# AHMED ADAM SAIT & OTHERS v. INAYATHULLAH MEKHRI AND OTHERS - **Citation:** [1964] 2 S.C.R. 647 - **Court:** Supreme Court of India - **Decided:** 1964 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ahmed-adam-sait-others-v-inayathullah-mekhri-and-others-2951 - **Pages:** 27 ## Headnote ..... 2 s.c.R. SUPREME COURt REPORts 647 AHMED ADAM SAIT & OTHERS v. INAYATHULLAH MEKHRI AND OTHERS (P. B. GAJENDRAGADKAR, K. N. WANCHOO, and K. C. DAS GuPTAJJ.) Public Religious Trust-Scheme-Suit to set aside 'chemeBen•ficiaries, not a particular sect of Muslim Community-Plea of res judicata-Character and nature of representative auitCiroumstances under which a scheme can be set aside-Code of Civil Procedure, 1908, (Act V of 1908), ss. 11 Exp. VI, 90, Or. J. rr. 6, 8. The respondents filed a suit under 1. 92 of the Code of Civil Procedure, 1908 claiming to represent the Sunni Mu;lims population of Bangalore and praying that a scheme should be •ettled for the proper administration of the Jumma Masjid, Bangalore. The plot on which the Masjid was built was purchased about a century ago by a large number of Muslims consisting of several groups from all walks of life. The mosque was constructed from the funds given as gifts by a large number of Muslims. A grant of land made to the mosque shows that the mosque and its properties were intended for the benefit of the Muslim Community as a whole. For about 60 years the mosque and its properties were under the management of non· Cutchi Memons and prior to this the management was not exclusively in the hands of Cutchi Memons but predominently in the hands of Dekkhani Muslims of the locality. In subsequent years on some occasions the management was predominently in the hands of the Cutchi Muslims but the Dekkhani Muslims in Bangalore numbered about 30,000 and the Cutchi Muslims never exceeded 300. Prior to the present suit a suit under'· 92 was filed in 1924 and a scheme was settled and Trustees were appointed and they had been in management ever since. In the said proceedings, the plaintifffs, both in the application made co the Collector for sanction under s. 92 Code of Civil Procedure and In the plaint, specifically averred that the Masjid in question was an institution belonging to the Cutchi Memon Community 1963 Alarch 29 /963 Ahmttl Adam Soil v. lnaJ(!fhz:lla.~ J11Ahri 048 SUPREME COURT REPORTS [lti(Hj VOL. and they purported to represent the intde of Civil Procedure (O.S. No 2 of Ull 7). The respondenls claimed to represent the Sunui l\Iuslim popubtion of the Civil and Military Station at Bangalore, and as such they prayed in their plaint that a scheme should be settled for the proper administration of the Jumma !llasjid which is situated on Old Poor House Road, C & M Station, Bangalore. Their case was that the Masjid in question along with its adjuncts such as Idgah, Makkhan, Madrassa, Kutubkhana and Musafarkhana as well as large movable and immovable properties, constitutes a Trust created for public purposes of a religious nature coupled with charity, and that the Dakkhani Muslims as well as the Cutchi Memons residing in Bangalore are the beneficiaries of the Trust and have an abiding interest in its proper management, control and direction. 2 S.C.R. SUPREME COURT REPORTS 651 It appears that a similar suit had been filed in 1924 (O.S.No.32of1924) in the same Court and in that wit a scheme had been framed in 1927. Pursuant to the said scheme, Trustees were appointed and they have been in management of the Trust properties since then. The respondents alleged that in the said suit, it was represented that the Masjid belonged mainly to the Cutchi Memons of Bangalore and that the Cutchi Memons were entitled exclusively to its management. It is on this basis that the said suit was prosecuted by consent and a scheme was drawn up by the court after considering different schemes put before it by the respective parties. To that suit seven defendants were impleaded; defendants 2 and 7 claimed the right of management of the Trust under wills executed by the deceased Mutawalli Abdul Gaffar. Defendant No.2 was then a minor and his mother was impleaded as defendant No. I both in her own right and as guardian of defendant No.2. Defendants 3 to 6 were the Executors under the will of Abdul Gaffar on which defendant No.2 relied. All those defendants were non-Cutchi Memons and the appellants who had filed the suit were Cutchi Memons. While the said suit was pending, six persons who were Cutchi Memons applied to be joined as defendants to the suit. Their case appears to have been that no scheme need be framed. Their application was rejected by the District Judge, but on revision before the Court of Resident in Mysore, the District Judge's order was set aside and they were ordered to be impleaded. That is how ultimately, 13 defendants were joined to the said suit. While the administration of the Trust and the management of its affairs and properties were thus entrusted to the Board of Trustees appointed under the scheme, and the same was being continued after the scheme decree was passed, an application was made by the present respondents on January 22, 1945 under 0.1 r.10 and sections 141 and 1963 A.f.med Adam Sa{t v. lt1ayathull~h Mekhri Gajendrazadkar J 1963 Altmtd Atlam Sait v. lruiyallmlluh .