Ahmed Adam Sait and Others vs Inayathullah Mekhri and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 308 of 1961

Decision Date: 29 March 1963

Coram: P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta

In the case titled Ahmed Adam Sait and Others versus Inayathullah Mekhri and Others, the judgment was delivered on 29 March 1963 by the Supreme Court of India. The opinion was authored by Justice P. B. Gajendragadkar and the bench also comprised Justices K. N. Wanchoo and K. C. Das Gupta.

The petitioners were identified as Ahmed Adam Sait and others, while the respondents were named as Inayathullah Mekhri and others. The judgment date is recorded as 29/03/1963. The same bench composition—Justice Gajendragadkar, Justice Wanchoo, and Justice Das Gupta—is reiterated in the official report. The case is cited as 1964 AIR 107 and 1964 SCR (2) 647, with a citator reference of F 1990 SC 444 (8). The matter concerned a public religious trust scheme and a suit filed to set aside that scheme, focusing on who the beneficiaries were, the applicability of a res judicata plea, the character of a representative suit, and the circumstances that permit a scheme to be set aside under the Code of Civil Procedure, 1908, particularly sections 11 (Explanation VI), 92, Order 1, rules 6 and 8.

According to the headnote, the respondents instituted a suit under section 92 of the Code of Civil Procedure, 1908, asserting that they represented the Sunni Muslim population of Bangalore. They prayed that a scheme be established to ensure the proper administration of the Jumma Masjid in Bangalore. The land on which the mosque stands was acquired about a hundred years earlier by a large number of Muslims drawn from diverse groups and walks of life. The mosque itself was constructed using gifts contributed by many Muslims. A subsequent grant of land to the mosque demonstrated that both the mosque and its associated properties were meant to benefit the entire Muslim community, not a particular sect.

For approximately sixty years, the mosque and its properties were managed by non‑Cutchi Memons. Before that period, management was not solely in the hands of Cutchi Memons but was chiefly exercised by the Dekkhani Muslims of the locality. In later years, on certain occasions, management shifted predominantly to the Cutchi Muslims; however, the Dekkhani Muslim population in Bangalore numbered around thirty thousand, whereas the Cutchi Muslim population never exceeded three hundred. Prior to the present proceedings, a suit filed under section 92 was lodged in 1924, leading to the framing of a scheme and the appointment of trustees who have managed the mosque ever since.

In those earlier proceedings, the plaintiffs, both in their application to the Collector for sanction under section 92 and in the plaint itself, specifically claimed that the mosque was an institution belonging to the Cutchi Memon community and that they represented the interests of that community alone. Some defendants in that suit were non‑Cutchi Muslims; they were sued as trespassers and their sole interest in defending the suit was to protect their individual rights. In the suit that gave rise to the present appeal, the respondents contended that the mosque and its adjoining properties belonged to the whole Muslim community of Bangalore and not exclusively to the Cutchi Muslims. They further alleged that the earlier scheme had been the result of collusion and that the decree arising from that scheme did not bind the non‑Cutchi Memons.

In the earlier proceeding the respondents alleged that the decree was obtained through collusion, that it did not affect persons who were not Cutchi Memons, and that the current trustees had acted in breach of trust and had mismanaged the affairs of the mosque. The appellants, who were the Cutchi Memons, argued that they alone were the intended beneficiaries of the trust, that the earlier suit should operate as a bar of res judicata, and they denied any allegation of collusion, breach of trust or mismanagement. The trial court examined these submissions, rejected the case put forward by the respondents, and, accepting the appellants’ claim of res judicata, dismissed the suit. The aggrieved respondents then appealed to the High Court. The High Court, while also rejecting the allegations of collusion and breach of trust, differed from the trial court on the question of res judicata. It held that the mosque and its adjoining properties belonged to the entire Muslim community of Bangalore and not solely to the Cutchi Memons. Accordingly, although the High Court agreed that a scheme of management should not be altered lightly, it found that sufficient circumstance existed to justify framing a new scheme and therefore remanded the matter to the trial court for further proceedings. The present petition is an appeal by special leave. The primary issue raised on appeal is whether the earlier suit instituted under section 92 of the Code of Civil Procedure operates as a representative suit that bars the present action by virtue of res judicata, even though the present respondents were not parties to that suit but are interested parties in the trust. It was further submitted that, because both the trial court and the High Court had rejected the allegations of mismanagement and breach of trust, and because the High Court had expressly held that the current trustees were managing the trust in a reasonable and responsible manner, this Court should not disturb those findings lightly. The Court held that the mosque and its adjuncts had come into existence as, and continued to be, an institution belonging to the Sunni Muslim community of Bangalore, and that it cannot be said that its management was ever exclusively in the hands of Cutchi Memons prior to 1924. In reviewing sections 11 and 92, along with explanatory note VI and Rules 6 and 8 of the Code of Civil Procedure, the Court observed that determining the effect of a decree in a representative suit requires an inquiry into whose interests were represented by the parties to the suit. When a decree is issued in a suit under section 92, it is necessary to examine the plaint to ascertain the character of the plaintiffs’ claim and the specific interests they sought to protect. The principle that a decree in a section 92 suit binds all persons interested in the trust rests on the requirement that the suit must represent the interests of all such persons as mandated by explanatory note VI to section 1. If that representation is absent, the decree cannot create a bar of res judicata against a person whose interest was not represented in the earlier suit.

