SUGRA BIBI versus HAZI KUMMU MIA

Citation: [1969] 3 S.C.R. 83 · Decided: 13-12-1968 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
SUGRABIBI 
v. 
HAZI KUMMU MIA 
December 13, 1968 
B 
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.] 
c 
D 
E 
F 
G 
H 
Civil Procedure Code s. 92(1)-Wakf providing /or application of 
some income for charitable and religious etc. purposes and some for settlor's 
family-Suit for removal of Mutwalli and appointment of another-When 
written consent of Advocate.General necessary to maintainability of suit. 
E executed a Wakf deed in November 1936 in respect of his property 
-,alued at Rs. 30,000 and appointed his son S and bis son-in-law, the res-
pondent, as the Joint Mutwallis. It was p'rovided in the deed that upon 
the death of either of them, the survivor was to be the sole Mutwalli and 
would have. power to nominate bis sueiccssor from the family line of the 
settlor; if both died without nominating a successor, the senior-most member 
among the lineal descendants of S and the respondent was entitled tn be-
come the Mutwalli. The Wakf deed provided inW alia for the expenditure 
of Rs. 500 annually for the maintenance and upkeep of mosques etc. and 
for helping the poor and needy; it also made certain provisions for the 
maintenance of the setllor's familv and ~ave power to the Mutwalli, if funds 
were available, to make contributions for general charitable purposes. It 
further provided for application of the whole income for charitable pur-
poses in the event of the total extinction of the settlor's family. 
S died in Decembel", 1960 and thereafter the respondent became tbe 
sole survi\ing Mutwalli. The appellant, the widow of S, tiled a suit in 
July 1967 for a declaration that the respondent was until to continue as 
Mutwalli of the Wakf estate and should be removed from office; further-
more that the son of the appellant through S be appointed as Mutwalli and 
until be attained majority, a rec.eiver should be appointed for the Wakf 
estate. The respondent contested the suit on the ground that the suit was 
incompetent as the sanction of the Advocate-Oeneral was not obtained 
under s. 92 C.P.C. The Trial Court held that the suit was not affected by 
the provisions of s. 92 and also ordered the removal of the respondent. 
An appeal to the First Appellate Court was dismissed but the Hip Court 
allowed a revision petition holding that the suit was not maintainable in 
view of provisions of s. 92 C.P .C. 
In appeal to this Court it was contended on behalf of the appellant 
that s. 92 C.P.C. had no application f<>f the reason i11ter alla (I) that the 
Wald deed of November 1936 did not create a public charitable or reli-
gious trust but the trust was executed mainly for the benefit of the foun-
der's family; (ii) that the suit was not brought to vindicate or establish 
a light of a public institution, i.e. the trust, but to remedy an infringe-
ment of an individual right or to vindic;ate the private right of the appel-
lant. 
The respondent's contention was that s. 92 applied as the reliefs 
"'ught by the appellant were exactly those contemplated by the section. 
HELD : The suit fell within the purview of s. 92 C.P.C. and in the 
absence of the consent in writing of the Advocate·General, it was not 
maintainable. 
(i) 111 view of the provi!ions or. the Walcf deed, the rm:tc fact that 
there were certain provisions In favou'r of the family of the founder along 
84 
oliPREME COURT REPORTS 
[1969] 3 S.C.R. 
with other provisions in favour of the public, the case would not be 
A 
!"ken out of the provisions. of s. 92 C.P.C. A substantial portion of the 
mcome .o~ the Wakf p:opert1es was to be spent for purpose of a charitable 
and rehg1ous ·nature and the Wakf therefore fell within the purview of 
· s. 93. [88 E-'-FJ 
S. Massirat Hossain v. Hossain Ahmad Chowdhury 42 C.W.N. 345 
and Vaidya Nath, Aivyar v. Swaminatha Ayyar, 51 I.A. 282, referred to. 
(ii) Even if a suit related to a public trust of a religious or charitable 
B 
nature and the reliefs claimed fell within clauses (a) to (h) of sub-
section (I) of s. 92, the provisions of that Section would not be attracted 
unless the suit is of a representative character instituted in the interest of 
the public and not merely for vindication of the individual or personal 
rights of the plaintiff. However, in the present case the Wakf was held 
to have been created for a public purpose of a charitable o'r religious 
nature and the reliefs claimed were not for enforcing any private rights 
C 
but for removal of the defendant as a trustee as envisaged in clauses (·a) 
a

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