Ayyutty v. Mohammed — 1980 DIGILAW 277 (KER)

JUDGMENT Balakrishna Menon, J. 1. Plaintiffs 3 and 4 in O.S. No. 146 of 1969 on the file of the Munsiff's Court, Wadakkancherry are the appellants. The suit was instituted by four plaintiffs for a declaration that the defendants are not entitled to demolish and reconstruct a mosque in the plaint property, and also for a permanent injunction to restrain them from demolishing the existing mosque or from constructing a new one in the property. Plaintiffs 1 and 2 died and the appeal is by plaintiffs 3 and 4 alone. The suit is one under O.1, R.8, Civil Procedure Code in a represaentative capacity representing all the members of the mahal of the mosque in the plaint property. The defendants are said to be the members of a sub committee formed for the purpose of the reconstruction of the mosque. The first defendant is the President and the 2nd defendant is the Vice President of the sub committee. The suit property is 10.34 acres in extent. The same belonged to one Ammunni who had as per Ext. B-1 dated 29th Kumbam 1067 made a dedication of the property for the purpose of construction of a mosque. The document is in the form of a sale deed for a consideration of Rs. 50 in favour of four persons mentioned therein. The purpose of the assignment as per the document is for the construction of a mosque for which permission had already been obtained from the Collector on an application made by the assignor and the assignees in that behalf. The document recites that the property and the mosque to be constructed on it shall belong to the entire community and that no person shall have any separate right thereto. The assignees are authorised to obtain mutation of patta in the name of the mosque. There is a subsequent document Ext. A-1, dated 20th Medam 1072 executed by the four assignees in Ext. B-1 describing themselves as karanavans of the Porappur Jamayath Puthen Palli. The document is in favour of the mosque itself and it is styled as a wakf deed. It refers to Ext. B-1. It specifically states that the executees of Ext. B-1 do not have any separate rights except as representing the Muslim Community. The document is occasioned for the reason that Ext. The document is in favour of the mosque itself and it is styled as a wakf deed. It refers to Ext. B-1. It specifically states that the executees of Ext. B-1 do not have any separate rights except as representing the Muslim Community. The document is occasioned for the reason that Ext. B-1 does not designate the property as wakf, eventhough it was a wakf in Substance and effect. Hence in the opinion of the people of the locality a separate document designating the property as wakf was necessary and that is said to be the reason for the execution of Ext. A-1. Ext. A-1 mentions that the mosque contemplated in the document Ext. B-1 was already constructed as per the dimensions stated in Ext. A-1. It is again reiterated that the property is wakf and all members of the community will have equal rights and access to the property. After the construction of the mosque it is stated in Ext. A-1 that religious rites are conducted therein and the compound is used for burying the dead. Towards the end of the document it is stated that the recital of consideration of Rs. 50 in Ext. B-1 is wrong, there was no such payment and that recital is also corrected by this document. 2. Another document was produced in appeal and marked as Ext. A-4. This document is dated 25th Makaram, 1067 i.e., one month and three days prior to the execution of Ext. B-1. Ext. A-1 is also by the same person who executed Ext. B-1 and in favour of the same four persons as in Ext. B-1. This document also purports to assign the property in favour of the four persons mentioned therein for the purpose of construction of a mosque and the consideration is stated to be 155 fanams. Both sides agree that the conjoint effect of the three documents - Exts. A-4, B-1 and A-1 - is to dedicate the property as a wakf. The object of the wakf, according to the plaintiffs, is nor merely for the construction of a mosque but also for a burial ground in the compound except as regards the area occupied by the mosque. The plaintiffs claim that the dedication as evidenced by those documents by way of wakf is for a burial ground in the compound and for a mosque which was constructed as mentioned in Ext. A-1 itself. The plaintiffs claim that the dedication as evidenced by those documents by way of wakf is for a burial ground in the compound and for a mosque which was constructed as mentioned in Ext. A-1 itself. According to the plaintiffs the defendants are attempting to demolish the existing mosque and construct another one in a place where there had been burial of bodies of dead relatives of the plaintiffs. The plaintiffs seek a declaration that the defendants have no right to demolish the existing mosque and construct a new one at the place of burial of the members of the community especially the relatives of the plaintiffs. They seek an injunction against the demolition of the existing mosque and the construction of a new one elsewhere in the compound. There is also a prayer for a mandatory injunction for the demolition of the basement that the defendants have put up for a new mosque and to restore the land to its original condition. The defence to the suit is that the existing mosque is too old and is in a dangerous condition, that it requires reconstruction, that the Kibla of the mosque is in a wrong angle, the existing mosque does not have sufficient accommodation for the Juma congregation and in those circumstances it was decided to have the mosque reconstructed at a more convenient