In the earlier suit, the plaint as well as the application to the Collector for sanction were presented on a clear and unambiguous premise that the mosque was the property of the Cutchi Memons, and that the suit had been instituted on their behalf by persons who claimed to be interested in the mosque in the capacity of Cutchi Memons. The Court observed that, having found, as it presently has, that this premise was not well founded and that the mosque actually belonged to all Sunni Muslims of Bangalore, it would be difficult to treat the suit as a representative suit for the interests of the Muslim community other than the Cutchi Memons residing in Bangalore. The Court distinguished the earlier authorities of Raja Anandrao v. Shamrao, [1961] 3 S.C.R. 930, Ramados v. Hanumantha Rao, (1911) I.L.R. 36 Mad., 364 and Khaja Hassanulla Khan v. Royal Mosque Trust Board, 1 L.R. (1948) Mad. 257. It further noted that a scheme framed in a suit brought under section 92 of the Code of Civil Procedure should not be altered except for strong and substantial reasons. Such alteration must be justified not merely by showing that the existing scheme is ineffective but also by demonstrating that the proposed change would make the scheme operate beneficially and in accordance with the object of the foundation, relying on the principles laid down in Attorney General v. Bishop of Worcester (1831) 63 L.R. 530 and Attorney General v. Stewart (1872) L.R. 14 Eq. 17. The Court held that the impugned scheme in the present suit was based on the erroneous assumption that the mosque belonged exclusively to the Cutchi Memons and that only that community was entitled to its exclusive administration. This mistaken assumption introduced infirmities into the scheme. Consequently, the scheme must be revised on the true basis that the mosque does not belong solely to the Cutchi Memons but to all Sunni Musalmans of Bangalore. The judgment proceeded to set out the procedural posture of the appeal. It recorded that the appeal, numbered Civil Appeal No. 308 of 1961, was filed by special leave against the judgment and decree dated 3 November 1958 of the Mysore High Court in Regular Appeal No. 120 of 1950‑51. Counsel for the appellants included M. C. Setalvad, M. L. Venkatanarasimhaiah, S. N. Andley, Rameshwar Nath and P. L. Vohra, while counsel for respondent No. 1 comprised A. V. Viswanatha Sastri, M. S. K. Sastri and M. S. Narasimhan. The appeal was heard on 29 March 1963 and the judgment was delivered by Justice Gajendragadkar. The Court explained that the appeal arose from a suit instituted by the respondents in the Court of the District Judge, Bangalore, under section 92 of the Code of Civil Procedure (O.S. No 2 of 1917). The respondents asserted that they represented the Sunni Muslim population of the Civil and Military Station at Bangalore and, accordingly, prayed that a scheme be settled for the proper administration of the jumma‑Masjid situated on Old Poor House Road, C & M Station, Bangalore. Their case was that the Masjid, together with its adjuncts such as the Idgah, Makkhan, Madrassa, Kutubkhana and Musafarkhana, together with substantial movable and immovable property, constituted a trust created for public religious purposes coupled with charity, and that both the Dakkhani Muslims and the Cutchi Memons residing in Bangalore were beneficiaries of the trust with an abiding interest in its proper management, control and direction.

It was stated that the Idgah, Makkhan, Madrassa, Kutubkhana and Musafarkhana together with a considerable amount of movable and immovable property formed a Trust that had been created for public purposes of a religious character coupled with charitable objectives. The Court recognised that both the Dakkhani Muslims and the Cutchi Memons residing in Bangalore were the beneficiaries of that Trust and that each of these communities possessed a continuing interest in the proper management, control and direction of the Trust’s affairs.

The record showed that a similar suit had been instituted in 1924, identified as O.S. No. 32 of 1924, before the same District Court. In that earlier suit a scheme was framed in 1927, and trustees appointed pursuant to that scheme had been managing the Trust property ever since. The respondents in the present proceedings alleged that the earlier suit had been conducted on the premise that the Masjid principally belonged to the Cutchi Memons of Bangalore and that the Cutchi Memons were exclusively entitled to its management. On that basis the earlier suit was prosecuted by consent, and the court drew up a scheme after considering the various schemes presented by the parties involved.

The earlier suit originally impleaded seven defendants. Defendants 2 and 7 asserted a right to manage the Trust on the basis of wills executed by the deceased Mutawalli Abdul Gaffar. Defendant 2 was a minor; consequently his mother was impleaded as Defendant 1 both in her own capacity and as guardian of Defendant 2. Defendants 3 to 6 were the executors under Abdul Gaffar’s will on which Defendant 2 relied. All of those defendants were non‑Cutchi Memons, while the appellants who had filed the suit were Cutchi Memons.

During the pendency of that suit, six individuals who were Cutchi Memons applied to be joined as additional defendants. Their argument appeared to be that a scheme need not be framed at all. The District Judge rejected their application, but on revision before the Court of Resident in Mysore the Judge’s order was set aside and the six persons were ordered to be impleaded. Consequently, the total number of defendants eventually joined to the suit became thirteen.

While the administration of the Trust and the management of its affairs and properties remained vested in the Board of Trustees appointed under the scheme, and continued after the decree confirming the scheme, the present respondents filed an application on 22 January 1945. That application, made under Order 1 rule 10 and sections 141 and 151 of the Code of Civil Procedure, sought to have the respondents joined as parties to the proceedings under the scheme. They also prayed that the Trustees be directed to convene a fresh meeting of the general body of worshippers of the Masjid, to compile a list containing the names of all worshippers, and to submit that list to the Court, irrespective of whether the worshippers belonged to the Cutchi Memon jamayet or to the Dakkhani Muslim community of Bangalore.

