(1) These three appeals arise out of three connected suits O. S. Nos. 233, 151 and 231 of 1946 on the file of the court of the District Munsif, Cuddappah.
(2) The suits relate to the disputes between the officer holders of the mosque called Ahle Hadiz mosque in Mandi Sydumiah Street, Cuddappah Town. This mosque was primarily intended to serve the nees of the members of the Ahle Hadiz sect resident in the said town. In course of time, the plaint schedule lands were endowed to the mosque. Muhammad Abdulla Saheb and Abdul Sattar have been the joint mutawallis of the mosque for about 45 years. Abdulla Saheb was the son and Abdul Sattar was the son-in-law of one Haji Shaick Mohideen Saheb.
Abdulla Saheb died in the year 1939. After the death of Abdulla Saheb disputes arose between Muhammad Ali Saheb and his brother Abdul Sattar, each claiming to be the sole mutawalli. This dispute led to criminal proceedings before the Magistrate's Court, Cuddappah. The court decided that Abdul Sattar was entitled to be in possession of the properties as mutawalli. Abdul Sattar died in 1942. Syed Shah Muhammad is his son. On 13.3.1944, there was an agreement between Muhammad Ali Saheb and Syed Shah Muhammad whereunder defendant 1 was to manage the mosque and its properties on behalf of the defendant 2 also.
(3) Hakim Muhammad Isaq alias Mowlana was the peish Imam of mosque and he was functioning in that capacity for about 36 years. Mowlana had been starting religious controversies and propagating tenets and advocating usages quite against the accepted principles of the Ahle Hadiz sect. On 8th June 1946, there was a disturbance in the mosque and Mowlana, it is said, started a quarrel and uttered blasphemous expressions about the Prophet and also attacked a regular worshipper, one Abdul Shukur.
Muhammad Ali Saheb issued a registered notice, dated 10.6.1946, to Mowlana prohibiting him from leading prayer from the date of the receipt of the notice as he rendered himself unfit to lead prayers after his unholy conduct. Subsequently, Muhammad Ali Saheb and Syed Shah Muhammad jointly issued another notice, dated 2.8.1946, prohibiting Mowlana from leading prayers in the said mosque but the same was refused by the defendant on 7.8.1946.
In view of the disputes between the parties, the aforesaid three suits were filed.
(4) O. S. No. 233 of 1946 was filed by one Khagum Khan against Muhammad Ali Sahib, and Syed Shah Muhammad for a declaration that the plaintiff is the mutawalli of the suit mosque and for possession of the properties of the mosque. It is alleged in the plaint that the mosque was a private mosque built from subscription collected, that it was built for the use and convenience of Ahle Hadiz Jamait consisting of about 60 houses in Cuddappah town and that the appointment of mutawallis vested in the entire Jamait.
It is further stated that 45 years ago Abdulla Sahib and Abdul Sattar were appointed by the said Jamait as joint mutawallis, that after the death of Abdul Sattar, on the request of defendant 2 Syed Shah Muhammad, the Jamait appointed him mutawalli, but he left the town two years ago, that defendant 1 was not the mutawalli of the mosque at all and that as the work of the mosque suffered by the default committed by defendant 2 the Jamait appointed the plaintiff as mutawalli of the mosque.
On those allegations, the plaintiff, claiming to be the new mutawalli appointed by the Jamait, filed the suit for declaration of his title and for possession.
(5) The defendants pleaded in their written statements that the mosque was built by Haji Shaik Mohideen Saheb, that before his death the founder appointed his son-in-law Abdul Sattar and his son Abdul Sahib as mutawallis of the mosque and also directed that Thenceforward one descendant of his and one descendant of Abdul Sattar should act as joint mutawallis, and that Abdulla Saheb and Abdul Sattar appointed the defendants as joints mutawallis after them according to the directions of the founder.
They averred that they have been managing the mosque as joint mutawallis and that the suit was engineered by Mowalana.
