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Khalil Ahmad And Another v. Sheikh Mohd. Askari And Others

Allahabad High Court

Sep 1, 1964

Judgment

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Factual and Procedural Background

This appeal arises from an objection under Section 11 of the U.P. Encumbered Estates Act ("the Act") that was dismissed by the Special Judge, First Grade, Saharanpur by order dated 3rd December 1951. The underlying liquidation proceeding began when Mohammad Askari (respondent No. 1) applied under Section 4 of the Act; the application was transferred to the Special Judge and registered as Suit No. 35 of 1936. Written statements and creditor claims were filed under Sections 8 and 9 of the Act. A notice under Section 11 of the Act was published in the U.P. Gazette in January 1938 (the opinion records both "8-1-1938" and later "6-1-1938" as publication dates).

The Special Judge passed decrees under Section 14 and transmitted them to the Collector for execution under the Act. The S.D.O., Roorke, commenced liquidation proceedings and on 21-6-1948 the appellants filed an objection before the S.D.O. asserting that a portion of the debtor's house known as "Pili Kothi" — specifically a mosque located in the north‑western corner of its compound — was not liable to be sold as it was a public mosque. The S.D.O. issued a sale proclamation fixing 26-11-1948 for auction, but later permitted the landlord to sell the property by private negotiation provided sale proceeds were deposited for creditors. Pursuant to that permission, the landlord sold Pili Kothi (including the mosque) on 30-10-1948 to Smt. Mansa Devi and Smt. Rajwanti Devi (respondents Nos. 8 and 9).

On 23-12-1948 the appellants filed a similar objection under Section 11 before the Special Judge, asserting the mosque was a public place of worship (wakf) and thus not liable to sale. Two creditors and the purchasers opposed the objection, arguing (1) it was barred by the limitation in sub-clause (2) of Section 11 and (2) the mosque was a private mosque belonging to the owner and therefore alienable. The Special Judge dismissed the appellants' objection on grounds of limitation and on the finding that the mosque was private. The appellants appealed; Gyanendra Kumar, J. heard and dismissed the appeal with costs.

Legal Issues Presented

Whether the objection under Section 11(2) of the U.P. Encumbered Estates Act was barred by the period of limitation or by laches, and whether the Special Judge could or should have condoned the delay after the property had already been transferred.
Whether the mosque situated within the compound of Pili Kothi was a public mosque/wakf (and therefore inalienable) or a private mosque belonging to the landlord (and therefore liable to attachment and sale).
Whether the Collector/S.D.O. had competence under Section 24(4) of the Act and Order XXI, Rule 83 C.P.C. to permit a private sale of the property and how that competence affected the availability of relief under Section 11 once the property was transferred.

Arguments of the Parties

Appellants' Arguments

The appellants contended they had been misled by the description of the property in the notice published under Section 11 (the mosque was not specifically described in the notice published in January 1938), and therefore they could not reasonably have filed an objection within the three‑month period.
They also relied on the fact that they had filed an objection before the S.D.O. on 21-6-1948 and argued they reasonably believed that that objection would be transmitted to the Special Judge for action.
On the substantive question, their counsel (Mr. K.C. Saxena) argued that, under Mohammedan law, once a place is dedicated for prayer it becomes wakf and cannot be privately alienated; he relied on Full Bench authority in Ata-ullah v. Azim-ullah to demonstrate that mosques are public places of worship and cannot be appropriated to a sect or private owner.
Appellants also relied on Said Maher Husein v. Haji Alimahomad Jalaluddin to support the proposition that long user and dedication could render a building wakf.