place in the compound. They deny that there was any dedication of the compound as a graveyard. According to them the wakf is for the purpose of the mosque and the graveyard is only an appurtenant to the mosque itself. The mosque is being managed by a managing committee who, in law, is the Muthavally of the mosque. The suit is defective for non joinder of the managing committee. The defendants are the office bearers and members of a sub committee elected by the members of the mahal for the purpose of reconstructing the mosque and they are duly authorised by the managing committee to carry out the work. They contend that the suit is barred under S.55 of the wakf Act read with S.92 of the Civil Procedure Code for the reason that the sanction of the Wakf Board as required by S.55 had not been obtained before the institution of the suit. 3. They contend that the suit is barred under S.55 of the wakf Act read with S.92 of the Civil Procedure Code for the reason that the sanction of the Wakf Board as required by S.55 had not been obtained before the institution of the suit. 3. The trial court found that the suit in so far as it relates to the relief of declaration and consequential injunction is barred under S.55 of the Wakf Act read with S.92 Civil Procedure Code, and that the plaintiffs have failed to prove that the Wakf is established as per Ext. A-1 document and not as per Ext. B-1 and that as per the document the entire property excluding the mosque is dedicated for use as a graveyard. It was also found that the mosque is administered by an elected committee and that the managing committee is entitled to manage the mosque and its properties. The property is dedicated as per Ext. A-1, that the dedication is for the construction of the mosque and the paramba is used as a burial ground appurtenant to the mosque. It was further found that the plaintiffs are the descendants of the four persons mentioned in Ext. A-1, but they are not entitled to any special rights under the document. Since the plaintiffs want relief only against the defendants who are the members of the sub committee authorised to carry out the work of putting up a new mosque, the suit is not bad for non joinder of the managing committee who is the Muthavalli of the mosque. Even though there is no evidence to prove that the Kibla is not in proper position, in view of the insufficiency of space to accommodate the Juma congregation, it is necessary to reconstruct the mosque with more space, and convenience. There is no inhibition against the construction of a mosque in a burial ground under the Mohammedan Law. It is also not shown that the place for reconstruction has been used as a burial ground. On the above finding the suit was dismissed by the trial court. In appeal, A.S. No. 7 of 1973, the Subordinate Judge of Trichur confirmed the decision of the trial court. The lower appellate court has, however, found that the suit is not bad for non compliance to the requirements of S.92 Civil Procedure Code read with S.55 of the Wakf Act. In appeal, A.S. No. 7 of 1973, the Subordinate Judge of Trichur confirmed the decision of the trial court. The lower appellate court has, however, found that the suit is not bad for non compliance to the requirements of S.92 Civil Procedure Code read with S.55 of the Wakf Act. The sub committee consisting of the defendants were authorised to put up a new mosque at a different site in the compound and they are entitled to reconstruct the same. It is further found that the plaintiffs have failed to prove any burial at the place where the foundation had been laid and basement constructed for the new mosque. It is also found that there is no prohibition in the Mohammedan Law against the construction of a mosque in a burial ground. 4. Plaintiffs 3 and 4 have filed this second Appeal against these concurrent findings of the two courts below. 5. The learned counsel for the appellants has raised several contentions. According to him the dedication of the property except as regard the area occupied by the mosque was for a burial ground and under Mohammedan Law once a dedication is proved to be for a burial ground, it cannot be used for any other purpose. The learned counsel attacks the finding of the courts below that it is rot shown that there was any burial of the dead at the place where the new mosque is proposed to be constructed. It is contended that under Mohammedan Law it is not permissible to construct a mosque in a burial ground. It is further argued that the managing committee is incompetent to delegate its functions to a sub committee and the defendants who are the members of the sub committee have no right to demolish the existing mosque and construct a new one. 6. The first question, whether the dedication in this case was for a mosque or for a burial ground in respect of the property, should be decided with reference to the documents produced in the case. The first document is Ext A-4, dated 15th Makaram 1067. This document clearly shows the dedication was only for the construction of mosque. There is no reference to a burial ground in this document. The second document Ext. The first document is Ext A-4, dated 15th Makaram 1067. This document clearly shows the dedication was only for the construction of mosque. There is no reference to a burial ground in this document. The second document Ext. B-1, dated 25th Kumbham 1067 also states that the purpose of the document is to vest the property in the Muslim community for the construction of a mosque for the use of all members of the community. The next document is Ext. A-1, dated 20th Medam 1072. By the time this document was executed the construction of the