009-NLR-NLR-V-51-MABJAN-et-al-Appellant-and-BURAH-et-al-Respondents.pdf
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Marjan v. Burak
Present: Canekeratne and Nagattngam JJ.
MABJAN et al., Appellants, and BTJRAH et al., Respondents
S. C. 38—D. G. Inly. Tangalla, 198
Charitable trust—Muslim Intestate Succession and WdkfB Ordinance—Application under—Governed by summary procedure—Misjoindcr ofparties and causes of action—Cap. 50—Sections 15 and 16—CivilProcedure Code, ss. 373, 374, 376.
Jurisdiction—Power of Court to set aside, its oun decree,—Judgment i?i rein—Absence of notice to party interested—Right of such party to impeachthe judgment.
The Muslim Intestate Succession and Wakfs Ordinance createsa class of eases in regard to which the procedure should ho what isdesignated by the Civil Procedure Code as summary procedure.
Each distinct trust must form the subjoct of a separate applicationand two or more separate trusts cannot be combined in one application.
When a Court has jurisdiction of the subject matter and theparties its judgment cannot be impeached collaterally for errors of lawor irregularities in procedure.
A judgment which is in the nature of a judgment in rem cannotbe sought to be set aside by a party interested in it on the more groundthat no notice, actual or constructive, was given to him concerning theproceedings which terminated in the judgment. Where, howover, thejudgment is obtained by fraud or collusion and by virtue of ouch judgmentcertain property belonging to a third party is removed in his absence,such third party can, without bringing a separate action, apply to havethe judgment sat aaide in the same proceedings.
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NAGALINGAM J.—Murjan v, Burak
.A.PPEAL from a judgment of the District .Judge, Tangalla.
N. E. Weerasooria, K.C., with M. H. A. Aziz, S. W. Walpiia and3. Sharvananda, for the petitioners-appellants.
H. P. Per era, K,C., with C. Renganathan, for the intervenientrespondent.
M. M. K. Subramaniam for the 2nd respondent.
Cur. adv. wilt.
September 30, 1948. Naoalts'GAM J.—
The Kataragama Mosque situated at Kataragama is the subject of thedispute which has given rise to this appeal. Acting under section 16of the Muslim Intestate Succession and Wakfs Ordinance, Cap. 50, fivepersons hereinafter called “ the petitioners ” applied to Court for leave tomake an application under section 15 of the Ordinance for certain reliefsclaimable thereunder in respect of not only the Kataragama Mosquebut also of a Takkiya, referred to by them as Quadiriya Takkia, situatedat Hambantota. To this application the trustees proposed were maderespondents, and as they were subsequently appointed such, they willfor the sake of convenience be referred to hereinafter as trustees.
The application was allowed by Court and the petitioners in pursuancethereof filed an application under section 15 praying inter alia that theQuadiriya Takkia and Kataragama Mosque be declared subject to aWakf or trust, that the trustees who alone were respondents to their appli-cation be appointed members of a Board of Trustees, that the propertiesbelonging to the said trust be vested in the Board of Trustees soconstituted, and that the scheme of management proposed by them besettled by Court. The Court granted the prayer of the petitioners asprayed for and entered a decree in terras thereof dated 13th March, 1946.Armed with this order of Court the trustees appear to have taken chargeof the movable properties lying in the Kataragama Mosque.
Shortly afterwards, two persons intervened, one claiming to be thepriest in charge (referred to hereinafter as the priest intervenient) andthe other claiming to be the owner of the Mosque (referred to hereinafteras the owner intervenient) and applied to Court, the former to have “ allproceedings including the decree entered on 13th March, 1946, as far as theyaffect the mosque situated in Kataragama and its temporalities be declarednull and void and be set aside J and the latter to have “ furtherproceedings in the case relating to the said Kataragama Kovil be stoppeduntil the jurisdiction of the Court relating to that part of the proceedingsaffecting the said Kataragama Kovil be establishedThe learned Judge—who was other than the Judge who entered thedecree of 13th March, 1946—before whom the application of theintervenients came granted the application in substance and declared
36
KAGAL1NGAM J.—Marjan v. Hurah
that tho decree of 13th March, 1940, insofar as it purported to affect theKataragama Mosque and its temporalities, was a nullity. Prom thisorder the petitioners and trustees appeal,
The main contention on behalf of the appellants is that the DistrictCourt had no jurisdiction to set aside or vacate the order or decree-entered by it earlier, for they contend that the declaration that thedecree entered on 13th March, 194G, was a nullity was in effect an ordersetting aside the decree.
