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Hashmat Hussain v. Siddiq Hasan
Concise Structured Summary of the Court Opinion
Factual and Procedural Background
The dispute concerns the Sbahjahani mosque in Saharanpur City, built in 1636 A.D. (Hijri 1017) and said to have been founded by Zulfiqar Khan. Plaintiffs are members of the Shia community who allege that Zulfiqar Khan was Shia and that the mosque had been under exclusive Shia use and management since its foundation. Defendants contend that Zulfiqar Khan was Sunni and that the mosque was in the exclusive use and management of Sunnis, denying Shias rights to pray or keep tazias there.
On 11 September 1920, thirteen persons, describing themselves as representatives of the Shia community, executed an agreement referring the dispute to arbitration and appointed Mr. W.A. Silberrad (then Collector of Saharanpur) as arbitrator. The agreement required the arbitrator to award the mosque exclusively to one party. Mr. Silberrad made an award on 8 November 1920 finding that Zulfiqar Khan was a Sunni, that the mosque was originally a Sunni mosque, and that, though once used conjointly by Sunnis and Shias of the Ansari clan, it had come to be used practically by Sunnis subject to limited concessions to Shias.
Subsequently, six Shia members (not among the thirteen signatories to the reference) filed the present suit under Order 1, Rule 8 of the Civil Procedure Code (CPC), claiming on behalf of the Shia community that the mosque was Shia-founded and managed by Shias, challenging alterations said to have been made after the award, and contending that the agreement to arbitrate and the award were not binding on non-signatory community members and were therefore invalid and unenforceable.
The case was tried by the District Judge of Saharanpur who framed three preliminary points: (1) whether those who signed the reference truly represented the Shia community, (2) who were the mutawallis (managers) of the mosque, and (3) who used to worship there. The District Judge relied on Mr. Silberrad's recorded evidence and, taking no further evidence, confined his decision to representation and held that the persons who signed did represent the Shia community and that the award was binding on the Shias generally, thereby precluding the plaintiffs from reopening the matter. The appeal under consideration challenged that conclusion.
Legal Issues Presented
- Whether the thirteen persons who signed the out-of-court reference genuinely represented the Shia community such that the arbitration award is binding on the community at large.
- Whether the arbitration award made out of court is binding on persons who were not parties to the reference and whether principles like res judicata or estoppel apply.
- Whether Section 11(6) of the CPC (and related procedural provisions) applied to make the award conclusive in the subsequent suit.
- Who were the mutawallis (managers) of the mosque and who used to worship there (these were the other preliminary questions framed and not decided below for lack of trial evidence).
- As raised by the parties but not decided at length: whether a valid reference to arbitration could be made in respect of matters relating to a public waqf (the Court stated this question was unnecessary to decide for present purposes).
Arguments of the Parties
Plaintiffs' (Appellants') Arguments
- The plaintiffs (six Shia members who were not signatories to the reference) asserted that the mosque had been founded by a Shia and had been managed by Shias, entitling the Shia community to exclusive rights.
- They contended that two plaintiffs were the managers/mutawallis of the mosque.
- They argued the defendants had made certain alterations after the award without right.
- Critically, they contended that the arbitration agreement and the award were not binding on them or on other Shias who were not parties to the reference, and therefore the award was invalid and unenforceable as against such persons.
Defendants' (Respondents') Arguments
- The defendants maintained that Zulfiqar Khan was Sunni and that the mosque had been in the exclusive use and management of Sunnis, denying Shias rights to pray or keep tazias there.
