KHAJI MUHAMMAD HUSSAIN SAHIB Vs. MASJIDAY MAHMOOD JAMAIT MANAGING COMMITTEE OF PUDUPET, BY ITS SECRETARY SHAHUL HAMID MARAKKAYAR

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the learned City Civil Judge restraining the defendant by a perpetual injunction from interfering with the plaintiff's right of management, control and possession of the mosque, Masjiday Mahmood Jamait, situate in Pudupet, Madras. The facts relating to the suit out of which this appeal arises may be briefly stated. The said mosque was founded aboul-85 years ago. It is the plaintiff's case that it was built out of public subscriptions collected from the residents of Pudupet and was primarily intended for the benefit of the residents of the said locality. The defendant's case is that it was built by one Gulam Mohammad, but there is no reliable evidence in support thereof except some evidence of tradition. But it is immaterial who founded it because the evidence establishes that it was the Mohammadan residents of the locality who were taking interest in the said mosque and contributing to its upkeep. There is no deed of foundation prescribing any rules for the management of the affairs of the mosque or for the appointment of a muthavalli or any servant of the mosque. From a document of 1863 (Ex. VII), it is evident that there was a muthavalli to the mosque and he was one Kasim Ali who was maternal grandfather of the defendant. Kasim Ali appears to have died in 1888. The defendant states that a year before his death the said Kasim Ali executed a will (Ex. I) in favour of the defendant in and by which he appointed the defendant as the muthavalli and on the death of Kasim Ali in pursuance of the will the defendant succeeded to the office of muthavalli and was functioning as such. It appears from the evidence that Kasim Ali was the Pesh Imam of the mosque and on his death the defendant continued to be the Pesh Imam and was doing the duties as such till the date of suit. The genuineness of Ex. I is challenged by the plaintiff. The learned City Civil Judge did not record any finding in regard to it but in a later suit between the parties it was found not to be genuine. It is no doubt a document more than thirty years old, but there are certain improbabilities which cast some doubt on the genuineness of the document. It is stated that the defendant was appointed muthavalli with the consent of Ghulam Mohammad who is alleged to have signed the document. From the stone inscription, a copy of which has been filed as Ex. B in the case, the mosque appears to have been built in 1849, and Ex. I is dated August, 1887. It is very improbable that Ghulam Mohammad was alive on that date and there is no reliable evidence of his, having been alive on that date. The defendant was admittedly a minor of 12 or 13 in 1887 and it is hardly likely that a minor was appointed either as a muthavalli or Pesh Imam and under Mohammadan Law such an appointment would be invalid. Further, if Ghulam Mohammad had been alive, there is no necessity for Kasim Ali to make the appointment and the appointment could have been made by Ghulam Mohammad himself. Some of these improbabilities render it unsafe for any Court to act on it. If this document cannot be relied on, there is nothing to show how the defendant came to be appointed and was functioning as muthavalli and Pesh Imath. The probabilities are that he, being the daughter's son of Kasim Ali, was permitted by the congregation of Pudupet to do the duties of the said offices. There is no denying the fact that, at any rate from 1890 until 1918, for a period of nearly 30 years the defendant was managing the affairs of the mosque and collecting subscriptions and making disbursements thereof and generally attending to the affairs of the mosque. He was also functioning asPesh Imam. In 1918 the then circumstances necessitated a change of management of the mosque and it was thought desirable by the jamait or congregation of Pudupet to have the management put on a sound and legal basis. The main reason which apparently led to it was the trouble they had from the Hindu residents of the locality who wanted to put up a Bajana Mandir near the mosque in respect whereof a litigation was commenced, O.S. No. 484 of 1918 on the file of the High Court, Madras. The plaint in the said suit was filed on the 11 November, 1918. In view of this common danger everybody including the defendant conceived the idea of forming a society and getting it registered under the Societies Registration Act and vesting the management of the mosque in a governing body of the society. Accordingly a society was formed and registered under the name and style of Masjiday Mahmood Jamait Managing Committee with twelve members, the defendant being one of them. It was registered on 2nd December, 1918. The memorandum of association is marked as Ex. A-2 in the case and the rules and bye-laws as Ex. A-3., It is clear from them that one of the main objects of the association was to conduct the affairs of the mosque by collecting subscriptions, pay the salaries of the servants and incur expenses for the upkeep of the mosque and do everything which a manager of a mosque is required to do. From the date of the incorporation down to the date of the suit the said society was in undisputed management of the affairs of the mosque and the defendant ceased to function as muthavalli. It was the society that was