Skip to content


Akbar HusaIn Vs. Jawahra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All178
AppellantAkbar Husain
RespondentJawahra and ors.
Excerpt:
religious endowment - mosque--form of suit--right to sue--civil procedure code, sections 30, 539. - - the rule was introduced in order to prevent rich persons from joining together and putting forward a pauper to conduct the suit, and thus escaping all costs. it must, in the first place, be shown that the muhammadan people have a right to maintain a suit like the present. but authorities on such a point need not be cited, for the principle is too well known among muhammadan lawyers. the right of a muhammadan to use a mosque is, as the learned chief justice has said, like the right to use a private road; and, under the circumstances, we think that the ground of objection taken by the defendants in the second paragraph of their written statement, and which forms the subject of the second..........particular as to mosques. it must, in the first place, be shown that the muhammadan people have a right to maintain a suit like the present. but authorities on such a point need not be cited, for the principle is too well known among muhammadan lawyers. the rule of the muhammadan law on the subject is that when' anyone has resolved to devote his property to religious purposes, as soon as his mind is made up and his intention declared by some specific act, such as delivery, etc., an endowment is immediately constituted; his act deprives him of all ownership in the property, and, to use the technical language of muhammadan lawyers, vests it in god 'in such a manner as subjects it to the rules of divine property, whence the appropriator's right in it is extinguished, and it becomes a.....
Judgment:

W. Comer Petheram, C.J.

1. I have no doubt that the plaintiff was competent to maintain this action. The question has arisen in consequence of the peculiar way in which property of this kind is held. According to Muhammadan custom, the property in a mosque and in the land connected with it is vested in no one. It is not the subject of human ownership, but all the members of the Muhammadan community are entitled to use it for purposes of devotion whenever the mosque is open. Now, the Muhammadans are only a part of the population of this country, so that the right is not vested in the general public, and therefore it resembles a right in a private way. Everyone who has such a right is entitled to exercise it without hindrance, and has a right of action against anyone who interferes with its exercise. It is not a joint right; it is a right which belongs to many people. Section 30 was meant to apply to a case in which many persons are jointly interested in obtaining relief; and where, under the old law, it would have been necessary for all of such persons to be joined, Section 30 prevents the record from being unnecessarily encumbered by many names, and allows one or more, with the permission of the Court, to sue or defend on behalf of all. The rule was introduced in order to prevent rich persons from joining together and putting forward a pauper to conduct the suit, and thus escaping all costs. In the present case it is clear that an individual right has been violated, and that an action will therefore lie.

Mahmood, J.

2. I wish to add a few observations regarding the Muhammadan Law as to endowments generally, and in particular as to mosques. It must, in the first place, be shown that the Muhammadan people have a right to maintain a suit like the present. But authorities on such a point need not be cited, for the principle is too well known among Muhammadan lawyers. The rule of the Muhammadan Law on the subject is that when' anyone has resolved to devote his property to religious purposes, as soon as his mind is made up and his intention declared by some specific act, such as delivery, etc., an endowment is immediately constituted; his act deprives him of all ownership in the property, and, to use the technical language of Muhammadan lawyers, vests it in God 'in such a manner as subjects it to the rules of divine property, whence the appropriator's right in it is extinguished, and it becomes a property of God by the advantage of it resulting to His creatures.'

3. A mosque is an endowment of this kind, and the Muhammadan community, or any member of it, has a right to enter the mosque and to pray there. The learned Chief Justice has shown that, under the circumstances in India, a mosque cannot be regarded as vested in the public at large, but in the Muhammadan part of the public, and it cannot be said that any Muhammadan is bound to maintain a suit on behalf of the public generally. The right of a Muhammadan to use a mosque is, as the learned Chief Justice has said, like the right to use a private road; any one who has the right may maintain a suit in respect of it. This settles the question as to Section 30 of the Civil Procedure Code. That section applies only to cases where no individual right is interfered with; but here we have the case of a mosque in a small village, and one of the worshippers in that mosque is obstructed in his use of it for purposes of devotion. He had a private right, and it was violated.

4. In regard to Section 539 of the Civil Procedure Code, I was one of the Bench who made this reference, and I wish to add my reasons for holding that the section does not apply to the present case. There is here no question of trust or trustee, or of malversation of trust funds, or other breach of trust. The object of such a suit as this is not such as is contemplated by any of the various clauses of Section 539. In conclusion, I have a few words to say regarding the case which has been cited--Jan Ali v. Ram Nath Mundul I.L.R. 8 Cal. 32 --decided in the Calcutta High Court by Prinsep and Field, JJ. Towards the end of the judgment in that case the following observations occur: 'Now, so far as regards these prayers, we think that the plaintiff's were not authorized to institute this suit merely by reason of having that interest which is set out in para. 10 in the plaint, that is, an interest created by their being followers of the Moslem religion, living in the vicinity of the mosque, and being in the habit of attending the musjid. That interest is common to them with a large number of other persons--common to them with, we will not say all the Muhammadan population of the country, but certainly with all the Muhammadan residents in the vicinity; and we think that this is a case which falls within the provisions of Section 30 of the Civil Procedure Code. That section enacts that 'where there are numerous parties having the same interest in one suit, one or more of such parties may, with the permission of the Court, sue, or be sued, or may defend in such suit, on behalf of all parties so interested.' It may be quite possible that if these plaintiffs had applied to the Court under the provisions of Section 30, they would have obtained permission to institute this suit; but, not having obtained that permission, they certainly were not entitled to institute the suit; and, under the circumstances, we think that the ground of objection taken by the defendants in the second paragraph of their written statement, and which forms the subject of the second issue, was a good objection; and that this suit was properly dismissed by the District Judge.' Now, with all due deference to the learned Judges who delivered that judgment, I dissent from the remarks which I have just read. I hold that it is an undoubted principle of Muhammadan Law that the persons who have the most direct interest in a mosque are the worshippers who are entitled and accustomed to use it. It is impossible to imagine whose interest in the mosque can be direct if theirs is not, and I should say, that even if this case fall under the purview of Section 539, they would have 'locus standi to maintain the suit. But, for the reasons which I have already given, I am of opinion that neither Section 30 nor Section 539 of the Civil Procedure Code applies to the present case, and that the plaintiff was competent to maintain the suit.

5. My answer to the reference is, therefore, in the affirmative.

Oldfield, Brodhurst, and Duthoit, JJ.,

6. concurred.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //