Jawaharbeg Umraobeg Musahnan v. Abdul Aziz Bhondumiya Musalman

1. This appeal is by the plaintiffs against the dismissal of their suit brought under Section 92 of the CPC.

2. Facts relevant for purposes of this appeal are as follows: The plaintiffs' case is that they are members of the Muslim congregation of the mosque known as the “Masanganj Mosque” situated in circle No. 12/18, Nagpur. The origin of the wakf of the mosque and land surrounding it is lost in antiquity, but it is reputed that one Hakimabi alias Sakinabi daughter of Kolekhan or Kolekhan himself had constructed the mosque and made a permanent dedication thereof and the land surrounding it for religious and charitable purposes. Kolekhan was buried on the southern side of the mosque and his grave shown by letters TUVW on the plaint map still exists. The open land surrounding the mosque has always been in possession of the mosque and was treated by all concerned as property attached to the mosque from time immemorial. The defendants Nos. 1 and 2 were managing the property in their capacity as mutawallis or trustees.

3. In or about the year 1927, defendant No. I Bhondumiya took on permanent lease plot No. 146 from the nazul in his capacity as mutawalli of the mosque. Thus, according to the plaintiffs, the entire land shown by letters ABCDEFGHIJKLMNOP in the plaint map is wakf property and managed by the defendants in their capacity as mutawallis or trustees. The open land surrounding the mosque was leased to tenants and the income derived therefrom was Rs. 8/12/- per month.

4. According to the plaintiffs, the defendants are laying adverse claim to the property of the mosque; they have removed certain immovable property of the mosque and are not keeping the mosque in good repairs. In fact, they have closed the mosque and are not allowing members of the Muslim community to enter the mosque. The movable property belonging to the mosque is shown in schedule B attached to the plaint. The defendants have thus committed a breach of trust.

5. The plaintiffs, therefore, obtained the requisite sanction under Section 92 of the CPC of the Advocate-General, Madhya Pradesh, and filed this suit praying for the removal of the defendants from the office of mutawalli, appointment of a new mutawalli, vesting of the properties of the mosque in the new mutawalli, taking accounts from the defendants and settling a scheme for the constitutional management of the trust property.

6. The defendants in their written statement denied the capacity of the plaintiffs to represent the Muslim congregation of the locality. According to them, the suit has been filed out of enmity to harass the defendants. The defendants deny that there was a wakf created in respect of the mosque. According to them, the mosque was constructed by one Sabumiyan who himself looked after the management thereof till his death in about the year 1904.

7. Sometime before his death Sabumiyan had asked the defendant No. 1 to manage the mosque and therefore he was doing so. As for the land surrounding the mosque, to the West and to the South, shown in yellow and green colours in the defendants' map, the defendants' case is that it is their own property and they have been in possession and enjoyment thereof as owners since the year 1903.

8. That property was at no time dedicated to any religious or charitable purpose either by Smt. Hakimabi or Kolekhan or anyone else. It does not form part of the wakf property. According to the defendants, that property along with nazul plot No. 146 belonged to one Nawabkhan. Formerly, there was a house thereon.

9. The land in suit, the house and some other property were mortgaged with a condition of foreclosure by Nawabkhan with Shri Gopalrao Ghatate in or about 1882. Shri Gopalrao Ghatate obtained a preliminary decree in the year 1902 against the legal representatives of Nawabkhan, and foreclosed the property in the year 1903. By that time, the house had become dilapidated; it was rumoured that it was haunted by ghosts; therefore it was sold by private auction by Shri Gopalrao Ghatate, and the defendant No. 1 purchased it in the name of one Kadarkhan on or about the 17-10-1903.

10. The money for the purchase was supplied by defendant No. 1. Defendant No. 1 was a well-to-do man. Kadarkhan was his servant at the time. With a view to avoid any competition, Kadarkhan was deputed to bid at the auction. Since the date of the purchase, defendant No. 1 has been in continuous, open and undisturbed possession of the land in his own right.

11. The structure was dismantled within two years of the purchase and the open land was let out to tenants. Kadarkhan died in the year 1930. His legal representatives laid claim to it. They filed an application under Section 145 of the Cr PC which was decided against them. No civil suit was filed by them thereafter to establish their right to the property.