Respondents' / Creditors' / Purchasers' Arguments

The creditors and the purchasers (including Smt. Mansa Devi and Smt. Rajwanti Devi) argued the objection was time‑barred by Section 11(2) of the Act.
They further contended that the mosque was private property of the owner of Pili Kothi (not a public wakf), to which the Muslim community at large had no right of access, and therefore it was properly sold by the landlord.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ata-ullah v. Azim-ullah, I.L.R. 12 All. 494 (Full Bench)	Principle (as stated in that decision) that a mosque, as a public place of worship, cannot be dedicated or appropriated exclusively to any particular sect; all Mohammadans are entitled to perform devotions in a mosque.	The court observed that the authority relates to public mosques; it does not control the question of a private mosque situated within a private compound. The judgment was therefore held not to be applicable to the present case of an alleged private mosque.
Said Maher Husein v. Haji Alimahomad Jalaluddin, A.I.R. 1934 Bom. 257	Principles that (a) a building set apart as a mosque and used for public prayers may become wakf; (b) dedication may be inferred from long user; (c) public prayers even once (with permission) and long continued use may suffice to raise a presumption of dedication.	The court distilled the necessary ingredients for a public mosque (set apart as mosque, prayers offered at least once, long user) and applied those factors to find they were absent here; thus Said Maher Husein did not assist the appellants.
Musaheb Khan v. Pt. Raj Kumar Bakshi, A.I.R. 1938 Oudh 238	Principle that mere construction of a building appearing as a mosque in a private house does not make it a public mosque; proof of dedication, permission or public user (e.g., congregational prayer) is required before a building is treated as a public place of worship (wakf).	The court found the facts of Musaheb Khan to be closely analogous and relied on it to support the conclusion that the Pili Kothi mosque, lying within the owner's compound and lacking evidence of dedication or public use, was a private mosque not entitled to protection as wakf.

Court's Reasoning and Analysis

The court's analysis proceeded along two main lines: (A) limitation and the effect of the private sale, and (B) the factual characterization of the mosque as private rather than public/wakf.

A. Limitation and effect of the private sale

The court noted statutory and procedural powers: Section 24(4) of the Act enables the Collector to exercise the powers of a Civil Court in execution, and Order XXI, Rule 83 C.P.C. permits the execution court to postpone sale and allow a private sale by the judgment-debtor. On that basis the S.D.O. was competent to permit a private sale of Pili Kothi.
Because the landlord legally transferred the property by sale deed dated 30-10-1948 to the two purchasers, the court held that even if the Special Judge had wished to condone the appellants' delay under Section 11(2), condonation could not be granted after the property had been transferred to the purchasers. The transfer, effected by the sale deed, precluded later condonation from achieving the appellants' sought relief.
The court emphasised the strict limitation in Section 11(2): a claimant must apply within three months from the date of publication of the notice in the Official Gazette (the opinion records the notice publication date as January 1938 and calculates the three‑month period ending on 8 April 1938). The appellants filed their objection before the Special Judge only on 23-12-1948 and gave no explanation for delay in that objection; therefore the bar of limitation applied unless sufficient cause for delay was shown and accepted by the Special Judge.
The appellants' explanations were evaluated: the asserted “misleading” description in the Gazette notice and the contention that the S.D.O. objection would be transmitted were matters that should have been raised before and addressed by the Special Judge. The court emphasised that the appellants had in fact lodged an objection before the S.D.O. on 21-6-1948 — indicating they were aware the mosque was being treated as part of the private property — and that they offered no credible reason for waiting another six months to approach the Special Judge. The court therefore upheld the trial court's conclusion that the objection was barred by limitation.

B. Factual determination whether the mosque was public/wakf or private

The Special Judge's factual findings — which the High Court accepted — were that the mosque was situated within the compound of the Pili Kothi, surrounded by the same boundary wall as the residence, had no separate compound or demarcation, had no independent road or regular passage leading to it, and that the main access road stopped at some distance from the mosque.
The court found the evidence led by the appellants of public use and public prayers was "wholly unsatisfactory" and rightly rejected by the Special Judge.
Evidence that the owners had freely dealt with and transferred the property (including the mosque) to various persons over time supported the conclusion that it was a private mosque used by the owners and their family rather than a public wakf mosque accessible to the Muslim community at large.
The court examined the authorities cited by the appellants. It observed that the Full Bench decision in Ata-ullah related to a public mosque and its general statements about mosques must be read in that context; they did not govern a case of an asserted private mosque in the present facts. Similarly, Said Maher Husein and Musaheb Khan were analysed to extract the legal requirements for a building to be treated as a public mosque/wakf (setting apart, public prayers at least once with permission, and long user). The court concluded those ingredients were absent in the present case.
Finally, the court noted the conceptual recognition of private places of worship within private compounds (analogous to private chapels or family temples), observing historical examples (e.g., mosques within fort compounds used by royal families) to illustrate that private mosques can exist and do not thereby become public wakf simply by being used by the owner or family.

