LEX/BDHC/0029/1994

IN THE SUPREME COURT OF BANGLADESH

(HIGH COURT DIVISION)
Civil Revision No. 2399 of 1992
Decided On: 25.08.1994
Abul Masud Khan Vs. Khan Mohammad Abdullah Rahmatullah
Hon'ble Judges/Coram:
Syed J.R. Mudassir Husain and Md. Ruhul Amin, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: TH Khan with NH Khandaker and KM Hasan, Advocates
For Respondents/Defendant: Abdul Wadud Bhuiyan with Syed Mokaddas Ali, Advocates
Subject: Civil
Mentioned IN
Relevant Section:
CODE OF CIVIL PROCEDURE, 1908 - Section 92
Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) -Order VII Rule 11; Code of Civil Procedure, 1908 (CPC) -Section 115; Code of Civil Procedure,
1908 (CPC) - Section 92; Code of Civil Procedure, 1908 (CPC) -Section 92(I); Code of Civil Procedure, 1908 (CPC) -Section 93;
trusts , act, 1882 - Section 9
Citing Reference:

Discussed:2

Distinguished:2

Mentioned:3

Relied On:1

Case Note:
Civil - Rejection of Plaint - Order 7 Rule 11, Sections 92 and 115 of Civil Procedure Code, (CPC) - Rule obtained by Defendant
no. 1 on application under section 115 of CPC was directed against judgment and order passed by trial court by which application
of Petitioner under Order 7 rule 11 of CPC was rejected - Whether Plaintiffs suit was hit by section 92 of CPC and plaint was
liable to be rejected - Held,in order to attract provision of section 92of CPC suit must be founded onbreach of trust and where
material allegations in plaint on which cause of action was based was that appointment of Petitioner as trustee was invalid and
even if it was suit for removal of Petitioner as trustee it would be outside purview of provision of section 92of CPC in view of
unalterable provision of original trust deed - It appeared from record that suit as filed by Plaintiff was not for removal of
Defendant-Petitioner but for declaring that his appointment was contrary to trust deed as illegal, inoperative and void - Thus,
court find no difficulty to hold that Plaintiffs suit was maintainable as framed and it did not attract provision of section 92 of CPC,
as such, impugned order did not suffer from any legal infirmity - Rule discharged. [17],[18],[19]

