1941 (8) TMI 25 - HC - Indian Laws

Appeal dismissed: Suit barred under Sections 92 and 73(2) - Trust public, valid notice, reliefs within scope.

Mahammad Nabi Shirazi and Ors. Versus  Province of Bengal and Ors.

The High Court dismissed the appeal, ruling that the suit was barred under Section 92 of the Civil Procedure Code and Section 73(2) of the Bengal Wakfs ... - Issues Involved:1. Whether the suit was barred under Section 92 of the Civil Procedure Code (CPC).2. Whether the suit was maintainable under Order 1, Rule 8 of the CPC.3. Whether the trust in question was a public or private trust.4. Whether the suit was barred by Section 73(2) of the Bengal Wakfs Act.5. Whether the notice under Section 80 of the CPC was valid.6. Whether the reliefs sought were within the scope of Section 92(1) of the CPC.Issue-wise Detailed Analysis:1. Bar under Section 92 of the CPC:The learned Subordinate Judge held that the suit was barred under Section 92 of the CPC 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. The High Court, however, was not impressed by this reasoning. It was contended that Section 92 does not apply as the Imambara is a private Imambara, and the trust is for the sub-sect of Shias to which the founder belonged. The High Court found that the waqfnama did not contain words indicating that the Imambara was a private Imambara. The Court concluded that the suit was indeed in respect of a public trust as the trust was for the benefit of the Shia community.2. Maintainability under Order 1, Rule 8 of the CPC:The High Court found that the plaint contained sufficient indication that the plaintiffs were bringing the suit in a representative capacity on behalf of the Shia community. The cause title of the plaint contained the names of seven plaintiffs and prayer (a) asked for a declaration that the waqf was meant 'for the benefit of the Shia community.' The Court permitted the plaintiffs to sue under Order 1, Rule 8 and directed the requisite summonses to issue.3. Public or Private Trust:The High Court held that the trust was a public one. The waqfnama did not indicate that the Imambara was a private or family institution. The ceremonies specified in the waqfnama were not confined to a sub-sect of Shias but were of a general religious nature. The Court concluded that the trust was for the benefit of the Shia community and was therefore a public trust.4. Bar under Section 73(2) of the Bengal Wakfs Act:The High Court held that the suit was also barred by Section 73(2) of the Bengal Wakfs Act as the consent required by this sub-section was not obtained. The Court noted that there was no denial of the statement in the plaint that the Commissioner of Wakfs, Bengal, was not directly in charge of this waqf. However, the section did not indicate that the waqf must be in the direct charge of the Commissioner.5. Validity of Notice under Section 80 of the CPC:The High Court found that the notice under Section 80 of the CPC was not fatally defective. The plaint contained sufficient indication that the plaintiffs were bringing the suit in a representative capacity on behalf of the Shia community. The Court concluded that the notice served was adequate.6. Reliefs within the Scope of Section 92(1) of the CPC:The High Court found that the reliefs sought in the suit were of the nature mentioned in Clause (h) of Section 92(1) of the CPC. The plaintiffs were asking the Court to declare that the entire income of the waqf should be spent on religious purposes and not on secular uses. The Court concluded that the relief sought was within the scope of Section 92(1) as it was analogous to the relief mentioned in Clause (e).Conclusion:The High Court dismissed the appeal, holding that the suit was barred under Section 92 of the CPC and Section 73(2) of the Bengal Wakfs Act. The Court found that the trust was a public one and that the notice under Section 80 of the CPC was valid. The reliefs sought by the plaintiffs were within the scope of Section 92(1) of the CPC. The plaintiffs were ordered to pay the costs of the appeal and the lower court to the contesting defendants.