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1940 Supreme(SC) 18
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, LORD RUSSELL OF KILLOWEN, SIR GEORGE RANKIN, LORD JUSTICE GODDARD, AND MR. M. R. JAYAKAR.
THE MOSQUE KNOWN AS MASJID SHAHID GANJ - Appellant
Versus
SHIROMANI GURDWARA PARBANDHAK COMMITTEE, AMRITSAR, - Respondents
On appeal from the High Court at Lahore.
Decided On : May. 2. 1940.
Solicitors for appellants: Peake & Co.
Solicitors for respondents: Charles Russell & Co.
Waqf property, including mosques, is subject to the Limitation Act. Adverse possession extinguishes the waqf title and consequently the rights of all beneficiaries, including the right to worship. A mosque is not a juristic person and cannot sue or be sued as such.
Headnote:(A) Indian Limitation Act, 1908 - Section 28 and Articles 144, 120 - Statutory Act governing religious shrines - Section 30 and 37 - Waqf property - Adverse possession - Extinguishment of title - Right of worship - Juristic person.
(B) Limitation Act - Application to waqf - The Limitation Act provides a rule of procedure whereby courts do not enforce rights after a certain time, and it is impossible to read into the Act any exception for property made waqf for the purposes of a mosque, whether the purpose is to provide funds for upkeep or to provide a site and building. (Paras 82-83)
(C) Juristic Person - A mosque is not a juristic person but immovable property. The recognition of an artificial person cannot be used to deprive a building of its character as immovable property, and suits cannot competently be brought by or against such institutions as artificial persons in British Indian Courts. (Paras 83-84)
(D) Right of Worship - The right of a worshipper is an element in the general right of a beneficiary to have the waqf property recovered by its proper custodians. If the title conferred by the settlor is extinguished by adverse possession, the rights of all beneficiaries, including the right to worship, are also extinguished. (Para 84)
Facts of the case:
A structure dedicated as a place of worship was occupied by another religious community for over a century. After the property was formally notified as belonging to the occupying community under a statutory act, the building was demolished. A suit was filed seeking a declaration of the site as a place of worship, a right to worship, and a mandatory injunction for reconstruction, arguing that the institution was a juristic person and thus exempt from the laws of limitation.
Findings of Court:
The court found that the property had been possessed adversely for more than twelve years, extinguishing the title of the original endowment. The claim that the place of worship was a juristic person was rejected. The right of worshippers is contingent upon the property remaining a waqf; once the waqf title is lost, the right to worship is also lost.
Issues: Whether a place of worship can be considered a juristic person to avoid the application of the Limitation Act; whether the right to worship survives the loss of waqf title due to adverse possession; and whether the suit is barred by res judicata based on previous decisions.
Ratio Decidendi: The Limitation Act is a rule of procedure applicable to all immovable property, including waqfs. A place of worship is not a juristic person but immovable property. The right of a worshipper is not an independent easement but is contingent upon the property remaining a waqf. If the title to the waqf is extinguished by adverse possession under the Limitation Act, all rights of beneficiaries, including the right to worship, are also extinguished.
Result: Appeal dismissed.
Legal Category Hierarchy
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property law
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waqf
- adverse possession
- alienation
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waqf
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practice and procedure
- limitation
- res judicata
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evidence
- expert testimony
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religious law
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muslim law
- waqf
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hindu law
- juristic personality of idols
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muslim law
-
administrative law
- statutory tribunals
Judgement
Appeal (No. 91 of 1938) from a decree of the High Court (January 26, 1938) which had affirmed a decree of the District Judge, Lahore (May 25, 1936).
A structure which had been built as a mosque in Lahore was dedicated in A.D. 1722, but from about 1762 the building and adjacent land had been in the occupation and possession of the Sikhs. In 1849, at the time of the British annexation, the mosque building and the property which had been dedicated therewith were in the possession of certain Sikhs, Mahants of a Sikh shrine (gurdwara), and the mosque building was used by the custodians of the Sikh institution. In 1927, by notification made pursuant to the Sikh Gurdwaras Act (Punjab Act VIII. of 1925), the old mosque building and land adjacent thereto were included as belonging to the Sikh gurdwara. Litigation was brought before the Sikh Gurdwaras Tribunal in 1928 "on "behalf of the Mohammedans,’ who claimed that the land and property were dedicated for a mosque and did not belong to the gurdwara. The Tribunal held that the claim failed by reason of adverse possession and previous decisions, and in the result the property and building were given into the custody of the defendants, and on July 7, 1935, the building was suddenly demolished by or with the connivance of its Sikh custodians under the influence of communal ill-feeling.
The suit out of which the present appeal arose was brought by eighteen plaintiffs, the first being the mosque itself, in the sense of the site and building, suing by a next friend, and the other plaintiffs, including minors and women, were persons who claimed that they had a right to worship in the mosque. The suit was brought against the Shiromani Gurdwara Parbandhak Committee and the Committee of Management for the notified Sikh gurdwaras at Lahore, who were in possession of the disputed property, and was for (inter alia) a declaration that the building was a mosque in which the plaintiffs and all followers of Islam had a right to worship there, and a mandatory injunction to reconstruct the building.
The facts appear fully from the judgment of the Judicial Committee.
The District Judge dismissed the suit, and his decision was affirmed on appeal to the High Court (Young C.J. and Bhide J., Din Mohammad J. dissenting).
1940. April 4, 5, 8 and 9. L. P. E. Pugh K.C and J.M .Pringle for the appellants. The question is Can the appellants maintain a right to worship in a particular mosque and on the site of that mosque, and in
Law. Rep. 67 Ind. App. 251 ( 1939- 1940) Mosque Known as Masjid Shahid Ganj v. Shiromani Gurdwara 78
a new mosque on the same site if they can get it erected; is that suit hit by the Limitation Act ? It is conceded that it cannot be argued that Mahomedan law is entirely outside the Limitation Act. The appellants case may be put briefly thus s. 28 of the Limitation Act has no application, because it only relates to a suit for possession; the appellants have not brought a suit for possession, and are not obliged to do so, and therefore they are not affected by s. 28. Their bare right of suit as individual Mahomedans continues so long as the mosque is there, and is not affected by their disuser or their fathers or grandfathers disuse; their right is not inconsistent with the decision that the mosque now belongs to somebody else. It is conceded that if a mosque be pulled down and a secular building erected in its place, that would attract the provisions bf adverse possession. A masjid or mosque is a juristic person owned by no one, perpetual, inalienable, irrevocably dedicated, and has a sanctity and existence which can never be destroyed, even if it falls into ruins, and is there fore not subject to any law of limitation based upon adverse possession. [Reference was made to Vidya Varuthi Thirtha v. Balusami Ayyar (( 1921) L. R. 48 I. A. 302, 310-12.); Pramatha Nath Mullick
v. Pradyumna Kumar Mullick (( 1925) L. R. 52 I. A. 245, 250.); and Hukum Chand v. Maharaj Bahadur Singh . (( 1
