SIR GEORGE RANKIN:
Before 1935 there had stood for many years to the south of what is now called the Naulakha Bazaar, in the city of Lahore, a structure having three domes and five arches, which had been built as a mosque (masjid) and which retained, notwithstanding considerable disrepair, sufficient of its original character to suggest, or even so proclaim, its originalpurpose. It had a projecting niche (mehrab) in the centre of the west wall such as is used in mosques as the place from which the imam leads the prayers. Its dedication is no longer in dispute, having been established as of the year 1134 A. H. or 1722 A. D. by the production and proof of a deed of dedication executed by one Falak Beg Khan. By this deed, Sheikh Din Mohammad and his descendants were appointed mutawalis. The deed speaks of a school, a well and an orchard as being among the appurtenances of the mosque and gives the total area of the dedicated property as three kanals and fifteen marlas; but it is not now necessary to ascertain with precision the limits of the original curtilage.
No less well established than the dedication is the fact that from about 1762 A. D. the building, together with the courtyard, well and adjacent land, has been in the occupation and possession of Sikhs. The occupation of Lahore by the "Bhangi Sardars" in 1762 was the commencement of Sikh power in this part of India. Sikh rule continued under Ranjit Singh, who in 1799, established himself by force of arms as the local ruler. It ended only in 1849, ten years after the death of Ranjit Singh, when the Punjab as a result of the second Sikh war became part of British India by annexation. At some time during the Sikh domination, land adjacent to the mosque building (but to the north of what is now the Naulakha Bazaar) became the site of a Sikh shrine (gurdwara) and the tomb of a Sikh leader named Bhai Taru Singh situated thereon was held in reverence. The land, which in 1722 had been dedicated to the purposes of a mosque, came to be held and occupied by the managers and custodians of the Sikh institution and the mosque building was used by them. Until about 50 years ago, part of the building was used for the worship of the Granth Sahib or holy book of the Sikhs. Other parts have been used for secular purposes being let out to tenants, or used for storing chaff (bhusa) or holding rubbish.
By a tradition which cannot be ignored (though their Lordships are thankful to be free of any duty to investigate its truth) the land adjacent to the building was regarded by the Sikhs as a place of martyrs (shahid ganj), it being commonly held among them that Bhai Taru Singh had on this spot suffered for his religion at the hands of Muslim rulers and that many others including women and children had been executed here. Thus communal feelings have long been in a state of tension as between Muslims and Sikhs with respect to this masjid shahid ganj. Its history after 1760 is summarized in the trial Judge's finding that "this mosque has not been used as a place of worship by Muslims since it came into Sikh possession and control;" in the Chief Justice's statement that "there has been a complete denial to the Muslims of all their rights;" and in the language of Bhide J., that
it is scarcely likely that the Mahomedans would have been allowed to have access to the building for any purpose whatever during this period (1760 to 1853).
These findings are not in any way blunted by the consideration that a pious mutawali might properly have let parts of the waqf property to tenants appropriating the rents to the purposes of the waqf. The possession of the Sikhs has been hostile not merely to the claim of other persons to the office of mutawali of this mosque, but hostile to the waqf itself and all interests thereunder. On the other hand it is true that the building has been frequently and indeed has been generally referred to as a mosque by those who have had its custody as well as by others and that it retained to the end the outward appearance of a mosque.
In 1849, at the time of the British annexation, the mosque building and the property which had been dedicated therewith were in the possession of certain Sikhs, mahants of the gurdwara. It is unnecessary to decide whether they held it under a revenue-free grant made to them by the Sikh authorities as it is certain that they held it and used it for their own purposes and for the purposes of the gurdwara as already described. The facts are made plain by the action taken to recover the property for the purposes of Islam soon after Sikh authority had given place to British. A criminal case brought in 1850 by one Nur Ahmad claiming to be mutawali and proceedings in the Settlement Department, brought by him in 1853, came to nothing as he had been long out of possession. A civil suit with a like object was brought and dismissed in 1853. On 25th June 1855, yet another suit by Nur Ahmad was brought in the Court of the Deputy Commissioner, Lahore, against the Sikhs in possession of the property: it was dismissed by that officer on 14th November 1855, by the Commissioner on 9th April 1856, and on further appeal by the Judicial Commissioner on 17th June 1856.