Several reasons have been given by the learned .Judge for holding thedecree entered in the proceedings to be a nullity. All these reasons centreround various irregularities and errors in the proceedings which culminatedin the order of Court declaring the trust, the appointment of trustees andthe granting of other ancillary reliefs. The petitioners when they madethe preliminary application under section 16 for leave of Court to makethe application under section 15 filed only a petition. The petition wasnot supported by an affidavit of facts, nor was any oral evidence led atthe time when the petition came up for consideration by Court. Thesection itself does not use the term “ petition ” ; it refers to an applicationto Court. The procedure in regard not only to an application under thissection but even in regard to the other applications under the MuslimIntestate Succession and Wakfs Ordinance would. I imagine, be governedby the Civil Procedure Code except insofar as any special procedure isindicated therein. Section 6 of the Civil Procedure Code defines anaction very widely and declares that every application to a Court, for reliefor remedy obtainable through the exercise of the Court’s power or authorityor otherwise to invite its interference constitutes an action. Theapplication, therefore, to the Court under section 16 of the MuslimIntestate Succession and Wakfs Ordinance for leave to make an applicationunder section 15 is an application to the Court for relief obtainablethrough the exercise of the Court’s power and is therefore an action.Under section 7 of the Civil Procedure Code the procedure of an actionmay be either regular or summary and section 8 provides that exceptingin cases where by the Code it. is specially provided that proceedings maybe taken by way of summary procedure every action shall commence andproceed by way of regular procedure. Under the Muslim IntestateSuccession and Wakfs Ordinance, which is a later enactment, theprocedure adumbrated is clearly one by way of summary procedure, forit nowhere refers to the filing of a plaint hut to an application, and itmust be held that the Muslim Intestate Succession and Wakfs Ordinancecreates another class of cases in regard to which the procedure should bewhat is designated as summary procedure by the Code.
In regard to an application to Court by way of summary procedure,section 373 of the Civil Procedure Code indicates the steps to be takenand provides that a written petition should be presented. After settingout in section 374 the requirements of the petition the Code in section 376goes on to provide that with the petition shall be exhibited such affidavits,authenticated copy records, processes, or other documentary evidence asmay be requisite to furnish ytrima f<tcie proof of the material facts set outor alleged in the ]>etition, or the Court may in its discretion permit ordirect tbo petitioner to adduce oral evidenco before the Court for thepurpose, which shall be taken down in writing.
NAGALINGAM J.—Marjan t. Burak
37
Under section 16 of the Muslim Intestate Succession and WakfsOrdinance, the, Court ift required on a perusal of the application to determine'whether there are sufficient grounds for the making of the application,«nd if in the judgment of the Court there arc such grounds, leave shouldbe given for the making of such application. A condition precedent,therefore, to the granting of the leave is that the Court must be satisfiedthat there are sufficient prima fade grounds for the making of the•application. Obviously, the Court is called upon to exercise its functionsjudicially and the only way that the Court can feel satisfied is by aconsideration of evidence relating to the matters upon which it has toform an opinion, and the necessity for an affidavit or oral testimonybecomes apparent and the view that the legislature intended summaryprocedure to bo adopted receives further confirmation.
A petition does not furnish proof of the allegations made therein. The•proof must thereafter be tendered either by means of affidavit or at least-by oral testimony being placed before it. In.ismuch as in section 16of the Muslim Intestate Succession and Wakfs Ordinance the Court isrequired to adjudicate upon the existence of prima facie grounds by a“ perusal of the application ” it would seem to follow that oral testimonyin the first- instance at least is excluded. It will, therefore, be seen thatwhen the application under section 16 of the Muslim Intestate Successionand Wakfs Ordinance was made, thero was no material whatever beforethe Court, even by way of oral testimony, upon which it could havereached a conclusion judicially of the existence of prima facie grounds forthe making of the application or upon which it could have arrived at ajudgment of the existence of such grounds ; but nevertheless, the Courtallowed the application, This, there can be little doubt, was a grossirregularity.
