Tyabji, J.:—

This suit has a long history into which I need not enter. It comes before me now for hearing on exceptions and further directions on the Commissioner's report, pursuant to a decree of the appeal Court, slightly modifying a decree passed by Mr. Justice Madgavkar. I have heard very careful and detailed arguments on the report. The points that have been taken before me can conveniently be put under three heads. They refer to three clauses in the draft scheme placed before the Commissioner by the plaintiffs.

The first arises out of clause 5 of the draft scheme which originally ran as follows:—

“5. His Holiness the Mullaji Saheb of the Dawoodi Bohra Community and his successors in office shall be the sole Amin of the Mosque and shall by virtue of his office have the sole right to manage, control and regulate the conduct of the religious services and prayers to be performed or led thereat, and to appoint an Amil and Khadim therefor, in accordance with the tenets of the Dawoodi Bohra religion free from any interference or control on the part of the Board of Trustees or any trustee of the trust property. The ground floor and upper floors of the mosque shall be used as mosque and the adjoining rooms shall be reserved for the residence of the Amil and Khadim.”

The Commissioner cut out the last portion of the clause the portion beginning with the words “free from any interference or control” to the end of the clause.

Mr. Setalvad for the plaintiffs urged very strenuously that the clause should be restored as it stood in his clients' original draft. His main argument was based on the evidence which he contended shows that the general feeling in the community of the Dawoodi Bohras, as well as their usages and customary ways of dealing with mosques, point to some arrangement by which the religious head of their community, commonly known as the Mullaji Saheb, should have the entire management, control, and regulation of the mosque. I stopped Mr. Setalvad from reading all the affidavits to me, saying that I would assume that the evidence establishes that many persons holding positions of influence and importance under the present regime are desirous of giving to the Mullaji Saheb the utmost powers in every detail; and that they sincerely consider it want of orthodoxy on the part of those Dawoodi Bohras who question the right of the Mullaji Saheb to control as he may be inclined, all institutions that have been established for the benefit of the community.

Mr. Setalvad has pressed that this evidence necessitates a clause in the scheme that the Mullaji Sahib shall exercise sole authority over the mosque; that he may regulate as he desires the prayers, congregational or private, said at the mosque; and that he may exclude any person he may decide to exclude from it.

The true effect of this argument is that the affidavits provide me with the principles having the force of law in accordance with which I must regulate the administration of the mosque, inasmuch as they represent (it is contended) the general feeling of the community and embody, or at least reflect, the usages and customary ways of the Dawoodi Bohras so as to take the place of law. This was Mr. Setalvad's main contention. Ostensibly, the Court is furnished with materials for forming a correct judgment on what will subserve the interests of the community, by being informed of what the community desires. In reality, the contention touches the foundations of the principles on which a choice of law is made. I must guard myself from being supposed, to imply that the choice of law is made in disregard of the desires of the community or its welfare; but there are well-established principles in accordance with which their desires and welfare are to be brought to the cognizance of and estimated by the Court by which the choice has to be made. The plaintiff's contention was pressed before me with great force and perseverance. In order to deal with it adequately and to arrive at the precise effect and weight that I must give to the affidavits, I must examine the larger question,—on what basis the Court makes a choice of law where rival legal principles are put forward by the parties as being applicable.

The government of india act (5 & 6 geo. v, c. 61), section 112, enacts that in matters of dealing between party and party, where both parties are subject to the same personal law or custom having the force of law, the High Courts shall, in the exercise of their original jurisdiction, decide according to the personal law or custom.

I presume that the question I have to decide—the manner in which the mosque must be administered—falls within that expression, and that it must be considered to be a matter of “dealing” between party and party. The Oxford Dictionary does not restrict the connotation of the word “dealing” to business transactions, and includes in it “intercourse, friendly, or business communication, connection; acting towards persons generally (in some specified way); conducting oneself, behaving”.