- Implicitly, by relying on the arbitration award, the defendants relied on the conclusion reached by Mr. Silberrad that Sunnis were entitled to use of the mosque subject to limited concessions to Shias, and maintained that the award should bind the Shia community as represented by the thirteen signatories.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Russell on Arbitration (10th Edition) | Principle that where one or more interested parties submit a dispute to arbitration they cannot bind other interested parties without express authority; signatories bind themselves but not those who did not authorize them. | The Court relied on this statement of principle to hold that persons who purported to represent a larger body cannot bind others absent evidence of authority, and to support the conclusion that authority for representation must be proved. |
| Mudy v. Osam | An early case holding that where no authority from others in a parish was proved, only the signatories to an arbitration agreement were liable for breaches; non-signatories were not bound. | The Court cited this case as an historical example of the rule that absent authority, only signatories are bound, reinforcing that the arbitration in the present case could not bind non-parties without proof of authorization. |
Court's Reasoning and Analysis
The Court proceeded in a step-by-step legal analysis closely tied to the record and to the arbitrator's own evidence:
- The Court first determined that Section 11(6) of the CPC did not apply because the award was not made on a reference made through the Court; the arbitration arose from a private out-of-court agreement. Consequently the arbitrator, having authority only from a private reference, could not be treated as a tribunal competent to try the subsequent suit or to produce the conclusive effect contemplated by that statutory provision.
- The Court emphasized that the character of the thirteen signatories as "representatives" of the Shia community could not be presumed from their self-description in the agreement or from the mere fact that they attended discussions. Legal representation of a community must be founded upon some demonstrable authority — e.g., a meeting, referendum, election or other mode of authorization — none of which appeared in the pleadings or the arbitration proceedings.
- The Court carefully reviewed Mr. Silberrad's own statement. Silberrad had arranged conferences, consulted the Tahsildar and several local gentlemen, and received a final list of representatives from the Tahsildar after discussions at his house. However, Silberrad admitted he did not specifically enquire whether the signatories had authority to represent the community, and he acknowledged that neither party ever raised the issue of inadequate representation before him. The Court noted that how the chief leaders or representatives were selected was not apparent from the record.
- The Court observed there were about one thousand Shias in Saharanpur; Silberrad had conversed with perhaps twenty persons but could not always distinguish whether some interlocutors were Sunni or Shia. The Court held that persons not party to the reference retained the right to assert that they had not authorized the signatories to bind them.
- Applying the general principle (as stated in Russell on Arbitration and illustrated by Mudy v. Osam), the Court held that where parties have a common interest, a few individuals cannot bind the whole body by submitting disputes to arbitration without express authority. Thus the signatories could bind themselves but, in the absence of proof of authority, could not bind other members of the community.
- The Court further analyzed Order 1, Rule 8 of the CPC and determined it had no application to an out-of-court private award made by persons who merely described themselves as representatives; evidence of representation is necessary. If such authority were proven, an estoppel question might arise, but res judicata would not apply to a private out-of-court reference where no award was filed in Court and no decree obtained under it.
- The Court declined to decide at length whether a valid reference could be made concerning a public waqf, calling that question unnecessary for the present decision.
- The Court noted that some decisions cited by counsel were of limited relevance because the award here concerned entitlement to use the mosque (subject to concessions) rather than tauliat (management) or other issues; given that the other contested matters had not been tried, a full determination required remand.
Holding and Implications
Holding: The appeal was allowed; the decree of the Court below was set aside; the case was remanded to the District Court with directions to re-admit the suit to its original number and to proceed to try and determine the other points involved in the manner prescribed by law. Costs here and hitherto were ordered to abide the result, including fees in this Court on the higher scale.
Implications:
- The Court concluded that an out-of-court arbitration by persons who merely describe themselves as community representatives does not automatically bind non-signatory members of that community unless there is evidence of lawful authority for such representation.
- Because the District Judge had confined the trial to the question of representation and had not tried the other issues (mutawallis, actual use, and alterations), those matters must be tried afresh on remand; the award cannot be treated as dispositive against non-parties absent proof of authority.
- No broader novel precedent was announced by the Court beyond application of established principles (as cited from Russell on Arbitration and Mudy v. Osam): the decision's direct effect is procedural and case-specific — reinstatement and remand for fuller trial on all issues. The Court expressly declined to decide the separate question concerning the validity of arbitration over public waqf matters.
Disposition: Case remanded.
