SAYED MOHOMED BAQUIR EL EDROOS VALDE SAYED JAFFER EL EDROOS SAJJADNASHIN OF EDROOS GADI Vs. ALIMIYA MAHMADMIYA

JUDGEMENT

(1.) These two Letters Patent Appeals raise a substantial question as to whether the principle of res judicata could apply to the statutory inquiry held by the Dy. Charity Commissioner under sec.190 of the Bombay Public Trusts Act 1950 hereinafter referred to as the Act in view of the previous decision under sec. 92 of the Code of Civil Procedure on a finding that there was a private Wakf. The two appeals have come up before us because against the order of the District Court under sec. 72 of the Act both the Charity Commissioner as well as respondents 1 and 2 had filed two separate appeals which were disposed of by the learned Single Judge. As both these appeals involve the same questions they are disposed of by this common order.

(2.) The Wakf in question has been the subject matter of various litigations. The well known Edroos family claims to be the descendants of Hazarat Imam Ali who was the son-in-law and cousin of Prophet Mahomed. One of the descendants of Hazarat came over to India in 1542 and founded his Gadi at Ahmedabad Broach and Surat. The Edroos family persons are Sajjadanashin or Mutavallis of this Wakf. Three Roza's and the villages, which were granted for the maintenance of these Roja's as well as for the benefit of the Waquifs family, constitute this Wakf. The holder had been buried in the house and his Dargah is situate in this place. There is also a place for reciting prayers which according to the appellants is a mosque while according to the respondents Idadatgha. In the first litigation in Sayad Abdul Edrus v. Sayad Zain Sayad Hasan Edrus I.L.R. 13 Bombay 555 by the Division Bench consisting of Sir Charles Sergeant C. J. and Parsons J. the entire history has been given of this Wakf. A question had arisen at that time whether in the case of this religious endowment inheritance to the office of the Sajjadanashin or Mutavalli would go by the rule of primogeniture had been considered. The Division Bench held that the general Mohammedan Law was strongly against attaching any such right of inheritance to such endowment and there was no custom established for invoking the rule of primogeniture and therefore the appointment to this office could not be challenged by the eldest son in that litigation by invoking the rule of primogeniture. In the next litigation which had also reached the High Court in Saiyad Jaffar El Edroos v. Saiyad Mahomed El Edroos 39 Bom.L.R. 277 by the Division Bench consisting of Broomfield and Wassodew JJ. the nature and character of the royal grants in question regarding this Wakf had been interpreted in the context of what was to happen to the surplus left after discharging the primary obligation to apply the income for the purposes of this Wakf endowment. Both the learned Judges had in terms held that the relevant grants relating to villages Umrao and Orma were primarily for the Rozas and Durgahs and they clearly constitute Wakf. Sajjadanishin or Mutavalli had however right to the surplus income. He had full power of disposition of the surplus income. In the exercise of that power he could provide for the needs of the indigent members of the family. That however was the pious or moral obligation. But legally the disposition of the money was in the hands of the Sajjadanishin or Mutavalli subject only to the terms of the grant under which the property was held and the custom of the institution. Therefore the plaintiffs in that case who claimed to be indigent members of Edroos family were held not entitled to make a legal claim of maintenance and to sue for even arrears of maintenance from the endowment. Therefore this 1928 litigation is material for our purpose as res judicata plea has been founded on the same which gave rise to the Regular Civil Suit No. 201 of 1928. The plaint Ex. 72 on record discloses that the suit was filed by three members who alleged themselves to be the members of the Edroos family. In para 11 of the plaint they had specifically stated that they were the members of the Edroos family and were interested in the welfare and management of the Wakf properties. Their relations were buried in the graveyards attached to the Shrines. They had a right to visit the graveyards and the Shrines to recite Fathias there and also to offer their prayers in the mosques mentioned therein and on that basis the plaintiffs had stated that they had a right to file this suit. The cause of action which was alleged in this plaint was that these Wakf properties which were held to be of the Wakf as per the binding decision in I.L.R. 13 Bom. 555 were mismanaged by the father of the present appellant. It was the case of the plaintiffs that the father of the present appellant was not a legally appointed Sajjadanishin or Mutavalli and as he was mismanaging the Wakf properties and had incurred debts out of the trust estate the plaintiffs claimed a declaration that the father of the present appellant was not Sajjadanishin and Mutavalli of the Edroos Shrine at the three places Surat Broach and Ahmedabad of the Wakf property in question and for a permanent injunction restraining him from acting as such. The plaintiffs also prayed for framing a scheme and appointing a board of trustees to manage the properties shown in the Schedule A. In that suit the plaint bore an endorsement of the Collector dated February 22 1928 that as he was satisfied that there were sufficient grounds for institution of the suit he was giving his consent under sec. 92 of the Civil Procedure Code. The trial Court dismissed the suit as the plaintiffs had not made out their allegation of the alleged breach of trust for filing this suit on the aforesaid cause of action. The trial Court had also given a finding that this was a public Wakf negativing the plea of the appellants father that this was a private Wakf. That is why when appeal was filed by those plaintiffs before the District Court the appellants father who was respondent in that suit had filed cross objections. The appeal and the cross objections came up before the District Judge who disposed them of by the judgment Ex. 74 dated November 21 1938 The appeal against this decision before the High Court was withdrawn. Therefore all the parties are agreed that the plea of res judicata is founded on the aforesaid decision of the District Judge as per Ex. 74 in this litigation viz. Civil Suit No. 201 of 1928 The learned District Judge had in his judgment given a finding on 8 points. As regards the first question as to whether Sayad Ali's appointment as Sajjadanishin and Mutavalli was valid or not the learned Judge held that the decision in I.L.R. 13 Bom. 555 did not exhaust all the method of the appointment of Mutavalli and any appointment which was in a recognised manner even otherwise would not be invalid. In this context the learned Judge pointed out that as per the settled law it was in eases of endowments of public nature like Juma Masjid and similar institutions in which the public at large or the general public are interested that the appointment of Sajjadanishin or Mutavalli could not be validly made by the congregation of certain people. The learned Judge however held that the Rozas in question were not of that public importance as the Juma Masjid because the family of Edroos was more intimately connected in the Rozas than any other member of the Musalman public generally. It was this feature that the Edroos family had interest in this Wakf and had exclusive governance of this walf in their family which distinguished the case from the other authorities. Thereafter the learned Judge pointed out that the decision in 39 Bom.L.R. 277 had interpreted the Royal Farman as to the character of the grant in case of this Wakf. The learned Judge held that the grant in question was both for the Rozas and for the maintenance presumably of Sajjadanishin and his family members. Therefore from the old documents on record the learned Judge held that it was clear that the idea of maintenance of the Sajjadanishin was not altogether absent from the minds of the Moghul Emperors who granted villages of Orma and Umrao to these Rozas. The learned Judge also followed the aforesaid decision for his conclusion that as regards the surplus income the Sajjadanishin or the Mutavalli had complete power of disposition as the head of the religious institution because he was not in the position of an ordinary trustee. Therefore to the Royal Farmans the learned Judge held that the upkeep of the Durgahs the holding of the fairs and proper attention of the visitors to the Rozas were a primary charge on the revenue of these villages. But once that was done the sajjadanishin had full control over the surplus income and could utilise the same in any manner he liked. In view of this finding the learned District Judge answered all the earlier seven issues holding that the appointment of the Sajjadanishin in question was valid and the plaintiffs had not made out any case of the alleged breach of trust so as to entitle them to any relief in this suit under sec. 92 of the Code of Civil Procedure. Thereafter the learned District Judge considered the last point No. 8 which-was in the following terms