Holding and Implications

Holding: The appeal is dismissed. The Special Judge's order dated 3rd December 1951, dismissing the appellants' objection under Section 11 of the U.P. Encumbered Estates Act as barred by limitation and finding the mosque to be private property, is affirmed; the appeal is dismissed with costs.

Implications:

Direct effect on the parties: The Special Judge's dismissal of the appellants' objection is upheld; the sale to Smt. Mansa Devi and Smt. Rajwanti Devi (dated 30-10-1948) stands as effective, and the mosque situated within the Pili Kothi compound was held to be alienable private property rather than an inalienable public wakf.
The court applied established principles concerning limitation (strict three‑month period subject to condonation only before transfer) and the evidentiary requirements for a building to be treated as a public mosque/wakf (setting apart, evidence of prayers/public use, and long user). The decision rests on the trial court's findings of fact and on the timing of the private sale; the opinion does not purport to establish a new legal principle beyond applying extant authorities to the facts.

This summary is prepared strictly from the content of the provided opinion and does not add information beyond what appears in that text.

Show all summary ...

Gyanendra Kumar, J.:— This is an appeal by the objectors, whose objection under Sec. 11 of the U.P Encumbered Estates Act (hereinafter referred to as ‘the Act’) was dismissed by the Special Judge, First Grade, Saharanpur by an order dated 3rd December, 1951. Mohammad, Askari (respondent No. 1) had made an application under Sec. 4 of the said Act, which, on being transferred to the Special Judge, was registered as Suit No. 35 of 1936. The written statement of the applicant and claims of the creditors were duly filed under Secs. 8 and 9 of the Act respectively. Ultimately on 8-1-1938 a notice under Sec. 11 of the Act was published in the U.P Gazette, specifying the property mentioned by the applicant under Sec. 8 of the Act. In due course, the Special Judge passed decrees under Sec. 14 of the Act, and transmitted them to the Collector of Saharanpur for execution in accordance with the provisions of the Act. Consequently the S.D.O Roorke started liquidation proceedings. On 21-6-1948 both the appellants filed an objection before the S.D.O saying that a portion of the debtor's house known as ‘Pili Kothi’ was not liable to be sold in satisfaction of the debts of the landlord, inasmuch as there existed a pukka mosque in the north-western corner of the compound of this Kothi. Thereafter the S.D.O issued a sale proclamation fixing 26-11-1948 for auction sale of Pili Kothi including the mosque in question. However, in the meantime, the landlord obtained permission of the S.D.O to sell that property by private negotiations. The S.D.O allowed the requisite permission, provided the entire sale consideration was deposited in his court for payment to the creditors. In this connection it may be mentioned that under Sec. 24(4) of the Act, the Collector may exercise all the powers of a Civil Court for the execution of a decree. Under Order XXI, Rule 83, C.P.C the execution court may postpone the sale of the property and allow the judgment-debtor to effect a private sale thereof. Thus the S.D.O was fully competent to allow the landlord to make a private sale of the Pili Kothi under the provisions of Sec. 24 of the Act itself. Accordingly the debtor sold the Kothi in question along with the mosque on 30th October, 1948, to Smt. Mansa Devi and Smt. Rajwanti Devi, who are respondents Nos. 8 and 9 to this appeal. However, on 23rd December, 1948, the objectors filed a similar objection before the Special Judge under Sec. 11 of the Act saying that a portion of the Kothi comprising of the mosque was not liable to be sold for the satisfaction of the debts of the landlord, on the ground that it was a public mosque and all the Muslims, specially those residing in the locality, had a right to say their prayers in it. Two of the creditors as well as the aforesaid purchasers, namely, Smt. Mansa Devi and Rajwanti Devi contested the aforesaid objection mainly on two grounds, viz. (1) that the objection was barred by limitation prescribed under sub-Cl. (2) of Sec. 11 of the Act, and (2) that the mosque in question was a private one belonging to the owner of the Pili Kothi, to which the Muslims at large had no access or right to offer prayers therein. It was, therefore, contended that the owner had full right to sell it away to the ladies aforesaid.