mosque had been completed. The document refers to this fact and states that religious rites are being regularly performed in the mosque constructed in the property and the paramba is being used as a graveyard for burying the dead. The conjoint effect of the three documents is that the use of the paramba as a graveyard was only ancillary to the establishment of the mosque in the property. It was considered by the members of the community as one of the purposes of the mosque itself to have the use of its compound as a graveyard. Dedication as a wakf under Mohammedan Law has the effect of vesting the property absolutely in God. Such a dedication is complete by the earliest document Ext. A-4 admitted in evidence in the lower appellate court. This document clearly shows that the dedication was for the construction of a mosque and there is no indication that there was any other purpose contemplated at that stage. The second document Ext. B-1 also shows that the dedication was only for the construction of the mosque. There is no reference of any dedication for a graveyard in this document either. The reference to a graveyard appears only in the third document Ext. A-1. The document itself recited that the purpose of executing the same is only to clarify that the dedication by the prior document Ext. B-1 is by way of a wakf even though not specifically stated so in the document, that the recital of consideration in Ext. B-1 is not correct and that the four persons in whose names the document is executed have no special rights in the property apart from as members of the community. It is further reiterated that all members of the community shall have equal rights and access to the property. B-1 is not correct and that the four persons in whose names the document is executed have no special rights in the property apart from as members of the community. It is further reiterated that all members of the community shall have equal rights and access to the property. I have no doubt in my mind that these documents clearly show a dedication of the property as a wakf for the construction of the mosque. The property once dedicated becomes a wakf. There is no question of a rededication. Ext. A-1 itself does not show that there was a dedication of the paramba as a graveyard. All that it refers to is only the use of the paramba as a burial ground appurtenant to the mosque which was already constructed by that time. For those reasons I do not find my way to accept the contention of the appellants' counsel that the dedication as per these documents was for a mosque in respect of its plinth area and for a graveyard in regard to the rest of the property. I hold that the dedication of the property was only for the construction of the mosque and the use of the surrounding land as a graveyard was only ancillary to the use of the mosque itself. It is therefore not open to the appellants to contend that by the reconstruction of a mosque at a different site in the compound, there will be a violation of the objects of the wakf. 7. It is next contended that under Mohammedan Law any construction over a graveyard is not permissible and the proposed construction of a mosque over the graves of the dead members of the Muslim Community is in clear violation of the tenets of Islam and cannot be permitted in law. To sustain this argument, the learned counsel sought to attack the concurrent findings of the two courts below that the place where the foundation for the mosque to be reconstructed is laid is not shown to be a place where any burial had taken place. It is pointed out that the findings of both the courts below are based on the fact that when the Commissioner visited the property the plaintiffs did not want him to dig the ground and excavate the soil to find out if there are any signs of burial at that spot. It is pointed out that the findings of both the courts below are based on the fact that when the Commissioner visited the property the plaintiffs did not want him to dig the ground and excavate the soil to find out if there are any signs of burial at that spot. He also refers to the evidence of the second defendant as D.W. 1 who admits that no enquiry was made as to whether any burial had taken place at the spot where the foundation is laid and a basement constructed for the new building. D.W. 3, an Engineer who was authorised to select the spot for the construction, also stated in his deposition that the land was not excavated to find out if there had been any burial at the place where the foundation is laid. He also refers to the evidence of the 5th defendant as D.W. 2 to show that there had been about 10,000 burials in the compound during the last 10 to 15 years. He refers also to the evidence of P.W. 3 who deposes that he had buried his child at the spot where the foundation for the new building has been laid. As against this the learned counsel Sri Sankara Menon appearing for the second defendant refers to Exts. D-15 and D-16, the minute books maintained by the mosque. At page 77 of Ext. B-15 the minutes of the meeting of the Mahal held on 21st May 1968 shows that Engineers and religious pandits were authorised to select the spot for the construction of the new building for the mosque. Page 5 of Ext. B-16 show the minutes of the meeting held on 24th January 1969. It shows that the pandits and Engineers had chosen a spot for the construction of the mosque and there are no graves in that area. The burden to prove that the place where the building is to be constructed is a place of burial is on the plaintiffs. The oral evidence in the case is discussed by the courts below in arriving at the finding that it is not shown that the