1. There is a mosque known as the Sbahjahani mosque situated in Saharanpur City. It was built, according to an inscription on the building, by Zulfiqdar Khan in Hijri 1017 corresponding with 1636 A.D According to Beala's Oriental Biographical Dictionary, Zulfiqar Khan was a nobleman of the reign of the emperor, Shahjahan. The plaintiffs are Shias and claim that he belonged to the Shia persuasion and that the mosque had been in the exclusive use and management of the Shia community from the time it was built. The defendants, on the other hand, contend that Zulfiqar Khan was a Sunni and that the mosque had been in the exclusive use and management of the Sunnis and that the Shias had no right to say prayers in the mosque or keep tazias in it.
2. On the 11th September 1920, thirteen persons, describing themselves as the representatives of the Shia community, entered into an agreement of reference to arbitration in regard to that mosque and appointed Mr. W.A Silberrad, the then Collector of Saharanpur, as arbitrator to determine, after inspecting and examining the documentary evidence, which party was entitled to the mosque. The agreement of reference contemplate that the arbitrator was to award the mosque either to one party or to the other, and it distinctly stated that the mosque shall exclusively belong to the party to which it will be awarded by the arbitrator, and that the other party shall not have any right whatever in the mosque. As there was soma ill-feeling and irritation due to this dispute among the members of the two communitie Mr. Silberrad agreed to accept the re ference and made an award on the 8th November 1920, wherein he discussed at length the history and origin of the foundation of the mosque and the evidence produced before him with regard to its user and found that Zulfiqar Khan, the founder of the masque, belonged to the Sunni persuasion, that the mosque was originally built as a Sunni mosque, and that when a portion of the Ansari clan, to which Zulfiqar Khan belonged, became Shias they continued to use that mosque conjointly with those who remained Sunnis. He further found that the Sunni and Shia members of the Ansari clan continued to be on friendly terms and used the Shahjahani mosque for their respective prayers; but as time went on and the relations between the two communities became strained, the mosque remained practically in the use of the Sunnis subject to certain limited concessions granted to the Shias in regard to its use. The present suit was filed by six members of the Shia community other than the persons who were parties to that arbitration under O. 1, R. 8 of the CPC, claiming on behalf of the Shia community of Saharanpur that the mosque in question had been founded by a gentleman of the Shia persuasion, that it was a Shia mosque and that it had been under the management of the Shias. Two of the plaintiffs claimed to be the managers and mutawallis of the mosque. They further asserted that the defendants had made certain alterations after the award, which they had no right to do, and that the agreement of reference to arbitration was not binding on them or on the other members of the Shia community who were no parties to the reference, and that the award made by the arbitrator in pursnance of that reference was invalid and unenforceable.
3. The case was tried by the District Judge of Saharanpur before whom three preliminary points were argned. The first point was whether the persons who were parties to the reference as the representatives of the Shia community really held that character; secondly, who were the mutawallis of the mosqne; and thirdly, who used to worship in it. There was at that time already on the record the evidence of Mr. Silberrad, the arbitrator, which had been recorded in anticipation of his departure on leave to England and that evidence has been used by the Court below and it has also been referred to in this Court in anneal. The learned District Judge decided to take no other evidence; and confining his attention to the question whether the persons who described themselves as the representatives of the Shia community could be held to have represented that community, he came to the conclusion that they did represent that community and that the award was binding on them and on the Shias generally and precluded the plaintiffs from re-opening that matter.
4. Section 11(6) of The CPC, has clearly no application to the case, because the award was not made on a reference made through Court; and the arbitrator who derived his authority from a private reference made out of Court cannot be regarded as a tribunal competent to try the subsequent suit in which the question now at issue has arisen. Nor can the previous reference be regarded as a reference made by certain persons as representatives of the Shia community, because neither in the agreement of reference nor in the award there is any suggestion that there had been any formal meeting or referendum or election at the time by means of which the representatives were elected by the members of the Shia community interested in the matter. In fact no suggestion of any such election or referendum or other mode of authorization is made in the case.