2. The learned Special Judge found that the claim of the objectors was barred by the limitation prescribed under Sec. 11(2) of the Act

3. It was further held that the mosque in question was not a public mosque but was the private place for worship by the owners of the Kothi. Accordingly the objection of the appellants was dismissed; hence this appeal.

Sec. 11(2) of the Act, as it stood at the relevant time, reads as under:—

“Any person having any claim to the property mentioned in such notice shall, within a period of three months from the date of the publication of the notice in the Official Gazette make an application to the Special Judge stating his claim and the Special Judge shall determine whether the property specified in the claim, or any part thereof, is liable to attachment, sale or mortgage in satisfaction of the debts of the applicant:

Provided that if the claimant satisfied the Special Judge that he had sufficient cause for not making his application within the above period, the Special Judge may receive such application, if presented, at any time before such property is transferred to any person under the provisions of Secs. 24 etc.……”

4. I have already shown above that under Sec. 24(4) of the Act the Collector was fully competent to allow the landlord to make a private sale of his house in the liquidation proceedings. The sale dated 30-10-1948 in favour of Smt. Mansa Devi and Smt. Rajwanti Devi respondents was well within the meaning of Sec. 24 of the Act, with the result that even if the Special Judge wanted to condone the delay on the part of the appellants in raising their objection under Sec. 11(2) of the Act, the same could not have been granted by the Special Judge after the property had been transferred to the two ladies aforesaid by virtue of the sale deed executed by the landlord on 30-10-1948.

5. Secondly, the period of limitation within which the appellants could have raised an objection under Sec. 11(2) of the Act is only ‘three months from the date of the publication of the notice in the Official Gazette.’ It is the admitted case of the parties that the notice under Sec. 11 was published on 6-1-1938. Therefore the appellants could have, as of right, filed their objection under Sec. 11 by 8th of April, 1938. They could, however, file the same later on as well, provided they succeeded in satisfying the Special Judge that they had sufficient cause for not making the objection within the prescribed period of three months. In their objection dated 23-12-1948 the appellants had not given any reason for condonation of the delay. In this Court, however it has strenuously been argued by Mr. K.C Saxena, learned counsel for the appellants, that his clients had been misled by the description of the property as given in the notice dated 8-1-1938, duly published under Sec. 11 of the Act, in which the mosque had not been specified to be one of the properties liable to be attached or sold for the satisfaction of the debt of the landlord. It was further contended that the appellants having already filed a similar objection before the S.D.O they were bonafide under the impression that the same would be transmitted to the Special Judge for necessary action. On 17-11-1950 the court below had recorded the statement of the learned counsel for the objectors on the point. Their counsel Sri Sharif Ahmed accordingly stated as follows—the italics are mine.—

“The mosque in respect of which the objection has been filed is included in the property shown by Mohammad Askari, the debtor-applicant, in the list of property filed along with his written statement under Sec. 8 Encumbered Estates Act and published in the U.P Gazette under Sec. 11 of the Act. Though full particulars of the mosque have not been mentioned, the objectors-applicants have filed this application only on this ground that the property in dispute does not belong to Mohammad Askari the debtor, and he was wrongly shown it in his application under Encumbered Estates Act as his property. As a matter of fact it is wakf property.” In the above state of things, I am afraid it is not open to the appellants to set up a new case in this Court, which had not been taken before the Special Judge at the appropriate time. It was essentially a question of fact, which had to be determined by the Special Judge whether the objectors had been so misled as not to be able to file their objection within the prescribed period. Moreover, as already observed above, the objections had filed a similar application before the S.D.O Roorke on 21-6-1948. Therefore, it is abundantly clear that at least on 21-6-1948 the appellants knew that the mosque had also been considered to be the private property of the landlord and was being dealt with in the liquidation proceedings pending before the S.D.O No reason whatsoever has been shown as to why the appellants waited for another six months to lodge their objection before the Special Judge on the 23rd December, 1948. When they had actually filed their first objection before the S.D.O, they could not have legitimately expected that the same would be transmitted to the Special Judge for orders. Such an objection under Sec. 11 of the Act is to be filed only before the Special Judge, which the appellants had failed to do in time. The court below was, therefore, perfectly justified in holding that the objection filed by the appellants was clearly barred by limitation.

