Delivered by LORD ROCHE.—Abdul Coder v. Atlantadu Lebbe Marikar. 257
[In the Privy Council.]
1935 Present: Lord Alness, Lord Mangham, and Lord Roche.
ABDUL CADER et al. v. AHAMADU LEBBEMARIKAR et al.
Maradona Mosque Ordinance—Action for declaration that a meeting of thecongregation was irregularity held—Action brought by the trustees—Right of plaintiffs to institute proceedings—Necessary parties—Belatedobjection—Trusts Ordinance, No. 9 of 1917, s. 102—Civil ProcedureCode, s. 17.
Where an action was brought by two members of the Board of Trusteesof the Maradana Mosque, who were also members of the congregation, fora declaration that a meeting purporting to be a meeting of the congre-gation of the Mosque was irregularly held in that the defendantswrongfully caused to be excluded therefrom a large number of themembers of the congregation,—
Held, that section 102 of the Trusts Ordinance did not exclude thejurisdiction of the Courts to entertain the action and that the plaintiffsin their individual and not in a representative capacity had an interestin the proper conduct of the affairs of the Mosque and had a right tocomplain of a meeting irregularly held.
Held, further, that it would have been proper to have joined one ormore persons, not being officials, to have represented the congregation,but the Court would not uphold a belated objection on this ground ifinjustice would result from giving effect to it.
^^PPEAL from a judgment of the Supreme Court.1
November 8, 1935. Delivered by Lord Roche—
This is an appeal from two decrees of the Supreme Court of the Islandof Ceylon dated October 14, 1931, affirming a decree of the District Courtof Colombo dated August 25, 1930, in an action wherein the first tworespondents were plaintiffs and the appellants and the other respondentswere defendants. The facts out of which this appeal arises are shortlyas follows : —
There is and has been since the year 1818 an important mosque in thecity of Colombo known as the Maradana Mosque. At the times materialto the present action and appeal the affairs of this mosque were regulatedby an Ordinance entitled “ The Maradana Mosque Ordinance of 1929 ”.This Ordinance incorporated persons named in a schedule thereto and theirsuccessors as a corporation under the name and style of “ The Boardof Trustees of the Maradana Mosque”. The Ordinance also providedthat the rules and regulations set out in another schedule should be therules of the corporation reserving certain powers to the congregation tomake fresh rules.
The following rules are material: —
Rule 1 (b) provided that—
“ (b) The right of managing the affairs appertaining to the saidmosque- shall be exercised by Ceylon Moors (Sonager) professing the
> 33 N. L. R. 97.
258 Delivered by LORD ROCHE.—Abdul Coder v. Ahamadu Lebbe Marikar.
Muhammadan religion who have attained the age of majority and whoare permanent residents of Colombo, and who have their religiousceremonies performed by the Khatib or Khatibs (priests) of the saidmosque, and by other Muhammadans who may be admitted as membersof the congregation under paragraph (c) of this article
Rule 1 (c) provided that—
“ (c) It shall be competent for the congregation of the said MaradanaMosque to admit by special resolution any Muhammadan, though nota Ceylon Moor, as a member of the congregation of the MaradanaMosque at a duly convened meeting of the congregation”.
Rule 1 (d) provided that—
“ (d) The term congregation in the following rules and regulationsshall refer to Muhammadans of the class described in paragraphs (b)and (c) of this article ”.
Rule 2 provided for elections to the board of trustees and for the electionof a member of the board of trustees as secretary to the said board andfor the entry by such secretary in a minute book of the proceedings ofevery meeting of the congregation of the mosque.
Rule 3 (a) provided that—
“ (a) The Board of Trustees shall within twenty-one days from thedate of their appointment or from the date of the appointment of anysection of the Board, as the case may be, elect from among the membersof the Board an Executive Committee consisting of eighteen persons.Six members of the Executive Committee shall be elected from amongthe residents of Maradana ”.