In 1925 the Sikh Gurdwaras Act (Punjab Act 8 of 1925) was passed for the purpose of ascertaining what Sikh shrines were in existence and that property they owned; and of vesting the management of such shrines in certain committees (and other bodies). This step had become necessary to bring to an end disturbances which had been caused by disagreement between different schools or sects among the Sikhs. On 22nd December 1927, by a Government notification the old mosque building and land adjacent thereto was included as belonging to the Sikh gurdwara "Shahid Ganj Bhai Taru Singh." Seventeen claims were made by various petitioners to have rights therein. One dated 8th March 1928 was by Mahant Harnam Singh and others to the effect that the property belonged to them personally and not to the institution of which they were the head. Another dated 16th March 1928 was by the Anjuman Islamia of the Punjab "on behalf of the Mahomedans" claiming that the land and property were dedicated for a mosque and did not belong to the gurdwara.
Both sets of claimants failed before the Sikh Gurdwaras Tribunal which decided on 20th January 1930, that the mahants' possession had been held on account of the gurdwara and that the Anjuman's case failed by reason of adverse possession and previous decisions. No appeal was brought by the Anjuman from the latter decision but against the former an appeal brought by the mahants was dismissed by the High Court on 19th October 1934. In the result the property and building were given into the custody of the defendants and on the night of 7th July 1935, the building was suddenly demolished by or with the connivance of its Sikh custodians under the influence of communal ill feeling. Riots and disorder ensued and much resentment was felt and expressed by the Muslims.
The plaint in the present suit was filed on 30th October 1935, in the Court of the District Judge, Lahore, against the Shiromani Gurdwara Parbandhak Committee, and the Committee of Management for the Notified Sikh Gurdwaras at Lahore - the authorities who were in possession of the disputed property as being property belonging to the gurdwara. It contained no claim for possession of the property or ejectment of the defendants or that the property be handed over to the hereditary mutawali. The relief claimed was a declaration that the building was a mosque in which the plaintiffs and all followers of Islam had a right to worship, an injunction restraining any improper use of the building and any interference with the plaintiffs' right of worship: and a mandatory injunction to reconstruct the building. The learned District Judge dismissed the suit by decree dated 25th May 1936, and an appeal to the High Court was dismissed on 26th January 1938 [Reported in (1938) 25 AIR Lab 368 (FB).]by Young C. J. and Bhide J.; Din Mohammad J. dissenting.
By the Punjab Laws Act, 1872, the Mahomedan law is made applicable to the religious institutions of the Muslims but only in so far as it has not been modified by legislation. Thus, the Limitation Act, 1908, applies though limitation is not an original principle of Mahomedan law. The length of time which had elapsed since the property claimed had been lost to Muslims and the repeated failure of the attempts previously made to recover it for their use and benefit, were manifest objections to the grant of the relief sought. To assist in surmounting these difficulties, the suit was brought by 18 plaintiffs of which the first was the mosque itself suing by a next friend - not the waqf or institution or charity in some abstract sense but the mosque in the sense of the site and building. The declaration sought was "that plaintiff 1 was and is the site of a waqf mosque," the injunction sought was that the defendants "should not use plaintiff 1 for any purpose which may be contrary to its sanctity" and the mandatory injunction asked for was "to reconstruct that portion of plaintiff 1-i. e. the mosque which they demolished."
The choice of this curious form of suit was motived apparently by a notion that if the mosque could be made out to be a "juristic person" this would assist to establish that a mosque remains a mosque for ever, that limitation cannot be applied to it, that it is not property but an owner of property. A second feature of the suit as framed is that a number of the plaintiffs were minors or women. This was thought to be of some assistance to the plaintiffs in meeting objections taken under the Sikh Gurdwaras Act, 1925, to the competence of the suit, but it was also relied upon before the Board in argument as relevant to the general question of limitation.