12. So far as the open land to the west of the mosque YAXLAAZ and the land to the south KHIJ shown in yellow colour in the defendants' map is concerned, the defendants stated that though it is their private land, they had permitted it to be used for purposes of the mosque. Its use was permissive and the land is not the property of the mosque.

13. As regards nazul plot No. 146, the defendants' case is that it was the property of the defendants. But, however, Government declared it as nazul. The defendants had decided to dedicate it to the mosque as it was being used as a passage to the mosque by the people coming from the Mehdibagh road on the eastern side.

14. The defendants purchased it in the name of the mosque in the year 1927. They did not lay any claim to the building of the mosque, land there under and nazul plot No. 146, but they claimed the rest of the property as their own. They denied that they had committed any act of misconduct or any breach of trust.

15. The trial Court found that the plaintiffs represent the Muslim community of the locality, the open land was not the property of the mosque or wakf property, the defendants were in possession of that property as mutawallis of the mosque, the open land shown in green and yellow colours on the: defendants' map is the private property of the defendants who had purchased it from Gopalrao Ghatate;, the defendants had not committed any breach of trust or committed any act of mal-administration of the property of the mosque. On these findings the trial Court dismissed the plaintiffs' suit. Hence this, appeal.

16. The learned counsel for the appellants urges, that the trial Court was in error in holding that the property shown in green and yellow colours in the defendants' map was not the property of the mosque or wakf property, or that the defendants have not committed breach of trust.

17. Defendant No. 1 died during the pendency of this appeal. Defendant No. 2 is his son; lie is respondent No. 2. The appeal proceeds against defendant No. 2 alone. The question of removal of defendant No. 1 from mutawalliship or trusteeship does not arise.

18. The questions that arise for consideration are:

(1) Whether the defendants Nos. 1 and 2 were mutawallis or trustees of the mosque?

(2) Is the property shown in green and yellow colours in the defendants' map or any portion thereof property of the mosque or wakf property?

(3) Have the defendants committed any act amounting to a breach of trust or mal-administration?

(4) Is any action necessary in the interest or proper management of the mosque and its properties?

19. So far as the arguments advanced by the learned counsel for the appellants are concerned, they were chiefly directed to the alleged admissions of the defendants to the effect that the property in question was the property of the mosque.

20. Section 17 of the Evidence Act, provides that an admission made by a party is a relevant fact. Section 31 of the Act provides that admission is not a conclusive proof of the matters admitted but it may operate as estoppel if other requirements in that connection are duly fulfilled.

21. In considering the significance of an admission? their Lordships of the Judicial Committee of the Privy Council in — ‘Chandra Kunwar v. Chaudhri Narpat Singh’, 29 All 184 (A) observed:

“The learned Chief Justice in his judgment points out that the burden of proving that the adoption relied upon took place, rests on the defendant. That is undoubtedly so, but it is difficult to conceive how she could, as against Makund Singh — prima facie at all events — discharge that burden more effectually than by proving his solemn statement under hand and seal that it did take place. The proof of this admission shifts the burden, because, as against the party making it, as Baron Parke says in — ‘Slatterje v. Pooley’, (1840) 6 M & W 664 (669) (B):

‘What a party himself admits to be true may reasonably be presumed to be so.’

No doubt, in a case such as this, where the defendant is not a party to the deeds and there is therefore no estoppel, the party making the admission may give evidence to rebut this presumption, but unless and until that is satisfactorily done, the fact admitted must be taken to be established.”

22. The rule deducible from these observations is that when an admission of a party is satisfactorily proved, it can reasonably be presumed to be true, unless that presumption is satisfactorily rebutted by other evidence.

23. So far as the main aspect of this case is concerned, the law is well established. Unless and until it is established by the plaintiffs that there has been a dedication of the property in suit for a religious or charitable purpose by any person, no trust or wakf can come into existence.

24. In the present case, admittedly, there is no deed creating a trust or wakf. The dedication, according to the allegations in the plaint, is lost in antiquity; so there is no direct oral evidence also of the dedication. In such circumstances, it will have to be seen whether the facts established in this case are sufficient to raise an inference that the property in question was dedicated for a religious or charitable purpose.