Section 112 has a long history, which is not without interest and assistance. It is based on 21 Geo. III, c. 70, section 17, and 37 Geo. III, c. 142, section 13, which were re-stated by Sir Courtenay Ilbert in Article 108 of his Digest of the Statute Law relating to the Government of India. That article and section 112 are almost identical in terms. Sir Courtenay writes that it was “taken from Warren Hastings's plan for the administration of justice prepared and adopted in 1772, when the Company first ‘stood forth as diwan’”. “It is interesting”, he adds, “as a recognition of the personal law which played so important a part during the break-up of the Roman Empire, but has, in the West, been gradually superseded by territorial law” (p. 56). “The twenty-third rule specially reserved their own laws to the natives, and provided that ‘Moulavies or Brahmins’ should respectively attend the courts to expound the law and assist in passing the decree” (p. 278). The 23rd rule was enacted by the Bengal Government as section 27 of the Regulation of April 17, 1780—

“that in all suits regarding inheritance, marriage, and caste, and other religious usages or institutions, the laws of the Koran with respect to Mahomedans, and those of the Shaster with respect to Gentoos, shall be invariably adhered to” (p. 278).

Religious usages and institutions are not mentioned in section 112 of the Government of India Act. Section 13 of 37 Geo. III, c. 142, which was the basis of section 112 of the consolidating act, is similar in respect of this omission; though it provided that the Supreme Court shall frame such rules and orders for the conduct of suits and shall frame such process as shall be most consonant to the religious manners and laws and usages and the easy attainment of the ends of justice. Bombay Regulation IV of 1827 applies to the mufassal Courts only.

I may take it, therefore, that so far as the legislative directions to the Court are concerned, I must decide the question before me in accordance with the personal law of the parties. I may perhaps seek indirect light from the injunction that “the law of the Koran with respect to Mahomedans shall be invariably adhered to”; and that the rules and orders shall be so framed by the Court as to be 1931 most consonant to the religions and manners and laws and usages of the parties.

When, however, the parties are at issue on the matter, how must it be determined which personal law is applicable, and what the religion and manners and usages of the parties are? Have I any choice here, or must the parties be governed by Muhammdan law?

The ultimate basis on which the law has to be determined in regard to questions governed by personal law was considered long ago by Sir Erskine Perry, C.J in Kojahs and Memons' case.(1) Much more recently, the Privy Council in a case involving the consideration of these principles—Muhammad Ismail Khan v. Lala Sheomukh Rai(2)—gave no reasons for arriving at a decision causing the reversal of the established practice of the Allahabad High Court. The Privy Council laid down that customs in derogation of the law of Islam ought to be allowed to be proved even in cases governed by an enactment to the imperative effect that the rule of decision shall be the Muhammadan law. The reason seems to be that in regard to such questions, there being no established Islamic religion in India, the Courts cannot determine that a particular exposition of Muhammadan law is correct to the exclusion of all others; that justice, equity and good conscience require the application of that law which the parties as a matter of fact by their customs and usages have adopted, not the law which the Courts by a consideration of the historical circumstances relating to the parties, or of their religious books, or otherwise consider to be the law that they ought to have adopted: Kojahs and Memons' case.

The enactments that I have cited point to a similar rule being applicable in regard to questions primarily dependent upon the religion of the parties,—such as the manner in which the administration of a mosque must be regulated. So that the actual practices customarily adopted by the community concerned will furnish the rule for decision. Mahmood, J. laid down that the administration of mosques must necessarily be governed by the Muhammadan Ecclesiastical law, of which the Court must take judicial notice: Queen-Empress v. Ramzana and Ata-ullah v. Azim-ulla. But that was before the Privy Council decision to which I have just referred.

What the actual practices of a community are, is a question of fact. It would have to be proved afresh in every case, were it not for the Courts taking judicial notice of previous decisions. Lord Birkenhead has demurred “to the practice of finding facts upon evidence given in other cases, between other parties”: Les Affreteurs Reunis Societe Anonyme v. Leopold Walford (London), Limited.(3) The principles on which judicial notice is taken of customs are however well settled (Ex parte Powell. In re Matthews,(4) Lohre v. Aitchison),(5) and are illustrated by Moult v. Halliday(6) and George v. Davies,(7) the relevant passages from which are set out in Kunhambi v. Kalanthar(8) (p. 1061): “When this custom is continually being put forward and proved by evidence, a time must come when a Judge may say that he no longer requires it to be proved, but that he will take judicial notice of it”: (cf. Indian Evidence Act, section 114). The process is accelerated when the parties recognise the futility of questioning the existence of a custom which has already been elaborately proved,—though only once, and though as between other parties.

