TMI Blog1927 (12) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... or Miron Munshi continued to hold this area of land as mutwali of the mosque until his death about seventy years ago, and after him his son, Sheikh Mahommad Jan, succeeded him as mutwali. Mahommad Jan died about fifty years ago, and thereafter his widow Rukia Bibi, assumed the office of mutwali. On October 27, 1802, she executed a deed whereby she purported to nominate her son Mr. Ramjan Ali as her successor in the mutwaliship. 3. Disputes having arisen, the heirs of Mahommad Jan instituted in 1907 a Suit No. 78 of 1907 in the Court of the Subordinate Judge of 24 Parganas, on the basis that Holding No. 221 was the secular property of Mahommad Jan and asking for partition thereof. A preliminary decree for partition was actually made in that suit in 1908. On July 18, 1910, a suit No. 48 of 1910 Mahomed was filed in the Court of the District Judge of 21 Farganas with the sanction of the Advocate General under Section 92 of the Code of Civil Procedure of 1908 by seven Mahomedans as plaintiffs against Rukia Bibi as defendant. It was sought by that suit to obtain the removal of Rukia Bibi from the office of mutwali, for accounts and for settling a scheme for the management of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to show that the learned Judge's attention was drawn to the nature of the suit as affecting a public religious trust. A decree was drawn up on the compromise petition on September 16, 1911. The effect of the consent decree was to declare by implication that, with the exception of 1 bigha 1 cotta 8 chhattaks 24 square feet, which was admitted to be wakf, the rest of the holding amounting to 2 bighas 9 cottas 10 chhattaks and 16 square feet, was secular property and as such belonged to the heirs of Mir Mahomed Jan, who had been added as party defendants by the amendment of the plaint. 8. Thereafter these heirs alienated most of the latter part of the property, and the present suit was brought on March 2, 1918, by five Mahomedans of the neighbourhood against the heirs of Mahommad Jan and their alienees, as also the original plaintiffs in Suit No. 48 of 1910 or their representatives. They alleged that the partition decree in Suit No. 78 of 1907, as well as the compromise decree in Suit No. 18 of 1910, wore not binding upon them, and they also prayed that the whole of the then area of 3 bighas 8 cottas 3 chhattaks may be declared wakf property and the defendants restrained fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liefs specified in Sub-section (1)(a) to (h) do not cover any of the reliefs claimed in this suit unless the words further or other relief in Clause (h) can be held to cover them. It is argued that the words such further or other relief as the nature of the case may require must be taken, not in connection with the previous Clauses (a) to (g), but in connection with the nature of the suit viz., any relief other than (a) to (g) that the case of an alleged breach of an express or constructive trust may require in the circumstances of any particular case. Their Lordships are unable to accept this argument. First, because the words further or other relief must on general principles of construction be taken to mean relief of the same nature as Clauses (a) to (g), Secondly, because such construction would cut down substantive rights which existed prior to the enactment of the Code of 1908, and it is unlikely that in a Code regulating procedure the Legislature intended without express words to abolish or extinguish substantive rights of an important nature which admittedly existed at that time. 16. It is a sound rule of interpretation to take the words of a statute as they stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made by Sub-section (2) of Section 92. 21. Under the Code of 1877, as well as the Code of 1882, the question had arisen whether Section 539 was mandatory and therefore all suits claiming any relief mentioned in Section 53 d should be brought as required by that section or whether the remedy provided by Section 539 was in addition to any other remedy that existed under the law for the redress of any wrongful action in connection with a public trust of a charitable or religious nature. Such rights, when claimed on behalf of the public or any section thereof, had been held to be capable of enforcement by a suit under Section 30 of those Codes (now replaced by Order I, Rule 8); and it had also been held that private persons who had individual rights under such trusts could bring suits to enforce such individual rights by an ordinary suit without being obliged to bring a suit of a representative nature, as above mentioned. Great divergence of opinion had arisen in India in this connection, not merely as between the different High Courts, but between different Benches of the same Court. The resulting uncertainty could only be removed by legislative enactment, and Sub-section (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court were of opinion that the consent decree of 1911 could not be questioned on the grounds stated by the Subordinate Judge, as there was no want of jurisdiction of the Judge to entertain the suit, or to order the amendment as prayed for, or to direct a decree to be made on compromise of the suit. 26. Their Lordships are unable to concur in this view. It is extremely doubtful whether a decree passed under the circumstances of this case can be held to be res judicata as against any persons other than those who consented to that decree. 27. The case of Jenkins v. Robertson (1867) I.H.L. Sc. 117 was based on Scottish law and as explained in the case of In re South American and Mexican Company : Ex part Bank of England (1895) 1 Ch. 37, appears to lay down broadly that persons instituting a suit on behalf of the public have no right to bind the public by a compromise decree, though a decree passed against them on contest would bind the public. It is not necessary for the purpose of this case to decide whether the law in India under Section 11 of. the Code of Civil Procedure is the same as so explained. Their Lordships consider that, in so far as the nature of the suit was changed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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