6. The court below has dealt with the evidence of the parties in detail and has rightly come to the conclusion that the mosque in question was the private place of worship, constructed by the owners of the Pili Kothi for their personal use. The mosque is situated within the compound of the Kothi, surrounded on all sides by a boundary wall. There is no separate compound or demarcation for the mosque, nor does any independent road lead thereto. The road meant for the ingress and egress to and from the Kothi stops short at quite a distance from the mosque, which is not even served by a regular passage. The evidence led by the appellants to the effect that the members of the Muslim community in general used to offer prayers in the said mosque as of right, was wholly unsatisfactory and was rightly rejected by the Special Judge. It is further on record that the owners of the Kothi had freely dealt with the property and had transferred the same to various persons from time to time (including the mosque in question). This also shows that it was a private mosque of the owners of the Pili Kothi and was by no means a public mosque, to which the Muslim community at large might have had a right of access and worship.

7. Mr. K.C Saxena, learned counsel for the appellants has drawn my attention to the sale deed dated 30-10-1948 (Ext. 10) executed by Mohammad Askari in favour of two of the respondents Smt. Mansa Devi and Smt. Rajwanti Devi. The relevant portion of the last sentence in the sale deed states that in spite of the sale ‘the old mosque shall stand heretofore.’ The suggestion of Mr. Saxena is that the special provision made at the end of the deed shows that the mosque was a public place of worship, and on that account it was made incumbent that the transferees shall not demolish the same. He maintains that there is nothing like a private mosque in the Mohammadan Law. Once a place is set apart for saying prayers, it is automatically dedicated to the Almighty God and becomes a wakf property. In support of his contention Mr. Saxena has relied upon a Full Bench decision of this Court in Ata-ullah v. Azim-ulllah I.L.R 12 All. 494.. That was a case admittedly relating to a public mosque in which the members of the Sunni Mohammedans claimed a right of worship, to the exclusion of other sects of Muslims. It was in that context that their (Lordships had observed):—

“According to the Mohammedan Law, a mosque cannot be dedicated or appropriated exclusively to any particular school or sect of Sunni Mohammadans. It is a place where all Mohammadans are entitled to go and perform their devotions as of right, according to their conscience. No one sect or portion of the Mohammadan community can restrain any other from the exercise of this right.

Members of the Mohammadi or Wahabi sect are Mohammadans, and as such entitled to perform their devotions in a mosque, though they may differ from the majority of Sunni Mohammadans at particular points.”

8. As already mentioned earlier, the above case related admittedly to a public mosque, though alleged to have been built by the Haneefi sect of Mohammadans. It was not a case of an alleged private mosque, as is the position here. The general observations quoted above, therefore, relate only to a public mosque and not to a private mosque like the one in dispute.