(6) O. S. No. 151 of 1946 was filed by Mowlana for a permanent injunction restraining Muhammad Ali and others from interfering with the discharge of his duties as peish Imam of the mosque. The plaintiff's case is that Muhammad Ali illegally issued a notice to him prohibiting him from leading prayers in the mosque, that he had no right to do so that the real mutawalli was Syed Shah Ahmed, and that, in any event, the mutawalli of the mosque had not control over the peish Imam.
(7) The defendant raised the same pleas, which they had taken in O. S. No. 233 of 1946.
(8) O. S. No. 231 of 1946 was a suit filed by Muhammad Ali Saheb and Syed Shah Muhammad against Mowlana for a permanent injunction restraining him from leading prayers in the mosque. They base their relief on their right as mutawallis of the mosque. It is alleged in the plaint that Mowlana was responsible for the disturbance in the mosque on 8th June 1946, and taht the plaintiff as mutawallis issued a notice to the defendant dated 2.8.1946, prohibiting him from leading prayers at the mosque.
(9) The defendant Mowlana raised the plea that the plaintiffs were not mutawallis and that, in any view, the mutawallis have no right or control over the peish Imam.
(10) The learned District Munsif heard the three suits separately and delivered threeseparate judgments. He found tht Haji Shaick Mohideen Scheb wasnot the founder of the mosque thatthe jamait is the appointing authority of the mutawallis, that Muhammad Ali Saheb was never appointed mutawalli of the mosque, that though Syed Shah Muhammad was appointed mutawalli of the mosque, as he made default in the discharge of his duties he was removed and Khagum khan was legally appointed Mutawalli by the Jamait, that Hakeen Muhammad Isque alias Mowlana has been the peish Imam of the mosque having been appointed by the jamait and that the mutawallis have no right to prevent him from leading prayers.
On those findings, he decreed O. S. No. 233 of 1946 and 151 of 1946 and dismissed O. S. No. 231 of 1946. On appeal, the learned Subordinate Judge came to a different conclusion on all the facts foiund by the first court. The learned Subordinate Judge, on a consideration of the evidence, held (i) that the Jamait had no legal competency to appoint mutawallis and has not, as a matter of fact, appointed Khagum Khan as a mutawalli, (ii) that the mosque was built by Haji Sheik Mohideen Saheb 65 years ago, that before his death, the founder appointed his son-in-law Abdul Sattar and his son Abdulla Sahit as mutawallis of the mosque and also gave a direction that thenceforward one descendant of his and one descendant of Abdul Sattar should act as joint mutawallis and that Abdulla Saheb and Abdul Sattar appointed Muhammad Ali Sahib and Syed Shah Muhammad as mutawallis, and (iii) that the peish Imam was appointed only by the mutawallis and the present Mutawallis Muhammad Ali Saheb and Syed Shah Muhammad have a right to prevent him from functioning as peish Imam in the circumstances alleged by them.
In the result, he allowed the three appeals. Hence, the aforesaid Second Appeals.
(11) The first question is whether a Jamait or a congregation of the worshippers of a mosque have a right to appoint mutawallis. The question in whom the dpower to appoint mutawallis of a mosque vests was considered by a Division Bench of the Madras High Court in -- 'Phatmabi v. Abdulla Musa Sait', AIR 1914 Mad 714 (A). Tyabji J. who delivered the leading judgment, after considering the text books on the subject, laid down that there are only three modes by which a person may trace his right to be a mutawalli.
According to the learned Judge, the three source are (i) appointment by the Wakif, (that is the original author of the Wakf) or by some person expressly authorised by the wakf of appoint and in the absence of any person so authorised; (ii) appointment by the executor of the wakif and in the absence of such an appointment (iii) appointment by the court. If the three source laid down by the learned Judge exhaust the categories of appointing authorities, it follow that the jamait or the congregation has no power to appoint a mutawalli.
