Judgement

Appeal (No. 79 of 1945), by special leave, from a judgment and decree (October 25, 1934) of the Court of the Judicial Commissioner, Central Provinces (now the High Court at Nagpur), reversing a judgment and decree of the Subordinate Judge of Burhanpur (January 2, 1931).

The question for determination in this appeal was one which concerned the right to the use of certain waqf property belonging to members of a Moslem community in India, known as Daudi Bohras, situate in the village of Shadra, near the town of Burhanpur in the Central Provinces, and, in particular, the question as to the right of the present respondents Nos. 1, 2 and 3, the second of whom claimed to be the Dai-ul-Mutlaq, and, as such, the High Priest of the Daudi Bohra community, to interfere with the access to and use of such property by the appellants. The claim in the suit out of which this appeal arose was for a declaration of right to the user and enjoyment of the property in question and for an injunction.

The trial court decreed the claim in part, but on appeal that decree was set aside by the Court of the Judicial Commissioner (Staples J.) and the suit was dismissed.

The facts appear from the judgment of the Judicial Committee.

1947. July 14, 15, 16, 17, 21, 22 and 23. W. W. K. Page K.C. and Subba Row for the appellants.

Pritt K.C., Sir Thomas Strangman K.C, S. Hyam and Jayakar for respondents Nos. 1, 2 and 3.

Dec. 1. The judgment of their Lordships was delivered by Lord Porter. This is an appeal, by special leave, from the judgment and decree of the Court of the Judicial Commissioner, Central Provinces and Berar, Nagpur, dated October 25, 1934, which reversed the judgment and decree of the Court of the Additional Subordinate Judge, Burhanpur, dated January 2, 1931.

The question for determination is one which concerns the right to the use of certain waqf property belonging to members of a Moslem community in India, known as Daudi Bohras, situate in the village of Shadra, near the town of Burhanpur in the Central Provinces, and, in particular, the question as to the right of the present respondents Nos. 1, 2 and 3 to interfere with the access to and use of such property. The question whether the appellants are entitled to sue in a representative capacity must also be considered. The property consists of an enclosed area of land in which are situate the mausolea of three saints, two mosques, two jamatkhanas (dining hall), a dewankhana (congregation hall) and rest houses erected by or with funds subscribed by, or with offerings to the three saints made by, members of the said community and dedicated to God for the use of their devotees who are members of the said community. Within the area there are also plots of land used as burial grounds, dedicated to God for the same use.

The Daudi Bohra community consists of Moslems of the Shia sect, holding, in common with all members of that sect, the belief that there is one God; that Mohammad is His prophet, to whom He revealed the Holy Book (Koran) ; that Ali, the son-in-law of Mohammad, was the Wasi (executor) of the latter; and that Ali succeeded Mohammad by " Nas-e-Jali" which may perhaps for the moment be loosely translated as " declaration/ In common with all members of the Shia sect, Daudi Bohras believe that Ali, the son-in-law of Mohammad, was succeeded by a line of Imams, each of whom in turn was appointed by Nas-e-Jali by his immediate predecessor. At a later date, the Shia sect itself became divided into two sects, known respectively as Ismailia and Isna Asharia. Daudi Bohras belonging to the former sect, and in common with all other members of the Ismailia sect, believe that, owing to persecution, Imam Tyeb (the twenty-first Imam) went into seclusion, and that an Imam from his line will appear, it being their belief that an Imam always exists though at times he may be invisible to his believers while in seclusion; that, owing to the impending seclusion of the twenty-first Imam (Imam Tyeb), hi