\f11Jiri Gajtntlrotadkar J, • ll52 SUPRE:-.fE COURT REPORTS [l!Jll4] VOL. L:il o( the Code in which they prayed that 1hey may be joined as parties to the proceedings under the scheme and that the Trustees should be ordered to convene a fresh meeting of the general body of worshippers of the ~Iasjid and prepare a list containing their namrs and submit the same to the Court irrespective of whether they happen to belong to the Cutchi Memon Jamayet or the Dakkhani Muslim Community of Bangalore. Their contention was that a meeting which had been held in pursuance of the order on C. M. P. No. 242 of 1944 was invalid, null and void, and so they wanted to be joined to the proceedings; they desired that a fresh meeting should be called for the purpose of preparing a list of worshippers as prescribed by the scheme. In support of this application, an elaborate affidavit was filed in which they set out their grievance that the management of the Trust which had been left exclusively in the hands of Cutchi Memons was inconsistent with the scheme and on the merits, unjustified and unfair. This application W consisting of several groups described a> traders, bakers, sweetmeat makers, copper-smiths, rope-makers, mutton butchers, beef butchers, gardeners and other Muslims. That shows the very broad basis of the cross-section of the Muslim community which joined in purchasing the open polt on which the mosque was built. Then followed a gift deed executed on November I, l!l23 (Ext. 'L') which was a voluntary undert?king given by a large number of Musalmans to coutribute funds in the I ~ S.C.R. SUPREME COtJRT REPOR1'S 657 construction of the Mosque. A grant of land made on October 4, 1830 (Ext. YYYY) clearly brings out that the Mosque and its appurtenances were intended for the benefit of the whole Muslim Community represented by the local Kazi. In about 1850, Abdul Khuddus appeared on the scene and it is common ground between the parties that he was actively associated with the institution for about half a century. He appears to have been a very influential person in the locality and helped to popularise the institution and acquired considerable properties for it; thereby, he rendered the mosque useful to the community in various directions. Abdul Khuddus was in management of the Mosque till 1905 when he died. He was followed by his son Abdul Gaffar who died in 1922. It appears that Abdul Gaffar left b~hind him two wills under which two different claims for the Mutavalliship of the Mosque were made. About this time, the eariler suit of 1924 was instituted. 1 tis thus not disputed that for nearly 60 years and more, Abdul Khuddus and his son who were non-Cutchi Memons were in management of the Mosque and as we have already noticed, prior to 1850 when Abdul Khuddus came on the scene, the management does not appear to have been in the hands of the Cutchi Memons exclusively, but it was predominantly in the hands of the Dakkhani Muslims of the locality. On June, 29, 1880, a Power of Attorney was executed by the Jamayat in favour of Abdul Khuddus in order to enable him to enter into transactions on behalf of the Mosque. Of the ten presons who executed the Power of Attorney, three were Cutchi Memons and the rest Dakkhani Muslims. This document shows that Cutchi Memons had by then associated themselves with the administration of the affairs of the Mosque and formed part of the Jamayat which owed allegiance to the Mosque but amongst the Trustees who executed the Power of 1963 AAme! Adem Soit v. lnqy athulloh M ekhr'i Gojcnlirtf:ndkr,r J 1963 . 4hmccf . .fdom Sail v. bl'lJOtliul/oh lvftirhri C:ojt•dragodka• J. • 658 SUPREME COURt REPORTS [1964] VOL Attorney in favour of Abdul Khuddus, the proportion was :i: 7 . On December 2U, l 8U2, a sale deed was executed by one Thulsibayama (Ext. HHHH) conveying her house property in favour of Abdul Khuddus. Abdul Khuddlls was described as the Head Trustee of the Jumma Masjid. The other Trustees mentioned in the document who numbered i:J, represented the Dakkhani Muslims and the Cutchi Memons in the proportion of "i:G. It is true that on some occasions, the Headmen appeared to have been predominantly Cutchi :VIcmons; for instance. the document pertaining to the transfer of f azel :Vlahorncd Asham Sait's right to Jumma l\fasjid (Ext. UUU) was cxecut~d in favour of six Headmen all of whom appear to be(' 1tchi l\kmons; but as the High Court has observed, : !1is can have no special significance since in this d ,cument, Abdul Khuddus himself is not mentioned :· nd that may show that the Headmen did not include the main person who was looking after the Masjid. However, one fact is significant that the Dakkhani Muslims numbered about 30,000 and the Cutchi Mcmons never exceeded 300 and this fact has· to be borne in mind in dealing with the question of the administration of the properties belonging to Jumma !llasjid, and, so it would be clear that though the Cutchi Memons were associated with the administration of the Trust, they were not at all in its exclusive management. Before his death Abdul Khuddus had executed a Power of Attorney in favour of his son Abdul Gaffar on June 14, HJ05, and as we have already seen, Abdul Gaffar stepped into the management. Thus, the documentary evidence which the High Court has accepted supports its finding that the :Vfosque came into being and continued to be an institution belonging to the whole Sunni Muslim Community of Bangalore and that it could not be held that its management wa~ exclusively in the hands of Cutchi Mcmons at any 2 S.C.R. SUPREME COURT REPORTS 659 time before 1924. Having regard to the very prominent and Powerful part played by Abdul Khuddus in the development of the Mosque and its properties, it is not surprising that the Mosque came to be known as "Khuddus Saheb's Mosque." This description of the Mosque is found in a document executed on June 7, 1884 (Ext. RRRRRR-1). Subsequently, when the Cutchi Memons filed a suit in 1924, they alleged that the Mosque was known as the Sait's Mosque, but that is undoubtedly a later development. It may be conceded that the several J amayats of Muslims residing in Bangalore in different localities have their separate mosques, and as often happens, the Muslim residents of a particular locality generally offer prayers in the mosque situated in the locality and in that sense, owned by the Jamayat of the said locality. The position of the J umma Masj id with which we are conctrned, however, appears to be that of a central _Mosque to whkh allegiance is owed by all the Sunni Muslims of Bangalore. In fact, evidence adduced in this case clearly shows that the Cutchi Memons constituting a J amayat by themselves have a mosque of their own in Fraser town. This fact was admitted, though with reluctance and then too not clearly, by Haji Saleh Mohamed Sait whom the appellants examined on their behalf. It also appears from the evidence of the said witness that the bulk of Nikahs in the J umma Masjid (Ext.Y-6) consists of those Muslims other than Cutchi Memons and that rather shows that amongst the usual worshippers at the J umma Masjid the non-Cutchi Memons occupied an important place. It is in the light of these facts that the controversy between the parties in the present litigation has to be judged. It appears that about 1920, when the non-cooperation movement was in full force, there was a 1963 Ahm:d Adam Sail v. btayathuliah A1el.hr i 19~S Altmtt! Alam S•il •• l••>·•thull.i. Mllllri 660 SUPREME COURT REPORTS [1964] VOL. sharp division in the Cutchi 1\.Icmon Community as well as the Dakkhani Muslims at Bangalore. The majority of the community sympathised with the non·co-operation movement and aμplaudcd those who took part in it, whereas the minority led by Haji Sir Ismail Sail disapproved of the movement and publicly denounced it. That led to the usual development of excommunication of the minority, and so, Haji Sir Ismail Sait filed a suit '.'lo. 6/1921 to vindicate his right of access to the Mosque for performing religious ceremonies and claimed an injunction against the managers of the Mosque restraining them from interfering with the exercise of his right in that behalf. During the pcndency of the suit, however, Abdul Gaffar died on January 9, 1922. That tended to accentuate the division in the Community and it was this sharp division in the Community which was further complicated by the rival claims made by t" ,, different persons who had set up two different wills of Abdul GafJar that led to Suit No. 32/l!l24 being filed. In that suit, it was claimed that the Mosque was primarily developed by the Cutchi Memons and that the Cutchi :\lemons were entitled to the exclusive management of the affairs of the Mosque. The defendants who had been impleaded to that suit first appeared to resist the claim. \Ve have already seen who these defendants were. They were interested in supporting their individual rights in respect of the management of the Mosque and it appears that they reached an amicable settlement with the plaintiffs and ultimately submitted to a preliminary decree directing