But reliance is placed on the decision of -- 'Piran v. Abdul Karim', 19 Cal 203 (B), in support of the contention that the jamait also, under certain circumstances, can appoint a mutawalli. Ameer Ali J., in that decision says at p. 222:
'But as I understand the principle, those dicta refer to endowments of a public nature like a musjid-i-jammmaa and similar institutions in which the public at large or the Mussalman public generally are interested. But when an institution is dedicated to the inhabitants of a particular locality or to a particular sect or fraternity, the memebrs of which are ascertainable, whatever might have been the case in ancient times, the modern muslim jurists have recognised the validity of an appointment by the congregation.'
(12) The learned Judge proceeded to state that
'in the Rudd-ul-Muhtar it is stated that the modern Muhammadan Lawyers recognise the validity of an appointment by the congregation. So also is the Wajiz-ul-muhit.'
(13) This decision, therefore, lays down in the case of institutions dedicated to a particular sect, the congregation also has power to appoint a mutawalli.
(14) Sir Dinshaw Mulla in his book on the principles of Muhammadan Law, 12th edition summarises the law at page 178 as follows:
'The founder of the wakf has power to appoint the first mutawalli and to lay down a scheme for the administration of the trust and for succession to the office of the mutawalli. He may nominate the succession by name, or indicate the class together with their qualifications, from whom the mutawalli may be appointed, and may invest the mutawalli with power to nominate a successor after his death or relinquishment of office.
(2) If any person appointed as mutawalli dies, or refuses to act in the trust............ or if the office of mutawalli otherwise becomes vacant and there is no provision in the deed of wakf regarding the succession to the office, a new mutawalli may be appointed
(a) by a founder of the wakf;
(b)by his executor (if any);
(c) if there be no executor, the mutawalli for the time being may, subject to the provisions of S. 166 below, appoint a successor on his death-bed;
(d) if no such appointment is made, the Court may appoint a mutawalli.'
(14) The learned author notices the decision in 19 Cal 203 (b), without any comment. At p. 180, he says:
'In the case of an institution confined to a particular locality, such as a mosque or a graveyard, the appointment of a mutawalli may be made by the congregation of the locality.'
I, therefore,hold that though ordinarily the appointment of a mutawalli vests in the three authorities mentioned by Tyabji J., the appointment may also be made by a congregation in the caseof an institution confined to a particular sect in a particular locality. If it is established that the congregation has been exercising that right in the case of the suit mosque, the appointment of a mutawalli by it is not illegal.
(16) The next question is what is the machinery by which the said power can be exercised by the jamait or the congregation. No text-books have been placed before me prescribing the procedure to be followed by the jamait. But any procedure must be one to indicate that the jamait exercised its mind, for in that case only it can be said that the jamait appointed the mutawalli. There must be some procedure prescribed by rules, of by custom to enable the jamait to function in the exercise of its power.
It is said that jamait means a congregation of all the workshippers in a particular mosque. This general body may meet through their accredited representatives through a system of election or customary method of election or, if the body is not unwieldy, all the memebrs may meet together and function as a body. Even in that case, there must be some procedure enabling the members to know the date and the place of the meeting and the subject that woould be considered at that meeting.
Unless these fundamental pricniples are followed, the general body cannot obviously function. In this case, there is no evidence and the learned Judge rightly found that any procedure was prescribed expressly or by custom to enable the general body to meet. The evidence is vague. Even if the entire evidence is believed, the witnesses say that the jamait functioned through such of the worshippers who attended on a particular day, i.e., to put it concretely there are 40 families belonging to this Ahle Hadiz sect.
No notices are issued or information sent to any members of that sect that a particular item will be discussed on a particular day. Such of those, who happened to attend the mosque for worship on a particular day, con pass any resolution they like. One day two members may attend, another day five members may attend, on the third day 10 members may ttend and on the fourth day 40 members may attend. This procedure, it is said alleged to be sanctioned by custom, will enable one or two persons attending on a particular dayto revoke a resolution passed by 40 people and substitute one in its place.
Such a custom, even if established, is unreasonable and contrary to all principle of natural justice, I would, therefore, hold that it has not been established that the jamait was legally functioning as jamait in the case of this mosque.
