TaxTMI 
TaxTMI 
1963 (3) TMI 89
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.... Memons residing in Bangalore are the beneficiaries of the Trust and have an abiding interest in its proper management, control and direction. 2. It appears that a similar suit had been filed in 1924 (O.S. No. 32 of 1924) in the same Court and in that suit a scheme had been framed in 1927. Pursuant to the said scheme, Trustees were appointed and they have been in management of the Trust properties since then. The respondents alleged that in the said suit, it was represented that the Masjid belonged mainly to the Cutchi Memons of Bangalore and that the Cutchi Memons were entitled exclusively to its management. It is on this basis that the said suit was prosecuted by consent and a scheme was drawn up by the court after considering different schemes put before it by the respective parties. To that suit seven defendants were impleaded; defendants 2 and 7 claimed the right of management of the Trust under wills executed by the deceased Mutawalli Abdul Gaffar. Defendant No. 2 was then a minor and his mother was impleaded as defendant No. 1 both in her own right and as guardian of defendant No. 2. Defendants 3 to 6 were the Executors under the will of Abdul Gaffar on which defendant No....
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....ommunity. In fact, he noticed that the suit had been filed in very peculiar circumstances without impleading the members of the Dakkhani Muslim Community. He however held that after the framing of the scheme, the management had, in fact, been entrusted solely to the Cutchi Memon Community and that it would be inappropriate to make any change in the pattern of management in the proceedings initiated by the application; that can be done, he thought, in a regular suit. It is this order that has led to the present suit by the respondents. 5. In the present suit, the respondents joined the five appellants and others as defendants and claimed reliefs against them. Their case was that the scheme decree which was passed in the earlier suit was the result of collusion and that the said decree did not bind the non-Cutchi Memons who were the beneficiaries of the Trust. According to them, though the Cutchi Memons were entitled to claim the benefit of the Trust, the predominant interest in the Trust was of the Dakkhani Muslims who had built the Mosque and contributed substantially to its financial progress and prosperity. They further pleaded that the five appellants who were in charge of th....
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....er the said scheme had committed a breach of trust. In regard to the contention of res judicata raised by the appellants, he held that the decree passed in the earlier suit was a bar to the maintainability of the present suit, and he expressed the opinion that the reliefs claimed by the respondents by their present action could have been claimed by them by an application under clause 25 of the scheme. Then the learned Judge considered the question as to whether the scheme should be modified and he took the view that in such matters, it was necessary to exercise utmost caution before disturbing a settled scheme. Since no satisfactory reason had been shown by the respondents in support of their case that the scheme should be changed, the trial Judge rejected their claim and dismissed the suit. 8. The respondents challenged this decree by preferring an appeal in the High Court of Mysore. The High Court agreed with the trial Court in rejecting the respondent's case that the decree in the earlier suit had been obtained by collusion and that the Trustees appointed under the said scheme had committed breach of trust. It, however, differed from the trial Court on the question of res....
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....Muslims have played a dominant part, though it is conceded by them that later on the Cutchi Memons were also actively associated with the affairs of the Mosque and have made contributions to its prosperity and progress. The earliest document on the record (Ext. K) which is a sale-dead executed on January 4, 1823 shows that the generality of the people wished to construct a Masjid, and so, the open plot covered by the sale-deed was purchased. The purchasers were a large number of Muslims consisting of several groups described as traders, bakers, sweetmeat makers, copper-smiths, rope-makers, mutton butchers, beef butchers, gardeners and other Muslims. That shows the very broad basis of the cross-section of the Muslim community which joined in purchasing the open plot on which the mosque was built. Then followed a gift deed executed on November 1, 1923 (Ext. 'L') which was a voluntary undertaking given by a large number of Musalmans to contribute funds in the construction of the Mosque. A grant of land made on October 4, 1830 (Ext. YYYY) clearly brings out that the Mosque and its appurtenances were intended for the benefit of the whole Muslim Community represented by the local....
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.... has observed, this can have no special significance since in this document, Abdul Khuddus himself is not mentioned and that may show that the Headmen did not include the main person who was looking after the Masjid. However, one fact is significant that the Dakkhani Muslims numbered about 30,000 and the Cutchi Memons never exceeded 300 and this fact has to be borne in mind in dealing with the question of the administration of the properties belonging to Jumma Masjid, and, so it would be clear that though the Cutchi Memons were associated with the administration of the Trust, they were not at all in its exclusive management. Before his death Abdul Khuddus had executed a Power of Attorney in favour of his son Abdul Gaffar on June 14, 1905, and as we have already seen, Abdul Gaffar stepped into the management. Thus, the documentary evidence which the High Court has accepted supports its finding that the Mosque came into being and continued to be an institution belonging to the whole Sunni Muslim Community of Bangalore and that it could not be held that its management was exclusively in the hands of Cutchi Memons at any time before 1924. Having regard to the very prominent and Powerfu....
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....n that behalf. During the pendency of the suit, however, Abdul Gaffar died on January 9, 1922. That tended to accentuate the division in the Community and it was this sharp division in the Community which was further complicated by the rival claims made by two different persons who had set up two different wills of Abdul Gaffar that led to Suit No. 32/1924 being filed. In that suit, it was claimed that the Mosque was primarily developed by the Cutchi Memons and that the Cutchi Memons were entitled to the exclusive management of the affairs of the Mosque. The defendants who had been impleaded to that suit first appeared to resist the claim. We have already seen who these defendants were. They were interested in supporting their individual rights in respect of the management of the Mosque and it appears that they reached an amicable settlement with the plaintiffs and ultimately submitted to a preliminary decree directing that the scheme be framed. Those defendants who were non-Cutchi Memons did not represent the non-Cutchi Memon Community as such and were interested only in their personal rights based upon the wills executed by Abdul Gaffar. After the parties agreed that the scheme s....