The existing position with reference to the parties before me in this matter is that the Courts take judicial notice of the primary fact that Mussalmans ordinarily follow what are known as rules of Muhammadan law (see, for instance, Abdurahim Haji Ismail Mithu v. Halimabai). As the great majority of the Mussalmans in India follow the school of Sunni law, the Courts presume that Muslims in India follow the Hanafi law unless the contrary is alleged and proved. Similarly, the presumption is that if the parties are Shiahs, they are governed by the Shiah law. The great majority of Shiahs, in their turn being Ithna Asharis, their exposition of the law is enforced, unless the parties show that their particular rule is different.

These are presumptions based on the numbers of the followers of each sect “on the principle of providing for the ordinary course of things:—In ea quce frequentius accidunt, prceveniunt jura”, or “ad ea jura adaptantur”: Maxted v. Paine.

It is not easy, however, to conceive of a case so devoid of all other circumstances from which the religion of the parties can be inferred, that this presumption from numbers should effectually come into operation.

The presumptions based on the relations between the various expositions of the law are distinct from those that I have mentioned.

Each division or school of Muhammadan law, Sunni or Shiah, Hanafi or Shafei, Ithna Ashari or Ismaili, is in the view, or at least in the theory, of those who adhere to it, the only correct exposition of Islamic law. The British Courts, as I have already stated, cannot take upon themselves to pronounce upon the correctness of any one of them to the exclusion of any other. The only function of these Courts is to determine which interpretation has been actually adopted and followed by the particular parties, and enforce that interpretation on principles of justice, equity and good conscience. This is in conformity with what I stated earlier, having then approached the question from another avenue, and seen from a wider aspect. The customarily adopted is enforced even if the parties have proceeded beyond interpretation of the texts: even if they have put the texts aside and adopted by custom a rule antagonistic to Muhammadan law: or being recent converts, have never permitted the new religion to displace pre-existing customs.

In enforcing, however, the various interpretations of the texts—I am not referring now to customs—the Courts have found that in spite of variations they all have common features. Moreover, the Hanafi school of law has been most often before the Courts. It has been more fully expounded than any other. It was the law enforced under the Emperor Alamgir. It is, therefore, justifiably inferred that the Hanafi law is the general law, and presumed that any other particular school is in agreement with that general law unless the contrary is proved. This has been silently accepted by the text writers in British India.

Following the same line of reasoning, the cleavage between the Sunnis and Shiahs is no doubt greatest. Hence all the Shiah schools in India are deemed to lean towards the Ithna Ashari exposition of the law rather than the Hanafi law. If I may so put it, the Ithna Ashari is deemed to be the general Shiah law on grounds similar to those with reference to Hanafi law. But as already pointed out the Ithna Ashari law itself has many features in common with the Hanafi law.

Thus it happens that when Muslim, parties of the Sunni sect, no matter what their school of law, are before the Court, the Hanafi law is drawn upon unless a contrary rule is shown to prevail amongst them. A contrary rule may be shown by decisions or text books, or evidence of custom. Similarly, the Ithna Ashari law is applied to Shiah parties. And, except in regard to the law of inheritance, on which subject the Shiah and Sunni expositions proceed on principles radically at variance, the Hanafi law is the last resource for all classes of Muslims. Where there is no conflict of principles, the converse process may equally be followed. On a point on which the Sunni and Shiah law are shown to be in general agreement, if there is some Shiah authority available but no Sunni authority, it is in consonance with principle that the Shiah authority should be taken into consideration, though the particular parties may be Sunnis. This has been done by the highest tribunal.