The respondents contended that a meeting that had been held in accordance with the order dated C.M.P. No. 242 of 1944 was invalid, null and void. Accordingly, they desired that a new meeting be called for the purpose of preparing a comprehensive list of worshippers as prescribed by the scheme, and that they be joined to the existing proceedings to ensure that their interests were represented.

In the application filed by the respondents, they asserted that the meeting convened under the earlier order C. M. P. No. 242 of 1944 was null and void, and therefore they sought to be joined as parties to the pending proceedings. They further requested that a new meeting of the worshippers be called so that a list of all worshippers could be prepared in accordance with the requirements of the scheme. To support this request, they filed a detailed affidavit in which they alleged that the Trust had been placed exclusively under the control of members of the Cutchi Memon community, a circumstance that they said was contrary to the scheme, unjustifiable on its merits, and inequitable. The learned District Judge rejected the application on 20 July 1915. While dismissing the petition, the judge observed that the petitioners raised a point of substance: the suit in which the scheme had been framed did not appear to represent all interested parties, and there were certain “commissions in the proceedings” taken under the decree that might indicate that the Trust’s management was not intended to be limited solely to Cutchi Memon members. The judge noted that the suit had been instituted under unusual circumstances without joining members of the Dakkhani Muslim community. Nevertheless, the judge concluded that after the scheme had been framed, the management of the Trust had in fact been entrusted exclusively to the Cutchi Memon community, and that it would be inappropriate to alter that pattern of management through the present application; such a change, the judge thought, should be sought in a regular suit. The order issued by the judge gave rise to the present suit filed by the respondents. In the current suit, the respondents joined the five appellants and other defendants and claimed various reliefs. Their principal contention was that the scheme decree issued in the earlier suit had been the product of collusion and therefore did not bind the non‑Cutchi Memon beneficiaries of the Trust. They argued that although the Cutchi Memons were permitted to claim benefits from the Trust, the dominant interest lay with the Dakkhani Muslims, who had constructed the mosque and contributed substantially to its financial growth and prosperity. The respondents further alleged that the five appellants, who were then administering the Trust, had breached their fiduciary duties. According to the respondents, the earlier scheme did not grant a monopoly of management to the Cutchi Memons as had been assumed in the appointment of trustees since the decree’s issuance, and if, on a correct interpretation, the scheme did create such a monopoly, it should be declared void as contrary to law. On these grounds, the respondents prayed that the Court should devise a scheme that would include all worshippers of the mosque—both Dakkhani Muslims and Cutchi Memons—and recognize the right of the Dakkhani community also to manage the Trust and its affairs. As a consequential relief, they sought appropriate orders to give effect to this revised scheme.

The respondents asked that the present suit should lead to the removal of the appellants from their offices as Trustees. They further requested that the Committee of Trust created under the old scheme be dissolved immediately without any delay. In addition, they sought the appointment of new Trustees to replace the former ones under the provisions of the original trust instrument. That description captures the essential relief that the respondents demanded in the present suit as they have repeatedly emphasized. The appellants contested the respondents’ prayer on several separate grounds, arguing that each claim was legally untenable. First, they asserted that the Cutchi Memons possessed the exclusive right to manage the mosque and all its affairs. Second, they pleaded that the present suit was barred by the doctrine of res judicata as recognized by established jurisprudence. Third, they maintained that the respondents had no beneficial interest in the Trust and therefore lacked locus standi to sue. They further alleged that any suit filed under section ninety‑two of the Code required such interest, which the respondents did not possess. The claim that the respondents had colluded in the earlier litigation was also rejected as unsustained by the appellants' evidence and legal analysis. They argued that if the respondents sought any modification of the scheme, the appropriate procedure was an application under clause twenty‑five of the scheme, not a fresh suit. Finally, the allegation of breach of trust by the appellants was strongly denied, with the appellants emphasizing that a change in the scheme could be entertained only when overriding considerations existed. After reviewing these submissions, the learned District Judge framed the specific issues that required adjudication for resolution in this proceeding.

The learned Judge first held that the respondents had failed to demonstrate a sufficient beneficial interest in the Trust to maintain an action under section ninety‑two of the Code. He further found that the respondents’ contention that the decree in the earlier suit had been obtained by collusion was unsupported by any credible evidence. In addition, the Judge concluded that the respondents had not succeeded in proving that the Trustees appointed under the existing scheme had committed any breach of trust. Concerning the appellants’ plea of res judicata, the Judge ruled that the decree issued in the earlier suit operated as a bar to the maintainability of the present action. He expressed the view that the reliefs now sought could have been obtained through a proper application under clause twenty‑five of the scheme, rendering the present suit an improper avenue. The Judge then turned to the question of whether the scheme should be modified, observing that any disturbance of an established scheme demands the utmost caution. He noted that the respondents had not identified any satisfactory reason or overriding consideration that would justify altering the existing arrangement. Accordingly, the trial Judge dismissed the respondents’ claim and entered a decree dismissing the suit in its entirety. The respondents thereafter appealed this decree to the High Court of Mysore, seeking reversal of the trial Judge’s order. The High Court concurred with the trial Judge that the decree in the earlier suit was not the product of collusion. It also agreed that the Trustees appointed under the scheme had not committed any breach of trust as alleged by the respondents. However, the High Court differed from the trial Judge on the issue of res judicata and reached a contrary conclusion. It took the view

The Court observed that the argument of res judicata could not be sustained, and therefore concluded that the suit filed under section ninety‑two was legally permissible. It noted that the High Court had concurred with the trial Court that, once a scheme is established, the law does not permit its casual alteration or disruption. Nevertheless, the High Court expressed the view that a sufficient cause existed for the preparation of a new scheme because it was convinced that the mosque at issue was owned collectively by the entire Sunni Muslim community of the Cantonment and Military Station in Bangalore. The Court further held that the earlier suit, which asserted that the Cutchi Memons possessed exclusive rights to manage the mosque, its properties and its administration, lacked a sound foundation. Based on these conclusions, the High Court set aside the decree issued by the trial Court and directed that the matter be remanded to the trial Court for further proceedings in accordance with the appellate judgment, specifically for the purpose of framing a new scheme. The appellants have approached this Court by way of a special leave petition to challenge that order. Before addressing the substantive arguments presented on behalf of the appellants, the Court deemed it necessary to briefly outline the history of the mosque that is the subject of this dispute and to describe the events that gave rise to the present suit.