A third feature of the suit has reference to the method of trial, the learned District Judge having been persuaded that the mode by which a British Indian Court ascertains
the Mahomedan law is by taking evidence. The authority of Sulaiman J. to the contrary, 47 All 823 (1) at p. 835, was cited to him but he wrongly considered that S. 49, Evidence Act, was applicable to the ascertainment of the law. He seems also to have relied on the old practice of obtaining the opinions of pandits on questions of Hindu law and the reference made thereto in 12 MIA 397 (2) at pp. 436-9. No great harm, as it happened, was done by the admission of this class of evidence as the witnesses made reference to authoritative texts in a short and sensible manner.
But it would not be tolerable that a Hindu or a Muslim in a British Indian Court should be put to the expense of proving by expert witnesses the legal principles applicable to his case and it would introduce great confusion into the practice of the Courts if decisions upon Hindu or Muslim law were to depend on the evidence given in a particular case, the credibility of the expert witnesses and so forth. The Muslim law is not the common law of India ; British India has no common law in the sense of law applicable prima facie to everyone unless it be in the statutory Codes, e. g. Contract Act, Transfer of Property Act. But the Muslim law is under legislative enactments applied by British Indian Courts to certain classes of matters and to certain classes of people as part of the law of the land which the Courts administer as being within their own knowledge and competence. The system of "expert advisers" (muftis, maulavis or in the case of Hindu law pandits) had its day but has long been abandoned, though the opinions given by such advisers may still be cited from the reports. Custom, in variance of the general law, is matter of evidence but not the law itself. Their Lordships desire to adopt the observations of Sulaiman J, in the case referred to :
It is the duty of the Courts themselves to interpret the law of the land and to apply it and not to depend on the opinion of witnesses however learned they may be. It would be dangerous to delegate their duty to witnesses produced by either party. Foreign law, on the other hand, is a question of fact with which Courts in British India are not supposed to be conversant. Opinions of experts on foreign law are therefore allowed to be admitted.
It has been made clear by learned counsel for the appellants that the plaintiffs do not now claim any relief extending beyond the actual site of the mosque building. The first question to be asked with reference to this immovable property is the question : In whom was the title at the date when the sovereignty of this part of India passed to the British in 1849? It may have been open to the British on the ground of conquest or otherwise to annul rights of private property at the time of annexation as indeed they did in Oudh after 1857. But nothing of the sort was done so far as regards the property now in dispute. There is nothing in the Punjab Laws Act or in any other Act authorising the British Indian Courts to uproot titles acquired prior to the annexation by applying to them a law which did not then obtain as the law of the land. There is every presumption in favour of the proposition that a change of sovereignty would not affect private rights to property : cf. (1905) 2 KB 391.(3) Who then immediately prior to the British annexation was the local sovereign of Lahore? What law was applicable in that State to the present case Who was recognized by the local sovereign or other authority as owner of the property now in dispute? These matters do not appear to their Lordships to have received sufficient attention in the present case. The plaintiffs would seem to have ignored them. It is idle to call upon the Courts to apply Mahomedan law to events taking place between 1762 and 1849 without first establishing that this law was at that time the law of the land recognized and enforced as such. If it be assumed, for example, that the property in dispute was by general law or by special decree or by revenue-free (muafi) grant vested in the Sikh gurdwara according to the law prevailing under the Sikh rulers, the case made by the plaintiffs becomes irrelevant. It is not necessary to say whether it has been shown that Ranjit Singh took great interest in the gurdwara and continued endowments made to it by the Bhanji Sardars as was held by Hilton J. (20th January 1930) presiding over the Sikh Gurdwaras Tribunal. Nor is it necessary that it should now be decided whether the Sikh mahants held this property for the Sikh Gurdwara under a muafi grant from the Sikh rulers. It was for the plaintiffs to establish the true position as at the date of annexation. Since the Sikh mahants had held possession for a very long time under the Sikh State there is a heavy burden on the plaintiffs to displace the presumption that the mahants' possession was in accordance with the law of the time and place. There is an obvious lack of reality in any statement of the legal position which would arise assuming that from 1760 down to 1935 the ownership of this property was governed by the Mahomedan law as modified by the Limitation Act, 1908.
