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

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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 was