The Court accepted the factual findings recorded by the High Court concerning the mosque’s origin, its subsequent development, and the involvement of the Dakkhani Muslim community, noting that these findings have not been contested before this Court. Accordingly, the Court will proceed on the basis that those findings accurately reflect the evidence proven in the case. It is therefore appropriate to recount the historical background of the institution and the circumstances that led to the present controversy. It is undisputed that the mosque originated as a modest structure more than a hundred years ago and that it was reconstructed in its current form around the year eighteen‑eighty‑five. The oral testimonies presented by the parties in support of their respective positions were, as is often the case, not wholly satisfactory; consequently, the High Court relied principally upon documentary evidence to resolve this aspect of the dispute. The respondents introduced a substantial number of documents to demonstrate that, during the initial construction of the mosque, its rebuilding in eighteen‑eighty‑five, and its subsequent expansions over the years, the Dakkhani Muslims played a predominant role. Although the respondents conceded that, at later stages, the Cutchi Memons also became actively involved in the affairs of the mosque and contributed to its prosperity and progress, the dominant participation of the Dakkhani community was established. The earliest document on record, identified as Exhibit K, is a sale deed dated January fourth, eighteen‑twenty‑three, which indicates that the broader community expressed a collective desire to erect a masjid and consequently purchased the open plot that later became the site of the mosque.

The Court observed that the sale deed concerning the purchase of the open plot, which later became the site of the mosque, was executed by a large number of Muslim purchasers belonging to diverse occupational groups. These purchasers were described as traders, bakers, makers of sweetmeats, copper‑smiths, rope‑makers, mutton butchers, beef butchers, gardeners and other Muslims. This description demonstrated that the purchase reflected a very broad cross‑section of the Muslim community, which collectively acquired the land on which the mosque was ultimately constructed. Subsequently, a gift deed dated 1 November 1923, identified as Exhibit L, recorded a voluntary undertaking by a similarly large number of Muslims to contribute funds for the construction of the mosque. In addition, a grant of land dated 4 October 1830, referred to as Exhibit YYYY, made clear that the mosque and its appurtenances were intended for the benefit of the entire Muslim community, as represented by the local Kazi. Around the year 1850, a person named Abdul Khuddus entered the scene, and the parties agreed that he was actively associated with the institution for approximately fifty years. He was recognised as a very influential figure in the locality, who helped popularise the mosque, acquired substantial property for its benefit, and thereby rendered the mosque useful to the community in various ways. Abdul Khuddus managed the mosque until his death in 1905, after which his son Abdul Gaffar succeeded him. Abdul Gaffar died in 1922 and is said to have left two separate wills, each giving rise to distinct claims to the mutawalliship of the mosque. Around that period the earlier suit of 1924 was also instituted. The Court noted that it was undisputed that for more than sixty years Abdul Khuddus and his son, who were not members of the Cutchi Memon community, administered the mosque. Moreover, the Court observed that prior to 1850, when Abdul Khuddus first became involved, the management of the mosque did not appear to be in the exclusive hands of the Cutchi Memons; rather, it was predominantly controlled by the Dakkhani Muslims of the locality. On 29 June 1880, a power of attorney was executed by the jamaat in favour of Abdul Khuddus so that he could enter into transactions on behalf of the mosque. Of the ten persons who signed this power of attorney, three were Cutchi Memons and the remaining seven were Dakkhani Muslims, indicating that by that time Cutchi Memons had become associated with the mosque’s administration and were part of the jamaat that owed allegiance to the mosque, although the trustees’ composition reflected a ratio of three Cutchi Memons to seven Dakkhani Muslims. Further, on 29 December 1892, a sale deed executed by Thulsibayama, identified as Exhibit HHHH, transferred her house property to Abdul Khuddus, who was described as the Head Trustee of the jumma masjid. The deed listed thirteen other trustees, whose representation of Dakkhani Muslims to Cutchi Memons was in the proportion of seven to six. The Court acknowledged that on some occasions the headmen of the mosque appeared to be predominantly Cutchi Memons; however, the evidence overall showed that the Dakkhani Muslims formed the majority of the managing community throughout the period under consideration.

