# SUGRABIBI v. HAZI KUMMU MIA

- **Citation:** [1969] 3 S.C.R. 83
- **Court:** Supreme Court of India
- **Decided:** 1968-12-13
- **Bench:** J. C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sugrabibi-v-hazi-kummu-mia-4649
- **Pages:** 9

## Headnote

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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 respondent, 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 become 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 purposes 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; furthermore 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 religious trust but the trust was executed mainly for the benefit of the founder'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 infringement of an individual right or to vindic;ate the private right of the appellant.
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
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!"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 subsection (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 indivi

## Text

A
SUGRABIBI
v.
HAZI KUMMU MIA
December 13, 1968
B
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]
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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 respondent, 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 become 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 purposes 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; furthermore 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 religious trust but the trust was executed mainly for the benefit of the founder'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 infringement of an individual right or to vindic;ate the private right of the appellant.
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
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nature and the reliefs claimed fell within clauses (a) to (h) of subsection (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
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but for removal of the defendant as a trustee as envisaged in clauses (·a)
and (b) of s. 92 (I), the suit brought by the appellant must be treated
as a suit brou~ht in a representative capacity on behalf of all' the beneficiaries of the Wakf to which the provisions of s. 92
C'.P.C.
applied.
[90 G-91 Bl
Budreedas v. Choonilal I.L.R. 33 Cal. 789 at p. 807, Appanna v.
Narasinga, J.L.R. 45 Mad. 113 and .The Tirianalai·Tiruooti Devasthc.na.rns
))
Committee v. Udiavar Krishnayya Shanbhaga, l.L.R. [1943] Mad.
619,
referred to.
CML APPELLATE JURISDICTION : Civil Appeal No. 128 of
1966.
Appeal by special leave from the judgment and order dated
September 3, 1963 of the Assam High Court in Civil Revision No.
E
21 (H) of 1962.
Debabrata Mukherjee and A. K. Nag, for the appellant.
Bishan Narain, V. D. Kisra and P. N. Bhardwaj, for the respondent.
The Judgment of the Court was delivered by
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Ramaswami, J,
Late Haji Elahi Bux had one son named
Mohammed Shafi and had one daughter. The appellant is the
widow of the said Mohammed Shafi. The respondent who is a
nephew of Haji Elahi Bux, married his daughter. The said Haji
Elahi Bux carried on a shoe business under the name and style of
"S. Mohd. Shafi Kammu Mian". He executed a Walcf deed dated
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November 18, 1936 in respect of his property and appointed his
son Mohammed Shafi and his son-in-law, the respondent, as the
joint Mutwallis. According to the terms of the Wakf deed on the
death of a joint Mutwalli, the survivor was to be the sole Mutwalli and had the power to nominate his successor from the
family line of the settlor. And in case the sole Mutwali died
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without nominating his successor, the senior-most member among
the lineal descendants of Mohammed Shafi and Kammu Mia, if
otherwise competent, was entitled to hold the office of Mutwalli.
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SUGllA BIBI v. MAZI KUMMU (Ramaswami, J.)
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Mohammed Shafi died on December· 20, 1960, and thereafter the
respondent became the sole surviving Mutwalli. The appellant
filed a suit on July 7, 1961 in the Court of Assistant to the
Deputy Commissioner, United. Khasi & Jaintia Hills,
Shillong,
against the respondent for a . declaration that the respondent was
unfit to continue as Mutwalli Qf the Waid estate and that he
should be removed from the office of Mutwalli and that Soleman
the son of the plaintiff through Mohamed Shafi be declared fit and
be appointed as Mutwalli of the Wald estate and till he attained
majonty a suitable Receiver should be appointed for
the said
Wald estate: The respondent contested the suit on the ground that
sanction of the Advocate-General was not obtained under s. 92,
Civil .Pr.oc.edure Code and the suit was therefore not competent.
By its order dated October 3, 1961, the trial Court. decided that
the suit was not affec\ed by the .provisions of s. 92, Civil Procedure Code and held that the suit was competent. The trial court
also ord¢red the removal of the respondent from the office of the
Mutwalli pending disposal of the suit.
The respondent filed an
appeal in the court of Deputy Commissioner, United Khasi &
J aintia Hills, Shillong but the appeal was dismissed. The respondent took the matter in revision b.~fore the High Court of Assam.
By its judgment dated SeJ?teniber 3, 1963, the J:lJgb .Court allowed
the revision petition and held that the suit was not maintainable
in view of the provisions of s. 92, Civil Procedure Code.
This appeal is brought, by special leave, from the judgment
of the Assam High Court dated September 3,
1963 in Civil
Revision No. 2l(H) of 1962.
The sole question to be considered in this appeal is whether
the suit of the appellaj!jt attracts the provisions of· s. 92, Civil
Procedure Code and whether the suit can be maintained withr
out the sanction of the.Advocate-General under s. 92 of the Civil
Procedure Code.
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Section 92 of the Civil Procedure Code states :
" ( 1) In the case of any alleged breach of any
express or constructive trust created for public purposes of a charitable or religious nature, or where the
direction of the Court is deemed necessary for
the
administration of any such trust, the Advocate-General, or two or mci.re persons having an interest in the
trust and having obt\lined the consent in writing of the
Advocate-General, niay institute a suit, whether C0\11temtious or not, in the principal Civil Court of original
jurisdiction or in ·any other Court empowered in that
behalf by the State Government within the local limits
of whose jurisdiction the wh01e or any part of the
SUPll.BMB COUR. T .RliPOll TS
t1969] 3 S.C.ll
subject-matter of the trust is
situate,
to obtain a
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decree-
(a). removing any ~tee;
(b) appointing a new trustee;
(c) vesting ll(llY property in a trustee;
(cc) directing a trustee who has been removed or
a person who has ceased to be a crustee, to
deliver
possession of any trust property in his possession to the
person entitled to the possession of such property;
( d) directing accounts and inquiries;
( e) declaring
what
proportion of
the
trustproperty or of the interest thereiin shall be allocated
to any particular object of the trust;
(f) authorizing the whole or any part of the trustproperty to be let, sold, mortgaged or exchanged;
(g)'-settling a scheme; or
( h) granting such further or other
relief as the
nature of the case may require.
"
It is evident that this section has no application unless three
conditions are fulfilled : ( 1) the suit must relate to a public
charitable or religious trust, (2) the suit must be founded on an
allegation of breach oi trust or the direction of the Court is
required for administration of the trust, and (3)
the
reliefs
claimed are those which are mentioned in the section.
It was contended on behalf of the appellant that the W akf
deed executed by Haji Elahi Bux on November 18, 1936 did
not create a public charitable or religious trust but the trust was
executed mainly for the benefit of the family members Of the
founder oi the Wakf. The relevant provisions
of the
Wakf
deed dated November 18, 1936 are reproduced below :
"Whereas Hazi ElahL Buksh son of late
Madda
Choudhury of village Kokaran Bazar, Rae-Berely at
present residing at Bara-bazar road, Shillong, (hereinafter called the Settlor) is the sole proprietor of the
firm in Bara-bazar Road in the Town of Shillong
known as S. Mohd. Shafi & K'amoo Mia, together with
all properties, movable or immovable aind a]]
funds
investments and profits
belonging and
appertaining
thereto, as well as of the properties in whomsoever's
name standing described in the schedule hereto :-
And whereas the said Settlor is desirous that his
said properties shall be permanently
dedicated
for
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SUGRA BIBI v. HAtJ KUMMU (Ramaswami, I.)
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religious purposes and for the maintenance of his relations and descendants from generation to generation,
as well as for the poor and meritorious.
Now be it known that the said Settlor by these
presents divests himself of the ownership of the said
firm together with all properties movable or immovable and all funds investmemts and profits
belonging
or appertaining thereto, as wel! as the properties described in the schedule hereto, all which shall hence
forward vest absolutely in AlmightY God for the purposes hereinafter
specified, and shall
constitute a
Wakf Estate to be administered in the following
manner:-
( 6) Out of the· iiirome of the Estate, a sum ol
Rs. 500 shall be annually spent for the maintenance
and upkeep of Mosques and Madrassas and for helping the poor and needy.
(7) The mutwalli shall give to
Ali
Mastaque
(Nanka) the Settlor's son by his
nika wife,
Noju
Bibi since divorced, a mQDthly a!lowance of Rs. 10
(ten) or in the alternative and at his option, a oonsolidated sum not exceeding Rs. 1000 (Rs. One thousand)
but the sons and descendants of the said Ali Mastaque
(Nanka) shal! have .n.o claim whatsoever against the
estate for maintenance or any other purpose nor shall
he or they have any right to the office of Mutwalli.
