SAJJADANASHIN SAYED MD. B.E. EDR. (D) BY LRS. versus MUSA DADABHAI UMMER AND ORS.

Citation: [2000] 1 S.C.R. 1095 · Decided: 23-02-2000 · Supreme Court of India · Bench: M. JAGANNADHA RAO · Disposal: Dismissed
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Judgment (excerpt)

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SAJJADANASHIN SAYED MD. B.E. EDR. (D) BY LRS. 
v. 
MUSA DADABHAI UMMER AND ORS. 
FEBRUARY 23, 2000 
[M. JAGANNADHA RAO AND R.C. LAHOTI, JJ.] 
Code of Civil Procedure, 190~Section 11-Res Judicat~atters 
'directly and substantially' in issue and matters 'collaterally or incidentally' in 
issue-Meaning of and distinction betwee11-Held, a11 issue necessary to be 
decided for deciding the principal issue is 'directly and substa11tially' in 
issue--Held, it is a question off act-Bombay Public Trnsts Act, 1950-Sectio11 
9. 
Bombay Public Trnsts Act, 1950-Section 2(19}-Public trnsf--Mean-
ing of 
Members of the Edroos family, which claims to be the descendants 
of Hazarat Imam Ali, were the saijadanashins/mutawallis of the rozas at 
Ahmedabad, Broach and Surat. That wakf was not only for the main· 
tenance of these rozas but also for the benefit of the waquirs family. 
In Regular Suit No. 201 of 1928 the plaintiffs therein had impleaded 
the father of the appellant as defendant and alleged that the father of the 
appellant was not legally appointed as the sajjadanashin of the rozas and 
that he was mismanaging the funds of the trust. The Sub-Judge dismissed 
the suit. On appeal, District Court framed 8 points for consideration out 
of which one of the issues was as to whether the wakf was a private wakf 
or a public wakf. The District Court held the wakf to be a private wakf on 
the ground that apart from other obligations and charitable purposes, the 
saijadanashin could spend the income from the wakf for the maintenance 
of his family. 
In 1954, another proceeding was initiated under Section 19 of the 
Bombay Public Trusts, Act, 1950 in relation to Ahmedabad roza and a plea 
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~f res judicata based on the above mentioned judgment of the District 
Court (arising out of Regular Suit No. 201 of 1928) was raised by the 
appellant. The plea was rejected by the Deputy Collector and the Charity H 
1095 
1096 
SUPREME COURT REPORTS 
12coo11 S.C.R. 
A Commissioner. The District Judge reversed the judgment of the Charity 
Commissioner and accepted the plea of res judicata. Single Judge (judg-
ment reported in 1958 (9) Guj. L.R. 1002) and the Division Bench of the 
High Court (judgment reported in 1972(13) Guj. L.R. 285), however, 
reversed the judgment of the District Judge and rejected the plea of res 
B judicata. The Special Leave Petition against the order of the Division Bench 
was dismissed as withdrawn. Later on, the District Judge on merits held 
the Ahmedabad roza to be a public trust. The decision of the District Judge 
was confirmed by fie High Court and the Special Leave Petition filed 
against the order of the High Court was dismissed for non-prosecution. 
C 
The respondent initiated a proceeding in 1967 under Section 19 of 
the Bombay Public Trusts Act, 1950 for a declaration that the Rozas 
situated at Ahmedabad, Broach and Surat were public trusts. The appel-
lant raised a preliminary objection to the petition filed by the respondent 
that the petition was barred by res judicata in view of earlier judgments in 
D the proceedings arising out of Regular Suit No. 201 of 1928 and the 
decisions of the Assistant Charity Commissioner in Inquiry Nos. 3/65 and 
14/64 where the trust was held to be a private trust. The Assistant Charity 
Commissioner accepted the preliminary objection raised by the appellant. 
Before the Joint Commissioner the plea of res judicata was confined only 
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to the rozas of Broach and Surat and the said plea in respect of the 
Allahabad roza was not pressed in view of the judgments in the proceed-
ings initiated in 1!154. The Joint Charity Commissioner reversed the 
judgment and order of the Assistant Charity Commissioner and rejected 
the plea of res judicata raised by the appellant. The order of the Joint 
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Charity Commissioner was confirmed by the Assistant Judge and the 
Division Bench of the High Court 
Dismissing th~ appeal filed by the appellant against the order of the 
Division Bench, this Court 
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HELD : 1.1. If the matter was in issue 'directly and substantially' 
in a prior litigation and decided against a party then the decision would 
be res judicata in a subsequent proceeding. If a matter was only 'collaterally 
or incidentall~' in issue and decided in a earlier proceeding, the finding 
therein would not ordinarily be res judicata in a latter proceeding where 
H the matter is directly and substantially in issue. (1104-C-D] 
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S. SAYbD MD. B.E. EDR.
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