In this case, the Court observed that the document concerning the transfer of Fazel Mahomed Asham Sait’s right to the Jumma Masjid, identified as Exhibit UUU, was executed in favour of six headmen, all of whom appear to have been members of the Cutchi Memon community. The Court noted, however, that the High Court had remarked that this fact did not carry any special significance because the document did not name Abdul Khuddus, who was the principal caretaker of the mosque, and therefore it suggested that the headmen listed may not have included the chief administrator of the Masjid. The Court then turned to demographic data, stating that at the relevant time the Dakkhani Muslims numbered approximately thirty thousand, whereas the Cutchi Memons never exceeded three hundred. This numerical disparity, the Court held, must be kept in mind when considering the question of who administered the property of the Jumma Masjid; consequently, although the Cutchi Memons were involved in the Trust’s administration, they were not the exclusive managers. The Court further recorded that before his death Abdul Khuddus had executed a Power of Attorney in favour of his son Abdul Gaffar on 14 June 1905, and that Abdul Gaffar subsequently assumed a role in the management of the mosque. On the basis of the documentary evidence accepted by the High Court, the Court affirmed the finding that the mosque was established as, and continued to function as, an institution belonging to the entire Sunni Muslim community of Bangalore, and that its management could not be said to have been exclusively in the hands of the Cutchi Memons at any time prior to 1924. Recognising the prominent and powerful contribution of Abdul Khuddus to the development of the mosque and its assets, the Court explained why the mosque came to be known as “Khuddus Saheb’s Mosque,” a description that appears in a document dated 7 June 1884 (Exhibit RRRRRR‑1). The Court noted that when the Cutchi Memons instituted a suit in 1924, they claimed that the mosque had been known as the “Sait’s Mosque,” but the Court considered this to be a later development. It was also conceded that various Muslim jamayats residing in different localities of Bangalore maintain their own separate mosques, and that ordinarily residents of a particular locality attend the mosque belonging to their local jamayat. However, the Court emphasized that the Jumma Masjid under consideration functions as a central mosque to which all Sunni Muslims of Bangalore owe allegiance. Evidence presented in the proceedings clearly showed that the Cutchi Memons, as a distinct jamayat, have their own mosque in Fraser Town. Although this fact was admitted reluctantly and without full clarity by Haji Saleh Mohamed Sait, who was examined by the appellants’ counsel, the witness also testified that the majority of nikah ceremonies recorded in the Jumma Masjid (Exhibit Y‑6) involved Muslims other than Cutchi Memons, indicating that among the regular worshippers at the Jumma Masjid, non‑Cutchi Memons occupied a significant position.

In light of the foregoing facts, the dispute that now before the Court must be examined. The record shows that around the year 1920, when the non‑co‑operation movement was at its height, the Cutchi Memon community as well as the Dakkhani Muslims of Bangalore experienced a marked split. The larger segment of each community supported the non‑co‑operation movement and praised those who participated in it, whereas a smaller faction, headed by Haji Sir Ismail Sait, opposed the movement and publicly condemned it. This opposition resulted in the customary practice of excommunicating the dissenting minority. Consequently, Haji Sir Ismail Sait instituted Suit No. 6/1921 seeking to affirm his right of access to the Jumma Mosque for the performance of religious ceremonies and to obtain an injunction restraining the mosque managers from interfering with the exercise of that right.

During the pendency of that suit, Abdul Gaffar died on 9 January 1922, an event that intensified the community’s division. The division was further complicated by competing claims concerning two distinct wills executed by Abdul Gaffar, which gave rise to Suit No. 32/1924. In that proceeding the plaintiffs asserted that the Jumma Mosque had originally been developed by the Cutchi Memons and that exclusive management of the mosque’s affairs should therefore vest in the Cutchi Memon community. The defendants, who had been impleaded in that suit, initially opposed the claim. Those defendants were identified earlier in the judgment and were primarily interested in protecting their individual rights to the management of the mosque rather than representing the broader non‑Cutchi Memon community. The parties eventually reached an amicable settlement, agreeing that a scheme should be prepared, and the court issued a preliminary decree directing the framing of such a scheme.

Following the settlement, the District Judge ordered each side to submit its proposed scheme. The Court examined the submissions and ultimately formulated its own scheme. Under that scheme trustees, who have been repeatedly appointed and have always been Cutchi Memons, have administered the trust and managed its properties. This sequence of events constitutes the historical background of the mosque’s foundation, its development, and the matters that have led to the present controversy.

The first submission advanced before the Court by counsel for the petitioner contends that the present suit is barred because a scheme had already been framed in an earlier suit instituted under section 92 of the Code of Civil Procedure, and that the decree ordering the scheme binds all parties.

The Court noted that the suit filed under section 92 was described as a representative suit, and consequently every person who had an interest in the Trust would be bound by the decree that established a scheme for the proper administration of the Trust, regardless of whether the present respondents had actually appeared in that earlier suit. To support this contention, the Court referred to its own decision in Raja Anandrao v. Shamrao (1), where it had observed that although the pujaris were not parties to the suit under section 92, the decree of that suit bound the pujaris as worshippers with respect to the administration of the temple because a suit under section 92 is a representative suit that binds not only the parties to the suit but also all those who are interested in the Trust. Counsel for the petitioner also relied on two decisions of the Madras High Court, namely Ramados v. Hanumantha Rao (2) and Khaja Hassaanullah Khan v. Royal Mosque Trust Board (3). Those decisions held that a decree issued in a suit filed under section 92 that frames a scheme is binding on everyone and prevents any person, whether a party to the earlier suit or not, from asserting in a later suit any right that conflicts with or attacks the scheme. In assessing the force of this argument, the Court examined the foundation of those decisions, which rested on the principle that a suit under section 92 is a representative suit brought with the requisite sanction on behalf of all beneficiaries interested in the Trust. Section 92 authorises two or more persons who have an interest in the Trust to file a suit for claiming any of the reliefs specified in clauses (a) to (h) of sub‑section (1), provided that written consent as prescribed has been obtained. Accordingly, when a suit is brought under section 92, it is initiated by two or more interested persons who assume the responsibility of representing all beneficiaries of the Trust. Even if not all beneficiaries are expressly impleaded, the action proceeds on their behalf and the relief sought is in a representative capacity. This situation invokes explanation VI to section 11 of the Code, which states that when persons litigate in good faith concerning a public right or a private right claimed in common for themselves and others, all persons interested in such right are deemed, for the purposes of that section, to claim under the litigants. The Court clarified that section 11, read together with its explanation VI, leads to the result that a decree passed in a suit governed by explanation VI is binding on all persons whose interests were represented by the plaintiffs.

