DOST MUHAMMAD KHAN SAHIB Vs. KADAR BATCHA SAHIB

JUDGEMENT

(1.) In this case four plaintiffs Muhammadans brought a suit under Section 92 of the C.P.C. for the removal of the defendant from the management of mosque Pallivasal in Ellaimankoil Street, Tanjore and for consequential reliefs including a scheme for the management of the said mosque. The 1 plaintiff is stated in the plaint to reside at Chunnambukara Street, the 2nd plaintiff at Kollupettai Street; 3 at Attumanthai Street, and the 4 out of Fort, Tanjore.

(2.) The appeal has been argued before us on the point of want of interest of the plaintiffs under the section of the C.P.C. and also with a view to establishing certain charges set out in plaint para. 8(f)(g)(i) and (l) in order to prove certain mismanagement in respect of the temple accounts and property. The learned Judge has dismissed the suit on all points and I shall proceed to deal with the first point, that of interest as, in my opinion, the appeal can be disposed of on that ground.

(3.) The defendant in his written statement alleges that the plaintiffs are not residents of the locality, nor do they live close to the plaint mosque. They have never worshipped in the mosque nor have "they any right to do so. By a stone inscription, Ex. 13 appearing in the mosque, it would seem that Bapu Vaidyar erected the mosque about the year 1847 or 1848. Exhibit A is a settlement deed of 1879 by one Amir Khan Sahib, grandson of the founder in which he settles Rs. 4,000 worth of property for the benefit of the charity established by his ancestors in the mosque in Elliammankoil Street, Tanjore, and appoints his foster son who is the defendant to enjoy the trust property and apply the income to it. On the evidence the learned Judge has found that the 1 plaintiff who is the duffadar of the District Court of Tanjore lives far away from the plaint mosque there being three other mosques nearer to his house and that his opportunities for attending the plaint mosque are limited to the occasions when he happens to visit his second wife when she is living in her mother's house. The 2nd plaintiff says that he attended the mosque when he went to his brother's house for meals. As there is ill-feeling between the two, it is improbable that he would go to his brother's house for this purpose. He admits that he had not been to the mosque in the month of Ramzan for the past seven or eight years, or on the 12 day of the Barabafat month all of which are festive occasions among Muhammadans. The 3rd plaintiff is a native of some village in Pudukottah and admittedly he went for prayers to one or other of the two mosques which are near his shop and would appear to have no occasion to go to this mosque in the Elliammankoil Street. Fourth plaintiff lives in the same street as the 3rd. He admits that he had been employed in different places in different capacities for the last 10 or 15 years and, consequently he would have had no opportunity of going to this mosque for prayers. There are farther other mosques near his house, three within half a furlong and one within a furlong. He says he used to go to Elliamman Street to collect moneys for his employer. He, however, admits that he has not for the last 2 1/2 years gone to that street for this purpose. It is, therefore, found by the learned Judge and in fact admitted by the learned Vakil for the appellants that none of these plaintiffs can be said to be. habitual worshippers of the plaint mosque. Mr. P.R. Ganapathi Iyer for the appellants contends first that every Muhammadan is entitled as such to attend any mosque for wordship and this may be at once admitted to be correct. He relies not only on this but also on the fact that the plaintiffs are residents of the locality and his contention is that these two points, i. e., right to worship and residence in the locality taken together would afford the interest acquired under Section 92. The test to be applied has been authoritatively laid down as far as we are concerned by the-judgment in Ramachandra Iyer V/s. Parameswaran Munbi 50 Ind. Cas 633 : 42 M. 360 : 36 M.L.J. 396 : 25 M.L.T. 304 : 9 L.W. 492 : (1919) M.W.N. 370. That was a well- known case in which Mr. T.R. Ramachandra Iyer claimed interest as a member of the Hindu community and, thereby alleged title to institute a suit in respect of a temple in Tellichery. In the full and instructive judgment delivered in that case by Wallis, C.J., the history of the provision of law is traced and the learned Chief Justice came to the. conclusion that in order to entitle a plaintiff to sue under the section "he must have a clear interest in the particular trust over and above that which millions of his countrymen may be said to have by virtue of their religion." The learned Chief Justice after referring to the amendment of the section which originally contained the words " direct interest" was of opinion that even after the amendment the words "interest in trust" must still, in Lord Eldon's words, be a clear interest that is to say, a present and substantial, and not a remote and fictitious or purely illusory interest and further " that interest if the provision is not to be altogether illusory, must arise from some special relation in which the plaintiff stands to the endowment