JAMIA MASJID MOSQUE Vs. SYED ANWAR BATCHA SAHIB

JUDGEMENT

(1.) THESE are appeals filed by the Jamia Masjid Mosque, Karur, in the one case and by the tenants in the rest. The Mosque represented by its Mutavalli in the suit instituted by it asked for a decree for rents due from the tenant in possession of lands covered by T. D. No. 1555 inam Karur village. The tenant have been separately sued by Kazi Syed Abdullah Batcha for recovery of rent in respect of some of the lands covered by the same title deed. The dispute between the parties, more especially the Mosque on the one side and Kazi Syed Abdullah batcha on the other, was whether the grant covered by title deed No. 1555 was a personal inam burdened with performance of the service of Kazi or was to the office of Kazi attached to the mosque. The first two courts differed in their views on that question, the first appellant court holding in favour of the mosque. Kailasam, J. in second appeal reversed that judgment and restored that of the trial court. We may mention on that throughout the several a suits and appeals have been disposed of by a common judgment. O. S. No. 218 of 1960 had been instituted by Kazi Syed Abdulla Batcha against the wakf Board for a declaration that the inams covered by title deed Nos. 1555 and 1285 did not constitute wakf. It has been held that the properties did constitute wakf and the question does not survive before us and no appeal has been filed arising from O. S. No. 218 of 1960. No question, therefore, arises in these, appeals as to the inam covered by title deed No. 1285. The character of the inam comprised in title deed No. 1555 turns on the construction of the various entries in the relative inam extracts and our view as to their cumulative effect Apart from the inam extract, there is no other evidence. The inam proceedings as an act of state have been given due importance and entries from Inam Extracts in the absence of other evidence have been followed as the basis for determination of the characters of inam. In the context of each entry and of the total effect of all the entries Courts have made observations from time to time, but it seems to us that eventually the decision will depends upon what view a court is inclined to take of the entries read individually and collectively in the given case.

(2.) TITLE deed No. 1555 itself has not been produced before us. But the inam extract relevant to it describes the general class of the inam as Dharmadayam. The subject matter of the grant was garden land classified as dry. The extent of the grant has been given by reference to measurement in terms of acres. The description of the inam in column 8 is that it was a Kazi inam and it was free of tax. In column 10 which relates to hereditary unconditional for life only, or for two or more lives" the entry in "permanent". The inam is noted to have been granted by one Krishnaraja Udayar and the date of the grant as not known. The grant was not testified by any written instrument. The name of the original grantee is mentioned to be not known in column 13. But in column 14, which is "name entered in the register prepared according to Regulation XXXI of 1802 or in the permanent settlement accounts and relationship of persons so entered to original grantee" one Namadullah has been mentioned. There is no evidence as to how this man was related to any of the Kazis. In the 15th column relating to "name entered in the survey or in any subsequent accounts and relationship to predecessor" it is mentioned with reference to Fasli 1233 "mulla Kazi Inam". Columns 16 to 20 relate to particulars regarding present owners and if the inam has been sub-divided the name etc. of each sharer. There is no precise information given under these columns. But in column 16 "name and age" we have the entry 'karur, Kazi Syed Ahmedsha, aged 45' column 18, the entry is "brother's grandson to the register-unmarried daughters--in Fasli 1214-brothers 3, wife 1". In column 19, we have 'wife 1' and in column 20 'do's, wife 1. In our opinion, it is not possible to give any weight or importance to the entries in these columns 16 to 20, for to do so would only be in the region of speculation in the absence of definite evidence with reference to them. But in columns 21 and 22 which relate to the order of the Government and the commissioner's opinion, the entries are "to be confirmed free in one T. D. so long as the Kazi service is rendered" and " confirmed". Under the signature of one acting Special Assistant, there is a statement in the inam extract this will be confirmed as Inam attached to the mosque at Karur. See Number in case No. 1 Lakshminarayanasamudram".

(3.) THE term Dharmadayam invariably has been held to be inconclusive in determining the character of an inam. Nevertheless, in particular context, the expression does throw light, more especially when read conjointly with other relative entries in the Inam extract. Normally when inams are granted they are generally classified as Dharamadayam or Devadayam or Brahmadayam or on similar expressions which indicate whether, it is a grant to an institution or a personal grant. If it were a personal grant, as we are inclined to think, dharmadayam will not be the proper expression. Also it seems to us that if it is a personal grant, it would have been mentioned so in column 8, but instead the expression used in the entry is "kazi inam". If it is a personal grant and it is hereditary under column 10 that word would have been used, but instead the entry is "permanent". It is also significant that the grantee has not been mentioned and in fact the entry shows that it was not known. The inam was confirmed free so long as the kazi service was rendered. This entry would have been different, in our view, if it was a personal grant burdened with service. The entry would have read in that case that the grantee would be entitled to the inam so long as he performed the service. More important than all these entries is the statement which we referred to, to wit. 'this will be confirmed as Inam attached to the mosque at Karur'. Some argument has been directed on whether the word "attached" should be given any meaning. Our attention has been invited to the origin and history of the office of Kazi and it is said that it was more a judicial office and there is no reason why we should regard that the Kazi office was attached to the mosque. It is true that the office of Kazi was largely a judicial one. Mohideen Razvi v. Thakirunnissa Begum, 1960-1 Mad LJ 252 pointed out.