In this case the Court explained that a decree issued in a suit brought by persons to whom Explanation VI of Section 11 of the Code applies prevents any other persons who share the same interest from instituting a later claim concerning that same right. Explanation VI therefore illustrates a facet of constructive res judicata. When a representative suit is filed under Section 92 and a decree is rendered, the law assumes that all individuals who have the same interest as the plaintiffs were represented by those plaintiffs and consequently they are constructively barred by res judicata from relitigating the matters directly and substantially in issue in the earlier suit. An identical result follows if a suit is either brought or defended under Order I, Rule 8, because in that situation the parties act in a representative character and the decree binds all those whose interests were represented either by the plaintiffs or by the defendants. Accordingly, determining the effect of a decree passed in a representative suit requires an inquiry into which interests were represented by the litigating parties. If the decree arose from a suit under Section 92, the plaint must be examined to decide in what character the plaintiffs sued and what interests they claimed. If a suit is brought under Order I, Rule 8, the same examination of the plaint is required, and if a suit is defended under that rule, the defence must be scrutinised to ascertain which interests the defendants purported to protect on behalf of others. This enquiry is material for assessing the argument advanced by counsel for the petitioners. The Court therefore examined the plaint filed in the earlier 1924 suit. Before filing that suit an application had been made to obtain the Collector’s sanction as required by Section 92. In that application the petitioners specifically averred that the mosque in question was an ancient and important institution belonging to the Cutchi Memon Community and that properties attached to it were valued at more than one lakh rupees, the net income from them being about Rs 2,400 per annum. On that basis the petitioners claimed an interest in the trust and sought that a scheme be framed. It is thus clear that the application for sanction proceeded on the narrow ground that the mosque belonged to the Cutchi Memon Community and the interest the petitioners purported to represent was that of the Cutchi Memon Community alone. After permission was obtained from the Collector the suit was filed. In the plaint the same position was adopted, stating that the mosque had been mainly founded by the Cutchi Memon Mohammadens residing at Bangalore and it was

The plaintiffs alleged that Muslim communities other than the Cutchi Memon had erected mosques for their own use and benefit. They asserted that for more than a century the Cutchi Memons had been maintaining and managing the mosque. The plaint additionally claimed that, as members of the Cutchi Memon Community, the plaintiffs were concerned with the proper management of the disputed mosque. It stated that, being Mohammadens and members of that community, they possessed the right to perform daily prayers, funeral rites and other special prayers within the mosque. Consistent with this position, the prayer clause of the plaint sought the framing of a scheme that would safeguard the rights and privileges of the Cutchi Memon Community. Thus, the plaint, like the earlier application for the Collector’s sanction, proceeded on a clear and unambiguous premise that the mosque belonged to the Cutchi Memon Community. The suit was therefore instituted solely on behalf of the Cutchi Memon Community by persons who claimed to be interested in the mosque as Cutchi Memons. Consequently, there is no doubt that the plaintiffs did not claim, and in fact did not represent, the interests of any community other than the Cutchi Memon Community. Having been found, as in the present case, that the basis of the claim in the plaint was untenable, the court recognized that the mosque belongs to all the Sunni Mohammadens of Bangalore. Consequently, it becomes difficult to accept the argument that the suit, filed on the basis described, can be regarded as a suit for Muslim communities other than the Cutchi Memon Community residing in Bangalore. The plaintiffs expressly pleaded in the suit that no other community was concerned or interested in the trust. Therefore it would be untenable for them now to claim that they purported to represent the interests of other communities. It is true that defendants numbered one to seven, who were impleaded in that suit, were non‑Cutchi Memons. However, as already observed, these defendants were sued as trespassers and their only interest in defending the suit was to protect their individual right to manage the property. The written statements filed by those defendants leave no doubt that they did not purport to represent non‑Cutchi Memons residing in Bangalore. Their pleas centered on the rights they claimed under the wills of Abdul Gaffar. Similarly, the written statements filed by defendants eight to thirteen cannot be used to support an argument that the interests of non‑Cutchi Memons were represented. Those defendants were Cutchi Memons and they agreed with the plaintiffs that the mosque belonged solely to Cutchi Memons. Undoubtedly they raised some other pleas disputing certain allegations in the plaint, but those pleas have no relevance to the point presently under consideration.

