and not by virtue of any estate or interest he has in the property, to institute proceedings for the protection of charities.”

The same author at page 363 says:—“The proper and formal shape of a suit for determining the mode in which the funds belonging to a charity should be administered, was by the information of the Attorney-General. The Attorney-General appeared before the court not as an ordinary plaintiff, endeavoring to obtain redress for a private wrong, but rather as one officer of the Crown informing the Judge, another officer of the Crown, of some neglect on the defendant's part in the performance of a public duty, and demanding a remedy. Hence the name ‘information’ was applied to a suit of this nature.” See also the Privy Council case of Attorney General v. Brodie , the last portion of the head note in which is as follows:—“By 53 Geo. III., C. 155, section 111, the Advocate-General is entitled to appear and represent the Crown in formations for the administration of charitable funds.”

The above extracts, in our opinion, conclusively establish that the office of a trustee to a public charity, is not a right disputes about which can be settled by arbitration. A party can refer a matter of a private individual right of a civil nature to arbitration, but he has no power to refer matter which is not purely of a private civil character, and it is on this ground that a Bench of this Court in Mahadeo Prasad v. Bindeshri Prasad held that the appointment of a guardian to a minor not being a matter of a private right as between parties, was not a question which could be settled by reference to arbitration. Aikman, J., towards the end of his judgement says:—“If rival claimants to a certificate of guardianship are allowed to refer their disputes to arbitration, a not would be opened to collusion and the interests of the minors would suffer.” These remarks, in our opinion, apply with greater force to an attempt to have the right of succession to the trusteeship of a public charity settled by arbitration. If that were allowed, a very wide door for collusion, misfeasance and malfeasance in respect of trust property would be opened.

It is also to be borne in mind that section 92 of the present Code (V of 1908), which is in part borrowed from Romilly's Act, 52 Geo. III. c. 101, enacts that where the direction of the Court is necessary for the administration of any trust created for public purposes of a charitable, or religious nature, two or more persons having an interest in the trust and having obtained the consent in writing of the Attorney-General may institute a suit for the purposes specified in the section, and this shows that the State has an interest in public charities and their proper administration, and that the succession of a trustee to his public duty is a post which ought not to be filled up without the sanction of the authorities to whom the State delegates its powers in this behalf. The tenor of section 92 of the Code points in the direction that the post could only be filled up by the sanction of the principal Civil Court of original jurisdiction or any other court empowered in that behalf, by the Local Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate. In this connection it may be argued that a breach of trust is a condition precedent for the exercise of the power vested in the principal Court of original jurisdiction, but there is no force in this. It is sufficient that there be a public trust and that the direction of the Court be necessary for its administration. See Raghubar Dial v. Kesho Ramanuj , in which Straight, J., at page 22 is reported to have said:—“Now it is not necessary, if I read that section aright, that there should be any breach of trust but it is sufficient that there should be a public religious trust and the direction of the Court is considered necessary for the administration of that trust.” This view has been adopted by the Judges of the Calcutta High Court in Lutif-un-nissa Bibi v. Nazirun Bibi . See also Neti Rama Jogiah v. Venkatacharulu , the first portion of the head-note of which is as follows:—“A suit for the appointment of a new trustee to a temple on the ground that the defendants are not lawful trustees, is a suit under section 539(c) of the Civil Procedure Code being comprised in the words ‘when the direction of the Court is deemed necessary for the administration of such trust.”

The Hanafi law on the subject is as follows:—“When the superintendent is dead and the appropriator is still alive the appointment of another belongs to him and not to the Judge. If the appropriator be dead, his executor is preferred to the Judge, but if he has died without leaving an executor, the appointment of an administrator is with the Judge.” Baillie, Hanafi law, pp. 603 and 604. “In the case where a descendant or relative of the waqif is not willing to accept the office without a salary and an outsider is willing to accept it without a salary, the Qazi should see whose appointment would be most beneficial to the waqf and who is fittest for the appointment.” The above extracts go to show that the appointment of a mutawalli to waqf property, in the absence of anything in the deed of waqf vests with the Qazi. In this connection, see Muhammad Sabir v. Muhammad Ali and The Advocate General v. Fatima Sultani Begam .

It may, however, be said that the adjective law of the Hanafi School has been superseded by the adjective law of British India. This, however, cannot affect the case before us, inasmuch as we are dealing with the substantive law of arbitration and not with its procedure.

It is contended by the learned advocate for the appellant that uuder the Charitable Trusts Act, 1853, disputes among members of any charity in relation to the management of the charity may be referred to the arbitration of Charity Commissioners (see Russell on Arbitration, 9th edition, page 22) and by analogy a dispute regarding the succession to the office of trusteeship may be referred to arbitration. There is no force in this contention, inasmuch as a special Statute allows certain disputes relating to the management of charities to be referred to arbitration, and in the absence of any express statutory provision to that effect in British India, we are not prepared to hold that a dispute regarding succession to the trusteeship of a public charity can be referred to arbitration. In the same book on page 32 we find the following passage:—“It may here be proper to remark that in suits in equity respecting charity proper the Court would not permit a reference, however advisable such a course might seem, unless the Attorney-General gave his consent.”

It is further contended that Act XX of 1863, section 16 allows certain matters to be referred to arbitration. This is also a mere analogy and not sufficient to support the contention of the learned advocate. The learned advocate also argues that whenever a party can institute a suit of a civil nature in a court, that party can also refer that matter to arbitration. No authority has been cited in support of this proposition, and in our opinion it is not a universal proposition that, whenever a suit can be instituted in a Civil Court, the subject-matter of that suit can also be referred to arbitration. An arbitrator is a tribunal chosen by the consent of parties, and unless the law allows them to choose such a tribunal in respect of certain classes of cases, they have no power to do so.

Certain remarks made by Woodroffe, J., in Budree Das Muhhn v. Chooni Lal Johurry, are relied on by the learned advocate, but these remarks only deal with cases which are within the scope of section 539 of the Code, and have nothing to do with the question whether or not a dispute as to the right of succession to the management of property made waqf for public charitable purposes can be referred to arbitration.

In Sir Dinsha Manehji Petit v. Sir Jamsetji Jijibhai , Davar, J., is reported to have said:—“Mr. Mullah in his commentary on section 539, Civil Procedure Code, 2nd Edition, deduces at page 487 of his book, the following proposition as the result of the authorities he cites there—‘suits brought not to establish a public right in respect of a public trust, but to remedy a particular infringement of an individual right, are not within the section.’ I am in entire accord with this proposition. This is undoubtedly a suit for the purpose of remedying an alleged infringement of an individual right, and, as such is clearly not within the section.”

With reference to the above remarks ??? for the appellant says that a dispute regarding the succession to the tawliat (trusteeship) of a waqf, may be referred to arbitration.

These remarks cannot be deemed to support his contention. They only specify the scope of section 539.

For the above reasons we hold that the right to succeed to the tawliat (trusteeship) of waqf property is not a right which can be settled by reference to arbitration, and that the court below had no jurisdiction to entertain an application for filing the award in court under section 20, schedule II, of the present Code of Civil Procedure.

The result is that the appeal fails and is dismissed. We make no order as to costs.

Appeal dismissed.