collecting subscriptions, paying salaries of the Pesh Imam, Muzzein Sahib and the sweeper and directing the performance of the services in the mosque and paying taxes, effecting repairs and generally doing everything which a manager or a muthavalli of a mosque would do. The defendant was only acting as a Pesh Imam under directions given by the society from time to time and he or his son was for sometime acting as a bill collector. In or about June, 1932, misunderstandings arose between the defendant and the Secretary of the Society, apparently due to the fact that the Shafi element in the Committee became predominant and wanted to control the institution. At the inception of the society and for some time thereafter the Committee members consisted of equal number of representatives from each of the two sects, namely, Hanafi and Shafi. In consequence of the preponderance of the Shafi element in the Committee, there seemed to have been some attempt at innovation in regard to the recitation of prayers which was resented by the Hanafi section to which the defendant belonged. Ultimately the disputes between the Committee members led to-the resignation of the defendant from the membership of the society. He tendered his resignation on the 5 July, 1932 and began to dispute the authority of the Committee and purported to abolish it. It may also be noted that meetings and counter- meetings were held by the two factions in the Committee and one of the factions purported to call a meeting of the Jamait and abolish the Committee - vide Ex. XXXI. In consequence of these disputes the plaintiff had to file this suit because the defendant began to interfere in the management of the affairs of the mosque by asserting his powers as muthavalli. The defendant's case is that it was only with his consent that the society was formed and it could not have been constituted the sole and exclusive manager of the mosque in derogation of his right as muthavalli, that he was the duly constituted muthavalli and continued to be such. The society according to him was not a validly incorporated society and the initial registration thereof under Act XXI of 1860 was illegal and ultra vires; further he says that, as the Committee had been abolished, evdn if he ceased to function as muthavalli during the period the Committee was in management, his powers of muthavalli never, terminated and therefore he could function as such and nobody has any right to interfere with his management. He further submits that the Committee has also become defunct because the original members who formed the society are all dead and they have not been validly replaced. The plaintiff's case is that the society is a duly incorporated body and that the defendant not having exercised the management for a period of six years from 1918 his rights as muthavalli, if any, were lost, that he accepted the subordinate position of a servant under the mosque while continuing to be a member of the Committee and that he is estopped from; questioning the right of the plaintiff to manage the mosque. On the evidence the learned City Civil Judge came to the conclusion that the plaintiff society was properly registered under Act XXI of 1860, that the defendant lost his rights as muthavalli and that the plaintiff would therefore be entitled to the injunction prayed for.

(2.) The main ground on which Mr. Rajah Aiyar the counsel for the defendant-appellant assailed the decision of the learned City Civil Judge is that the plaintiff society is not competent to sue for or claim the relief sought in the plaint. He formulated his contention thus : (1) the society was a religious society and therefore incapable of incorporation under the Societies Registration Act as only charitable societies could be incorporated thereunder; and (2) even if the society was a validly incorporated society it could not acquire by prescription the office of muthavalli, as the right of a muthavalli is a personal right which the muthavalli is incapable of surrendering or relinquishing and the defendant never divested himself of it. In regard to the first contention Mr. Rajah Aiyar submits that both according to the preamble and Section 20 of Act XXI of 1860, it is only a society formed for a charitable purpose that could be validly registered under the Act, that the plaintiff's society was formed for a religious purpose, namely, the management of the affairs of the mosque and that the purpose being solely religious, the society can in no sense be considered to be a society formed for a charitable purpose or a charitable society within the meaning of the Act. He was frank enough to bring to our notice a decision of the Allahabad High Court reported in Anjuman Islamia of Muttra V/s. Nasir-ud-din (1906) I.L.R. 28 All. 384, which is against the view he is contending for. That was a case of a religious society called the Anjuman Islamia of Muttra registered under Act XXI of 1860. It was contended in that case that the registration of the society was not legal because it was a society formed for religious purposes and not for charitable purposes. This contention was negatived and it was held that a society for religious purposes would ordinarily be a society for charitable purposes and the society in question was a society for charitable purposes and therefore the registration of the paid society was legal. Mr. Rajah Aiyar however submitted that that