Charles A. Turner, Kt., C.J. and Innes, J.
1. The judgment of the Judge implies a doubt whether a right of superintendence has been enjoyed by either party, but, assuming the existence of the right is established, there is, it appears to us, a material defect in the Judge's judgment in that it omits any reference to the alleged custom that the succession to the superintendence of mosques is governed by Marumakkatayam law. This custom was asserted and made the subject of an issue, and the Munsif refers to evidence which, if accepted, would have warranted the conclusion that the custom obtained in Ponani. If it were shown that the custom obtained, or that the usage was so general as the witnesses allege, the evidence of the witnesses who have deposed to the title of the plaintiff's tarwad would be greatly strengthened. The judge is doubtless right in holding that the circumstance that other property of the founder descended according to Makkatayam law affords a persumption that any right of superintendence which may have been retained also descended according to that law. But the succession to the superintendence of mosque property may nevertheless be governed by custom, and if the custom be proved, it would lie on the respondents to establish that succession to the right claimed has not been regulated by custom in this instance. We remit for trial, upon the evidence already recorded, and upon such further evidence as the parties may adduce, the following issues:
(1) Was a right of superintendence retained by the founder of the mosque ?
(2) Is there a custom in Ponani regulating the descent of such rights of superintendence in the case of mosques established by Mapillas the sons of mothers governed by the Marumakkatayam law, and what is that custom ?
(3) Has the right of superintendence of the mosque in question been enjoyed by the plaintiff's tarwad on the tarwad of which it is the representative, or by the male descendants of the founder ?
2. The Judge will submit his finding, together with the evidence, to this Court within six weeks from the date of receiving this order, when ten days will be allowed for filing objections.
3. In compliance with the above order, the District Judge's successor submitted the following finding: -
No further evidence is adduced by either party.
As to the first issue.--It is admitted that Mama Musaliar founded the mosque and that ho died in 1773. As might be expected after the lapse of so many years, there is no distinct evidence as to whether the founder retained the right of superintendence. The only exhibits that touch this question are D and E, and both these documents are declared to be concocted by the Judge.
The only other reliable evidence is to be found in the judgment of the Provincial Court. ' That was a direct decision in June 1821 that property acquired by Mamu Musaliar was to descend in the male line; and as the right of superintendence would probably follow, and be vested in the legal heir, we may assume that the right was retained.
I find this issue accordingly in the affirmative.
As to the second issue.--There are no reliable documents on the point. The plaintiff examined eleven witnesses in the Lower Court, all witnesses carefully chosen, and, to quote the Munsif, 'in giving credit to the testimony of witnesses in civil suits, we cannot obtain depositions of a more trustworthy nature than those of these people.' Well, all these witnesses assert positively that the management of at least the majority of the mosques in Ponani is regulated by the Marumakkatayam and not by the Makkatayam law. 1 see no reason to distrust the statement of these witnesses. They must know what the practice is, as to the management of mosques in Ponani, and, as they are connected with first defendant and not with plaintiff, this fact, even apart from what the Munsif says on the point, is; decidedly in favour of their credibility. Nor do I find that there is anything vague about their statements in this respect. I have no doubt that they one and all are satisfied that the management of mosques in Ponani is regulated in nearly every case by Marumakkatayam law. Even defendant's own witnesses--those of them who are men of any position--admit that of the mosques in Ponani, some are managed by Makkatayam and some by Marumakkatayam. Throughout the evidence on both sides there is no distinct proof of any one mosque in Ponani being now managed under Makkatiyam. But even the first defendant's first witness, his own brother, admits that the Jama mosque at Ponani is now managed under Marumakkatayam. In fact, from the evidence, I consider it established that most if not all the mosques are now; managed under Marumakkatayam. The question, therefore, is--is this rule now shown to be existent in most mosques so universal and of so long a standing that it must be held to be the established custom with regard to the management of these mosques? The evidence as to this is vague. The witnesses speak so much in general terms without instancing individual mosques. The evidence, so far as it is specific at all, seems to me to point to these mosques having been at first Makkatayam and subsequently, for some reasons or other, Marumakkatayam. First defendant's first witness says ' it is under special arrangements that sons are excluded,' and then goes on to mention that ' Ismirka mosque, Theruvathe mosque, and Theke mosque were built by merchants and are managed by the tarwad ' and then, as already mentioned, he instances the Jama mosque, which was first held under Makkatayam but now Marumakkatayam and this statement as to the Jatma mosque is borne out by the evidence of plaintiff's third witness. The practice of management under Marumakkatayam in some mosques plainly extends a long way back. Plaintiff's first witness is 67 years old. He says : ' Theruvathepalli is now managed under my orders by my Anandravan. I was myself the person who was managing. Before me my Karnavan was the manager.' The third witness for plaintiff says ' there might be thirty or forty mosques in Ponani. The majority are managed under Marumakkatayam. I have no information of a son having succeeded to the management of a mosque managed by his father. I have heard of sons having managed at Calicut. It is so because the customs of the two places are different.' This man was then 59 years old, and in a sition to know fully the custom at Ponani in this respect. Plaintiff's twelfth witness, who is 76 years old, says : ' I remember sixteen mosques in this Ponani, inclusive of Jama mosque; Ismirkapalli Thekkapalli, Theruvathepalli, Vettunpottirukathapalli are held by tarwad people'; and again, ' The Jama, mosque of Ponani is managed under the Karnavan of the tarwad. It is not under the Makkatayam law. I, the present Karnavan of the tarwad, manage now.' On the whole, I am of opinion that the evidence is sufficiently, reliable and explicit to establish prima facie that most mosques in Ponani are now managed through the female line, and that many have so been managed for a long series of years. I am not prepared to find, however, that the evidence is sufficiently explicit to prove an established custom. It would seem probable that, as in the case of the Jama mosque, especial arrangements would be required to alter the descent from Makkatayam to Marumakkatayam and vice versa. At any rate, I think evidence would be required either that it was held on Makkatayam or Marumakkatayam, as the case might be, if the right of superintendence to any one of these mosques were in issue, and I should not, on the evidence now adduced, take it for granted that it was so universally known that all mosques in Ponani are governed by Marumakkatayam that evidence on the point was unnecessary, and more especially would such evidence be necessary in the case of the older mosques. I find, then, that the evidence is too general in its nature to prove custom. I find the issue accordingly for defendant.
As to the third issue.--The evidence on both sides is hopelessly vague and unreliable on this point. This being so, it seems to me that the right of superintendence of the mosque in question must be presumed to have been enjoyed by the male descendants of the founder, because the rule of inheritance declared by the decree of the Provincial Court in respect of the mosqae in question is through the male line. I find this issue also for defendant.
Upon the return of the finding the following judgment was delivered:
4. The Judge finds that, although in many if not in most instances the management of the mosques at Ponani is in the hands of persons who would inherit under Marumakkatayam law, the evidence does not warrant him in finding the existence of a custom to that effect.
5. He has, in our judgment, rightly apprehended its effect. In the absence of a proved custom, succession must be governed by the Muhammadan law; under that law, the respondent is entitled.
6. The appeal fails and is dismissed with costs.