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 JUDGMENT
Syed J.R. Mudassir Husain, J.
1. This Rule obtained by the defendant No. 1 on an application under section 115 of the Code of Civil Procedure is directed against the
judgment and order dated 12.8.1992 passed by the learned Subordinate Judge, 3rd Court, Dhaka in Title Suit No. 142 of 1990 by which the
application of the petitioner under Order 7 rule 11 of the Code of Civil Procedure was rejected. The facts are as follows: One Mrs. Golesa
Khanam on behalf of her minor son Khan Mohammad Abdullah Rahmat Ullah, the plaintiff opposite party, instituted the aforesaid suit for a
decree declaring that the appointment of the petitioner as the Chairman of Al-haj Abul Hashem Khantrust by a resolution dated 3.2.87 is
illegal, inoperative and void being contrary to the trust deed as the plaintiff having already become trustee upon the death of the creator of the
trust late Al-haj Abul Hashem Khan, the father of the minor plaintiff, in accordance with irrevocable condition of the registered trust deed
dated 29.6.82. The plaintiff further prayed for declaration that the alteration and cancellation of some of the conditions of the said original trust
deed by the petitioner upon swearing an affidavit before a Notary Public on 21.12.1987 titled as amended trust deed is violative of the
perpetual, irrevocable and unalterable conditions as contained in the said trust deed. During the progress of the said suit the petitioner made
an application for rejection of the plaint under the provision of Order 7 rule 11 of the Code of Civil Procedure stating, inter alia, that in view of
the contents of the plaint and the prayer made therein, the suit is not entertainable and the plaint is liable to fee rejected as the trust deed in
question is a charitable and religious trust and the very prayer of the plaintiff is for the decree declaring mat the defendant's Chairmanship of
the said trust is illegal and ineffective. It was further stated that under section 92(I) of the Code of Civil Procedure it is a pre-condition to
obtain permission from the Attorney-General to file a suit for the removal of Chairman of the Said Trustee Board. Since no such permission
was obtained, the filing of the suit is barred under the aforesaid section.
2. The plaintiff-opposite party resisted the said application under Order 7 rule 11 by filing written objection thereto and contended, inter alia,
that the defendant misinterpreted sections 92 and 93 of the Code of Civil Procedure. It was stated that thetrust in question is partly charitable
and religious and partly private in nature and for maintenance of the said religious institution 2/3rd of the income of the trust will be spent and
after his death 1/3rd of the income will be spent by his second wife Golesa Khanam and her children. It was then stated that the prayer made
in the plaint was, inter alia, for a decree declaring that the declaration dated 3.2.87 by the defendant No. 1 petitioner to have become the
Chairman of Al-haj Abul Kashem Khantrust after the plaintiff became the trustee upon the death of the creator of the trust and the first
trustee of Abul Hashem Khantrust, in accordance with irrevocable condition, the registered trust deed, is contrary to the trust deed, illegal,
inoperative, void and such being the statement made and reliefs sought for in the plaint it is not at all necessary to have permission from the
Attorney-General to file the present suit, therefore sections 92 and 93 of the Code of Civil Procedure have no manner of application and the
plaint cannot be rejected.
3. Upon hearing the parties the learned Subordinate Judge rejected the petitioner's application by the impugned order as aforesaid. Being
aggrieved by the said impugned order the petitioner moved this Court and obtained the present Rule. Mr. T.H. Khan, the learned Advocate
appearing for the petitioner, submits that averment made in the plaint that Al-haj Abul Hashem Khan, father of the minor plaintiff, established
some religious institutions at his native village by his self-earned money in order to bear the expenses of the said institutions said Al-haj Abul
Hashem Khan made a trust of his house at 100 Lake Circus, Kalabagan Dhanmondi in the name of 'Al-haj Abul Hashem Khantrust by the
said registered deed providing 2/3rd income thereof would be spent for the aforesaid religious institutions and rest 1/3rd share to bear the
expenses of the maintenance of the plaintiff s mother and other family members. Mr. TH Khan has next submitted that thetrust in question is a
public trust and the suit is hit by section 92 of the Code of Civil Procedure as the reliefs claimed in the suit though do not come directly in any
of the clauses (a) to (g) of section 92 of the Code but comes under clause (h) of the said section granting such further or other relief as the
nature of the case may require. His contention is that the effect of the decree in this suit would be the declaration that the petitioner Abul
Masud Khan was not the Chairman of the Trustee Board of thetrust properly and it amounts to his removal from the post of Chairmanship of
the said Board of the trustees in question, as such, the instant suit comes under the purview of section 92 of the Code. In support of his
contention he has relied upon a decision in the case of Md. Fakir Ullah Miah vs. The Commissioner of Wakf Estate Bengal and others
reported in : LEX/HEPK/0037/1951 : 4 DLR 173. Mr. Khan having red to the provision of sections 9 and 10 of thetrust act 1882 made his
next submission that the defendant petitioner is the eldest son of the creator of the said trust by his first wife and, as such, the petitioner is a
beneficiary of the trust property and has the right to become trustee and accordingly, he was declared as such by a resolution dated 3.2.87
wherein Golesa Khanam, mother of plaintiff was one of the signatories and the said resolution is a consent by her on behalf of the minor
plaintiff and the suit on his behalf is against trustee of a public trust and the provision of section 92 is very much attracted and the suit is not
maintainable for non-compliance of the said provision of law.
4. Abdul Wadud Bhuiyan, the learned Advocate appearing on behalf of the plaintiff opposite party, has opposed the Rule by filing a lengthy
counter affidavit with connected papers. He has repealed the first contention of Mr. T.H. Khan by submitting, that the original owner of the
properties described in the schedule of the plaint Alhaj Abul Hashem Khan, son of late Moulvi Sakhawat Khan established Mosque,
Madrasha, Idgha and charitable Boarding at his village home are the religious institutions and in order to maintain those religious and charitable
institutions he executed a registered trust deed on 29.6.82. The said creator stated in clear terms and in unambiguous language the object of
the trust, the modes as to how the income of the trust properties shall be spent, who would remain as trustee during his life time and who
would be the next trustee after his death. According to the said trust deed, the minor plaintiff would become the trustee and 2/3rd of the