Rule 3 (b) provided that—
“ (b) The Board of Trustees shall also elect from among the membersof the Executive Committee, a President, a Vice-President, a Secretary,two Treasurers, and a Managing Trustee ”.
Rule 3 (c) provided that—
“ (c) The Secretary of the Board of Trustees and the Secretary of theExecutive Committee shall not be one and the same person ”.
Rule 9 (a) provided that—
“ (a) The Executive Committee shall have power to manage all theaffairs of the said mosque and the educational institutions establishedin connection with the mosque ”.
Rule 9 (b) provided that—
“ (b) The Executive Committee shall have control over the Khatibs(priests) of the Maradana Mosque ; shall inquire into any complaintsmade against any of them by the members of the congregation; andhave power to remove any of the Khatibs from office, if necessary, andappoint his successor, and to fill any vacancy caused otherwise amongthe Khatibs, subject to the approval or otherwise of the congregation”.
Delivered by LORD ROCHE.—Abdul Cader v. Ahamadu Lebbe Marikar. 259
Rule 15 provided that—
“The Managing Trustee of the Maradana Mosque and the Treasurersof the Executive Committee shall individually or jointly furnish theExecutive Committee with a half yearly balance sheet, which shall beduly audited by a chartered accountant selected by the congregationfor the purpose. The audited balance sheet shall be printed, and acopy thereof shall be sent to all members of the Board of Trustees, andto such members of the congregation as may ask for the same ”.
Rule 17 provided that—
“ A meeting of the congregation of the Maradana Mosque shall becalled by the Secretary of the Board of Trustees, when the Board orthe Executive Committee has any business to submit for their con-sideration, or when he is requested to do so in writing by fifty membersof the congregation, who shall state in their requisition the object forwhich they desire that the meeting should be called. Every suchmeeting shall be convened in the manner laid down in rule 2 (f) ”.
At the material times the plaintiffs were members of the congegationof the mosque and were members of the board of trustees : the appellantand defendant D. M. Burhan was secretary to the board of trustees andthe other defendants and appellants were members of the executivecommittee—the first defendant, Abdul Cader, being president, the thirddefendant, Abdul Jabar, being secretary, and the fourth defendant,A. M. K. Isadeen, being managing trustee. The defendants who arerespondents to this appeal, were the remaining members of the executivecommittee. They had not supported but had opposed the measures andacts of which the plaintiffs complained in the conduct of the affairs of themosque. They were joined as defendants because the original defendantsto the suit, the present appellants, complained of their non-joinder andpleaded that the plaint was bad for non-joinder of parties. Such addeddefendants did not resist but supported the plaintiffs’ claim to relief.They did not all appear on this appeal.
The substantial complaint of the plaintiffs in the action was that ameeting purporting to be a meeting of the congregation of the mosqueheld on August 25, 1929, was irregularly held in that the defendantswrongfully caused to be excluded therefrom a large number of the mem-bers of the congregation. The plaintiffs’ claim was for a declaration thatthis meeting was irregularly held, that the proceedings were null and void,that the resolutions passed thereat were not duly passed, and for an orderthat such resolutions should be expunged from the minute book. Therewas also a complaint that the first defendant had wrongfully appropriateda sum of about 30,000 rupees, the property of the mosque and a claimthat balance sheets should be ordered to be submitted.
The last mentioned matter may be disposed of shortly. Balance sheetshad been in fact submitted before the hearing of the action before theDistrict Judge and no relief under this head was asked for before him.The matter of the complaint was however investigated at length becauseof its bearing upon the question of motive for the proceedings of theappellants in connection with the material meeting of the congregation.The trial Judge and the Judges on appeal formed an adverse view of the