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....ll the beneficiaries interested in the Trust. The said section authorises two or more persons having an interest in the Trust to file a suit for claiming one or more of the reliefs specified in clauses (a) to (h) of sub-section (1) after consent in writing there prescribed has been obtained. Thus, when a suit is brought under s. 92, it is brought by two or more persons interested in the Trust who have taken upon themselves the responsibility of representing all the beneficiaries of the Trust. In such a suit, though all the beneficiaries may not be expressly impleaded, the action is instituted on their behalf and relief is claimed in a representative character. This position immediately attracts the provisions of explanation VI to s. 11 of the Code. Explanation VI provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. It is clear that s. 11 read with its explanation VI leads to the result that a decree passed in a suit instituted by persons to which explanation VI appl....
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....rrow and specific ground that the Mosque belonged to the Cutchi Memon Community and the interest which the petitioners purported to represent was the interest of the Cutchi Memon Community and no other. 19. After permission was obtained from the Collector, the suit was filed. In the plaint, the same position was adopted. It was averred that the Mosque had been mainly founded by the Cutchi Memon Mohammadens residing at Bangalore and it was alleged that the Mohmmaden communities other than the Cutchi Memon had established other independent mosques for their use and benefit and for the last over a century, the Cutchi Memons had been maintaining and managing the said Mosque. The plaint further claimed that the plaintiffs as members of the Cutchi Memon Community were interested in the proper management of the suit Mosque and that as Mohammadens and members of the said Community they had the right to perform therein their daily and usual prayers as well as funeral and other special prayers. Consistently with this attitude, the plaint in its prayer clause claimed, inter alia, that a scheme should be framed safeguarding the rights and privileges of the Cutchi Memon Community. It is thus....
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....ustify the contention that the earlier suit was either filed by persons who could claim to represent non-Cutchi Memons, or was defended by persons who could make a similar claim. If that be so, the very basis on which the binding character of a decree passed in a suit under s. 92 of the Code rests disappears; we have already seen that the basis of the principle that a decree under s. 92 suit binds all persons interested in the trust, is that the interests of all persons interested in the Trust are represented in the suit as required by explanation VI to s. 11; and if that basis is absent, the decree cannot create a bar of res judicata against persons claiming interest not represented in the earlier suit. 21. In the case of Raja Anandrao [1961] 3 SCR 930, this Court has no doubt observed that a decree passed in a representative suit under s. 92 binds not only the parties thereto, but all those who are interested in the Trust, and Mr. Setalvad has naturally relied upon this observation in support of his plea of res judicata : but it would be unreasonable to treat the said observation as laying down a broad and unqualified proposition like the one which Mr. Setalvad had submitted b....
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....th it unless the Commissioners have acted ultra vires, or the scheme contains something wrong in principle or in law, or by reason of changed circumstances, the continuance of the charity under the constitution established by the scheme has become impracticable. This principle was laid down as early as 1851 in the case of the Attorney-General v. The Bishop of Worcester [1851] 68 E.R. 530., where it was held that schemes which have been settled under the directions of the Court are not to be disturbed upon merely speculative view or in matters of discretion or regulation upon which Judges or Attorneys-General may differ in opinion, or except upon substantial grounds and clear evidence, not only that the scheme does not operate beneficially, but that it can by alteration be made to do so consistently with the object of the foundation. The same principle was reiterated in 1872 in the case of Attorney-General v. Stewart (1872) L.R. 14. 23. There are, however, two considerations which must be borne in mind in dealing with Mr. Setalvad's argument on this point. It is not disputed that even after a scheme is framed in a suit properly instituted under s. 92, if supervening considera....
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....oadly stated, the scheme framed in 1927 provided for the appointment of a Committee of five Trustees who were to hold office for seven years commencing from the date on which the scheme came into force. Clause (iv) then made a provision for the appointment of fresh Trustees at the completion of the seven years' period prescribed by clause (i). This clause reads thus :- "Six months before the completion of the seven years mentioned above, the committee of trustees shall prepare a list of male adult worshippers, and submit the same to the Court within a month thereafter; and the Court shall as soon as convenient nominate from among the worshippers a committee consisting of 15 worshippers. Each member of the committee of worshippers shall hold office for ten years from the date of his appointment; and any vacancy arising among them for any of the reasons specified in clause 3 supra shall be filled up by the Court. And this committee shall elect from among their number 5 (five) persons to perform the duties of trustees after the expiry of seven years aforesaid." Clause (v) which is also relevant reads thus : "The trustees so elected shall hold office for a term....
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....strict Judge shall fill that vacancy by nominating another Trustee in that behalf. The remaining trustees will continue to function till the vacancy is filled." 26. The result would be that c. (iv) & (v) as they stand would be removed and clause (iv) as we have formulated will take their place, and the remaining clauses will be renumbered accordingly. 27. Clause (xxiv) which gives the right to demand copies of the rules and of translations thereof in Urdu language only to the members of the cutchi Memon Community will now be available to all the Sunni Musalmans residing in Bangalore. Therefore, the modification in the clause would be that in place of the words "any member of the Cutchi Memon Community" shall be substituted the words "any Sunni Musalman of Bangalore". 28. Clause (xxv) which enables the Trustees to apply for advice or direction to the District Court as occasion may arise, should be so amended as to enable the Trustees or any person interested in the Trust to apply for modification of the scheme. Clause (xxv) so amended would read thus :- "The Trustees may apply for advice or direction, and the Trustees or any person interested in the Trust may apply....