MUHAMMAD YUSUF Vs. MUHAMMAD SHAFI

JUDGEMENT

(1.) This appeal arises out of a suit under Section 92, Civil P.C, which was instituted by four Mahomedans, of whom two are Sunnis and two are Shias. It was alleged in the plaint that about a hundred years ago, one Allah Rakhu built an Imambara and made a public wakf of it and that the said Imambara has ever since that time been used by the Musalman public for religious purposes. It is stated in the plaint that Allah Rakhu appointed one Mohammad Ibrahim as the first mutwalli and that he subsequently appointed a man named Ghulam Husain. After the death of the founder, his daughter's son, by name, Abdul Rahim, appointed one Ahmad Ali as mutwalli by means of a document dated 10 June 1911, and on the death of Ahmad Ali he appointed the latter's brother Abdul Hamid and defendants 1 to 3, as mutwallis by means of a document dated 14 November 1913. Abdul Hamid died soon afterwards, but defendants 1-3 have continued upto this day to act as mutwallis of the dedicated property. It is alleged in the plaint that defendants 1 to 3 have allowed the wooden structure of a tazia, which was placed in the Imambara by the founder thereof, to fall into decay, that they have allowed the Imambara building to fall into disrepair; that they have removed and misappropriated the pewter cover of the tazia; that they pay no attention to the performance of the religious and charitable objects for which the trust was founded; that they do not allow members of the Musalman public to take out the Ashra procession on the 10 day of Moharrum, that they prevent the public from arranging forthe installation of sabils, distribution of alms and other ceremonies such as majlis, recitation from the Holy Koran, etc., and that they have discontinued the annual procession which used to go from the Imambara to Lallapur. The plaintiffs therefore prayed that the defendants be removed from the possession and management of the wakf property and that one or more new mutwallis be appointed and that a scheme be prepared by the Court for the proper management of the property.

(2.) Defendants 1 and 2, are the sons of Ahmad Ali and defendant 3 is his nephew. Defendant 4 is a son of Ghulam Husain and defendants 5 to 7 are descendants of Allah Rakhu, the founder of the Imambara. The defence is that Allah Rakhu who admittedly founded the Imambara in dispute treated it as his own property and never divested himself of his proprietary rights therein. On his death the property went to his daughter's son Shah Mohammad and after the latter's death it went to defendants 5 to 7 as well as other descendants of Allah Rakhu. Allah Rakhu used to invite friends and relatives for religious functions in the Imambara and in the time of Shah Mohammad, his friend Ghulam Husain used to assist him at such functions. After the death of Ghulam Huaain, the latter's son Ali Akbar set up a title to the Imambara and accordingly Shah Mohammad's son Abdul Rahim thereupon executed a document whereby the entrusted Ahmad Ali with the supervision and management of the ceremonies of the Imambara. On Ahmad Ali's death Abdul Rahim executed a similar document in favour of defendants 1 to 3. The defendants deny that any wakf was created at all; but they plead that if there was a wakf, it was of a private nature. They also set up a plea that the shia plaintiffs had no interest in the property within the meaning of Section 92, Civil P.C. and that therefore they had no right of suit.

(3.) The lower Court has found that the Shia plaintiffs have no right of suit and has found that no public wakf was created such as is contemplated by Section 92, Civil P.C. The point for determination in this appeal is whether or not Allah Rakhu created a trust for public purposes of a charitable or a religious nature within the meaning of Section 92, Civil P.C. One of the plaintiffs has given evidence and they have examined five other witnesses : Mohammad Sulaiman, Abdul Ghaffar, Mohammad Zahur, Mohammad Ibrahim and Abdul Karim. These witnesses state that the Imambara is a public wakf and that it is used by the public for religious purposes at the time of Moharrum and on other occasions. Their statement as regards the origin of the alleged wakf is based on evidence which has not been shown to be admissible and their evidence as regards the use which is made of the Imambara by members of the Mahomedan public is not inconsistent with the case of the defendants. Not a single member of the public has been produced who is able to say that he himself has ever placed a tazia in the Imambara or has ever held a majlis there or has ever attended the Imambara in any capacity otherwise than with the permission of the defendants. We have been referred to certain documents in support of the allegation that the Imambara is a public trust.