260 Delivered by LORD ROCHE.—Abdul Cader v. Ahamadu Lebbe Marikar.
conduct of the first appellant in respect of the receipt by him of a sum ofover 23,000 rupees out of the proceeds of sales of certain property of themosque to the Municipality of Colombo. They found that the sumreceived was an enormous sum for simple work and was not remunerationon a normal basis for professional services as a proctor but was a bargainfor a share of the proceeds of sale.. They also found that the transactionswere conducted without proper and timely disclosure of the first appel-lant’s interest and that his manner of obtaining payment was irregularand unworthy of his position as president. The fourth appellant asmanaging trustee was held to have been too complaisant and ready toassist the first appellant in this matter, and it was held that both theseappellants disliked the idea of a general meeting of the congregation, atwhich a scrutiny of these transactions and opposition thereto might haveemerged. Their Lordships see no reason to differ from these conclusions,but, having regard to the view adopted in the judgments under appeal onthe matters more directly in issue, the question of motive seems now tohave little importance, and not to require further consideration. TheirLordships desire however to make one matter plain. Counsel for theappellants not unnaturally expressed concern lest in this matter thefindings of the Court below that the appellants as a whole acted in concertmight be misunderstood as amounting to a finding that they were .implicated in the monetary transactions which were criticised. While itis true that all the appellants were found to have combined in resolutionsand actions in respect of the conduct of the officers of the mosque and inparticular in respect of the meeting of August 25, 1929, which wereirregular and illegal, there was no evidence and no finding involving anyreflection upon the personal integrity of the defendants generally. Thefirst defendant and to a less extent the fourth defendant were alone theobjects of criticism in this respect.
As to the meeting of August 25, 1929, the facts as found by bothCourts in Ceylon were as follows : The business of the meeting was toappoint or approve the appointment of two khatibs or priests and toappoint auditors. Notice of such meeting was issued on August 13. Ithad for some time become increasingly clear that opposition to the viewsand policy of the appellants was strong. On August 8, notice was givenrequesting members of the congregation to register, and stating that theregister would close on August 19, and that no person not registeredwould be considered as entitled to vote at any meeting of the congre-gation. In spite of protests, an extension of the very short time forregistration was refused, and, when the meeting of August 25 was heldadmission was by ticket, and was confined to the limited number ofmembers of the congregation who had registered. In consequence avery large number of persons who were admittedly members of thecongregation and who demanded admission, were excluded from it andthe resolutions' were passed in their absence. It was'held in both Courtsthat the idea of registration was conceived and carried out with the objectof keeping out the opposition members from the meeting,, which was socarried out as to be a farce. It was held on these facts that the limitationof the meeting to those on the register and the exclusion of the othermembers of the congregation were illegal, that the meeting was irregularlyheld, and that its proceedings were null and void.
Delivered by LORD ROCHE.—Abdul Cader v. Ahamadu Lebbe Marikar. 261
On the hearing of this appeal it was not sought to impeach thesefindings of fact, which were arrived at by both Courts, and were mani-festly warranted by the evidence and documents in the case. Thearguments on the appeal were confined to matters of procedure and partiesand it was said that the relief sought should not have been grantedbecause of the provisions of the Trust Ordinance, No. 9 of 1917, andbecause the proper parties were not before the Court either as plaintiffs ordefendants.
As to the Trust Ordinance of 1917 it was submitted in the Courts belowthat the only remedy of persons aggrieved as the plaintiffs in this actionalleged they were aggrieved was to proceed by way of an action to bebrought by not less than five persons as plaintiffs under section 102 ofthat Ordinance. At the hearing of the appeal before their Lordships itwas conceded that a civil wrong was complained of in the present action,and that section 102 did not exclude the jurisdiction of the Courts toentertain this action; but it was said that, the procedure under section102 being available, and being the more appropriate and convenientprocedure, the Courts as a matter of discretion were entitled to refuse tomake the declarations and grant the relief prayed, and should haverefused to do so. Their Lordships see no inconvenience involved in theprocedure adopted in this action, and are of opinion that the plaintiffswere entitled to relief, and that the declarations were properly made. Inany case, and in so far as discretion was involved their Lordships seeno ground for interfering with the exercise of their discretion by theCourts below.
