Decided on March 10,1953

SARDAR KHAN Respondents


Mohapatra, J. - (1.) This is a defendants' First Appeal against the judgment dated 10-12-1947, of Sri C. C. Coari, District Judge, of Cuttack in a suit brought under Section 92, Civil P.C., by 3 Mahommedans representing the public for the reliefs of removing the defendants from the mutwalliship of the endowment alleged to be a public endowment and of settling a scheme for the management of the affairs of the alleged endowment. Defendants 2 and 3 are minors represented by their father defendant 1. The grounds for removal of the defendants from the mutwalliship and for settlement of a scheme are that the defendants have committed several acts of maladministration and mismanagement of the affairs of the mosque and the properties attached to it with an area of 10.25 acres of land which were also endowed to the mosque.
(2.) The defence, in short, is that the ancestors of the defendants had constructed the mosque and another nearer ancestor of the defendants also made an endowment of the aforesaid 10.25 acres of land to the mosque; the mosque being a private endowment, the suit, as such, is not maintainable; and that they are not liable to be removed nor are they liable to render accounts.
(3.) Ex. A is a wakfnama executed by Rahemudad, Khan, ancestor of defendants, on 28-10-1891 in respect of the aforesaid 10.25 acres of land in favour of the mosque. Relying upon the recitals in Ex.. A, the learned Court below has found that it is Dost Muhammad, an ancestor of the defendants,, who was the founder of the mosque, and that Rahemudad Khan, another nearer ancestor of the defendants, also had endowed this 10.25 acres of land to the mosque. The learned Court below has rightly concentrated his attention at the first instance on the question whether the mosque itself is a public institution or merely a private mosque constructed by the forefathers of the defendants. In addition to his reliance upon the evidence adduced on behalf of the plaintiffs, the learned Court below was much impressed with the evidence adduced on behalf of the defendants to the effect that previously the villagers of 5 adjoining villages used to collect to say their prayers in this mosque; and some years ago the villagers of 2 villages had constructed their own mosque and the villagers of another village are now constructing a mosque; & on ceremonial occasions Mahommedan public of 2 or 3 villages assembled in this mosque to say their prayers. It has to be observed also that the mosque is not constructed in the founder's house. Another important piece of evidence in this connexion is Ex. 4 of the year 1925, which is a registered deed of ekararnama executed by Mahamamd Ali Khan, husband of Majidunnisa in favour of Mahommedan public at large. We get it from the recitals of this document that the mosque till then was located in a Kutcha house, and the executant being unable to bear the expenses of reconstructing the mosque into a Pucca one allowed the Mahommedan public at large to rebuild the mosque at their own expenses and agreed in the document itself that the public at large would be entitled to manage the affairs of the mosque. The evidence also is very clear that it is the Mahommedan public at large who made the mosque Pueca at their expenses' by raising subscriptions from the public. The books of account (Exs. 5 and 6) have been tendered in evidence to clarify how the subscriptions were collected and how the expenses were met for reconstructing the mosque. Prom this convincing piece of evidence the learned Court below was right in coming to the conclusion that in fact the mosque, in question, was a public institution, and further that the endowment of ten acres and twenty-five decimals of land was a real Wakfnama in favour of this public institution. Relying upon the two decisions of their Lordships of the Privy Council reported in -- 'Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar', AIR 1922 PC 123 (A) and--'Abdur Rahim v. Naraya Das', AIR 1923 PC 44 (2) (B), the learned Court below has rightly come to the conclusion that once the Wakf is validly created, the properties vest in the Almighty.;

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