In this case, the Court observed that the allegations set out in the plaint and the statements made by the defendants in their written replies failed to support the claim that the earlier suit had been filed by persons who could represent the non‑Cutchi Memons, nor that the defence had been undertaken by such representatives. The Court explained that if this claim were accepted, the fundamental reason for a decree issued under section 92 of the Code to have binding effect would disappear. The Court reiterated that the principle giving a section 92 decree its binding character is that all persons having an interest in the trust must be represented in the suit, as required by explanation VI to section 11. When that representation is lacking, the decree cannot create a bar of res judicata against individuals whose interests were not represented in the earlier proceeding. The Court then referred to the decision in Raja Anandrao (1), noting that the Court in that case had observed that a decree issued in a representative suit under section 92 bound not only the parties to that suit but also every person interested in the trust. While counsel for the appellant relied on that observation to argue for the operation of res judicata, the Court held that it would be unreasonable to treat the statement as an unrestricted rule. The Court emphasized that the context of the Raja Anandrao observation was essential; the earlier suit concerned a Hindu temple, and the plaint clearly indicated that the plaintiffs represented the interests of all worshippers and devotees of that temple, including those who later instituted the present suit. Consequently, when the Court accepted the argument that the later suit was barred by res judicata, it was based on the finding that the worshippers’ interests had been constructively represented in the earlier litigation, and the personal absence of those worshippers from the earlier case did not affect the decree’s binding effect. Thus, the decision rested on the principle that a party precluded from filing a subsequent suit had been represented in the earlier suit, allowing explanation VI to section 11 to apply. The Court concluded that the observations in Raja Anandrao (1) did not support the appellant’s contention in the present appeal. The citation for the earlier case is [1961] SS C R 930, 940. The Court then turned to the next issue, questioning whether it would be appropriate to alter the scheme in the present litigation even if the suit was not strictly barred by res judicata, a point on which counsel for the appellant continued to argue.

In this case, the Court noted that a well‑recognised principle of law dictates that once a scheme for a public trust has been established, it should not be altered lightly unless there are substantial reasons for doing so. The Court observed that the petitioner relied heavily on the High Court’s finding that the trustees appointed under the scheme, from the time it was framed, have overall managed the trust property and its affairs in a reasonable and responsible manner, and that the allegations of breach of trust raised against them in the present suit had been found to be unproved by both lower courts.

The Court affirmed that there can be no doubt that a scheme framed in a suit instituted under section 92 should not be changed unless there are strong and substantial reasons supporting such a change. This position is well established and has not been disputed before the Court. Relying on the authority of Halsbury, the Court explained that where a scheme has been settled by the Charity Commissioners, the court will not interfere with it unless the Commissioners acted beyond their authority, the scheme contains a principle or legal defect, or changed circumstances have made the continuation of the charity under the scheme’s constitution impracticable.

The Court traced this principle back to the 1851 decision in Attorney‑General v. Bishop of Worcester, where it was held that schemes settled under the directions of the court are not to be disturbed on merely speculative grounds or on matters of discretion where judges or attorneys‑general may differ in opinion. The court in that case required substantial grounds and clear evidence showing not only that the scheme does not operate beneficially but also that alteration could make it operate consistently with its objects. The same principle was reiterated in the 1872 case of Attorney‑General v. Stewart.

Having set out the general rule, the Court identified two considerations relevant to the petitioner's argument. First, it is not disputed that even after a scheme is framed in a suit properly instituted under section 92, if supervening considerations arise that justify its alteration or modification, the doctrine of res judicata cannot be invoked to bar such alteration. Second, the Court observed that in the present matter it has been discovered that the scheme framed in 1927 was based on an erroneous assumption that the mosque belonged exclusively to the Cutchi Memon community, thereby granting that community sole authority to administer the mosque.

The Court noted that although the parties who accepted that assumption in the earlier suit may not have colluded, the assumption nevertheless introduced a serious infirmity into the scheme. Numerically, the interests of approximately thirty thousand non‑Cutchi Memons were disregarded, while the scheme gave exclusive attention to the interests of the Cutchi Memons, a community that never numbered more than three hundred. This disparity highlighted a fundamental flaw that could justify reconsideration of the scheme.

It was established that the Mosque is a Central Mosque and that the Dakkhani Muslims living in Bangalore were responsible for its construction. Those Muslims also had a vital interest in performing worship in the Mosque and in participating in its administration, its affairs and its property. Because of this, the respondents’ argument that the scheme created in 1927 should be revised to take account of the interests of all persons concerned with the Mosque could not be easily rejected. The Court therefore agreed with the High Court’s finding that the scheme must be revised on the true basis that the Mosque does not belong solely to the Cutchi Memons, but to all Sunni Muslims of Bangalore, as stated in the earlier authority. The next issue for the Court was whether the High Court’s order of remand should be confirmed and whether the District Judge should be directed to prepare an entirely new scheme in accordance with this decision. After consideration, the Court concluded that it was not necessary to draft a completely new scheme under the circumstances of the present case. The High Court had already expressed that, on the whole, the existing scheme had functioned satisfactorily. The Court examined all twenty‑five clauses of the scheme and heard counsel for both parties on the modifications that might be required. The Court was persuaded that, with appropriate amendments to clauses (iv), (v), (xxiv) and (xxv), the scheme would satisfy the demands of justice and ensure fair administration of the Mosque, its affairs and its properties.

In general terms, the scheme of 1927 provided for a Committee of five Trustees who would hold office for seven years beginning on the date the scheme became effective. Clause (iv) set out the procedure for appointing new Trustees after the seven‑year term prescribed by clause (i). The text of clause (iv) read as follows: “Six months before the completion of the seven years mentioned above, the committee of trustees shall prepare a list of male adult worshippers, and submit the same to the Court within a month thereafter; and the Court shall as soon as convenient nominate from among the worshippers a committee consisting of fifteen worshippers. Each member of the committee of worshippers shall hold office for ten years from the date of his appointment; and any vacancy arising among them for any of the reasons specified in clause 3 supra shall be filled up by the Court. And this committee shall elect from among their number five persons to perform the duties of trustees after the expiry of seven years aforesaid.” Clause (v), also relevant, stated: “The trustees so elected shall hold office for a term of five years and whenever any vacancy arises among the elected trustees.” The Court noted that clause (iv) has already operated in practice and provides the basic structure for appointing Trustees, but the basic structure may need alteration because the number of worshippers is now considerably larger than was originally assumed. The term “worshippers” in this context is understood to refer to all Muslims who attend the Mosque, not a limited subset.