25. In this connection the rule laid down by their Lordships of the Judicial Committee of the Privy Council in a case reported in — ‘Mazhar Husain v. Adiya Saran’, 1948 PC 42 (AIR V 35) (C) is as follows:

“Where there is no evidence that a person ever executed a wakfnama and no direct evidence of any oral dedication by him, but if the proper inference from the history of the matter, the dealings with the properties in dispute, the litigation that has affected it and the admissions and assertions made by the predecessors in title of the persons who dispute the wakf is that such person purchased the properties on the expressed footing that they were to be an endowment of an existing wakf all the requirements of Shia law necessary to the valid creation of a wakf attaching to the properties are satisfied.”

26. It is in the light of this rule that the facts in the present case will have to be scrutinized.

27. (As regards this first question, their Lordships held on consideration of the evidence that defendant No. 1 was the appointed mutawalli of the mosque and the property dedicated to it, but the defendant No. 2 was in fact looking after the property of the mosque as a trustee. Their Lordships proceeded:)

28. As regards question (2): In our opinion, it would be convenient to divide the land in three groups: (1) land lying to the west of the mosque shown by letters YAXN in the defendants' map. Out of this land, YAXLAAZ is shown in yellow colour as open land while that shown in green colour by letters LAAZN is shown as house, tenant Janki; (2) land shown by letters KHIJ to the south of the mosque adjoining thereto; it is shown as house which is admitted by the defendant in his evidence to be known as ‘hujra’ occupied by the care-taker of the mosque; and (3) the rest of the land shown in green to the south of the mosque.

29. (Their Lordships held on consideration of the evidence that the lands in groups (1) and (2) were the properties of the mosque but the land in group belonged to the defendants. Their Lordships then proceeded:)

30. It has been strenuously contended on behalf of the appellants that even if it is assumed that the properties belong to the respondents, it has become the property of the mosque by user. Reliance is placed on the cases reported in — ‘Azizuddin v. Ramzan Shah’, 1933 Nag 115 (AIR V 20) (D), — ‘Court of Wards v. Ilahi Baksh’, 40 Cal 297 (PC) (E) and — ‘Maher Husein v. Alimahomed’, 1934 Bom 257 (AIR V 21) (F).

31. On the other hand, it is contended on behalf of the respondents that the user, if any, in this case is not sufficient to establish a dedication of the property to the mosque by the respondents. Reliance is placed on — ‘Kishan Kishore v. Din Muhammad’, 1929 Lah 684 (AIR V 16) (G) and — ‘Zafar Hussain v. Md. Ghias-ud-din’, 1937 Lah 552 (AIR V 24) (H).

32. In our opinion, the contention of the learned counsel for the appellants has not much force. True, creation of a wakf can be established by user, but the user must be of such an unequivocal nature which can only lead to an inference of dedication of the property to the wakf.

33. What is required to be established is the intention on the part of the owner to dedicate a particular property to religious or charitable purposes, or, in other words, the intention of the owner to create a wakf of the property. Such intention may be established by a declaration or may be inferred from user. See ‘Kishan Kishore v. Din Mohammad (G)’, ‘Zafar Hussain v. Md. Ghdas-ud-din (H)’ and ‘Mazhar Husain v. Adiyasaran’ (C) (supra).

34. In paragraph 2 of the plaint in this case, it is alleged that the property was dedicated by either Kolekhan or his daughter Hakimabi, and in the same paragraph it is also alleged that the property is by user a wakf from time immemorial. Thus the plaintiffs' case is that by immemorial user it should be inferred that the property had been dedicated to the wakf eidier by Kolekhan or his daughter Hakimabi.

35. It was never the case of the plaintiffs that from user it should be inferred that the property had been dedicated to the wakf by the respondents. The contention raised is not founded on a plea. We have already discussed that this item of property was being dealt with as private property.

36. It had, in fact, been mortgaged. A mortgage decree was obtained by Shri Ghatate and thereafter Shri Ghatate had sold it. These facts militate against the inference of dedication to religious or charitable purjtoses.

37. Further, the land in question is not enclosed in a compound along with a mosque. It is an open piece of land adjoining the mosque. The evidence of Sadasheo (P.W 1), Kisan (P.W 2), Maroti (P.W 4), Mirza (P.W 6), Nawaz Ali (P.W 11) and Haji Gulam Rasool (P.W 12) is to the effect that on this open piece of land occasionally people used to gather at the time of religious recitations or public feelings, or when dead bodies were brought to the mosque for prayers before burial or at time on in prayers.