As to the matter of parties, the first complaint of the appellants wasthat the plaintiffs were not persons properly entitled to appear in thatcapacity. It was said that they were two members of the board of trusteesand that they were not excluded from the meeting of August 25. It wassaid that the proper plaintiffs would have been members of the congre-gation who were excluded from participation in the meeting. Thisobjection is in the opinion of their Lordships ill-founded. The plaintiffswere members of the congregation, and as such, in their individual andnot in a representative capacity, had an interest in the proper conductof the affairs of the mosque, and had a right to complain of a meetingirregularly held, and of resolutions illegally passed. It was next saidthat the action was not rightly brought against the present defendantsand that the necessary parties were not before the Court as defendants.As to the present defendants, the Courts below found that the actscomplained of were the acts of these defendants who were personsentrusted with the management of the affairs of the mosque. Thesefindings seem to their Lordships to be justified by the evidence and todispose of this objection. As to the absence of other persons from the suitit was said that the trustees, the congregation, and the khatibs or priestsought to have been parties. As to the latter their Lordships are of opinionthat, speaking generally, persons in the position of the priests in thepresent case are neither necessary or proper parties to such a suit. As tothe trustees, the members of the executive committee were all of themparties, and, the executive committee being a committee of the board oftrustees, no further representation of the larger body seems to their
262 Delivered by LORD ROCHE.—Abdul Coder v. Ahamadu Lebbe Marikar.
Lordships to have been required. The position as to the congregation issomewhat different. It appears to their Lordships that, in a matterconcerning the interests of the congregation so closely, it would have beenproper that it should have been represented in the action by some memberor members of it, not being officials, and that it would therefore have beenproper to have joined as defendants one or more such persons and to haveobtained an order appointing him or them to represent the members ofthe congregation who were not before the Court. But it is provided bysection 17 of the Civil Procedure Code of Ceylon (Ordinance No. 2 of 1889)that no action shall be defeated by reason of the misjoinder or non-joinder of parties, and that the Court may in every action deal with thematter in controversy so far as regards the rights and interests of theparties actually before it. Section 22 of the same Code provides that allobjections for want of parties shall be taken at the earliest possibleopportunity and in all cases before the hearing. It was said with truthon behalf of the respondents that the objections now under consideration,unlike the objection which led to the joinder of the defendants who arerespondents to this appeal, were not so taken.
Their Lordships do not doubt that in a proper case a defect of necessaryparties may be dealt with by the Court at any stage but in their view thepresent is not such a case. On the contrary the language of Lord Mac-naghten in the case of William. Brandt’s Sons & Co. v. Dunlop Rubber Co.Ltd1 is applicable to the present case. The material passage from thejudgment is as follows : —
“ Strictly speaking Kramrisch & Co. or their trustee in bankruptcy,should have been brought before the' Court. But no action is nowdismissed for want of parties and the trustee in bankruptcy had reallyno interest in the matter ”.
In the present case the opposing views and contentions as to thevalidity or invalidity of the meeting of August 25 and of the resolutionspassed thereat were placed fully before the Court by the parties interested.Their Lordships are satisfied that no injustice resulted from the absencefrom the record of any further or other parties, and that, on the contrary,injustice would result from now giving any effect to the appellants’belated objection on this score.
The last point raised by the appellants was that the decrees belowwere wrong in that they ordered the appellants to pay the costs of therespondents who were added as defendants. The decrees appear to theirLordships to be in this respect proper and just, and in any case were madeby the Courts below in the exercise of a discretion with which it would beimproper to interfere.
For these reasons their Lordships are of opinion that this appeal shouldbe dismissed, and that the appellants should pay to the respondents whohave appeared their costs of this appeal. Their Lordships will humblyadvise His Majesty accordingly.
> (1905) A. C. 454, at p. 4C2.
ABDUL CADER et al. v. AHAMADU LEBBE AMRIKAR et al