BENARSI Vs. SYED ALTAF HUSAIN

JUDGEMENT

(1.) THE facts out of which the connected Appeals Nos. 274 and 1123 of 1913 arise are as follows, Benarsi is a Kandighar residing in a Mahalla in Benares City. He owns business premises, where he carries on his trade. THEse business premises are on one side of a small rectangular open space, which is surrounded on all four aides by houses. Opposite his premises are a mosque and an Imambara. Benarsi has rights over the whole of the ground. A suit was instituted by Mir Altaf Husain on the following allegations. Mir Altaf Husain said that he was the Mutwalli of the mosque and Imambara (a Shia mosque and Imambara) and that, as Mutwalli, he arranged the Moharram ceremonies every year. In particular he referred to the Dul Dul, Zulfikar and Alam ceremonies. His case was that for over 20 consecutive years the Dul Dul, Zulfikar and Alam ceremonies had been performed on the piece of ground between Benarsi's premises and the mosque and the Imambara, that Benarsi was proposing to build over the land, that if he built over the land there would not be space on which to perform the ceremonies. Be, therefore, sued for a declaration that these ceremonies were performed upon the land and for an injunction restraining Benarsi from doing any act which would prevent theperformance of these ceremonies. THE Trial Court dismissed the suit. THE lower Appellate Court decreed the quite on the 2 November, 1918. THE Lower Appellate Court did not give the plaintiff all the reliefs that the plaintiff had sought, bat gave him relief which would have the effact of keeping clear a sufficient portion of the land in question. Subsequently on an application for review the lower Appellate Court slightly increased the extent of the land, which should be kept clear for the purposes of the performance of the ceremonies, and made some other slight alterations in its decree. Appeal No. 271 is against the original judgment. THE Appeal No. 1123 is against the order granting review. THE grounds of Appeal in No. 1123 have been so framed as to read as a separate appeal on the merits, if the amended decree be treated as the solitary decree in the case. Benarsi comes here in second appeal. THE first ground of Appeal in No. 284 is that the plaintiff cannot be deemed to be a Mutwalli of the Imambara, and so he is not entitled to maintain the suit, and that, even if he is a Mutwalli, the suit is bad because he did not receive permission from the Court under the provisions of Order I, Rule 8 of the Civil P. C.. THE facts upon this point are as follows. THE plaintiff is recogonised as Mutwalli of the mosque and Imambar. He has materially added to the Imambara in the last few years, paving the expenses of the additions out of his own pocket Formerly Mumtaz Ali was Mutwalli. On the 5 July 1913 Mamtaz Ali executed a deed by which he transferred all his functions in the property to the plaintiff, In appeal it is argued that following the decision in Wahid Ali V/s. Ashruff Hossain 8 C. 732 : 10 C.L.R. 529 : 4 Ind. Dec. (N.S.) 473, it should be deemed that plaintiff is not a Mutwalli baiausa Mamtaz Ali had no right to transfer his office in the endowed property to any other person. THE decision in question is authority for the proposition that the office of Mutwalli is a personal trust which cannot be transferred by the acting Mutwalli. 1 do not, however, with all due respect to the learned Judges who decided that appeal, find that there is any authority in the Muhammadan Law for such a proposition. THE law on the subject is clear. A Mutwalli is a trustee for the management of wakf property. THEre are no general rules governing the appointment or the succession of Mutwalli. In every case the appointment and succession of the Mutwalli are determined by the terms of the trust and it is necessary to go back to the terms of the trust, to discover the rules governing the appointment and succession of Mutwallis in any particular case. If the creator of the trust chooses to lay down that a Mutwalli may transfer his appointment to somebody else, there is nothing in law to prevent his doing so. THEre would be nothing objectionable, when a wakf was created, for the creator to insert in the wakfnama a provision that a certain person was to be appointed Mutwalli and that, if that person found he had no time to continue in the duties of the office, that parson might transfer the appointment of Mutwalli to any other devout Muhammadan of good character who was ready to accept it. THE proposition laid down in the Calcutta decision imposes a limit which the Muhammadan Law does not impose. Thus in this case, before it can be decided, whether the plaintiff is or is not the legally constituted Mutwalli of the mosque and Imambara in question, it would be necessary to discover the terms of the trust and the rules governing the appointment and succession of the Mutwalli. No attempt has been made to do this. It is, however, in my opinion, unnecessary at this stage to obtain a finding upon the point. Prima facie the appointment is a good one, which could only be challenged for sufficient reason. In such a case as this, where a de facto Mutwalli of the mosque, as the plaintiff undoubtedly is upon the evidence, complains of a particular infringement with the rights of the mosque, the person alleged to have made the infringement has no right to challenge the legal position of the de facto Mutwalli, and put the de facto Mutwalli to proof to establish that his title is satisfactory. A person challenging the de facto Mutwalli position must adduce evidence to show that he has no title. It would be intolerable if every time a de facto trustee, acting under a document which on the face of it confers title, were compelled to go bask to prove the validity of his own appointment when he was endeavouring to enforce the rights of the trust which he represents against a third party, but, apart from that, the objection taken by the appellants cannot be sustained. It was open to the plaintiff to some in, not as Mutwalli, but as manager of the Moharram ceremonies, and say that he as manager of the ceremonies desired to exercise the privileges, which the organisers of the ceremonies had obtained in the past, whether he is Mutwalli of the mosque and Imambara or not. And further, even if it were necessary for him to obtain permission under the provisions of Order I, Rule 8, it would be open to me to grant the permission now see Baldeo Bharthi V/s. Bir Gir 22 A. 269 : A.W.N. (1900) 69 : 9 Ind. Dec. (N.S.) 1211 and I formally grant this permission now "ex maxima eautela." But in view of the decision in Gulba V/s. Basanta 5 Ind. Cas. 517 : 32 A. 234 : 7 A.L.J. 233 such permission is not, in my opinion, necessary. I, therefore, find that the plaintiff-respondent had a right to bring the suit. THE other points in appeal will not take long to decide. I accept the interpretation the lower Appellate Court put on the deed, dated 5 July 1913. I do not consider the plaint bad for vagueness. I find that it does disclose a cause of action and I understand the nature of the plaintiff's case from the plaint. THE evidence establishes absolutely the right of the Shia community to hold ceremonies over this land. Now I come to such points in Appeal No. 1123 which I have not covered already. THE review was granted "for other sufficient reason" under Order XLVII, Rule 1, THE reason was that I be plaintiff had pointed out to the lower Appellate Court that the lower Appellate Court's intention was clearly to give enough space for the proper performance of the ceremonies, but that the judgment and decree gave insufficient space. THE learned Subordinate Judge stated that he had every intention of giving sufficient space for the performance of the ceremonies, but, as he found that he had not given sufficient space, he corrected his judgment. It was laid down in Ali Akbar V/s. Khurshed Ali 27 A. 695 : 2 A.L.J. 465 : A.W.N. (1905) 154 that sufficiency or otherwise of the reason for granting a review is not a ground of appeal within the meaning of Section 629 of the Civil P. C., which is now equivalent to Order XLVII, Rule 7; but apart from that I consider that the lower Appellate Court had sufficient reason for granting the review. This is the only point in Appeal No. 1123 which I have not already touched upon. As a result I dismiss both the appeals. THE appellant will pay his costs and those of the respondents.