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income of the trust properties would be spent for said religious institutions and 1/3rd of the income thereof would be span for maintenance of
livelihood of the plaintiff and of the members of his family by his second wife. The said trust was not wholly created for public purpose of a
charitable or religious nature. It is partly charitable and religious and partly private. Mr. Bhuiyan has further contended that it was stated in the
plaint that after the death of the creator of the trust the defendant petitioner finding the plaintiff trustee a minor and also finding that the mother
of the guardian of the trust, Begum Golesa Khanam, is simple lady with little education, hatched a conspiracy to grab thetrust property and
to destroy the said religious and humanitarian institutions. And he cleverly pretended to be a well-wisher of the plaintiff and his mother Begum
Golesa Khanam and managed to take away the originaltrust deed from Golesa Khanam on the plea taken, inter alia, that original deed might
be necessary for realising monthly rents from the tenants of the trust properties and to mutate the name of the trust in respect of the trust
properties in the settlement records and Municipal Corporation and also for payment of gas bills, WASA and electricity bills. He promised to
return the original deed to the guardian mother on completion of the aforesaid purposes. The said guardian mother in good faith, handed over
the original trust deed to the defendant He also took a plea that it would be necessary to inform the tenants of the trust properties by a
resolution that they should pay the rent of the trust properties to Golesa Khanam in accordance with the terms of the trust deed. Upon those
pleas the petitioner obtained the signatures of the said Begum Golesa Khanam on a blank paper and he created a false and concocted
resolution on 3.2.87 proclaiming himself the Chairman of Abul Hashem Khantrust contrary to the terms and conditions of the original trust
deed and those conditions are perpetual, unalterable and inviolable. No one has the right to amend or alter any conditions of the said trust
deed. Continuing his submission Mr. Abdul Wadud Bhuiyan argued that in order to satisfy his evil design the petitioner proclaimed himself as
the Chairman of the so-called executive committee of the new trust in violation of the perpetual, inviolable and unalterable conditions
contained in the original trust deed. In order to achieve himself interest and the interest of his wife and children the petitioner by swearing an
affidavit before Notary Public on 21.12.1987 titled as amended trust deed he created a concocted document Mr. Bhuiyan further pointed out
that in that so-called amended trust deed in paragraph stated the provision regarding enjoyment of the 1/3 income as provided in paragraph S
of the original trust deed was cancelled. The learned Lawyer further pointed out that the conditions contained in paragraph 5 of the said
original registered deed provide that the creator of the trust during his own life time and after his death his children by his second wife Begum
Golesa Khanam and other heirs will enjoy 1/3 income of the trust properties. The petitioners said attempt is nothing but to deprive the family
members of the plaintiff of their only source of livelihood from the trust property. Mr. Bhuiyan thus contends that the aforesaid statement and
the prayer made in the plaint was, inter alia, for a decree declaring that the declaration dated 3.2.1987 by the petitioner to have become the
chairman of Al-haj Abul Hashem trust after the plaintiff-petitioner became the trustee upon the death of the creator of the trust and the first
trustee of Al-haj Abul Hashem Khantrust in accordance with the irrevocable condition of the registered trust deed, is contrary to the trust
deed, illegal, inoperative and void in such view of the matter the whole argument of Mr. Bhuiyan is that the material allegations in the plaint that
the illegal appointment by one person claiming himself a trustee by the so-called resolution is sought to be declared as invalid and it is a suit by
a trustee against a third person for his removal from the said post so the suit is outside the ambit of section 92 of the Code. He further argued
that it is a suit not for breach of trust property against a trustee but it is a suit by a trustee against a third persons in order to establish right of
the plaintiff as a legal trustee and also in order to protect the trust property in the hands of a stranger and therefore the provisions of sections
92 and 93 of the Code of Civil Procedure have no manner of application in the instant suit. In support of his contention he has referred to
several decisions on the question of applicability of section 92 of the Code. The decisions referred to by him will be discussed in due course
and in the appropriate place of the judgment.
5. With regard to the second submission of Mr. Khan, Mr. Bhuiyan, the learned Advocate appearing for the opposite party, submits that in
view of the irrevocable, unalterable condition of said trust deed the petitioner is not a beneficiary of the trust and he is nothing but a stranger
and, as such, the provisions of sections 9 and 10 of the trust act are not applicable in the facts and circumstances of the case. He further
submits that the signatures of Begum Golesa Khanam, in the so-called resolution, cannot be regarded as consent and it was obtained by false
representation with ill motive.
6. Mr. Abdul Wadud Bhuiyan has lastly submitted that the learned Subordinate Judge after due consideration of the contents of the plaint and
upon correct interpretation of sections 92 and 93 of the Code of Civil Procedure came to a correct finding that the provisions of section 92 are
not applicable in the present suit and the learned Subordinate Judge having applied his judicial mind rightly passed the impugned order.
7. We have heard the lengthy arguments of the learned Advocates of both the sides, perused the impugned order and the revisional application
and counter affidavit. The only question for consideration is whether the plaintiffs suit is hit by section 92 of the Code of Civil Procedure and
the plaint is liable to be rejected.
8. In order to appreciate the first contention of Mr. T.H. Khan and to consider the objection of the petitioner it is necessary to quote the
provision of section 92 of the Code of Civil Procedure which reads as follows:
92. In the case of any alleged breach of any express or constructive trust created for public purpose of a charitable or religious nature, or
where the direction of the Court is deemed necessary for the administration of any such trust, the Attorney-General or two or more persons
having an interest in the trust and having obtained the consent in writing of the Attorney-General may institute a suit, whether contentious or
not, in the principal civil Court of original jurisdiction or in any other Court empowered in that behalf by the Government within the local limits
of whose jurisdiction the whole or any part of the subject-matter of the trust is situated, to obtain a decree-

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(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme or
(h) granting such further or other reliefs as the nature of the case may require.
(2) Save as provided by the Religious Endowmentsact 1863, no suit claiming any of the reliefs specified in sub-section (I) shall be instituted in
respect of any such trust as therein referred to except in conformity with the provision of that sub-section.
9. According to Mr. T.H. Khan, this section applies only to suits in which relief is sought against a public trust. Here in this case, the plaintiffs
suit is not against the trust in question for any breach of trust but against a person who proclaimed himself to be a trustee. Mr. Khan has tried
to submit that since the plaintiff challenged the appointment of the petitioner and prayed for a decree for his removal as a trustee of a public
trust the permission of the Attorney-General is required to be obtained under section 92 of the Code. In support of his first contention Mr.
Khan relied on the decision in the case of Fakir Ullah Mia vs. The Commissioner of Wakf East Bengal end others reported in:
LEX/HEPK/0037/1951 : 4 DLR 173. In that case a suit was filed by the Commissioner of Wakf under section 92 of the Code of Civil
Procedure for removal of defendant No. 1 from the office of Mutwalli and for appointment of a new Mutwalli. The Mutwalli as defendant filed
an appeal before the High Court Division against the order of the learned District Judge. The facts of that case that his maternal grand father
created a Wakf by a registered Wakfnama in the year of 1915 for religious purpose and for maintenance of own self and worldly expenses of
oneself and his family children and defendants. Their Lordships found that the Wakf in question was a trust mainly for private purpose.
Accordingly, their Lordships held as follows:
We are therefore of opinion that the Wakf under consideration is a trust created mainly for private purpose though supplemented by
provisions for public purpose of a charitable or religious nature and, as such, will not come under section 92 of the Code of Civil Procedure
and me suit as framed is not maintainable at the instance of the plaintiff.
10. It is not disputed that in the present case, the trust in question has been created for both public and private purpose. It is a mixed trust
though a major portion of the income of the trust is intended to be spent for charitable and religious purposes. Even if it is a public trust the
question of applicability of section 92 of the CPC will not be attracted as the suit filed is not for abreach of trust against a trustee, rather it is
a suit filed by a trustee against a person who claims to be a trustee or, so to say, trustee vs. trustee. In such a situation we are of the view that
the provision of section 92 will not be attracted and further we find that the facts of the reported case and those of the instant are different and
quite distinguishable. We are therefore unable to accept the first contention of the learned Advocate for the petitioner.
11. With regard to the second point raised by Mr. T.H. Khan that the petitioner is beneficiary and he has the right to become a trustee and he
has been appointed as such with consent of the plaintiffs mother, it appears mat condition as laid down in paragraph 5 of the said original trust
deed provided in clear and unambiguous terms that the petitioner is not entitled to have any interest in the trust property and, according to the
condition as laid down in paragraph 6 of the said deed that the petitioner cannot be a trustee. From the reading of paragraphs 5, 6 and 7 of the
plaint it has been stated under what circumstances the signature was obtained and later on used in the so-called resolution dated 3.2.87 by
which the petitioner proclaimed himself to be a Chairman of the so-called Trustee Board. The plaintiff challenged the said self-proclaimed
appointment of the petitioner in the present suit. The genuineness or otherwise of the said resolution will be decided in the suit. From the
original trust deed k appears that the conditions laid down therein are inviolable and unalterable. The, creator of the said trust was not a lay
man and he was very much conscious while creating the said trust deed as appears from its various clauses. In such view of the matter, we
find difficulty to accept the contention of Mr. Khan that the petitioner is a beneficiary and the provisions of the trust act cannot be applied in
this case.
12. In replying and repelling the contentions of the learned Advocate of the petitioner Mr. Abdul Wadud Bhuiyan, the learned Advocate for
the opposite party, reiterated his submissions, and in support thereof he has referred to several decisions which we will now discuss one by
one.
13. In the case of Biswanath and another vs. Sri Thakur Radha Ballabhji and others reported in AIR 1967 (SC) 1044. In that case their
Lordships held as follows:

