Patna High Court
Bibi Azizunnissa vs Ghowsan Kasab And Ors. And Shaikh ... on 15 July, 1921
Equivalent citations: 63IND. CAS.136
JUDGMENT Bucknill, J.
1. This was an appeal from a decision of the District Judge of Mfcvuziffarpur, dated the 2nd August 1919, reversing that of the Subordinate Judge of the First Court of the same place, dated March 7th of the same year. The fasts were very simple.
2. One Faqira Kasab, a butcher, built a mosque in Mahalla Islampur in the town of Muzaffarpur; he was the father of Ghausan Kasab, the first defendant.
3. Faqira used to live in a house close to the mosque and between the two buildings was a small piece of ground. For some years one Hedayet Hussain looked after the mosque; he was the father of one Ahmad Hussain, who after Hedayet's death took charge of the shrine; Ahmad is the father of the plaintiff (who is the appellant here).
4. Faqira died; his son, the first defendant, in 1889 sold the house at Muzaffarpur and left the neighbourhood. About 1882, Hedayet also died and his son Ahmad acted, it is not now disputed, as mutwalli of the mosque for many years. So far as Ghausan is concerned, he himself admits that when he left the town and removed himself, his family and his business to Samastipur, he asked Ahmad to look after the mosque and its endowment properties. Bat there is no contest now that Ahmad was genuinely and legally the substantive mutwalli until the death in 1917. The little piece of land lying between Faqira's house and the mosque originally belonged to Faqira and it is common ground that he dedicated it to the service of the mosque.
5. On this bit of land Ahmad built two rooms and he seems to have thought that the land and the rooms belonged to him personally. At any rate in August 1916, not so long before his death, he had drawn up a wakf nama. By it, after setting out that the mosque had been built and furnished by Faqira who had also sunk a well near by, be recites that there was a piece of land measuring 2 cottas lying adjacent to the mosque which, he says, had been in the possession and occupation of his own father Hedayet. He adds that both his father and after his father's death, he himself had out of their own pockets maintained and repaired the mosque and that he himself had built a house with two rooms on the piece of land referred to. These rooms he let out on rent whilst he had also erected another house which he leased; the proceeds derived from these buildings were utilised for defraying the upkeep of the shrine. He then goes on to dedicate as wakf the land and houses in question for the purposes of the mosque and finally he propounds a scheme under which the mutwalli or curator of the mosque shall be permanently provided for. This scheme consisted first of all in appointing himself as mutwalli for his life and after his death in nominating and appointing Ghausan the first defendant, the son of Faqira, to be mutwalli, provided that he (Ghausan) came bask to Muzaffarpur and took up his abode in the neighbourhood of the mosque; but he adds that if this condition was not fulfilled, that is to say that if Ghausan did not accept and agree to become mutwalli, then "such a person of my family as may be fit and who may accept and agree to be mutwalli shall be mutwali." He made a further arrangement in the event of there being no member of his family who would accept and agree to act as mutwalli, which consisted in a scheme for the election by Massalmans, through a committee, of a suitable person to undertake the duties. Ahmad eventually obtained the entry of his Dame in the Municipal Register as owner of the property.
6. The present two actions are at the suit of Ahmad's daughter; one is for a declaration that the houses, which are the subject-matter of the suit, are endowed properties appertaining to the mosque and for confirmation of her position as mutwalli of the mosque, and the other is for recovery of rent of one of the rooms in question.
7. It is necessary, in order to avoid confusion in dealing with this matter, to separate the question of the plaintiff's claim to the right to the position of mutwalli from that of her claim for rent of the houses on the property.
8. With regard to the question of the right to the position of mutwalli, it may be noted at once that Ahmad has been found to have been the mutwalli "de facto and de jure" by both the Subordinate Judge and the District Judge.
9. The plaintiff claimed the position, firstly, apparently on the allegation that her father had verbally appointed her shortly before his death; but she was unable to substantiate this story; the evidence adduced by her to that effect was discredited by the District Judge and the plaintiff's claim of oral appointment was not argued before us. She next claimed the position by virtue of the wakf nama of the 1st August 1916 made by her father, basing her claim upon the ground that as Ghausan did not fulfil the conditions (notably as to local residence) upon whish Ahmad had nominated him as his successor, she, as the only member of Ahmad's family, became, through Ghausan's failure, the nest nominee.
10. To test this claim one mast see what effect, if any, can be given to Ahmad's wakfnama, Ahmad was not the founder of the wakf; as Faqira was. Ahmad, as mutwalli, might, according to the authority of Ameer Ali, have well had power when in his death illness to appoint a successor; but he had certainly no power whilst in health so to do and still less to draw up a scheme for the succession, as he does in this document. This view was correctly adopted by the District Judge and I can gee no reason to find fault with his decision.
11. Nest as to the claim by the plaintiff for rent; she claims only as mutwalli; it is here admitted that the lands and houses are dedicated for the purposes of the mosque.
12. As her claim to the position of mutwalli fails, it follows that her claim in that capacity for rent fails also.
13. Both appeals must, therefore, be dismissed with costs, but in making that order I should like to add that I have here only had to consider whether the claim of the plaintiff succeeded or not, The Court is not in these appeals asked or called upon to decide as to who is or ought to be the mutwalli. The solution of this question ought not, however, to present any serious difficulty. If, as is the case so far as we now are aware, the founder left no instructions as to the succession, there should be no trouble in having a proper scheme providing therefor drawn up in the usual manner provided by law.
Adam, J.
14. I agree.