The rules of limitation which apply to a suit are the rules in force at the date of institution of the suit, limitation being a matter of procedure. It cannot be doubted that the Limitation Act of 1903 applies to immovables made wakf notwithstanding that the ownership in such property is said, in accordance with the doctrine of the two disciples, to be in God. Thus in 50 IA 84, (4) it was expressly stated by Lord Sumner delivering the judgment of the Board :
The property in respect of which a wakf is created by the settlor is not merely charged with such several trusts as he may declare, while remaining his property and in his hands. It is in very deed 'God's acre' and this is the basis of the settled rule that such property as is held in wakf is inalienable except for the purposes of the wakf. Yet in that very case it was taken as plain that if Art. 134, Limitation Act, did not apply to a wakf the claim to recover possession of wakf property was governed either by Art. 142 or Art. 144.
The rule of Hanafi law that wakf property is taken to have ceased to be held in human ownership is applied to all such property even if the wakf be a wakf-alal-uilad or wakf for the benefit of descendants. The result of the rule is not that the property cannot in any circumstances be alienated but that it can only be alienated for proper purposes and save as provided by the terms of the endowment with the leave of the Court. In some circumstances it can even be taken in execution. In the particular case of a mosque, like that of a graveyard, the wakf property is intended to be used in specie for a certain purpose-not to be let or cultivated so that the income may be applied to the purposes of the wakf. This and other facts make some case for a contention that such property cannot be alienated on any conditions or with any sanction, though their Lordships are by no means satisfied to affirm so wide a proposition. But the Limitation Act is not dealing with the competence of alienations at Mahomedan law. It provides a rule of procedure whereby British Indian Courts do not enforce rights after a certain time, with the result that certain rights come to an end. It is impossible to read into the modern Limitation Acts any exception for property made wakf for the purposes of a mosque whether the purpose be merely to provide money for the upkeep and conduct of a mosque or to provide a site and building for the purpose. While their Lordships have every sympathy with a religious sentiment which would ascribe sanctity and inviolability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely to the wakf, or that it is not so possessed so long as it is referred to as "mosque" or unless the building is razed to the ground or loses the appearance which reveals its original purpose.
The argument that the land and buildings of a mosque are not property at all because they are a "juristic person" involves a number of misconceptions. It is wholly inconsistent with many decisions whereby a worshipper or the mutwalli has been permitted to maintain a suit to recover the land and buildings for the purposes of the wakf by ejectment of a trespasser. Such suits had previously been entertained by Indian Courts in the case of this very building. The learned District Judge in the course of his able and careful judgment noted that the defendants were not pressing any objection to the constitution of the suit on the ground that the mosque could not sue by a next friend. He went on to say:
It is proved beyond doubt that mosques can and do hold property. There is ample authority for the proposition that a Hindu idol is a juristic person and it seems proper to hold that on the same principle a mosque as an institution should be considered as a juristic person. It was actually so held in 59 PR 1914, p. 200 (5) and later in AIR 1926 Lah 372.(6)
