LAXMI NARAIN GODADIA Vs. MOHDSHAFI BARI

JUDGEMENT

(1.) This is a defendant's appeal from a decree of a Subordinate Judge first class, Delhi. Two declarations were claimed by the plaintiffs: (i) that the decrees in the previous two suits to which Seth Lakshmi Narain Godadia was a party were invalid, null and void because of gross negligence, fraud and collusion of the respective plaintiffs in those cases, and (ii) that the suit property, which consisted of a pushta (buttress) a drain and a godown, alleged to be the property of the Fatehpuri Mosque was wakf for the Muslims in general and was attached to and owned by the said Mosque. In order to be able to understand the facts and to appreciate the position of the plaintiffs, it is necessary to give a brief history of the Mosque, Serai Bangash, which adjoins the Mosque and belongs to Seth Lakshmi Narain Gadodia, as well as the litigation that ensued in respect of some of the property in dispute in 1935 and subsequent years.

(2.) The Mosque, which is one of the well-known mosques of Delhi City, takes its name after its founder, namely Malika Fatehpuri Mahal Begum, and was constructed during the reign of Emperor Shahjahan about 1650 A.D. The Serai was built daring the reign of Shah Alam by a dignitary of his Court called Sardar Faizullah Khan Bangash and was named Serai Bangash after him. It adjoins the Mosque in the western side. It appears that during the Mutiny of 1857 both the Mosque and the Serai were used by the mutineers and for this reason after the Mutiny had been quelled the British Government confiscated them.

(3.) In 1877, when Queen Victoria assumed the reins of the Government of India and had herself proclaimed as the Empress of India, the Government released the Mosque proper and made over its management to a Committee. There were a number of shops that were attached to the mosque. These were at first auctioned by the Government but later on they were repurchased and restored to the Mosque Committee. On 15 November 1903 the Committee was properly registered as a society. The Memorandum of the society has been properly proved and exhibited. It is Ex. D. 9 and will be found printed at page 1 of the paper book dated 16 March 1945, which for facility of reference would be described as volume III. (volume I comprises the pleadings and the evidence and volume II the documents proved by the parties. The other two paper books printed respectively on 2i April, 1945 and 14 May 1946 will be described as volumes IV and V). According to Clause (n) of the Memorandum of Association of the Mosque Committee, which was called the Managing Committee of the Patehpuri Mosque, Delhi, the objects of the society were inter alia, (1) to safeguard the interests of the Fatehpuri mosque and its dependencies and (2) to maintain the Mosque and its dependencies in decent condition. Originally the committee consisted of nine persons whose names are mentioned in para. 8 of Clause (n) of the memorandum. Of these only Haji Mohammad Ishaq, who appears at No. 8, is now alive. He figures as defendant 9 in the present case. The rest are dead. The society continued to function till 1948, when the Delhi Muslim Wakfs Act, 13 of 1943, came into force. It is common ground between the parties that the Act applies among others to the Patehpuri Mosque and according to Section 25 the superintendence and control thereof vests in the Sunni Majlis-e-Awkaf constituted under Section 5.