9. The appellants then relied upon the case of Said Maher Husein v. Haji Alimahomad Jalaluddin A.I.R 1934 Bom. 257. in which the dispute related to a mosque at Ahmedabad, which had been raised by Momin sect of the Mohammadans founded by Pir Mushayak. His tomb was also constructed in the neighbourhood of the mosque and was an object of veneration to the devotees of the Momin faith. An uras was also held every year on the anniversary of the death of the saint. The contention of defendant No. 1 to that suit was that the properties in question had been dedicated to the Pir by his devotees, which were, therefore, claimed to be the personal properties of the Pir and his successors. In the above circumstances, their Lordships of the Bombay High Court had observed:—

“When once a building has been set apart as a mosque it is enough to make it a wakf if public prayers are once said there with the permission of the owner. But though a declaration of dedication and completion by some act giving practical effect to it are essential, it was not always necessary that there should be any direct evidence of these things. Dedication may be inferred from long user as wakf property……

Where for a considerable number of years the public have been offering prayers in a mosque close by a tomb of a Mahommedan saint and an annual uras attended by persons belonging to Momin sect of Mahommedans has been regularly held it must be presumed that the mosque and the tomb have been duly dedicated and have become wakf by user, and the presumption might fairly be extended to other buildings and land enclosed within a compound wall which might be regarded as appurtenant to the tomb.”

10. From the above observations it is quite apparent that before a building could be called a public mosque, the requisite essentials are that (1) the building must have been set apart as a mosque; (2) public prayers must have been said in it at least once, even with the permission of the owner; and (3) there must have been long user of the same as a place of worship by the public at large.

11. As observed earlier, none of the above mentioned ingredients exists in the present case. There is neither absolute setting apart of the building of the mosque as a separate entity from the rest of the buildings and compound of the Pili Kothi, nor has any public prayers been proved to have been offered in it at any time, nor is the-re any evidence of long user by the members of the public. In the present case, though the appellants went to the extent of saying that the mosque situate in the compound of Pili Kothi was a public place of worship, yet they conceded that the main residential building as well as the out-houses etc. situate in the same compound were admittedly the property of the landlord. Therefore the case of Said Maher Husain has no application to the present dispute.

12. A more or less similar problem had come up for consideration before the Chief Court of Oudh in Musaheb Khan v. Pt. Raj Kumar Bakshi A.I.R 1938 Oudh 238., in which the property in question was a compound situate in the city of Lucknow measuring 5 bighas 7 biswas odd. The compound contained a mosque, an Imambara and a number of tombs. It was claimed that the same were not liable to be attached and sold in execution of a decree obtained against their owner, inasmuch as they were alleged to have become dedicated property or wakf, on account of a term contained in the will executed by the owner, whereby he had transferred full proprietary rights to a legatee and his representatives in perpetuity, but had made a direction to continue certain religious celebrations on the premises. It was held that the above clause for continuance of religious celebrations did not constitute the property as wakf so as to render it inalienable. Relying upon certain passages appearing in Baillie's Commentary on Mohammedan Law, Syed Ammeer Ali's Principles of Mohemmadan Law and Tayabji's Mohammedan Law, the Avadh Chief Court held as follows:—

“Even if a mosque, that is a building having the appearance of a mosque, is built in a place which is not enclosed, that is, is not situated in such a man's house, something more than the mere appearance of a mosque are needed before it will become entitled to be treated as a mosque for all time. There must be proof of dedication or of permission or of user such as by the saying of prayers in congregational manner:—The mere construction of a mosque in a private house does not make it a mosque in the sense of a public place of worship.”

13. The facts and questions involved in Musaheb Khan's case were almost indentical with those involved in the instant dispute. In fact the instant case is on a stronger footing, inasmuch as, here the mosque and the residential house of the landlords stood within the compound of the Kothi, and there was no convincing evidence of any dedication or congregational prayer having ever been offered in the said mosque. Like a private chapel in England or a private Hindu temple in India, there could also be a private mosque for offering prayers by the owner and the members of his family. Such private mosques were not unknown in India. We have two glaring examples of such mosques in the red forts at Delhi and Agra, where the members of the Moghal Royal family used to offer prayers in the mosques situate within the four walls of their forts. Obviously, it could not have been suggested that simply because those buildings were shaped and domed like mosques and the members of the royal family regularly offered prayers therein, the same had become wakf property so as to entitle the general public to get into such private mosques and offer prayers in congregation as of right. I, therefore, find no justification for interfering with the findings arrived at by the trial court.

14. The appeal has no force and is accordingly dismissed with costs.

15. Appeal dismissed.