It is, therefore, clear that the method in which this mosque must be administered has to be determined in accordance with the personal law of the particular parties before me. I will first speak apart from the effect to be given to the evidence adduced before me. Putting that evidence aside for the present, I shall presume, on the principles I have just stated, that personal law is the Shiah law: that it is similar to the Shiah Ithna Ashari law unless the contrary is proved: that the Shiah Ithna Ashari law is similar to the Hanafi law unless the contrary is proved. This is significant, since with reference to the law relating to masjids there is a greater degree of uniformity amongst the various schools than in regard to many other branches. The reason perhaps is this. In speaking on such matters I must to a great extent rely on conjectures and general tendencies. With this caution I may venture on putting forward some tentative views. The difference between the various rival expositions of the law of Islam seems, in part at least, attributable to the fact that the law was originally promulgated (or at least interpreted, by the exigencies of human institutions) as an amendment of the laws, customs and institutions existing at the time in Arabia,—prevailing amongst the dominant Arabian tribes at the time of the Prophet. The new principles enunciated in the Quran and the Sunna (tradition) of the Prophet would naturally take different forms if they were superimposed on dissimilar existing institutions. In regard to the law relating to masjids, however, there seem to have been no such pre-existing institutions or customs ready for being adopted with slight modifications into the new religion. The new principles seem to have stood by themselves, and were given effect to as such. Thus one great source of divergence is absent.

For the reasons that I have just stated, and by the process of the inferences and presumptions that I have explained, it comes about that though every community has its own customs and usages to govern its actions, yet in regard to the administration of a mosque, the law enforced in British India relating to all Muslims is very nearly uniform. This uniformity can be infringed by evidence as to varying customs and usages.

Is there any evidence before me to rebut the presumptions and inferences I have derived? Though there is a great mass of affidavits, the vague and general statements on which Mr. Setalvad relies cannot effect such a rebuttal. Nor can I overlook that as regards the strict law of Islam, every school, every sect of Islam, has its texts giving authoritative expositions. None such have been produced. It would naturally be expected that such texts would be produced to show the original law by which this particular community was governed; and then there might be evidence of customs varying the effect of those texts. In order that the texts may be overridden by proof of customs and usages, the evidence must satisfy the Court that the majority at least of the given class of persons look upon the customary rule put forward as binding. This must be established by a series of well-known concordant and oil the whole continuous instances, so that the common consent of the class in question is clearly demonstrated by the number of instances proved: Thibaut System des Pandekten Rechts, Vol. I, p. 15, cited in Kojahs and Memons' case and Kunhambi v. Kalanthar.

The evidence before me does not make any attempt at 1931 satisfying these requirements. Nor is it clear to me whether it is contended that the principles for the administration of mosques suggested in the affidavits are intended to represent the effect of the texts of authority, or whether it is the case of the plaintiffs that their customs and usages Lave departed from their written texts.

Accordingly, though Mr. Setalvad is entitled to claim that what must guide me is primarily the practices, the beliefs, and the desires of the parties themselves, yet I cannot accept his further argument that the material he places before me can displace or outweigh the general considerations to which I have referred.

The affidavits are many and long. They are made by persons who may be described as being amongst the leading members of the community, at least so far as possession of wealth is a criterion. They are emphatic, I may say insistent. But on the essential points they are vague; they give no particulars, no instances; no authoritative texts are cited or produced. The common consent of the community to certain courses of conduct is sought to be demonstrated not by a series of instances of past conduct, but by bare statements made for the purposes of these proceedings: Lachman Rai v. Akbar Khan, Rahimatbai v. Hirbai. These statements are made by persons who hold positions of importance in the community and who consequently must have a natural bias to state as they do.

I shall be on much safer ground if I take guidance for determining the actual beliefs and practices of the community from the presumptions and general principles to which I have referred than from such affidavits.

Mr. Setalvad relied on Sevak Kirpashankar v. Gopalrao. He drew my attention to clause II of the scheme adopted by the Privy Council in that case. That clause he contended is a precedent to be followed. It is to this effect—

“The sevaks are the hereditary Pujaries and they alone are to provide for the worship and ceremonies of the Temple … They are entitled and are bound to perform the customary Seva at the Temple, and to receive the Prasad of the daily offerings and other food offerings offered … in accordance with the existing practice.”

There is, however, great difficulty in introducing a similar clause in the present scheme. I put in the forefront the distinction between the requirements of the administration of a mosque and a temple. This distinction is brought about in the main by the fundamental simplicity of the forms of devotion laid down in Islam, by the emancipation from the need for the intervention of any established or ordained clergy or priestly class, and by the consequent absence of fetters on the administration of mosques. To a fuller consideration of this aspect of the matter I shall be brought by another argument addressed to me.