in question as compared with the whole body of religious community throughout India." On a difference of opinion between the learned Chief Justice and Kumara-swami Sastri, J., who took the view that the right of worship in a particular temple is sufficient interest under the section, the case was referred to three learned Judges of this Court one of whom was Abdul Rahim, J. Had this learned Judge said in his judgment anything particularly applicable to mosques as distinguished from temples, it would in my view have earned great weight. He agreed with Kumaraswami Sastri, J., and held with him that the section gave the right to institute actions to secure proper administration of temples and mosques to all persons who have a right of attendance and worship at these religious foundations. The majority of the Court, however, Oldfield and Coutts Trotter, JJ., held otherwise and agreed with the judgment of the Chief Justice. Oldfield, J., in the course of his judgment said: " Proof of residence in the neighbourhood of the institution will no doubt be one way of establishing possession of an interest, not by any analogy with the rights of parishioners in England, but on the simpler ground that those who live near to the institution will be most likely to take advantage of its benefits.? It would, therefore, seem that the test of locality is only to be applied in relation to actual user of the temple or mosque by the inhabitants residing close to it. Coutts Trotter, J., was distinctly of opinion that the right to worship in a temple was not equivalent to interest and refused to import the definition in Section 15 of the Religious Endowments Act (As Wallis, C.J., had refused to do before) in order to interpret the meaning of Section 92, C.P.C. "The learned Judge continued. "In so far as the decided cases suggest a limitation, the limitation suggested is that of living in the neighbourhood of the institution in question and habitually resorting thereto for purposes of worship." On that, one can be asked "what is your definition of neighbourhood?" "What is your definition of habitual resorting?" The learned Judge confessed that no universally applicable formula in answer to these questions could be discovered. All that can be done is to say that the interest required by the Statute must be clear, present and substantial and not a remote and fictitious or purely illusory interest or an existing interest and not a mere contingency. Beyond that the learned Judge was of opinion that the question was a pure question of fact, and must be left, to the Court to decide on a consideration of the particular circumstances of each case. The latest case in the Privy Council Vaidyanatha Ayyar V/s. Swaminatha Ayyar 82 Ind. Cas. 804 : 47 M. 884; 47 M.L.J. 361 : 35 M.L.T. 189 : A.I.R. 1924 (P.C.) 221 : (1924) M.W.N 749; 10 O. & A.L.R. 1076 : 26 Bom. L.R. 1121 : 20 L.W. 803 : 22 A.L.J. 983 : 40 C.L.J. 454; 29 C.W.N. 154 : 51 I.A. 282 : 26 P.L.R. 1 : L.R. 6 A. (P.C.) 17 : 1 O.W.N. 617 (P.C.) does not touch the present matter. It seems to me unnecessary in the light of the judgment of the majority of Judges in Ramachandra Iyer V/s. Paramesivaran Munbi 50 Ind. Cas 633 : 42 M. 360 : 36 M.L.J. 396 : 25 M.L.T. 304 : 9 L.W. 492 : (1919) M.W.N. 370 to examine the earlier cases on the subject and applying that case to the facts of this case as previously set out, it appears to me that it cannot be said that the plaintiffs had anything but an illusory or fictitious interest in this mosque. They either did not worship there at all or worshipped on such rare occasions and such long intervals that they cannot be said to have a real or clear interest as required by the decision. It appears to me perfectly dear that Mr. P.R. Ganapathi Iyer's suggestion is that the. residents of the same town have the requisite interest even if they do not worship at the particular temple or mosque in question. It is, however, clear on the decision in Ramachandra Iyer v. Paramesivaran Munbi 50 Ind. Cas 633 : 42 M. 360 : 36 M.L.J. 396 : 25 M.L.T. 304; 9 L. W. 492 : (1919) M.W.N. 370 that so long as they have the right to do so, they must be shown to have some interest over and above the rest of the residents of the locality of their own community who are entitled 28 members of that community to take part in the worship conducted in the institution. This the plaintiffs are not shown to possess. We are referred to one decision in Garuda Sanyasayya V/s. Nerella Muthemma 48 Ind. Cas. 740 : 9 L.W. 1 : 35 M.L.J. 661 : 25 M.L.T. 86 where the point arose but is dismissed in three lines of the judgment. It was a case of choultry and the learned Judges held that as the plaintiffs were residents in the locality in which the choultry was situated and were members of the community for whose benefit the charity was founded, it was sufficient to give them interest to institute a suit for its management. Wallis, C.J., was one of the Judges who decided that case which was prior to thi3 decision in Ramachandra Iyer V/s. Parameswaran Munbi 50 Ind. Cas 633 : 42 M. 360 : 36 M.L.J. 396 : 25 M.L.T. 304 : 9 L. W. 492; (1919) M.W.N. 370. In my opinion, therefore, the learned Judge in this case was right in dismissing the suit on the point of want of interest in the plaintiffs.