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1916 Supreme(SC) 28
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE, SIR JOHN EDGE, MR. AMEER ALI, AND SIR LAWRENCE JENKINS.
MAHOMED ISMAIL ARIFF - Appellant
Versus
AHMED MOOLLA DAWOOD - Respondents
On Appeal from the Chief Court of Lower Burm.
Decided On : May. 16. 1916.
Solicitors for appellants :Bramall & White. Solicitors for respondents: Arnould & Son.
In public religious trusts, the court has wide discretion to determine management based on the best interests of the public and the institution's history, even if it varies from the founder's wishes, provided the trust's primary objects are preserved.
Headnote:(A) Code of Civil Procedure, 1882 - Section 539 - Public Religious Trust - Management of Mosque - Discretion of the Court in settling a scheme for management of a public trust - In public religious or charitable trusts, while the court cannot depart from the founder's intentions regarding the objects of the benefaction, it has wide discretion regarding management to ensure the best interests of the public and the institution - The court may vary rules of management to suit changed conditions and circumstances. (Paras 14-15)
(B) Trust Law - Public vs. Private Trusts - Distinction between trusts created for specific individuals and public trusts - In the case of public trusts, the supervision of the court is paramount and overrides conditions that the court should not interfere in management. (Para 15)
(C) Mutwalleeship - Right to manage a public mosque - Where a specific section of the community has historically provided the funding and managed the institution without dereliction of duty, they may be preferably entitled to the management, provided the trust remains open for public worship. (Paras 18-19)
Facts of the case:
A public mosque was established for the use of all persons of a particular religious sect. Although the land was later purchased by a specific subgroup of the community using their own funds and a subsequent deed attempted to vest exclusive management in that subgroup, a dispute arose regarding the right to appoint trustees. The lower courts differed on whether the subsequent deed created a new trust or if the original public nature of the trust entitled the entire community to a voice in management.
Findings of Court:
The subsequent deed did not create a new trust; the mosque remained a public institution for all members of the sect. However, given the historical role of the specific subgroup in funding and managing the mosque without mismanagement, they are preferably entitled to the management.
Issues: Whether a subsequent trust deed could vest exclusive management of a public mosque in a specific subgroup and whether the court has the discretion to determine the best method of management regardless of the founder's expressed wishes.
Ratio Decidendi: In public religious trusts, the court's primary duty is to consider the interests of the general public. While the objects of the trust must be maintained, the court has wide discretion to vary management rules based on circumstances. Historical contribution and successful management by a specific group can justify their preferential right to manage, but to prevent future litigation, a representative committee should be established for the appointment of trustees.
Result: Orders of the lower courts discharged and the case remitted with directions that the specific subgroup is preferably entitled to manage the mosque, and future trustees should be appointed by a committee of worshippers with a majority from that subgroup.
Legal Category Hierarchy
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trust law
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religious and charitable trusts
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wakf
- management and trusteeship
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wakf
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religious and charitable trusts
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practice and procedure
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civil procedure
- settlement of schemes
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civil procedure
Judgement
Consolidated Appeals from two decrees of the Chief Court of Lower Burma in its appellate jurisdiction (May 29, 1912) reversing a decree of that Court (April 25, 1910).
The first five appellants filed a plaint in the Chief Court under s. 539 of the Code of Civil Procedure, 1882, for the settlement of a scheme of management of a Sunni Mahomedan mosque at Rangoon. The appellants represented the Randher Vora community, namely, residents who originally came from Randher, a village near Surat, and their descendants. This class is referred to as the Randherias. The respondents in the first appeal represented the general Sunni Mahomedan community of Rangoon. The respondents in the second appeal represented the worshippers, other than Randherias, who, or whose predecessors, came from the Surat district. The following issue was ordered to be tried in the suit Have all Sunni Mahomedans of Rangoon, or the Surati Vora community, other than the Randher Sunni Vora Jamat, any voice in the management of the jama masjid ?
Law. Rep. 43 Ind. App. 127 ( 1915- 1916) Mahomed Ismail Ariff V. Ahmed Moolla Dawood
38
The history of the foundation is fully stated in the judgment of their Lordships.
Robinson J. made a decree declaring that the deed of trust dated March 16, 1872, by which the management was vested in the Randher Sunni Vora community was good and valid, and ordered that a scheme of management should be submitted. The learned judge held that the five Randheria purchasers under the deeds of 1871 became absolute owners free from any trust, and that the deed of March 16, 1872, created a new and valid trust. He was further of opinion that the intention of the founder (who came from Randher) could be inferred from the facts that he had handed over the management to three Randherias, and that for a period of about sixty years the management and control had been exclusively in the hands of Randherias.
Both sets of respondents appealed. The appeals were heard by the Chief Judge (Sir Charles E. Fox) and Hartnoll J. The learned judges reversed the judgment of Robinson J. They held that the lands granted in 1862 were subject to a trust to build a mosque for the free use of all persons professing the Sunni sect of the Mahomedan religion, that the grants of 1871 were subject to the same trust, and that the deed of March 16, 1872, was invalid. It was accordingly declared that all Sunni Mahomedans were entitled to a voice in the management, and that the right was not confined to the Randher Sunni Vora Jamat.
1916. Feb. 23, 24, 28, 29. Sir R. Finlay, K.C., A. Page, and Abdul Majid, for the appellants. The management has been since the foundation solely in the hands of the Randherias, The inten-tion of the wakif, whether it appears from the terms of the dedication or from usage, governs the right of management. The Court in settling a scheme has a discretion, but that discretion should be exercised in accordance with the founders intention Shah Gulam Rahamtulla v. Mohammed Akbar (( 1875) 8 Madr. H. C. 63.) ; Advocate-General v. Fatima Sultani Begam . (( 1872) 9 Bomb. H. C. 29.) The right to worship in the mosque does not carry with it a right to participate in the management. Ibrahim Esmael v. Abdool Carrim Peermamode (( 1908) L. R. 35 Ind. Ap. 151.) is distinguishable. In that case there was not a succession of managers belonging exclusively to one class of the worshippers, and there was evidence that the whole community contributed to a levy to support the mosque. In the case of a jama masjid where the congregation is large and of an indeterminate character managers cannot conveniently be appointed by the whole community.
Dunne and F. J. Coltman, for the respondents. The mosque with the appertaining lands formed a trust in which the whole Sunni Mahomedan community of Rangoon were interested. The right of management is vested in the community generally. The fact that Randherias have always held the management does not necessarily show that that