Even when the application under section 15 was made—there are■stronger reasons for holding that summary procedure was intended asthe parties to the application are referred to as petitioners and respondentsand not as plaintiffs and defendants—-it was neither supported by anaffidavit of facts not was evidence tendered by means of any otherdocuments nor even was oral evidence led before the Court in supportof the allegations contained in the petition. Here too, without anymaterial before it, the Court made order declaring the trust, appointingtrustees, vesting property and settling a scheme of management. Therecan again be equally little doubt that there has been no exorcise bv Courtjudicially of any of the questions that were before it before it granted theapplication of the petitioners on 13th March, 1946.
Apart from these irregularities the learned Judge lias also referred tonon-compliance with oilier provisions of the Ordinance as matters affectingthe validity of the order of 13th March, 1946. When the applicationunder section 15 of the Muslim Tntestate Succession and Wakfs Ordinancewas made, the Court, in the exercise of the powers vested in it undersub-section 2 (a) thereof, directed the trustees to file account for a periodof three years prior to that date. A statement of accounts, however,was filed, but it was for a period of thirteen months. But that the accountswere not for a period of three years was not brought to the notice of t-heCourt and in fact they were submitted as a statement of a-ocounts
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NAGALINGAM J.—Marjan v. Burah
tendered in compliance with the order of Court. The Court does notappear to have made any investigation in regard to the accounts, for aperusal of those accounts would have revealed that they can in no sensebe regarded as proper accounts relating to the Trust, and even thecorrectness of the accoiuits was not verified by any person claiming tobe a trustee, but the accounts were signed by one calling himself“ Asst. Hony. Treasurer The Court, however, assuming that theaccounts were in order, proceeded to grant the application of thepetitioners.
Section 15 of the Ordinance requires that the trustee or trustees, ifany, should be made respondents to the application. The petitionersaverred in their petition that the Hambantota Quadiriya Associationhad been the de facto trustees of the trust, but they failed to make allthe members of the Association who, according to them, were de factotrustees, respondents, but only made the trustees who were alleged tobe some of the members respondents. The learned Judge held thisnon-compliance to be also a factor which vitiated the order made on13th March, 1946. The priest interveniont himself claims to be the defacto trustee, and the learned Judge has taken the view that he shouldhave been made a respondent to the application and the order madein his absence is bad for that reason as well. But, of course, as thepetitioners did not admit the claim of the priest intervenient as trustee,
I do not think that the failure to make him a respondeat can be said tovitiate the proceedings. Having regard to the various irregularitiesabove set out, the learned Judge came to the conclusion that " theCourt had no power or jurisdiction to make the order under section 15 ”and that “ all the proceedings were irregular and therefore the foundationwas bad and consequently the decree a nullity. ”
I do not, however, think that any of the grounds set out by the learnedl)istrict Judge can properly form the foundation for an attack on the vali-dity of the order made on 13th March, 1946. The Court was a competentCourt of jurisdiction. By Statute it was vested with powers to appointtrustees in respect of a trust proved to its satisfaction to exist, to makevesting orders in regard to the temporalities thereof and to settle ascheme for the due management of the trust. It had jurisdiction bothover the persons who appeared before it and in regard to the subjectmatter in respect of which relief was sought. The petition of thepetitioners alleged the existence of all these relevant facts and the Courtthereupon was vested with the necessary jurisdiction irrespective of thequestion whether the facts alleged were true in fact or not.
As stated by Hukro Chand (1894 ed. page 240) jurisdiction “ does notdepend upon facts or the actual existence of matters or things butupon the allegations made concerning them”. Hukro Chand quotes apassage from Van Fleet in support:—
“ If certain matters and things are alleged to be true and reliefprayed which the tribunal has power to grant if true, that gives itjurisdiction over the proceedings …. A great deal of troublehas arisen from the mistaken conception that jurisdiction dependsupon facts or the actual existence of matters and things instead ofupon allegations made concerning them
NAGALINGAM J.—ifarjan «. Burah39
The Court, therefore, had jurisdiction to make the order granting theapplication of the petitioners. A Court, as has been said, has jurisdictionto make a right order as well as a wrong order, but whatever be the order,it is valid and binding upon the parties until reversed by an appellatetribunal. It cannot be disputed that the order of 13th March, 1946, wasan order that was binding ujon the parties. The words of Bean J. ofthe Oregon Supreme Court quoted by Vukra Ch&nd at page 475 are veryapposite. Said the learned Judge :—
" After a Court has acquired jurisdiction as well as a right to decideevery question arising in the cause, and however erroneous its decisionmay be, it is binding on the parties until reversed or annulled. Herewe have a competent Court with admitted jurisdiction of the subjectmatter and the parties, with full power and authority to decide allquestions arising in the case, and it is sought to impeach the validityof its decree because forsooth it was mistaken either as to the lawapplicable to the facts before it or to the facts themselves.”