That there should be any supposed analogy between the position in law of a building dedicated as a place of prayer for Muslims and the individual deities of the Hindu religion is a matter of some surprise to their Lordships. The question whether a British Indian Court will recognize a mosque as having a locus standi in judicio is a question of procedure. In British India the Courts do not follow the Mahomedan law in matters of procedure (cf. 7 All 822 (7) at pp. 841.2, per Mahmood J.) any more than they apply the Mahomedan criminal law or the ancient Mahomedan rules of evidence. At the same time the procedure of the Courts in applying Hindu or Mahomedan law has to be appropriate to the laws which they apply. Thus the procedure in India takes account necessarily of the polytheistic and other features of the Hindu religion and recognizes certain doctrines of Hindu law as essential thereto, e. g. that an idol may be the owner of property. The procedure of our Courts allows for a suit in the name of an idol or deity though the right of suit is really in the shebait: 31 IA 203. (8) Very considerable difficulties attend these doctrines-in particular as regards the distinction, if any, proper to be made between the deity and the image : cf. 37 Cal 128 (9) at p. 153, Golap Chandra Sarkar Sastri's Hindu Law, Edn. 7, pp. 865 et seq. But there has never been any doubt that the property of a Hindu religious endowment -including a thakurbari-is subject to the law of limitation: 37 IA 147; (10) 64 IA 203. (11) From these considerations special to Hindu law no general licence can be derived for the invention of fictitious persons. It is as true in law as in other spheres "entia non sunt multiplicanda praeter necessitatem." The decisions recognizing a mosque as a "juristic person" appear to be confined to the Punjab : 153 PR 1884 ; (12) 59 PR 1914; (5) AIR 1926 Lab 372. (6) In none of these cases was a mosque party to the suit, and in none except perhaps the last is the fictitious personality attributed to the mosque as a matter of decision. But so far as they go these cases support the recognition as a fictitious person of a mosque as an institution - apparently hypostatizing an abstraction. This, as the learned Chief Justice in the present case has pointed out, is very different from conferring personality upon a building so as to deprive it of its character as immovable property.
It is not necessary in the present case to decide whether in any circumstances or for any purpose a Muslim institution can be regarded in law as a "juristic person." The recognition of an artificial person is not to be justified merely as a ready means of making enactments - well or ill expressed - work conveniently. It does not seem to be required merely to give an extended meaning to the word "person" as it appears in the Punjab Pre-emption Act, 1905, or in the definition of 'gift' contained in S.122, T. P. Act. It is far from clear that it is required in order that property may be devoted effectively to charitable purposes without the appointment of a trustee in the sense of the English law. It would seem more reasonable to uphold a gift, if made directly to a mosque and not by way of wakf, as having been made to the mutwalli than to do so by inventing an artificial person in addition to the mutwalli (and to God in whom the ownership of the mosque is placed by the theory of the law).
Their Lordships do not understand that in this respect a mosque is thought to be in any unique position according be the authorities on Mahomedan law. "A gift may be made to a mosque or other institution" (Tyabji's Principles of Mahomedan Law, Edn. 2, 1919, page 401, cf. Abdur Rahim's Muhammadan Jurisprudence, page 218). A gift can be made to a madrasah in like manner as to a masjid. The right of suit by the mutwali or other manager or by any person entitled to a benefit (whether individually or as a member of the public or merely in common with certain other persons) seems hitherto to have been found sufficient for the purpose of maintaining Mahomedan endowments. At best the institution is but a caput mortuum, and some human agency is always required to take delivery of property and to apply it to the intended purposes. Their Lordships, with all respect to the High Court of Lahore, must not be taken as deciding that a "juristic personality" may be extended for any purpose to Muslim institutions' generally or to mosques in particular. On this general question they reserve their opinion; but they think it right to decide the specific question which arises in the present case and hold that suits cannot competently be brought by or against such institutions as artificial persons in the British Indian Courts.
