Lutifunnissa Bibi And Ors. vs Nazirun Bibi on 29 August, 1884

Calcutta High Court
Lutifunnissa Bibi And Ors. vs Nazirun Bibi on 29 August, 1884
Equivalent citations: (1885) ILR 11 Cal 33
Author: Macpherson
Bench: Macpherson, Beverley


Macpherson, J.

1. In this case the allegations of the plaintiff are to this effect: She states in her plaint that the resumed mehal Harishpur, and four parcels of lakheraj land in four other mauzas were dedicated as wuqf by a former Maharajah of Burdwan, and that the profits were ever since” applied to the feeding of wayfarers and travellers, to lighting the mosque and shrine in the evening, and to meeting the expenses of repeating prayers on the occasions of Id and Bakhrid, and that the said profits were never spent for personal purposes.” She then goes on to say that after the death of her husband, Syed Mokram Ali, the defendant No. 1, who is her step-son, sold the mehal Harishpur and granted a mocurrari potta of the four parcels of lakheraj lands to defendant No. 2, ostensibly in the name of defendant No. 3, and that defendant No. 2 accordingly took possession of all the properties in Bysack 1274. She therefore prays that the properties in suit may be declared to be wuqf, that the sale and lease may be set aside, that the connection of defendant No. 1 with the properties may be terminated on the ground of his having committed waste, and that she herself may be put in possession as mutwali.

2. The defence was that the properties in question were not wuqf at all, but the ancestral property of Mokram Ali and his brother Koim Ali, by whose heirs they had been transferred to defendant No. 2 and his wife Lutifunnissa Bibi.

[The learned Judge here stated the names of the properties in suit and the dates of certain sales and mocurrari pottas connected with these properties.]

3. The present suit was instituted on 3rd March 1879, but Lutifunnissa Bibi was not made a party till 19th May 1879.

4. The material issues fixed in the case were these:

5. Has the plaintiff a cause of action?

6. Is the claim barred by limitation?

7. Are the properties wuqf or the ancestral heritable property of the family?

8. On these issues the first Court held that the plaintiff as widow of the late mutwali had a right to bring this suit, that the suit was not barred by limitation, that there was no satisfactory evidence that mehal Harishpur was wuqf, but that the four parcels of lakheraj lands were ivuqf “for the purpose of carrying on the rites of religion and for feeding the poor,” and a decree was accordingly given to the plaintiff for possession of these four properties as mutwali.

9. Against this decision both defendant No. 2 and his wife appealed to the Judge, but their appeals were unsuccessful. They have now preferred a second appeal to this Court.

10. No one having appeared for the respondents, the appeals have been heard by us ex parte.

11. The appeals only relate to the four parcels of lakheraj land granted in mocurrari lease to defendant No. 2, Sheikh Parbuddin, and his wife Lutifunnissa. In appeal 188 Parbuddin is the appellant, and in appeal 189 Lutifunnissa.

12. Several points have been raised before us.

13. The suit having been instituted against Parbuddin on 3rd March 1879, it is contended that so much of it as relates to Niyamatunissa’s share, leased to him on 20th January 1867, is barred by limitation. Again, Lutifunnissa not having been made a party till 19th May 1879, it is contended that the suit is barred as regards the share of the properties leased to her by Mahafiz Hosein on 5th March 1869. It is further urged that there is no sufficient evidence that the property in question was ever dedicated as wuqf, and, more particularly, that the excess lands 12b, 13c, 1c, in mehal Gangeswar were improperly found to form part of the endowment.

14. The main contention, however, is, that the plaintiff had no right to bring this suit at all, and, we think, the case may he disposed of on this ground without going into the other questions raised.

15. It is urged that if this endowment is a public charity, the suit should have been instituted under the provisions of Section 539, Civil Procedure Code, by two or more persons directly interested in the trust with the written consent of the Collector. If, on the other hand, the endowment is a religious trust, it is contended that the suit should have been brought under Act XX of 1863, after sanction obtained under Section 18 of that Act. In either case, it is said, the plaintiff had no sufficient interest to entitle her to sue, nor could she sue to obtain for herself possession of the properties.

16. According to the plaint in this case, the trust is one partly for charitable, and partly for religious, purposes. So far as the trust was ” for the feeding of wayfarers and travellers,” it was a trust for the benefit of a considerable portion of the public answering a particular description, and was therefore a trust for a public charitable purpose. The object of the plaintiff’s suit was to oust the mutwali, get herself appointed in his place, and have the properties vested in her. Section 539 * of the Code applies to a suit of this nature, which is really one for the administration of the trust, and such a suit can only be brought in accordance with the provisions of that section.

17. But even supposing that the endowment in this case was neither a public charity within the meaning of Section 539 of the Civil Procedure Code, nor a religious endowment to which Act XX of 1863 is applicable, the plaintiff was not entitled to sue alone to be appointed mutwali and to obtain possession of the property. The first Court holds that she was entitled to bring this suit because she was a wife of Mokram Ali, the late mutwali, but we cannot agree that this is a sufficient reason. Even if we regard her as suing as a person interested in the trust, then on the face of the plaint there are other persons interested, and she could only sue on behalf of all who were so interested, and in order so to sue, she should have obtained the permission of the Court, and otherwise complied with the provisions of Section 30 of the Civil Procedure Code; not having done so, we think, she had no right of action. In whatever light the suit be regarded therefore, we think it clear that it was not properly framed and will not lie. The decree of the lower Appellate Court is accordingly reversed, and the suit dismissed with costs in all the Courts.

*[Section 539:–In case of any alleged breach of any express or constructive trust created for public charitable or religious purposes, or whenever the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, acting ex-officio, or two or more persons having an interest in the trust, and having obtained the consent in writing of the Advocate-General, may institute a suit in the High Court or the District Court within the local limits of whose civil jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree–

(a) appointing new trustees under the trust;

(b) vesting any property in the trustees under the trust;

(c) declaring the proportions in whioh its objects are entitled;

(d) authorizing the whole or any part of its property to be let, sold, mortgaged or exchanged;

(e) settling a scheme for its management, or granting such further or other relief as the nature of the case may require.

The powers conferred by this section on the Advocate-General may, outside the Presidency-towns, be exercised also by the Collector or by such officer as the Local Government may appoint in this behalf.

Act No. X of 1840, Section 2, is hereby repealed.]

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