(17) The learned Subordinate Judge also found that it hasnot been established that Khagum Khan was appointed mutawali of the mosque. The learned Judge on a consideration of the evidence finds as follows:
'Thus the evidence of the P. Ws. does not bear scrutiny and is discrepant, besides being evasive on important particulars. I cannot, therefore, agree with the view of the learned District Munsif that the evidence of P. Ws. can be accepted as reliable of sufficient to prove the plaintiff's appointment.'
The question is one of fact and there are no permissible grounds for interfering with this finding.
(18) The learned Judge also found on the evidence and the probabilities arising therefrom, that Haji Shalik Mohideen founded the mosque and that he gave a direction that a successor, to the mutawali should be appointed from his family and from that of his daughter. The finding is one of fact but the learned Counsel for Mowlana argued that the finding isnot supported by the evidence in the case. The learned Counsel has taken me through the relevant evidence.
After going through the evidence, I cannot say that the finding of the learned Subordinate Judge is not based upon the evidence.
(19) Exhibit P.5 is a registration copy of a gift deed executed by one Ayisha Bi to the suit mosque as early as 1903. In that deed Ayisha Bi stated that the mosque was constructed as a matter of charity by Haji Shaik Mohideen Sahib. The learned Counsel for Mowlana contended that the recital is irrelevant and that, even if it is, relevant, it is ambiguous. I do not see any ambiguity in the document. The document in clear terms says that the mosque was constructed by Haji Shaik Mohideen Sahib; nor can I agree with him that it is irrelevant.
Under S. 32(4) statements of dead persons made before any controversy arose are admissible in evidence provided such statements are made by persons who would have been likely to be aware of them. The mosque is alleged to have been constructed in the last decade of the 19th century. Ayisha Bi was making the gift in the year 1903 in favour of the mosque. It is unreasonable to assume that a donor of properties to a mosque a few years after its construction would not have known the name of the person, who constructed the mosque.
As a person living very near to the date of the construction of the mosque and as one who made a gift of property to it, she must have special knowledge of the fact that Haji Shaick Mohideen Saheb constructed the mosque. The provisions of S. 32(4) of the Evidence Act are certainly complied with in this case and thedocument in admissible in evidence. P. W. 3 is a very old man of 90 years and he swears that the suit mosque was built with the private funds of Haji Shaick Mohideen Saheb.
He is a disinterested witness and the learned Subordinate Judge believed him and there is no reason to hold that this old man of 90 years perjured himself in the witness box. It is alsoin evidence that the house of Mohamed Ali abuts the mosque. This is a strong probability in support of the case that the mosque was built by his predecessor. What is more, Abdulla, Saheb, the son of the founder Haji Shaick Mohideen Saheb and Abdul Sattar his son-in-law were mutawallis for 45 years without any disturbance by any of the members of the Muslim public in that town.
The continuous management by the son and son-in-law of Mohideen Saheb for 45 years is a strong probability in support of the case that Mohideen Saheb was the founder. There is also no evidence that any other member of the public ever acted as mutawalli of the mosque. After Abdulla Saheb's death, in 1939, his brother Muhammad Ali stepped into his shoes. Though there were some disputes between Muhammad ali and abdul Sattar and consequent criminal proceedings, after Abdul Sattar died in the year 1913, his son Syed Shah Muhammad became the mutawalli in his place.
Exhibit P-1 dated 13-3-1944, the agreement that was entered into between Muhammad ali and Syed Shah Muhammad, recognises that both of them are joint mutawallis. It is true, that in the course of the dispute between MuhammadAli and abdul Sattar, Muhammad Ali stated that he was appointed by the Jamait. But the learned Judge for good reasons pointed out tht allegations were made to acquire the sole mutawalli of the mosque. Further, in 1939, when Abdul Sattar died, no person was appointed mutawalli in his place.