The property now in question having been possessed by Sikhs adversely to the waqf and to all interests thereunder for more than 12 years, the right of the mutawali to possession for the purposes of the waqf came to an end under Art. 144, Limitation Act, and the title derived under the dedication from the settlor or wakif became extinct under S. 28. The property was no longer for any of the purposes of British Indian Courts, "a property of God by the advantage of it resulting to his creatures." The main contention on the part of the appellants is that the right of any Moslem to use a mosque for purposes of devotion is an individual right like the right to use a private road, 7 All 178, (13) that the infant plaintiffs, though born a hundred years after the building had been possessed by Sikhs, had a right to resort to it for purposes of prayer; that they were not really obstructed in the exercise of their rights till 1935 when the building was demolished; and that in any case in view of their infancy the Limitation Act does not prevent their suing to enforce their individual right to go upon the property. This argument must be rejected. The right of a Muslim worshipper may be regarded as an individual right, but what is the nature of the right? It is not a sort of easement in gross, but an element in the general right of a beneficiary to have the wakf property recovered by its proper custodians and applied to its proper purpose. Such an individual may, if he sues in time, procure the ejectment of a trespasser and have the property delivered into the possession of the mutawali or of some other person for the purposes of the wakf. As a beneficiary of the religious endowment such a plaintiff can enforce its conditions and obtain the benefits thereunder to which he may be entitled. But if the title conferred by the settlor has come to an end by reason that for the statutory period no one has sued to eject a parson possessing adversely to the wakf and every interest thereunder the rights of all beneficiaries have gone: the land cannot be recovered by or for the mutawali and the terms of the endowment can no longer be enforced: cf. 41 Mad 124 (14) at p. 135. The individual character of the right to go to a mosque for worship matters nothing when the land is no longer wakf and is no ground for holding that a person born long after the property has become irrecoverable can enforce partly or wholly the ancient dedication.
This seems to their Lordships a sufficient answer to the argument that the only Article of the Limitation Act which affects the right of the plaintiffs (other than plaintiff 1) is Art. 120. Under that Article any plaintiff who had been of age for more than six years before the date of the suit would be barred as he has clearly been excluded from resort to the building for purposes of prayer. But the true answer to these plaintiffs and to the minor plaintiffs is that the rights of the worshippers stand or fall with the wakf character of the property and do not continue apart from their right to have the property recovered for the wakf and applied to its purposes. As the law stands, notice of the rights of individual beneficiaries does not modify the effect under the Limitation Act of possession adverse to the wakf. Were the law otherwise the effect of limitation upon charitable endowments would be either negligible or absurd. The plaintiffs may, if they choose, refrain from asking that the land be recovered for the wakf but they do not alter the character of their right by deserting the logic of their case.
It remains to say that in the opinion of their Lordships the present suit is concluded on the general principle of res judicata by the decision in the suit of 1855 and also under S. 37, Sikh Gurdwaras Act, 1925, by the decision of the Tribunal (20th January 1930) rejecting the petition of the Anjuman Islamia. The mere circumstance that the plaintiffs have chosen not to seek recovery of the land in dispute but ask for relief in the forms of declaration and injunction does not avail to enable them to litigate again the claim made by Nur Ahmad as mutawali to recover the property for the purposes of the wakf. The ground of the decision of 1855 does not affect the question of res judicata. S. 37 of the Act of 1925 is as follows:
Except as provided in this Act no Court shall pass any order or grant any decree or execute wholly or partly, any order or decree, if the effect of such order, decree or execution would be inconsistent with any decision of a tribunal, or any order passed on appeal there-from, under the provisions of this Part.
It is sufficiently plain that if the present suit were to succeed the effect of the decree would necessarily be inconsistent with the decision of the Tribunal rejecting the petition of the Anjuman Islamia. Unless therefore the case can be brought within the opening words of S. 37-"except as provided in this Act"-that Section is fatal to the claim. Their Lordships are of opinion that the words of the exception have no reference to the provisions of cl. (ii) of S. 30 which states the circumstances under which a suit shall be tried notwithstanding that the claim was not put forward before the Tribunal. S. 37 assumes that a Civil Court has before it a competent suit in which one party or another would but for the Section be entitled to a certain order or decree, and it provides that such order or decree shall not be made if the effect of it would be inconsistent with any decision of a Tribunal. The words of exception with which S. 37 opens are doubtless accounted for by the provisions of S. 34 authorizing appeals to the High Court. Their Lordships will humbly advise His Majesty that this appeal should be dismissed. The appellants will pay the respondents' costs.