P VENKATASUBBIAH CHETTY Vs. JUMMA MOSQUE, BY ITS MUTTAVALLI CKHADAR MOHIDEEN SAHIB AND HABDUL AZIZ SAHIB

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent. The suit out of which it arises was filed in the City Civil Court by the trustees of the Jumma Masjid in Cutchery Road, Mylapore, Madras for the redemption of four mortgages. The mortgaged properties consisted of two blocks. The first block was mortgaged by a deed executed on the 14 February, 1873. A part of the second block was mortgaged on the 9 February, 1850, another part on the 28 January, 1860, and the remainder of the block on the 19 December, 1864, The City Civil Court Judge held that the trustees had not proved that the properties belonged to the mosque. He also held that the suit was barred by the law of limitation in so far as it concerned the mortgage of the properties in the first block. The result was that the suit was dismissed with costs. The trustees appealed to this Court and their appeal was heard by Patanjali Sastri, J., who disagreed with the trial Court on the question of ownership and held that the trustees were entitled to redeem the properties comprised in the second block. With regard to the mortgage of the first block the learned Judge agreed with the trial Court that the law of limitation barred the trustees claim. The first, second, third and fourth defendants, who are the successors in interest of the mortgagee of the properties comprised in the second block, have appealed against the finding of the learned Judge that the trustees are entitled to redeem. The trustees have filed cross-objections, challenging the decision of the learned Judge that the law of limitation has destroyed their right to redeem the mortgage of the first block.

(2.) All the mortgages were created by one Ghulam Hyder, who was the superintendent of the mosque at that time. In mortgaging the properties he held himself out to be the owner. In 1874 a suit was filed in this Court by one Hafiz Sadrool Islaam Khan on behalf of himself and other members of the Muhammadan community of Mylapore against Ghulam Hyder for a decree-removing him from the office of superintendent. It was alleged that he had wrongfully alienated properties belonging to the trust. This suit was compromised and the decree which was passed in accordance with the terms of the compromise declared that certain properties belonged to the mosque. The area of these properties was defined and it is admitted that within the area fall the properties now in suit. Another suit was filed in this Court in the year 1892, which also ended in a compromise and a further declaration that the properties with which the suit is concerned belonged to the mosque, but Ghulam Hyder was not a party to the second suit. His son was a party, but the suit as against him was withdrawn.

(3.) The question which the Court is called upon to decide with regard to the properties in the second block is whether there is evidence that the properties belong to the mosque, that is evidence which is admissible in a Court of law and sufficient for proof. Before the respondents can be allowed to redeem the mortgages they must, of course, show title. Owing to the lapse of time the respondents are not in a position to trace the history of the properties and they are driven to relying on the compromise and the decree which followed it in the suit filed in 1874. Patanjali Sastri, J., held that the decree passed in that suit was in itself sufficient for the respondents purpose. He relied on the decision of this Court in The Secretary of State for India in Council V/s. Syed Ahmad Badsha . The appellants contend that the decree is not sufficient for the purpose of proving the respondents title. They maintain that no admission made by the mortgagor after the mortgages had been created can bind them.