(20) That fact is indicative of the fact that the jamait was not conscious of its right to appoint a mutawalli for this mosque and allowed his son to take his placed. Further when Syed Shah Muhammad left Cuddappah for two years, no attempt was made by the jamait to appoint a successor to him. It can only be because succession to the office of mutawalli is regulated by the directions of the founder. Only for the first time Khagum Khan was put forward as a mutawalli appointed by the jamait after the disputes arose between the parties.
On the aforesaid evidence and probabilities, the learned Subordinate Judge held that the mosque was cosntructedby Haji Shaick Mohideen Saheb and that the founder directed that the successive mutawallis must be appointed from his family and from that of his daughter.
(21) In this connection, some of the observations of Tyabji J. in AIR 1914 Mad 714 (A), would be apposite. Thelearned Judge observed at p. 715 as follows:
'Thus from the history of previous appointments thedirections contained in the original dedication with reference to the mode in which the successive mutawallis are to be appointed may be inferred ................ The law does not directly empower the mutawalli of every wakf of appoint his successor, but if in regard to any particular wakf it is proved that the mutawallis have been in the practice of nomianting their successors, it is assumed that the practice had a lawful origin, and was foiunded on some provisions contained in the wakf nama or some oral directions given by the wakif empowering the mutawallis to nominate their successors.
Provisions in wakfnama empowering the mutawallis tonominate their successors are so usual that it would perhaps be representing the present state of the authorities morenearly if it were said that the Courts assume the existence of such a provision in the dedication, unless the contrary is proved.'
It is clear from the aforesaid observations tht the directions of thefounder can be inferredfrom the subsequentconduct of the parties. I cannot, therefore say that thereisno evidence to sustain the finding of the learned Judge. I accept the finding.
(22) The next question is whether the mutawallis can prevent the peish Imam from leading prayers in the mosque. I have agreed with the findings of the learned Subordinate Judge that Muhammad Ali and Syed Shah Muhammad are the validly appointed mutawallis of the mosque. I have also accepted the finding that Mowalana was the peish Imam of the mosque. The mutawallis issued a notice preventing Mowlana from leading prayers on the ground of insubordination and misconduct.
They allege that Mowlana was responsible for the disturbance in the suit mosque on 8-6-1946 and that he was also propagating tenets and advocating usages quite against the accepted principles of the Ahle Hadiz Sect. The question is whetherthemutawallis can prevent a peish Imam from leading prayers on the ground of misconduct. In -- 'Shahul Hameed Marakayar v. Muhammad Hussain', AIR 1941 Mad 42 (C), the learned Judges observed at p. 43 that
'doubtless it is customary in many mosque for themutawallis to exercise full disciplinary powers over the servants of the mosque.'
Lodge J. in --'Wajid Ali v. Dadanessa Bibi', AIR 1947 Cal 282 (D),' stated the law as follows at page 283:
'In this connection, my attention was drawn to paras 166 and 167 of Mulla's Principles of Muhammadan Law. Thenote to para 167, makes it clear that a 'de facto' mutawalli will be recognised by the Courts. In Ameer Ali's Muhammadan Law (4th edition) at p. 465 the learned author observes:
'In the absence of a mutawalli, the power of nomination and appointment of an Imam and Muazzin to a mosque is given to the wakif's descendants and the memebrs of his family preferentially to others. This is the view stated in the Ashobah.' 'Therefore either as de facto mutawllis or descendants of the wakif, acting in the absence of a mutawalli, the plaintiff's had the power of appointment of the Imam, and, therefore, asit seems to me, the power of dismissal for sufficient cause.'
(23) It is, therefore, obvious that the mutawalli of a mosque can dismiss a servnt of the mosque and it cannot be said that the peish Imam is not a servant of the mosque. Here, the mutawallis prevented him from functioning as peish Imam because of his misconduct. They had certainly power to do so. The learned Judge was right in holding that the mutawallis were well within their rights in issuing a notice to him.
(24) In the result, all the appeals fail and are dismissed. The respondents will get their costs in S. A. No. 41 of 1950. They will also get printing charges in S. A. No. 42 of 1950. No. leave.
(25) Appeals dismissed.