M I KADRI Vs. KHUBMIYA MAHOMEDMIYA

JUDGEMENT

(1.) In this case an application was made by the committee appointed by Government to manage the Mussalman waki properties in the Ahmedabad city for the removal of the trustees of the mosque of Shah Kubh situated in the city. A scheme with regard to this religious institution was framed by the District Court in suit No. 11 of 1898, but the applicants were not parties to the original suit. Rules 1 and 6 of the scheme were as follows:-- 1. The defendants and their heirs shall during their good conduct be the trustees and managers of the Shah Kubh mosque and of the property belonging to the said mosque including the shops described in the plaint. 6. These rules shall be subject to such modifications or additions as this Court may from time to time see fit to make.

(2.) An application, No. 254 of 1913, was made on January 19, 1916, to make certain additions to the rules, and the District Judge made certain additions but declined to remove the trustees. In First Appeal No. 139 of 1916 Batchelor J. observed as follows:-- The learned District Judge refers to the trouble which this mosque has already caused him, and if further trouble of the same kind is continued later, it seems to me it will be for the District Judge to consider whether it will not be right to remove the mutavallis from their appointment on a properly based application coming from persons prejudicially affected by laxity of management.

(3.) There were other applications to the District Court, applications Nos. 201 of 1903, 96 of 1907, and 386 of 1908, to which it is unnecessary to refer except for the purpose of indicating the practice of this Court and subordinate Courts to entertain applications for modification or alteration of schemes from time to time. The learned First Class Subordinate Judge did not agree with the view in Abdul Hakim Baig V/s. Burramiddin (1925) I.L.R. 49 Mad. 580, on the ground that it was in conflict with the Bombay view expressed in Damodarbhat V/s. Bhogilal (1899) I.L.R. 24 Bom. 45, s.c. 1 Bom. L.R. 509, but following the latter case held that the remedy of the applicants was to make an application first for the modification and alteration of the scheme so as to include in it a provision for the removal of the trustees, if necessary. The learned Judge, however, though he disagreed with the view taken in Abdul Hakim Baig v. Burramiddin, held that it was not competent to make the present application with-out the consent of the Collector or the Advocate General, and he further held that as the present applicants were not parties to the suit, they had no right to apply for a modification of the scheme.