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It is settled law mat to invoke section 92 of the Code of Civil Procedure three conditions have to be satisfied namely, (i) the trust is created
for public purposes of a charitable or religious nature (ii) mere was breach of trust or a direction of Court is necessary in the administration of
such a trust; (iii) the relief claimed is one or outer of the reliefs enumerated therein. If any of the three conditions is not satisfied/the suit falls
outside the scope of the said section. A suit by an idol for a declaration of its tide to property and for possession of the same from the
defendant, who is in possession thereof under void alienation, is not one of the reliefs found in section 92 of the Code of Civil Procedure. That
a suit for declaration that a property belongs to a trust is held to fall outside the scope of section 92 of the Code of Civil Procedure by the
Privy Council in Abdur Rahman vs. Abu Mahomed Barkat Ali, 55 Ind App. 96 ( MANU/PR/0185/1927 : AIR 1928 PC 16), and by this
Court in Pragdas Guru Bhagwandasji vs. Ishwarlalbhai Narsibhai MANU/SC/0072/1952 : 1952 SCR 513 (AIR 1952 SC 143) on the
ground that a relief for declaration is not one of the reliefs enumerated in section 92 of the Code of Civil Procedure. So too for the same
reason a suit for a declaration that certain properties belong to a trust and for possession thereof from the alienee has also been held to be not
covered by the provisions of section 92 of the Code of Civil Procedure. See Mukhda Mannudas Baiagi vs. Chagan Iisan Bhawaszr ILR
(1957) Bom 809 ( MANU/MH/0146/1959 : AIR 1959 Bom 491. Other decisions have reached the same result on a different ground,
namely, that such a suit is one for the enforcement of a private right. It was held mat suit by an idol as a juristic person against persons who
interfered unlawfully with the property of the idol was a suit for enforcement of its private right and was therefore, not a suit to which section
92 of the Code of Civil Procedure applied.
14. Mr. Abdul Wadud Bhuiyan has next referred to a decision in the case of Harendra Nath Bhattacharya and others vs. Kaliram Das (dead)
by his legal heirs reported in AIR 102 (SC) 246, In that case their Lordships of the Supreme Court found that High Court analysed the plaint
which is primarily to be looked at for deciding the question of applicability of section 92 of the Code and upon analysis of the plaint their
Lordships of the Supreme Court held in the following language:
It is well settled by the decision of this Court that a suit under section 92 is of a special nature which pre-supposes the existence of a public
trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions
from the Court are necessary for the administration of the trust. In the suit however there must be a prayer for one or other of the reliefs that
are specifically mentioned in the section only then the suit has to be filed in conformity with the provisions of section 92 of the Code of Civil
Procedure. (See Pragdassi vs. Ishwarlalbhai MANU/SC/0072/1952 : 1952 SCR 513; AIR 1952 SC 143). It is quite clear that none of the
reliefs claimed by the plaintiffs fell within the section. The declarations which were sought could not possibly attract the applicability of section
92 of the Civil Procedure Code. The High Court was, therefore, right in holding that it did not affect the maintainability of the suit.
15. The next case which has been cited is in the case of O Rm. OM Sp. Firm vs. P.L.N.K.M. Nagappa Chattiar and another reported in AIR
1941 Privy Council, Page 1, their Lordships observed as follows:
It was suggested in the course of argument that the suit should only have been brought with the consent of the Advocate-General under section