(3.) After the present Act came into force respondents 1 and 2 made an application on September 25 1954 for the statutory inquiry under sec. 19 of the Act. The Dy. Charity Commissioner after the statutory inquiry by the order dated April 23 1950 held this Wakf to be a public trust and these properties in question were held to be properties of the said trust. The Dy. Charity Commissioner had negatived the contention of the present appellants that there was any bar of res judicata on this material question as to whether this Wakf is a public trust or not because of the aforesaid decision in Civil Suit No. 201 of 1928 by the judgment of the learned District Judge at Ex. 74. The Charity Commissioner in appeal has confirmed this order on May 29 1957 Thereafter the appellants made an application under sec. 72 of the Act before the District Court. The District Court invoked the bar of res judicata in view of the aforesaid order of the learned District Judge at Ex. 74. Therefore the two appeals were filed by the Charity Commissioner and by respondents 1 and 2 which were disposed of by the learned Single Judge. The learned Single Judge reversed the finding on the question of res judicata. The learned Single Judge held that this finding of the learned District Judge could not be said to be a collateral finding as it was necessary for disposing of the proceeding before him. The learned Single Judge also held that the suit was of a representative character. The whole judgment of the learned Single Judge rests on the ground that after the present Act there was a substantial change in law in the definition of the public trust and such a Wakf by user having been covered under the scope of the new definition the proceeding in the earlier suit could not operate as res judicata as it could not be said even between the same parties and due to the changed circumstances. As both the appeals were accordingly allowed and the matter was remanded to the learned District Judge for further disposal in accordance with law the present appellants have filed these two Letters Patent Appeals.