FAZLEHUSSEIN HAIDERBHOY BUXAMUSA Vs. YUSUFALLY ADAMJI

JUDGEMENT

(1.) (After setting out the contentions of the parties, his Lordship proceeded:) Now at the date when the suit was filed the defendants were nationals of what then was British India and resided in the British Indian territory, but since the partition of India defendants Nos. 1 to 9 have been residents of territory which is beyond the territory of the Union of India, and I will assume for the purpose of argument that defendants Nos. 1 to 9 are not. residents of the Union of India and may be regarded as non-resident foreigners qua this Court. Again, when the suit was filed some of the properties belonging to the institution were in British India and some were outside British India. Even though the charity was outside the country, the trustees were residing in British India and the management of the trust was also carried on in British India. Since the suit was filed, however, the position of the parties qua this Court has been fundamentally altered. Not only is the charity a foreign charity in the sense that the benefit which was available to the pilgrims when visiting Iraq, was to be obtained by them outside the limits of British India, but even the trustees who are administering the trust are not residents of the territory where the writ of the State under which the Court functions continues to run. The effect of the change is of far-reaching importance to the constitution of the suit. As I will hereafter advert, this Court at the date when the suit was instituted have been in a position to grant directions to defendants Nos. 1 to 9 in personam, and if the plaintiff's case was established, those directions might have been enforced by directing the defendants personally to comply with the orders, but since partition this Court is incompetent to issue even personal directions against the trustees. The defendants have not made this submission in their written statement and have not expressly claimed that this Court is incompetent to proceed with the suit on the ground that the reliefs claimed against them are not capable of being granted by this Court, because they are non-resident foreigners, and that the claim is made by the plaintiffs in respect of a foreign charity. However, even without a formal amendment the argument has been permitted to be raised that the Court is incompetent to try the suit when the defendants are non-resident foreigners and the charity in respect of which a claim for administration is made is a foreign charity.

(2.) Now, some of the properties of the institution, which for the purpose of the present argument I assume is a public trust of a religious or charitable nature, are within the limits of the ordinary original jurisdiction of this Court. It appears, however, that there are several other propertied of the institution which are situate outside the limits of the ordinary original jurisdiction of this Court and some are even outside the territory of the Indian Union, and possibly those properties constitute the bulk of the property of the institution. The question that arises then for decision is: Is this Court competent to entertain a suit for the administration of a charity and for removal of trustees and for appointment of new trustees, when the charity is to all intents and purposes a foreign charity, the management of the charity is carried on in a foreign territory and the trustees are non-resident foreigners, merely because some of the properties which belong to the charity are situate within the territorial jurisdiction of this Court and its income is collected and is required to be applied for purposes of the charity. For the decision of this question I have omitted from consideration the state of things which prevailed when the suit was filed and I have taken into consideration the state of things which exists when this issue as to jurisdiction is sought to be argued. It is obvious that even if this Court had jurisdiction to entertain the suit as filed, if by reason of subsequent events the Court has lost jurisdiction to entertain or try the suit, this Court will not be justified in dealing with the suit with reference to circumstances as they existed at the date of the institution of the suit, but must proceed to decide the dispute on the footing that if the suit had been filed at this date, the Court would have been incompetent to grant the reliefs in respect of the properties and of the persons who are not within the limits of the jurisdiction of this Court. Normally a Court must have regard to circumstances existing as at the date when the issue of jurisdiction is tried and must decide it in the light of circumstances existing as at that date.

(3.) In considering the preliminary issue the Court must look to the averments in the plaint and consider any objections which the defendant may choose to raise against the maintainability of the action on those averments. The question of jurisdiction which is raised by way of a demurrer has always to be decided on the allegations made in the plaint and not on the contentions that the defendant may raise. It is true that if the jurisdiction of the Court depends upon the proof of a fact and the question as to the existence or otherwise of that fact is canvassed, the parties may lead evidence in support of their respective cases before the preliminary issue as to the jurisdiction of the Court is decided. But in the present case there is no scope for recording evidence for arriving at a conclusion as to the existence of any fact on the proof of which alone the Court's jurisdiction depends.