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M.M. Shahul Hameed Marakayar and ors. Vs. Kazi Mohammad HussaIn Sahib and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtChennai
Decided On
Reported inAIR1941Mad42; (1940)2MLJ446
AppellantM.M. Shahul Hameed Marakayar and ors.
RespondentKazi Mohammad HussaIn Sahib and ors.
Excerpt:
- - quite clearly it was intended firstly to collect subscriptions for the maintenance of the mosque and secondly to pay the expenses of the committee and of the mosque and utilise any balance for religious, educational and charitable purposes connected with the mosque and for the creation of endowments for the mosque. there is a record of the removal from service of an acting muazzin, but even that is not clearly shown to have been a disciplinary act......grandfather of the plaintiff. the plaintiff bases his title to the offices of both of mutwalli and peish imam on what is called a towliatnama (ex. 1) of the year 1887 in which the plaintiff's grandfather purports to assign to the plaintiff the offices of mutwalli and peish imam. the instrument purports to be attested by ghulam mohammad, the original founder of the mosque. the lower court has given various reasons for rejecting this document as a forgery. besides those reasons set forth by the learned judge, there are two circumstances which in our opinion go to confirm this conclusion. one is the improbability that ghulam mohammad who founded this mosque in 1849 would have been alive in 1887. there is of course no evidence of his death, but ordinarily the founder of a mosque would be a.....
Judgment:

Wadsworth, J.

1. This appeal arises out of a suit brought by respondent 1 for an injunction restraining the defendants (appellants) from interfering with him in performing his services as peish imam in the Masjiday Mohmood, Pudupet, Madras. He also prayed for damages. The suit was docreed and the defendants appeal. We are this day passing judgment in a connected appeal (C.C.C. A. No. 36 of 1935) from a suit brought by the present defendants against the present plaintiff for an injunction restraining him from interfering with the defendants' management of the same mosque and from collecting subscriptions in the guise of mutwalli of that mosque. It is alleged that the Pudupet mosque was founded by one Ghulam Mohammad in 1849 and has been financed from its inception by public subscriptions. It was founded to serve the needs of the Mahomedans living in the neighbourhood of Pudupet. The first mutwalli was the maternal grandfather of the plaintiff. The plaintiff bases his title to the offices of both of mutwalli and peish imam on what is called a towliatnama (EX. 1) of the year 1887 in which the plaintiff's grandfather purports to assign to the plaintiff the offices of mutwalli and peish imam. The instrument purports to be attested by Ghulam Mohammad, the original founder of the mosque. The lower Court has given various reasons for rejecting this document as a forgery. Besides those reasons set forth by the learned Judge, there are two circumstances which in our opinion go to confirm this conclusion. One is the improbability that Ghulam Mohammad who founded this mosque in 1849 would have been alive in 1887. There is of course no evidence of his death, but ordinarily the founder of a mosque would be a man of some standing in the community and it is unlikely that in 1849 he was very young. Even if he was in early middle age, it is hardly probable that he would have been alive 38 years later. The more decisive circumstance is the fact that the plaintiff at the time of this towliatnama appears to have been only about 12 years old and it is not very probable that the offices of mutwalli and peish imam would have been conferred upon an immature boy. The probability therefore seems to be that this document is not genuine.

2. In our opinion however this does not seriously affect the plaintiff's case, for it is common ground that the plaintiff did exercise the functions of mutwalli and peish imam of this mosque without challenge to his title for very many years upto the year 1918, when the leading members of the congregation including the plaintiff himself formed themselves into a registered society for the purpose of managing the affairs of the mosque and raising subscriptions to finance it. It is indubitable that this society known as the Masjiday Mohamood Jamait Managing Committee was in control of the business affairs of the mosque from 1918 until the quarrels started in 1932. During this period it appears that the office of mutwalli was treated as having lapsed, the function of the mutwalli being performed by the committee. The plaintiff, though he ceased to describe himself as the mutwalli and ceased to exercise the functions of that office, continued to be one of the two peish imams of the mosque and in that capacity he was paid a salary by the committee. He also functioned for a considerable period as the assistant secretary of the committee and received additional emoluments for that office. In 1932 quarrels began and the plaintiff resigned from the committee and repudiated its authority. He also attempted to revive the office of mutwalli which he had not in fact exercised for a period of about 14 years. In the connected appeal we have held that the Jamait Committee, whatever be the defects of its original constitution, has prescribed for the right to manage the secular affairs of the mosque and to perform those functions which had hitherto been performed by the mutwalli and that it is not open to the present plaintiff to revive the lapsed office of mutwalli by virtue of which he claims the right of exercising those functions which have in effect been established as the legitimate functions of the Jamait Committee.