92 Civil Procedure Code but their Lordships think it clear that no such consent is necessary in order that a trustee may recover trust property
in the hands of a stranger to the trust.
16. In view of all the aforesaid decisions we find substance in the contentions of Mr. Abdul Wadud Bhuiyan.
17. Mr. Bhuiyan has lastly argued that there is no legal scope to reject the plaint unless the plaint itself shows the want of cause of action for
the suit or the suit being barred by any law. He has referred to a decision of the learned Single Judge reported in: 37 DLR 178 and this
decision, we find, is applicable in view of the averments made in the plaint It further appears from the analysis of the averments as to the reliefs
claimed in paragraphs 6 to 9 and the prayer made in paragraph 20 Kha to 20 Gha of the plaint, it appears to us mat the plaintiff sought for a
declaration that a person having proclaimed himself in the office of the Trustee Board is not a trustee in view of the irrevocable and unalterable
conditions of the trust deed. We are of the view that a suit for declaration that person in office was not entitled to be a trustee and that the
claim of assumption of such office was invalid, does not fall within scope of section 92 of me Code in view of the aforesaid decision of the
Supreme Court of India and Privy Counsel cited by Mr. Bhuiyan the learned Advocate for the opposite party. It further appears to us that the
removal for which section 92 provides cannot be construed to include, within its scope the cases where the right to hold office is itself
challenged. To put it in other words a trustee de jure can be removed. A trustee de son tort is without any legal right to hold office. In view of
the above discussion it was therefore, held that in order to attract the provision of section 92 the suit must be founded on breach of trust and
where the material allegations in the plaint on which the cause of action is based is that the appointment of the petitioner as trustee is invalid and
even if it is a suit for removal of the petitioner as trustee it will be outside the purview of the provision of section 92 in view of the unalterable
provision of original trust Deed. As we have already held that it is a suit filed by the trustee against a third person. Further, we find that cause
of action arose on and from 3.2.87 when the defendant proclaimed himself the Chairman of Alhaj Abul Hashem Khantrust after the plaintiff
became a trustee upon the death of the said creator of me trust. We have already noticed that the conditions as laid down in the deed of trust
are all irrevocable. Thus, we find mat the suit as filed by the plaintiff is not for removal of the defendant-petitioner but but for declaring that his
appointment is contrary to the trust deed as illegal, inoperative and void.
18. For the reasons stated above we find no difficulty to hold that the plaintiffs suit is maintainable as framed and it does not attract the
provision of section 92 of the Code of Civil Procedure, as such, the impugned order does not suffer from any legal infirmity.

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19. Before we conclude it is necessary to mention here that in the midst of hearing of the case, the learned Advocate for the petitioner filed two
supplementary affidavits dated 20.6.94 and 22.6.94 annexing certain papers which, we find, have no relevancy for the purpose of the disposal
of this Rule and, as such, these are left out of consideration but may be kept on record. In the result, the Rule is discharged without any order
as to costs.
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