5. The statement of Mr. Silberrad was that he had sent for the representatives of the parties concerned who were disputing the matter, that he had a talk with them over the subject, and that to the best of his recollection he had asked the Tahsildar and several of the gentlemen Who came to see him, and with whom he had discussed the matter as to who were the representatives. He further stated that the final list of representatives was given to him by the Tahsildar after a long discussion between the members of both the parties, who were present at his house, and that he had expressed his readiness to discuss the matters with their chief leaders. How these chief leaders or representatives were selected is not apparent. He admits that be did not specially enquire whether those persons, who had signed the agresment, were such representatives, but he states that throughout the proceedings which lasted for several days neither party suggested in any way that either their own side or the opposite side was not fully represented, and that no objection was ever raised before him by any member of the Shia or Sunni community to the representative capacity of the persons who had signed the agreement of reference or who were appearing before him at the hearings.
6. There were about a thousand Shias residing in Saharanpur. Mr. Silberrad says that he had conversed with certainty not less than twenty, but at the same time he confesses that he really did not know whether several Mahomedan gentlemen with whom he had conversed were really Sunnis or Shias. He thinks, however, that from the fact that a certain number followed closely the Shia representatives and a certain number followed the Sunni representatives both the communities were fairly represented. It was open, however, to the persons who were not parties to the reference to say that they had given no authority to the persons who had signed the agreement of reference to enter into arbitration in regard to a matter which affected their individual religious rights.
7. Where parties have a common interest it is not sufficient that certain persons should go and seek to refer the dispute pending between them and the other party to arbitration, without taking steps to consult the other persons who had such common interest and get their authority to represent them on their behalf. If one or more interested parties, says Russell, submit a dispute to arbitration they cannot bind the other interested parties without express authority, but still bind themselves none the less effectually for that, and if they undertake that such other parties shall perform the award the fact that those parties are not bound will form no excuse for the breach of that undertaking: (Russell on Arbitration, 10th Edition, page 24.) He gives reference to a case decided long ago where a person and certain of his parishioners purported to submit a dispute on behalf of themselves and the rest of the parishioners and entered into a bond whereby the parishioners undertook to perform the award. It was there held that as no authority was proved from the rest of the parishioners only the signatories were liable, for breaches by the other parishioners; Mudy v. Osam (1).
8. Order 1, R. 8 of the CPC, has no bearing on a private award which is made on a reference made by certain persons who were signatories to the reference, though they might have described themselves as representatives of a larger body. The fact that they were such representatives has to be proved by evidence of some form of reference, referendum or Other mode of authorization, of which no suggestion is to be found anywhere in the pleadings or in the arbitration proceedings which resulted in the award. In the eyes of the Tahsildar, who eventually made the selection of the representatives, the representatives might have been the leading men who were suitable to represent the community concerned, but in the eyes of the law representation must be based on some authority legally expressed and the persons who pose to act as such representatives must be capable in law of representing the persons or the community whom they profess to bind. If there is such an authority a question of estoppel might arise but the principle of res judicata would not apply to such a case, as the reference was made out of Court and no award was filed in Court nor a decree obtained in accordance with it.
9. It is unnecessary to go at length into the question raised on behalf of the plaintiffs-appellants whether there could have been a valid reference to arbitration in regard to a matter relating to public waqf.
10. Certain decisions have been referred to on the point which seem to be hardly applicable, because the award in the present case does not purport to deal with the question of tauliat or management of the mosque. It only determines which party is entitled to the use of the mosque and it lays down that the Sunnis are entitled to that right subject to certain limited concessions which the Shias are entitled to enjoy. An award of that character does not seem open to objection to which the learned counsel for the plaintiffs-appellants has referred. As the other matters raised in the case have not been tried and no evidence has been taken with regard to them we allow the appeal, set aside the decree of the Court below, and remand the case to that Court with a direction to re-admit the suit to its original number and to proceed to dispose of it after determining the other points involved therein in the manner prescribed by law. Costs here and hitherto will abide the result including fees in this Court on the higher scale.
11. Case remanded.
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