case proceeded upon a view which is not tenable, namely, that the Indian Legislature made no distinction between religious and charitable purposes. In support of his contention that this view is erroneous he referred to a number of statutes framed by the Indian Legislature subsequent to 1860 where the Legislature drew a distinction between charitable and religious purposes in drafting for the purpose of those enactments. The question therefore for our decision is whether the plaintiff society is a charitable society or a society formed for charitable purposes within the meaning of Act XXI of 1860. We are not sure that the Legislature in using the word charitable in the Act meant to draw a distinction between a charitable purpose and society and a religious purpose and society. The Act was passed in 1860 when according to English Law a gift for the advancement of religion or promotion of public worship or providing or maintaining a place of public worship would be a charitable purpose and a society formed for such a purpose would be a charitable society. According to that law therefore a religious society would be a charitable society, the only condition required was that it should be for the benefit of the public. Most of the enactments relating to that period were framed by4 English lawyers well conversant with English law. The Indian enactments which related to the charitable and religious endowments before 1860 were the Bengal, Bombay and Madras Regulations, the Madras Regulation being Regulation VII of 1817. In the heading of the Madras Regulation, the language used is "for the support of the mosques, Hindu temples and colleges or other public purposes" and in the preamble "for the support of mosques, Hindu temples, colleges and choultries, and for other, pious and beneficial purposes." It will be seen from the context that the words public and pious were meant to connote both religious and charitable institutions. In.1817 according to the law of England public purposes connoted charitable purposes including religious purposes and the word pious was not confined purely to religious purposes because religious purposes were one class of charitable purposes. Vide Commissioners for Special Purposes of Income-tax V/s. Pemsel (1891) A.C. 531 at 558, 559. No doubt in statutes enacted subsequent to Act XXI of 1860 the legislature used both the words charitable and religious but the definition of those words was expressly stated to be for the purpose of those Acts. The Subsequent legislation could hardly therefore be a guide for the interpretation of the term charitable in Act XXI of 1860. The question is, what did the term mean in 1860? We however think it unnecessary to go into the question whether an exclusively religious purpose is a charitable purpose and whether a society formed for such a purpose would be a charitable society within the meaning of the Act because in our opinion where a society is formed for certain purposes whose paramount object is charitable, the fact that some of the purposes may not be strictly charitable but religious would not render the society any the less a charitable society, if the purpose was one intended to benefit the public or a considerable portion of the public. In the present case the objects of the society are outlined in paragraphs 2 and 3 of Ex. A-2 thus: Towards the expenses for conducting all the affairs of the said Masjiday, the jamaitdars capable of giving subscriptions for ever, must pay subscriptions for the maintenance of Masjiday. From the amount of the subscriptions received from the jamaitdars the expenses mentioned in columns 1 and 2 should be met with, and the remaining balance, amount should be utilised for the propaganda of Islamic education, for rendering possible pecuniary help to the poor, mussafars and worthy Alims and Ulemas, for removing their difficulties, for other necessary and proper charities, settled then and there by Hanafi and Shafi and for conducting all affairs and for purchasing immovable properties for the perpetual maintenance of the said Masjiday.

(3.) It cannot be denied that the improvement of Islamic education and rendering pecuniary help to the poor mussaffars, etc., are charitable purposes. The fact, that one of the objects of the society was also to conduct the affairs of the mosque which does not involve the performance of any religious service by the members of the society cannot render the society, a society formed for religious purposes. The society concerns itself only with the management of the secular affairs of the institution. So far's religious services are concerned which only consist in the recitation of prayers in the mosque, they are done through the Pesh Inam who is paid a salary. What the society does is what exactly a muthavalli could have done and a muthavalli is only concerned, with the management of the secular affairs of the mosque. The society itself does not concern itself with the performance of prayers. There can therefore be no doubt that the paramount object of the society is charitable and therefore the fact that one of the purposes is the management of the affairs of the mosque cannot take away from it the character of the society as a charitable society., We are therefore of the opinion that the plaintiff's society is a charitable society within the meaning of the Act and the registration thereunder is perfectly legal and valid.