Moreover, in this case the scheme must conform to the terms of the decree of the appeal Court. There is no scope under that decree for setting up an authority independent of the trustees, as was done in the Dakore Temple case. There two sets of authorities were placed in power—the Dakore Temple Committee and the Sevaks. Again, in the Dakore Temple scheme the Sevaks were not only entitled, but were declared by the decree to be bound, to perform the customary Seva at the temple. In the present case, however, I am informed that the Mullaji Saheb is unwilling to undertake any liability upon himself. He does not wish to be appointed a trustee. He wishes me to place him in a position of authority without corresponding responsibility. Such a leonine office I have no power to create for him.

Nevertheless, in view of the evidence in this case, I suggested to the counsel that it might be provided that the Mullaji Saheb and his successors in office should have the sole right to regulate, in accordance with the tenets of the Dawoodi Bohra religion, the conduct of the religious services and prayers to be performed and offered at the mosque, and to appoint an Amil for officiating in the mosque. The Khadim is a menial officer, and has nothing to do with religious services or prayers: his appointment must, apart from the considerations to which I am now alluding, rest with the trustees.

My suggestion had to be dropped. The difficulty arose because the plaintiffs claimed that the authority which the Mullaji Saheb must exercise over the mosque must be plenary. In the first place it was claimed that he might regulate the congregational prayers entirely as he desired. In the second place by his authority any person or set of persons, even though they be persons who under the decree of the appeal Court have the right to the use of the mosque, may be prevented from either joining the congregational prayers as authorized and regulated by the Mullaji Saheb, or even from offering or conducting their own prayers in a form acceptable to themselves; and this notwithstanding that their prayers cause no interference with, or disturbance to, the congregational prayers held under his authority.

I put it to the plaintiffs' counsel, hypothetically, whether if on any occasion, the congregational prayers in accordance with the Mullaji Saheb's orders having already been held for one of the five prescribed prayers during the course of any day,—if thereafter half a dozen persons rightfully entered the mosque and one of them purported according to his own, it may be mistaken, notion to lead the prayers, would there be any objection to it? The learned counsel for the plaintiffs stated that this course would not be allowed.

This would mean that by means of the powers derived under a clause of the scheme (viz., that authorising the regulation of prayers), the main provision of the decree (that the mosque is for the benefit of the Dawoodi Bohras) would be violated.

It is very desirable, therefore, that a clause liable to bring about such a result should be avoided.

I have been at pains to state that the authority sought to be exercised over the forms of devotions adopted in the mosque is sought to be imposed over Dawoodi Bohras, or to be more exact, over persons entitled under the decree of the appeal Court to enter the mosque and pray there. I do not overlook that it has been laid down as a principle in a decision of great authority that a mosque must be a mosque for all, that it must be a building dedicated to God and not a building dedicated to God with a reservation that it should be used only by persons holding particular views of the ritual; that it is a place where all Muhammadans are entitled to go and perform their devotions as of right according to their conscience: per Edge, C.J in Ata-ullah v. Azim-ullah. The Privy Council in Fazl Karim v. Maula-Baksh have expressed no opinion upon the principle. However, I feel great difficulty in seeing how it can be given effect to in British India, where each community is free to govern itself by its own customs and usages, and its own interpretation of the Quran and of the fundamental rules of Islam; and the Court does not lay down what shall be considered the true interpretation where rival interpretations have been adopted. But the point does not arise in this case, since the question may be restricted to the rights of those whom the decree of the appeal Court entitles to pray in the mosque. It is not for me to consider whether every Muslim is entitled to the use of this mosque. All I have to consider is whether the rights of any Dawoodi Bohra (as laid down in the decree) would be unduly restricted, if the use of the mosque were subject to such restrictions as the plaintiffs desire.

In the course of the arguments Mr. Setalvad pressed another consideration. If the Court pronounces against the inclusion of clause 5, the gentleman who has offered to maintain for the present the mosque and waqf properties, will, it seems, withdraw his offer. Mr. Chagla argued that this was disrespectful to the Court and was by way of a threat to force the Court to the decision desired by the plaintiffs. I think Mr. Setalvad was quite right in bringing this fact to my notice and was entitled to press his argument as he did. It would of course be very unfortunate, if, as a result of the trust being regulated in accordance with the law as I apprehend it to be, any religious minded persons of the community in question are deterred from supplementing the funds of the trust. But I presume that such persons would divert the stream of their charity to some other mosque, and not permit it, to be lost in the sands of resentment and discontent.