3. It is contended for the appellants in the present appeal that once their committee is recognized as the legitimate successor of the mutwalli with his powers of control over the mosque and its servants, it follows that the committee has the right to dismiss the plaintiff from his office of peish imam of the mosque; and that the plaintiff having repudiated the authority of his master, there can be no question as to the propriety of his dismissal. It seems to us that this argument overlooks the weakness of the position of the committee based as it is on prescription. It does not appear that any powers were conferred upon the committee at its inception otherwise than by the general consent of the congregation of the mosque including the plaintiff himself. The nature of the objects with which this committee started its work can be ascertained from its memorandum of association. Quite clearly it was intended firstly to collect subscriptions for the maintenance of the mosque and secondly to pay the expenses of the committee and of the mosque and utilise any balance for religious, educational and charitable purposes connected with the mosque and for the creation of endowments for the mosque. The rules purport to carry out these objects, but do not expressly confer upon the committee any disciplinary powers. The proceedings of the committee throughout the following years indicate that the committee has exercised a general control over the servants of the mosque including the two peish imams, has required that they should not absent themselves without leave, has reproved them for un-punctuality and has paid the wages and when subscriptions were insufficient to meet the wages has decided on the proportionate reductions. There is a record of the removal from service of an acting muazzin, but even that is not clearly shown to have been a disciplinary act. Taking the history of this period as shown in the records, it must be conceded that there is no instance of an assertion by the committee of a right to punish the peish imam, though there are instances of the exercise of a general supervision over him along with other servants.

4. It is contended that if the committee has power to supervise and control, it must necessarily have a power of dismissal in case its authority is flouted. It is doubtful whether this proposition is sound. The peish imam was certainly not appointed by this committee. Whatever be the origin of the plaintiff's appointment, he had certainly been in unquestioned enjoyment of the office of peish imam for very many years before the committee came into being. Although the committee took over the functions hitherto exercised by the mutwalli, it never described itself as a mutwalli of the mosque and there are obvious difficulties in asserting that the surrender by the plaintiff himself of the functions of mutwalli to the committee automatically invested this committee with the power of dismissal of the peish imam. Doubtless it is customary in many mosques for the mutwalli to exercise full disciplinary powers over the servants of the mosque. But this power cannot have vested in the mutwalli of the suit mosque, for the mutwalli was himself the peish imam and it is absured to contemplate the exercise of the power of dismissal by the individual who is himself liable to be dismissed. It seems therefore necessary to postulate that at the time when the plaintiff was the mutwalli, the disciplinary control over him in his capacity of peish imam must ultimately have resided elsewhere, whether in the congregation as a-whole or in the descendants of the founder or in the Court as representing the Kazi. The natural conclusion therefore is that the surrender by the plaintiff of his functions as mutwalli to the committee cannot have invested that committee with a power of dismissal over the plaintiff, which he as mutwalli could not have exercised.

5. Ameer Ali in his Mahomedan Law (Bdn. 4, p. 105) states that in the absence of a mutwalli the power of nomination and appointment of an imam to a mosque is given to the wakif's descendants and the members of his family preferentially to others. At p. 467 it is suggested that if the person appointed by the wakif is incompetent or unfit, the congregation have a right to select a more fit person but with the proviso that an application will have to be made to the Kazi for the removal of the incompetent servant and the appointment of the person selected by the congregation. Now, in this case though the committee has doubtless for many years functioned with the consent and approval of the congregation, it is not constitutionally a representative body acting for the congregation, but an independent self-constituted society owing no formal allegiance to any general body. It cannot therefore have any disciplinary powers over the staff of the mosque by the force of Mahomedan law. Any powers which it has must have been acquired by prescription or by grant. There is no evidence of any valid grant of powers to this committee. The extent of its powers must therefore be governed by the extent to which it has established those powers by the exercise of thorn during the 14 years during which those powers were unquestioned. There having been no acquisition during this period of a power to dismiss a peish imam of the mosque, the necessary conclusion is that the committee is not clothed with such a power.

6. It is contended that the absence of such a power will make the proper control of the mosque impossible. The answer to that contention is that there is now pending a suit for framing a scheme for the proper control of the mosque in which any defects in the system whereunder it is administered can be put right. For the present we are only concerned with the powers of the parties as they stood at the time when these disputes began. Our conclusion must be that the plaintiff was in lawful possession of the office of peish imam and was entitled to perform its functions and receive its emoluments and that the defendants were not clothed with any authority to remove him from that office. It follows therefore that the dismissal of the plaintiff was without authority and that the plaintiff is entitled to the injunction which he seeks. It is represented that the plaintiff does not press for the nominal damages of Rs. 25 awarded by the trial Court. The decree will therefore be modified by the exclusion of the relief of damages. In other respects the appeal is dismissed with costs. We desire to observe that this judgment in no way affects the relation between the committee and the other peish imam who is not a party.


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