MUHAMMAD ESUF SAHIB Vs. MOULVI ABDUL SATHAR SAHIB

JUDGEMENT

(1.) The 1st question for consideration in this case is obviously the nature of the original grant which it is common ground was made by the Nawab of the Carnatic in 1798; and 1 have no hesitation in agreeing with my lord the Chief. Justice that it was of the nature of a public trust for the benefit of a mosque founded, endowed and dedicated for public worship. In the absence of the parvana, we have to look to the record in the Inam Register, Ex. A, and to the evidence of user. Both are strongly in plaintiff s favour. I attach no importance to the statement of D. W. 3 that the mosque is not called a Jamma Masjid in the face of the evidence that it has always been used for public worship. Ex. A shows clearly that the inam was a religious endowment for the establishment and up-keep of a mosque and various services therein, and that the persons named in columns 16-20 as " present holders" are so treated as managers of the masjid and not in their individual capacity.

(2.) Indeed the only ground on which the public character of the. trust has been seriously attacked is the fact that it was treated by the British Government as resumable, and that under Mahomedan Law a wakf must be unconditional. No authority has been quoted which as far as I can see, supports the contention that in the case of a grant by the ruling power the condition of power of resumption in case the trust is not carried out, impairs the public character of the trust. We have been referred to a passage at p. 526 of Vol. I of Ameer Ali s Mahomedan Law which says : If a person were to create a wakf and make a condition that the property should return to him in case of necessity, the condition would be valid and the wakf would be void, the transaction taking effect as a mere hubs or settlement; when the need arises the property would revert to the owner." This has reference to a totally different state of things. A contingency of reversion to the owner, in case the latter needs the property, obviously implies, only a temporary settlement, which can be annulled although all its other conditions are rigorously complied with. In Kuttayan v. Mammanna Ravuthan (1911) I.L.R 35 M. 681 the only case to which we were referred as being in appellant s favour, there was no question of resumability, but of the existence of outstanding private rights in the alleged wakf property. In Sikkandur Rowthan v. The Secretary of State for India (1916) 5 L.W. 402 a very similar case to the present, Srinivasa Aiyangar, J., and myself held that land forming the subject of a public trust was resumable by Government on failure to perform the conditions of the trust.

(3.) I would therefore reject this contention and may add that in any case it could not be applied to a grant by the British Government while there is no evidence attaching a specific condition of resumability to the original grant by the Nawab. The earliest evidence is the entry in the Inam Register, Ex. A dated 1861.