The principle is so well settled that it is said to be an axiom of law thatwhen a Court has jurisdiction of the subject matter and the parties itsjudgment cannot be impeuched collaterally for errors of law or irregularityin practice.
But on behalf of the appellants it has been contended further that notonly is the decree binding on the parties but even on strangers to the suit.The intervenients urge that this proposition would be true if confined toan action which has for its objective the determination of the rights onlyof parties before Court, but that it would have no application where ajudgment intended to have operation as a judgment in rem is concernedand that in the latter case, where it can bo shewn that parties interestedin the subject matter of the suit have not had even constructive noticeby means of publication or otherwise, though not actual notice, such ajudgment would not be binding on parties other than the immediateparties to the suit. Now, it is true that a decree of a Court pronouncingin favour of the existence of a trust and appointing trustees is a decreewhich is in the fullest sense of the term a judgment in rem, for neitherthe existence of the trust nor the title of the trustees can be impeachedby anyone so long as the decree remains unreversed. In support of theproposition that where in proceedings terminating in a judgment in remno constructive notice at least has been given to parties interested, thejudgment cannot bind others than the immediate parties thereto, apassage was cited from the judgment of Hall J. in Woodroffe v. Taylorwhich is quoted by Hukm Chand at pages 495-6 :—
“ In every Court and in all countries where judgments are respected,notice of some kind is given. It is just as essential to the validityof a judgement in rem that constructive notice at least should appearto have been given as that actual notice should appear upon therecord of a judgment in personam. A proceeding professing todetermine the right of property where no notice actual or constructiveis given, whatever else it might be called, would not entitle it to bedignified with the name of a judicial proceeding. It would be a merearbitrary edict and not to be regarded anywhere as the judgment of aCourt”.
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NAGALINGAM 1 .—Marjan v. bnruh
This passage has reference not to the municipal law of the country of theCourt which pronounced the judgment but rather to the principle ofnon-recognition of the judgment by other countries and leads one intothe realm of International Law.
Section 15 of the Muslim Intestate Succession and Wakfs Ordinanceexpressly enacts that the application may bo made 14 without joining asapplicant any of the other persons interested ” and that only “ thotrustee or trustees, if any, should be made respondents There is noprovision here to give notice of the application to any other parties. Infact no procedure is indicated to give notice to all the world ”. Thebare fact, therefore, that notice is not given to the world cannot detractfrom the weight which should t»e attached to the judgment and decreewhich the legislature enacts should be accorded to it. I do not thereforethink that the mere lack of notice, either constructive or actual, can beurged as a ground for treating a judgment which is in the nature of ajudgment in ran to be not binding upon every and all persons. Twofamiliar instances of the operation of this principle are to be found iuthe order for sale entered under partition proceedings and in the orderadmitting a will to probate. But, of course, where a party namedrespondent to the proceedings has not been given notice either actual orsubstituted, it may be open to him to have the decree vacated. Noperson who i6 not named as respondent- in the proceedings can on themere allegation that no knowledge of the proceedings had come to himclaim the right to have the decree set aside; so that the judgment cannotbe impeached by any such person either on tho ground of irregularity ofthe proceedings or on the ground of lack of notice, either actual orconstructive. But the application of this principle must be limited tojudgments entered upon proceedings taken honestly uud bona fide bythe parties before Court.
The intervenients, however, not only allege irregularities in thoproceedings and want of notice to them but go further and challenge thedecree on the ground that it has been procured by fraud or .collusionof the petitioner and the trustee respondents. Undoubtedly theintervenients would have a right to bring a separate action to have thedecree set aside and declared void on the ground of fraud. It has beencontended on behalf of the appellants that the relief cannot he claimed byinvoking any other procedure, and in particular that it cannot bodemonstrated in the course of the same proceedings that the judgmentor decree was obtained by fraud or collusion. I do not think so.