The general law of Islam in regard to devotions is so broad and liberal that the mosque in question will, even if not endowed with an Amil, be capable of furnishing for any devout Muslim (at least of the Dawoodi Bohra community) a place where he may—with or without the ministrations of an Amil or authorised leader of prayers—five times every day of his life offer prayers.

It will make the position clear, if I explain that the word “masjid” etymologically means a place where the head may be laid down in prostration (for prayer). It is not implied that the prostration may be made only in a masjid. The word does not connote any building. The books speak of an open space of building ground being consecrated as a masjid. Nor is it necessary for the purpose of consecrating a place or building as a masjid that there should be an Amil or any other religious officer appointed. It is better if there are such officers as an ordained Imam or Amil to lead the prayers, a Mu'azzin to call to prayers, a Khatib to pronounce the Khutba, a Khadim to sweep the mosque and keep it clean. Other officers or ministers may also be attached to a mosque. These offices or services or ministrations may be filled or rendered by a larger or smaller number of persons. But the appointment of any specific person for the performance of these or similar duties is not necessary. Nor do the obligatory prayers or other devotional acts even in the mosque demand at any time or on any occasion the lead or intervention of an Imam or Amil or other religious or priestly officer.

The authorities relating to the administration of masjids that have so far been placed before the Courts of British India do not specifically govern the Dawoodi Bohras. But the Dawoodi Bohras must, as I have already stated, show that their law differs from the general Muhammadan law if that be the fact; and as I have said, no texts have been produced, no evidence of custom or usage adduced, showing any variation. I will not refer in detail to the authorities that have so far been brought before the Courts, as there is no conflict or doubt in respect to the general law applicable to mosques. See Fatawa Alamgiri, Waqf. Ch. IX init; Raddul-Muhtar II, 572, cited in Amir Ali, I, 305; Baillie, I, 604, 605, 606; Hedaya, 230, 239, 240; Baillie, II, 219, 220; Yahoob Ali v. Luchmun Dass, Fazl Karim v. Mula Baksh, and Kuttayan v. Mammanna Ravuthan.

It will be the duty of the trustees to make a respectful application to the Mullaji Saheb that he might nominate a duly authorised Amil to lead and regulate the congregational prayers. If for any reason those devout Dawoodi Bohras who attend this mosque are deprived of the opportunity of earning additional merit by joining in congregational prayers under the leadership of such an Amil, even then the mosque will not, as I have already explained, entirely fail of its primary purpose.

Adequate safeguards for the right of all members of the community to pray and offer devotions at the mosque are far more important than a provision for the attendance of an Imam or Amil to lead congregational prayers. It is extremely important that the pristine simplicity and essential independence of forms of worship and methods of administering the affairs of a mosque should be maintained. The affidavits on which Mr. Setalvad invites me to base my decision would unsettle these fundamental principles. There is no ground for holding that the community has discarded the general Muhammadan law and adopted customs and usages demanding such a course to be followed.

Before I leave this clause, I should like to add that Mr. Setalvad during the whole of his argument desired that clause 5 should stand as originally drafted. The draft provides that the Mullaji Saheb shall be the sole Amin of the mosque. “Amin” is an Arabic word meaning in legal context a trustee. If the clause were allowed to stand in the scheme, it probably would have to be construed as meaning that the Mullaji Saheb is the sole trustee of the mosque property, and also has the right of regulating the worship and the prayers there. As I have already pointed out, this is a result that does not square with the plaintiffs' desire, and the Mullaji Saheb himself, I am told, declines to be a trustee.

For these reasons, in my opinion, clause 5 should be deleted from the scheme. A consequential amendment in clause 4 (which contains a reference to the original clause 5) is also necessary.

[His Lordship then dealt with the other clauses of the scheme which are not relevant to this report.]

Attorneys for plaintiffs Nos. 2 and 4: Messrs Perreira, Amin & Fazalbhoy.

Attorneys for defendants Nos. 1-4: Messrs Chub, Gagrat & Ghasvala.

orders accordingly.

B.K.D