(8) The mutwalli shall be entitled to
reasonable
remuneration not exceeding Rs. 50 (fifty) per month.
( 11 ) Whatever remains after defraying the above
expQDSes the mutwalli shal! be at liberty to spend for
his own maintenance and the
maintenance of
the
Settlor's family and descendants from
generation to
generation as provided in paragraph I 0.
( 13) Qn the total extinction of the settler's family
line, the whole income of the estate after defraying
the expenses as provided for above, shall be spent for
helping the poor and meritorious, and for promoting
the cause of Moslem education in such manner as the
mutwalli, in his discretion, may determine.
SUPREME COURT REPORTS
[!969] 3 s.c.R.
( 14) The mutwalli shall have \I10 power to sell or
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give away. any portion of the estate except for justify-
.~ legal necessity .
. ... . . ; .................... .
(16) The mutwalli shall have
power, if funds
permit, to make reasonable contributions to funds and
institutions created or maintained for
general charit·
able purposes.
And it is hereby further declared that all properties
movable, immovable, and all funds, investments and
profits bought, created or made with money belonging to or accruing out oi the estate, or in any ruanner
appertaining thereto, shall for all
purposes,
be annexed to the W akf by these prcscnts founded and shall
be administered aind enjoyed in the same manner and
be in all respects liable to the same incidents as
the
estate itself.
And be it known that the present market value of
the properties included in the
deed is Rs.
30,000
(Rupees thirty thousand only).
In witness
whereof, I
Hazi
Elahi
Baksh, the
Settlor above named do hereby set my hand the ninth
day of November, 1936."
Having examined the various clauses of the Wakf deed, we
are of opinion that the mere fact that there are certain provisions
in favour of the family members of the founder along with some
other provisions in favour of the public, the case will
not be
taken out of the provisions of s. 92, Civil Procedure Code. The
reas~n is that there is a substantial portion of the income of the
W akf properties to be spent for pu.rp.oses
of charitable and
religious nature.
The pro{'er test for holding whether the ·wakf
would .fall within the purview of s. 92, Civil Procedure Code is
to examine whether the Wakf has been created substantially for
a public purpose. Applying the test to the present case, we are
of opinion that the Wakf created by
Haji Elahi Bux on
November 18, 1936 falls within the
purview of s. 92,
Civil
Procedure Code. This view is borne out by the decision of the
Calcutta High Court in S. Massirat Hossain v. Hossain Ahmad
Chowdhury.(') That case related to a wakf estate,
the
net
annual income of which was about Rs. 1,300 and out of this a
sum of Rs. 353 was set apart for public purposes of a charitable
or religious nature. It was held by the learned Judges that the
amount by no means was a trifling or a disproportionate pro-
(!) 42 C.W.N. 345 ..
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SUGRA BIBI v. HAZI KUMMU (Ramaswami, I.)
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vision in favour of the public and
conseq~y the suit was
maintainable under s. 92 of the Civil Procedure Code. Reliance
was placed by the High Court in support of its decision upon
the pronouncement of tho Judicial Committee in Vaidya Nath
Aiyyar v. Swaminatha Ayyar(') where the founder of the trust
directed by his will that two-thirds of the income of his property
would go to his wife and the remaining one-third would go first
towards the discharge
of certain debts
and thereafter to
establish a Chatram for the feeding of the poor. There was a
further provision that after the ~e's death, .two-thirds of ~he
income given to her would be apphed to charity and one-third
to the members of the family. On these facts the Judicial Committee agreed witli the findings of the court below that the
Chatram so established was a public trust.
It was, however, contcc.ded on behalf of the appellant that
the suit was brought not to vindicate or to establish a right of
the public institution i.e., the trust but to remedy an infringement of an individual right or to vindicate the private right of
the appellant. It was said that the suit was therefore not within
the purview of s. 92 of the Civil Procedure Code. The argument was stressed that in deciding whether s. 92, Civil Procedure
Code is attracted the Court must go beyond the reliefs prayed for
and have regard to the capacity in which the plaintiff is suing and
for the purpose for which the suit is brought. For the respondent
it was pointed out that the reliefs sought for by the appellant in
the present suit are exactly those contemplated by s. 92 of the
Civil Procedure Code. The reliefs prayed for are : ( 1) removal
of the respondent from the office of MutwalH and appointmept
of Soleman, appellant's son, as Mutwalli in his ):llace, and (2)
. till the said Soleman attains majority appointment of a Receiver
for the management of the Wakf estate It is true that the facts
that a suit relates to public trust of a religious or charitable
nature and the reliefs claimed fall within els. (a) to (h) of sub-s.