It is by virtue of the decree entered on 13th March, 1946, thatthe appellants on an assertion of right removed the movable propertiesbelonging to the trust and claimed by the two intervenients to have beenin their charge. The removal is alleged to have been effected during thetemporary absence of both of them from the premises. Had the attemptat removal been made in the presence of the intervenients, they wouldhave been entitled to resist the removal on the ground that the decreeon the basis of which the removal was sought was a nullity. Theresistance would, if the appellants wanted to proceed further, have beenreported to Court or they would have had to institute a fresh actionagainst the intervenients. In either case, it is not denied that the
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NAGAUNOAM J.—Marjan v. Burah
intervenients would have boon entitled to' show that the decree wagobtained by fraud or collusion, for section 44 of the Evidence Ordinanceenacts quite clearly that any party to a suit or other proceeding mayRhow that any judgment, order or decree which is relevant and which hasbeen proved by the adverse party was delivered by a Court not oorapotentto deliver it or was obtained by fraud or collusion. Therefore, merelybecause the removal of the goods had been effected during thoir absence,are the intervenients to be deemed to have forfeited their rights todemonstrate in the very proceedings that the decree is a nullity as it hadbeen obtained by fraud or collusion and that it is not binding upon them ?1 can see no good ground for bolding that the answer to the question,should be in the affirmative. I am of opinion that the intervenientswere rightly permitted to intervene in order to show that the decree wasa nullity.
It was, however, urged that the District Court had no inherent powerto vacate its own decree or order in the same proceedings and that theonly jurisdiction it possesses in regard to such matters is what is conferredupon it by the Civil Procedure Code and no other. See ArumugamChetty v. Seeni Mohamedo '. But this is a principle that is applicableonly where the Court is called upon to set aside its decree. It does notextend to cases where it is sought to prove that the decree was oneobtained by fraud or collusion and therefore a nullity—a right expresslygranted by section 44 of the Evidence Ordinance. There is amplematerial on the record which shows—and it has not been controverted—that the entire proceedings have been commenced and concluded bycollusion at least between the petitioners and the trustees, if not byfraud ; in those circumstances, the proceedings were rightly held to bea nullity.
A point was also taken on behalf of the intervenients that the application,was bad in that both the Kataragama Mosque and Quadiriya Takkiahad been included in one and the same application. They assert thatit is not alleged or shown by the petitioners that both the trusts hadeither a single or a common foundation or that the two trusts thoughseparately founded were at any stage consolidated and constitutedinto one trust or that the two trusts were even managed at any time asone entity or that the temporalities belonging to the two institutionswere treated as the joint property of both trusts or even that theworshippers at the Kataragma Mosque have any interest in the QuadiriyaTakkia or vice verm. They contend that the Kataragama Mosque andQuadiriya Takkia are in fact two separate and distinct trusts havingnothing in common between them. It- is staled by them that by combiningthe two trusts in one application the petitioners and trustees have beenable to obtain an order insidiously in regard to the Kataragama Mosquewhich otherwise they would not have been able to do. I think there issubstance in this allegation. A perusal of the Ordinance leads me tothe conclusion that each distinct trust must form the subject of a separateapplication and that two or more separate trusts cannot be combined inone application. Such a combination would offend against the salutaryprinciple underlying the rule well known in civil proceedings that separatecauses of action cannot be joined in one action against distinct parties.
» {1920) 2 C. L. Jttc. IS.
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GRATIAEN J.—Sirimal v. De Silva
There now remains for consideration the question as to whetherthese collusive proceedings, teeming as they do with irregularities andlack of application of the elementary principles underlying the adminis-tration of justice in a Court of law in regard to the orders made on andprior to 13th March, 1946, should be permitted to stand even as regardsthe Quadiriya Takkia, To do so would be to set the seal of approval ofthis Court on what must be deemed to be arbitrary orders made by aCourt under semblance of judicial proceedings. These proceedingscannot be permitted to disfigure the records of a Court of law.
I would, therefore, in the exorcise of the revisionary powers of thisCourt, quash all the proceedings. This, however, would not debar anypersons interested from making a fresh and proper application to Court.The appeal must therefore be and is dismissed with costs.
Canekeratne J,—I agree.
♦
Appeal dismissed.