MAKHLACHOR RAHMAN Vs. FAIZUR RAHMAN CHAUDHURY

JUDGEMENT

(1.) This appeal arises out of a suit brought under the provisions of Section 539 of Act XIV of 1FS2 (Code of Civil Procedure) in respect of an endowment alleged to be one for public charitable and religious purposes. The plaintiffs, who are the descendants of one Ahmed Shah, alleged that the latter founded a mosque and obtained 4 droves of rent-free land under a sanad granted by Nawab Hussain Coolie Khan sometime before the year 1767 for the maintenance of the mosque and for other religious and charitable purposes connected with the same, that this sanad was confirmed by another sanad granted on the 24th January 1787 and that for a long time past the trust was not being properly administered and the descendants of Ahmed Shah were alienating the endowed properties. The plaintiff accordingly brought that suit with the sanction of the Advocate-General of Bengal, praying that proper persons might be appointed as trustees after the removal of those who professed to act as trustees, that a scheme for the management of the trust properties might be settled and for other reliefs. The defendants, who are some of the descendants of Ahmed Shah, raised various defences to the suit. The Court below held against the defendants, appointed certain persons as trustees and framed a scheme for the management of the trust. Some of the defendants have appealed to this Court and several grounds have been, urged in support of the appeal.

(2.) The first ground taken is that the suit cannot be maintained as no leave of the Court has been obtained under Section 18 of the Religious Endowments Act (XX of 1863). It is urged that the trust being partly for religious and partly for charitable purposes, leave of the Court under Section 18 of that Act ought to have been obtained in so far as it was a trust for religious purposes; and we have been referred to the cases of Jan Ali v. Ram Nath Mandal 8 C. 32 : 9 C.L.R. 433 and Latifunnessa Bibi v. Naziran Bibi 11 C. 33. The first case relied upon was decided under Section 539 of Act X of 1877 and the suit in the second case was decided in the Court of first instance while the said Act was in force and it was also decided by this Court apparently with reference to the provisions of Section 539 of that Act. Section 539 of Act X of 1877 related only to charitable trusts and the word s "or religious" were not in that section. Those were introduced by Act XIV of 1882. As suits in respect of trusts for religious purposes did not come within the purview of Section 539 of Act X of 1877, it was necessary to obtain leave of the Court under Section 18 of Act XX of 1863. Section 539 of Act XIV of 1882 having been extended to religious trusts also, a suit brought with the sanction of the Advocate- General is quite competent. Besides, as pointed out by Maclean, C.J., and Banerjee, J., in the case of Gyananda Asram v. Kristo Chandra Mokherjee 8 C.W.N. 404 a person electing to proceed under the Religious Endowments Act can be given only such special relief as that special Statute provides for and if he wishes for any relief beyond that, he should proceed under Section 539 of the Civil Procedure Code. Some of the reliefs claimed by the plaintiffs in the present case are outside the limited scope of Section 14 of Act XX of 1863. That being so, the suit is maintainable with the sanction of the Advocate General under Section 539 of Act XIV of 1882 and no leave under Act XX of 1863 is necessary. We may mention that no objection to the suit was taken in the Court below on this ground.

(3.) The next contention is that the suit is defective, as all the defendants of the original founder have not been made parties. It is urged that these persons are in possession of portions of the trust property and that they are, therefore, necessary parties to the suit and further that if they are not trustees, the suit would be barred by limitation. But we are not concerned with the question of possession in the present case, which is one under Section 539, Civil Procedure Code, That question will arise when a suit is brought for recovery of possession by the trustees who may be appointed and in whom the trust properties may be vested. Some of these persons claim through the female descendants of Ahmed Shah and although the evidence of the defendants is that they are in possession of portions of the property, there is evidence on the side of the plaintiffs that it is only the plaintiffs and the defendants who are in possession of the trust property and that no portion of it is in the possession of persons who, the defendants say, should be made parties to the suit. However that may be, the suit is directed against the defendants who were managing the trust and who professed to be the trustees, and they are the proper parties to a suit under Section 539, Civil Procedure Code. In these circumstances, we do not think that the suit is defective for want of parties.