( 1) of s. 92, Civil Procedure. Code would not by themselves
attract the operation of the section, unless the suit is of a repre·
sentative character instituted in the interests of the public and
not merely for vindication of the individual or personal rights
of the plaintiff.
As was stated by Woodroffe, J. i11
Budreedas
v. Choonilal(')
"lt is obvious that the Advocate-General Collector
?r other public officer can and do sue only ~represent
mg the public, and if, instead of these officers two or
mo~e persons having an interest in the trust ;ue with
thetr cOtDSent, they sue under a warrant to represent
th~ public as the objects of the trust. It follows from
this, that when a person or persons sue not to establish
(I) 51I.A.282.
L 7 Sup. CI/69-7
(2) I.LR. 33 Cal. 789 at 807,
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[1969] 3 S.C.R.
the general rights of the public, of which they are a
~el!1ber or · members,
but to remedy a particular
mfnn~en_ient of their own individual right, the suit is
not withm or need not be brought under the sectioo."
This principle was accepted as sound by a Full Bench oi the
Madras High Court in Appanna v. Narasigna('). In that case,
a suit was instituted by a trustee of a public religious
trust
against a co-trustee for accouj),ts and the Full Bench
decided
that it did not come within s. 92 of the Civil Procedure Code,
the claim being to enforce a purely personal right of the plaintiff as a trustee against his co-trustees. The same view was taken
by the Madras High Court in The Tirumalai-Tirupati Devasthanams Committee v. Udiayar Krishnayya Shanbhagal(').
In this
case the general trustees of a public temple filed a suit agaiDSt
the trustees for the recovery of moneys
which the latter had
collected on behalf of the former praying for a decree directing
accounts and inquiries. It was held that the
right to collect
moneys was entirely independent of s. 92 o.f the Civil Procedure
Code and no sa.n:ction of the Advocate-General was necessary
for the institution of the suit. Leach C. J. who delivered the
judgment of the Court observed as follows :
"After hearing the arguments of learned Counsel
in the present case we can see no reason for disagreeing with anything said in Shanmukham
Chetty
v.
Govinda Chetty (I.LR. 1938 Mad. 39). On the order
hand we find ourselves in full
agreement with the
opinion of Varadachariar, J. that, in deciding whether
a suit falls within section 92,
the
Court must
go
beyond the reliefs ·and have regard to the capacity in
which the plaintiffs are suing and to the purpose for
which the suit is brought. The judgment of the Privy
Council in Abdur Rahim v.
Mohomed Barkat Ali
[(1927) l.L.R. 55 Cal. 519 (P.C.] lends no support
for the opinion expressed by the Full Bench in J anki
Bai v. Thiruchitrambala Vinayakar
((1935)
I.LR.
58 Mad. 988 (F.B.) ]"
Applying the principle laid down in these
authorities, we
are of opi.Dlion that in the present case the suit brought by the
appellant must be treated as a suit brought by her in a representative capacity on behalf of all the beneficiaries of the Wakf. As
we have already stated, the Wakf created by Haji Elahi
Bux
was a Wakf created for a public purpose of charitable or religious
nature. The reliefs claimed by the appellant in . the suit are not
reliefs for enforcing any private rights
but reliefs
for
the
removal of the defendant as trustee and for appointment of a
(I) l.L.R.45 Mad. \13.
(2) 1.L.R. [1943] Mad.619.
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SUGRA BIBI v. HAZI KUMMU (Ramaswami, J.)
91
new trustee in his place. The reliefs asked for by the appellant
fall within els. (a) and (b) of s. 92 (1) of the Civil Procedure
Code and these reliefs claimed by the appellant indicate that
the suit was brought by the appellant not in an individual
capacity but as representing all the beneficiaries of the
Wakf
estate. We are accordingly of the opinion that the suit falls
within the purview of the provisions of s. 92, Civil Procedure
Code and in the absence of the consent in writing of the
Advocate-General the suit is not maintainable.
For these reasons we hold that the judgment of the High
Court of Assam dated September 3, 1963 is right and this appeal
must be dismissed. There will be no order as to costs of this
C appeal.
R.K.P.S.
Appeal dismissed.