that the scheme be framed. Those defendants who were nonCutchi Memons did not represent the non-Cutchi Memon Community as such and were interested only in their personal rights based upon the wills executed by Abdul Gaffar. After the parties agreed that the scheme should be drawn up, the District Judge directed thrm to file their respective schemes. The Court then examined the said schemes and finally 2 S.C.R. SUPREME COURT REPORTS 661 framed its own scheme. Thereafter, Trustees have been appointed under the Scheme from time to time and the administration of the Trust and the management of its properties has remained in the hands of Trustees who have always been Cutchi Memons. That, in short, is the history of the commencement and the development of the Mosque and of the facts leading to the present dispute. The first point which has been pressed before us by Mr. Setalvad is that the present suit is barred by reason of the fact that in the earlier suit instituted under s. 92 of the Code a scheme had already been framed by a court of competent jurisdiction and the decree by which the said scheme was ordered to be drawn binds all parties interested in the Trust. A suit under s. 92, it is urged, is a representative suit, and so, whether or not the present respondents actually appeared in that suit, they would be bound by the decree which had framed a scheme for the proper administration of the Trust. In support of this argument, reliance is placed on the decision of this Court in Raja Anandrao v. Shamrao (1), where it is observed that though the Pujaris were not parties to the suit under s. 92, the decision in that suit binds the pujaris as worshippers so far as the administration of the temple is concerned, because a suit under s. 92 is a representative suit and binds :not only the parties thereto, but all those who are interested in the Trust. Mr. Setalvad has also relied on the twu decisions of the Madras High Court, (1) in Ramridos v. Hannmantha Rao ('). and (2) in Khaja Hasrnnullah Khan v. Royal Mosque Trust Board('). The effect of those two decisions is that a decree passed in a suit filed under s. 92 framing a scheme is binding on all and it prevents every person whether a party to the suit or not from asserting in a subsequent suit rights which conflict with or attack the scheme. Jn assessing the validity of this arguement. it is necessary to consider the basis of the decisions that (1) [1961] 3 S.C.R. 930, 940. (2) (1911) !,L,R, 36 Mad, 364. (3) !.L.R. (1948) Mad .• 257. ( 1963 Ahmed Adam S•l • v. lnaJalhullah Mekh r ;ajendragatfkar J. AJ;mtd Adr.m 5oil v. lrl'l)'Ofhuliali llftli'1ri {;afrnrfrngad~ar J. 6tl2 SUPREME COURT REPORTS (1964] VOL a decree passed in a suit under s. 92 binds all parties. The basis of this view is that a suit under s. 92 is a reprcsentati\·c suit and is brought with the necessary sanction required by it on behalf of all the beneficiaries interested in the Trust. The said section autho· rises t\\'O or more persons having an interest in the Trust to file a suit for claiming one or mon." of the reliefs specified in clauses (a) to (h) of sub·section (I) after consent in writing there prcscribl'd has been obtained. Thus, when a suit is brought under s. 92, it is brought by two or more persons interested in the Trust who have taken upon themselves the responsi· bility of representing all the beneficiaries of the Trust. In such a suit, though all the beneficiaries m.1y nut be expressly impleadcd, the action is insti· tuLcd on their behalf and relief is claimed in a representative character. This position immediately attracts the provisions of explanation VI to s. 11 of the Code. Explanation \"I provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. It is clear thats. 11 read with its explanation VI lca disputing some of the allegations made in the plaints, but those pleas have no relevance on the point with which we are concerned. It is thus clear that the allegations made in the plaint, as well as the averments made by the respective defendents in their written statements do not justify the contention that the earlier suit was either filed by persons who could claim to represent non-Cutchi Memom, or was defenJed by pers~ns who could make a similar claim. If that be so, the very basis on which the binding character of a decree passed in a suit under s. 92 of the Code rests disappears; we have already seen that the basis of the principle that a decree under s. 92 suit binds all persons interested in the trust, is that the interests of all persons interested in the Trust are represented in the suit as required by 1963 Ahmed Adam Sail v. Inayathullah ~Wekhr Gajendragadkar J. 1963 Ahmed Adtu11 Sait v. /na.J4/hullah ,\J,J;hri ~ajvu!ragodJ;M J. 666 SUPREl\·fE COURT REPORTS[l964]VOL. explanation VI to s.