38. On the other hand, there is also evidence to show that certain portions of this land were being let out as private property. It may be that the respondents who were looking after the mosque might have allowed some people to occasionally assemble on the unoccupied portions of this land, but taking the entire evidence as a whole into account, in our opinion, this evidence is not sufficient to lead to an inference of dedication of the property to wakf.

39. The cases cited by the learned counsel for the appellants are distinguishable on facts. In ‘Aziz-uddin v. Ramzan Shah (D)’ (supra) the land in question was used as a burial ground from time immemorial. Similar was the case in ‘Court of Wards v. Ilahi Baksh (E)’ (supra).

40. In ‘Maher Husein v. Alimahomed (F)’ (supra) the land was enclosed into a compound in which there was a font of a saint and a mosque and was being used by the Muslim community from time immemorial. Relying on the aforesaid decision in ‘Court of Wards v. Ilahi Baksh (E)’ (supra), it has been observed:

“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.”

41. As already noticed earlier, long and consistent user for religious or charitable purposes is not established in this case. On the other hand, there is evidence to show that the property has been dealt with as private property.

42. The decision in — ‘Abdul Rahim Khan v. Fakir Mohammad Shah’, 1946 Nag 401 (AIR V 33) (I) cannot also assist the appellants because the musjid which was wakf and the other property were situate in one compound so as to form part of one property and the latter was found to have been utilized for a considerable number of years by the public for public purposes. So the property appurtenant to the musjid was also regarded as wakf.

43. Considering, all the evidence discussed above, in our opinion, the plaintiffs have failed to prove that the land in group No. (3) was at any time dedicated by any person to the mosque. We, therefore, hold that this land is not the property belonging to the mosque.

44. As regards question No. (3): We have already held that the land in groups Nos. (1) and (2) above belongs to the mosque. It has been claimed by the defendants as their private property. We have also held that the defendant No. 1 was a mutawalli and defendant No. 2 was a trustee of the mosque and mosque property respectively.

45. At any rate, the defendant No. 2 has admitted that he managed the mosque and its property. Whether they were duly appointed as mutawalli and trustee or not is not of any importance. Their liability would be the same as that of a duly appointed mutawalli or a trustee: see — ‘Jugalkishoxe v. Lakshmandas’, 23 Bom 659 (J) and — ‘Budree Das Mukim v. Chooni Lal Johurry’, 33 Cal 789 (K).

46. Laying a claim to the wakf property by a mutawalli under a bona fide mistaken belief in itself may be no ground for his removal, but in the instant case the conduct of the respondents in claiming the land comprised in the first and second groups was not bona fide. They full well knew that it was the property of the mosque. They themselves had previously so admitted.

47. Further, there is evidence of Mahomed Ibrahim (P.W 3) to the effect that the property had fallen in disrepair. True, it is not established that there is any substantial income to the mosque, but the evidence is that upto the time of the dispute it was in good repair and that it was only since the dispute arose that it was not kept in good repair. In our opinion, it is necessary, in these circumstances that the defendants should not be kept in charge of the management of the mosque and its property.

48. Defendant No. 1 has died. Defendant No. 2 is in possession of the property and its management. It is necessary to remove him and appoint a new mutawalli in his place in the interest of proper management of the mosque and property thereof.

49. The learned trial Judge did not keep in view the different pieces of evidence in respect: of the lands falling in groups Nos. (1) and (2) and therefore has fallen in an error in holding that the land in these groups did not belong to the mosque. Disagreeing with the trial Judge, we hold that the plaintiffs have succeeded in establishing the right of the mosque in respect of the land comprised in groups Nos. (1) and (2).

50. The decree of the trial Court is, therefore, set aside, and in its place it is declared that the lands to the west of the mosque shown by letters AXL-MNZY and the house shown by letters KHIJ in the defendants' map are the property of the mosque.

51. It is also decreed that defendant No. 2 be removed from the post of trustee of the mosque and its property, and a new mutawalli be appointed in his place. It is further decreed that the plaintiffs' claim in respect of the land shown by letters ONMLKJIHCGFWVUTSRQPO in the defendants' map is hereby dismissed.

52. This case, however, cannot be disposed of finally because it is necessary to consider the question of appointing a new mutawalli and as to whether a scheme for the management of the mosque and its property has to be framed. The case is, therefore, sent back to the trial Court to take further steps with advertence to the aforesaid remarks. In view of the divided success of the parties costs shall be borne by the parties as incurred throughout.

53. Appeal partly allowed.