The Court stated that a vacancy among the trustees arose when a member died, resigned, was absent from the Bangalore C & M Station for a continuous period of six months, was an undischarged insolvent, was convicted of a criminal offence involving moral turpitude, refused to serve, was, in the Court’s opinion, unfit or incapable of acting as a trustee, or ceased to be a member of the committee of worshippers. In each of those situations, the vacancy was to be filled by the committee of worshippers, which would select a person from among its own members to hold the office for the remainder of the five‑year term. The Court further observed that the procedure described in clause (4) must be applied for electing trustees for every successive five‑year period.

The Court noted that clause (iv) had already operated to establish the basic structure for appointing trustees, but it considered that structure required alteration because the number of worshippers was now far greater than had been assumed at the time of drafting. The Court explained that the term “worshippers” did not refer to all Muslims entitled to worship throughout the country; rather, it referred to those persons who ordinarily worshiped in the specific mosque concerned. Consequently, the Court found it unnecessary to compile a list of male adult worshippers as required by the original clause (iv), and it also concluded that forming a Committee of worshippers as contemplated by that clause was unwarranted.

Instead, the Court preferred that the appointment of five trustees from time to time be made by the District Judge from among the mosque’s worshippers, with the class of worshippers being identified in the manner just clarified. The Court observed that, after the scheme became effective, trustees had been appointed by a form of election, and the Court regarded that practice as something to be avoided. Accordingly, the Court proposed to replace clauses (iv) and (v) with a new clause (iv) that read: “The District Judge of Bangalore shall nominate five persons from among the male adult worshippers of the mosque to act as trustees responsible for the mosque, its affairs and its administration. The trustees so nominated shall hold office for a term of five years, and whenever a vacancy occurs among them by reason of death, resignation, or any other cause, the District Judge shall fill that vacancy by nominating another trustee. The remaining trustees shall continue to function until the vacancy is filled.”

The Court explained that, as a result of this amendment, the existing clauses (iv) and (v) would be deleted, the newly formulated clause (iv) would take their place, and the subsequent clauses would be renumbered accordingly. Regarding clause (xxiv), the Court observed that it previously permitted only members of the Cutchi Memon Community to demand copies of the rules or their Urdu translations; the amendment would extend that right to all Sunni Muslims residing in Bangalore. Therefore, the modification in the clause was directed as indicated.

It was ordered that the words “any member of the Cutchi Memon Community” be replaced by the words “any Sunni Musalman of Bangalore”. Clause (xxv), which originally permitted the Trustees to seek advice or direction from the District Court when occasion arose, was to be amended so that it would also allow the Trustees or any person interested in the Trust to apply for modification of the scheme. The amended wording of Clause (xxv) was set out as follows: “The Trustees may apply for advice or direction, and the Trustees or any person interested in the Trust may apply for modification of the scheme to the District Court of the C & M Station, Bangalore, as occasion may arise.” By revising the clause in this manner, the intention was to make clear that any future need to change or alter the terms of the scheme would not require the filing of a separate suit. Before concluding the appeal, the Court noted an incidental point that had been raised by both parties during the hearing. Both parties had argued about the proper meaning of the word “worshippers” used in Clause (iv). Counsel for one side argued that, considering the pleadings filed in the original suit and the wording of Clause (xxiv), the term “worshippers” should be understood to refer only to worshippers belonging to the Cutchi Memon Community. If that construction were accepted, it would demonstrate that the suit represented solely the interests of the Cutchi Memons and would therefore defeat the contention of res judicata. Conversely, if the term “worshippers” were given a broader meaning, it could indicate that the scheme applied to all worshippers interested in the Trust. That broader interpretation would raise the issue of clarifying the scheme because, in practice, the term “worshippers” had consistently been interpreted narrowly, and both the Trustees and the committee of worshippers had always been composed of members of the Cutchi Memon Community and no others. Under that narrower view, the plea of res judicata might be upheld, but an occasion would still arise for either clarifying the scheme or amending it so that worshippers from other communities could become eligible for appointment as Trustees. After considering these arguments, the Court rejected all of the appellants’ contentions and affirmed the findings recorded by the High Court in favour of the respondents. However, the Court declined to uphold the order of remand issued by the High Court because it had previously held that the 1927 scheme should remain in force except for the modifications specified in this judgment. Consequently, the order of remand was set aside, the respondents’ claim for a modified scheme was allowed, and the appeal was dismissed with the modifications described above.

The Court confirmed that the modifications which had been articulated in its earlier judgment shall remain in force and shall be implemented exactly as ordered. It specified that those modifications were to be carried out without any alteration other than those expressly indicated by the Court, and that the parties were required to comply with them in the manner prescribed. In addition, the Court directed that the appellants were to bear the entire burden of costs that had been incurred by the respondents who had contested the proceedings. This responsibility for costs covered all expenses that the respondents had faced throughout the duration of the litigation, including any legal fees, filing fees, and other expenditures necessary to pursue their contest. The obligation of the appellants to pay these costs was to continue for the whole period of the case and for any further costs that might arise in connection with the enforcement of the Court’s order. Accordingly, the appellants were ordered to pay the full amount of costs to the contesting respondents, and this liability was to be satisfied in accordance with the procedural rules governing the payment of costs in such matters.