site of the new building had been a place of burial in the past. It is true that D.Ws. 1 and 3 had not shown that there was no burial at the site of the foundation of the new building. It is true that D.Ws. 1 and 3 had not shown that there was no burial at the site of the foundation of the new building. But as earlier stated it is not the burden of the defendants to show that the place is free from burial; it is for the plaintiffs to sustain their case to show that the new construction is on the graves of deceased members of the community. My learned brother Kochu Thommen, J. had on 26th June 1979 passed an order in this case appointing a Commissioner to find out whether any place is available in the suit property other than the site of the existing mosque or the site chosen by the respondents to accomplish the purpose of reconstruction without having to build over tombs. In that order Kochu Thommen, J. has stated as follows: "Although there is some evidence to suggest that the site presently chosen by the respondents is inappropriate on account of the burial of P.W. 3's son, the court below rejected the appellants' contention solely on the ground that they have not dug out and picked up bones. I feel that if it is possible to avoid digging out and picking up the bones one should refrain from doing so." Accordingly a commissioner appointed by this Court inspected the suit property and submitted his report dated 3rd August 1980 wherein he shows three alternative plots of land each having some defect or other for the construction of a mosque. The defendants do not accept any of these plots as suitable for a mosque and the question has to be decided on merits as to whether there is any inhibition against the construction of the mosque at the place now chosen by the persons in charge of the management of the mosque. Even though the evidence of P.W. 3 is not seen specifically adverted to by the courts below, the lower appellate court has characterised the testimony of the witnesses of the plaintiffs as interested. In Para.17 of its judgment the lower appellate court expressed its inability to accept the oral evidence adduced on behalf of the plaintiffs to prove the factum of burial of any dead body at the place where the foundation has been laid for the new building. In Para.17 of its judgment the lower appellate court expressed its inability to accept the oral evidence adduced on behalf of the plaintiffs to prove the factum of burial of any dead body at the place where the foundation has been laid for the new building. I do not therefore find sufficient grounds to interfere with the concurrent findings of fact by the two courts below that it is not shown that there had been any burial at the place chosen for the construction of the mosque. Ext. A-1 itself shows that the paramba of the mosque is being used for the burial of the dead. This document is of the year 1072. The 5th defendant as D.W. 2 admits that there had been a large number of burials in the compound of the mosque. It is therefore clear that even though there is no proof of actual burial at the spot chosen for the construction of the new mosque, it forms part of the graveyard attached to the mosque. 8. Elaborate arguments were advanced by the learned counsel Sri Balasubramoniam on behalf of the appellants that construction of any building in a graveyard is opposed to Mohammedan Law. He refers to the Digest of Mohammedan Law by Bailli, 1957 Edn. pages 621 and 622 wherein it is Stated: - "When a body has been buried in the ground whether for a long or a short time it cannot be exhumed without some excuse. But it may be lawfully exhumed when it appears that the land was usurped, or another is entitled to it under a right of pre emption. Auzujundee being asked with regard to a masjid, for which there no longer remained a congregation, and all around it had gone to decay, whether it was lawful to convert it into a cemetery, answered 'No', and being asked with regard to a cemetery in a village, when it had gone in decay, and there remained in it no traces of the dead, not even bones, whether it was lawful to sow the land, and take its produce, answered, 'No', for in legal effect it is still a cemetery." He also refers to the Hedaya by Charles Mamilton 2nd Edn. where at page 233 the learned author discusses whether under the text of Mohammedan Law the appropriation of an undefined part or portion of a thing is lawful or not. where at page 233 the learned author discusses whether under the text of Mohammedan Law the appropriation of an undefined part or portion of a thing is lawful or not. There is a passage which states that the alternative use of a particular place for different purposes "such as its being applied for one year to the interment of the dead and the next year to village or at one time to prayer and at another time for the keeping of horses would be singularly abominable". Learned Counsel refers also to Mullah's Mohammedan Law, 18th Edn. Para.198 where the learned author states: "Where a certain land was used as a Muhammadan graveyard and it is amply supported by the entries in the revenue records, the mere fact that in recent years it was not so used does not deprive it of its character as a wakf." Again it is stated: "The Muslim community has a right to require the demolition of a house built on a disused graveyard in contravention of the original purposes of the wakf. But the building of a temporary hut by the custodian of the graveyard does not amount to an assertion of title hostile to the wakf." These passages cited from the learned author do not in any way support the contention of the learned counsel for the appellants that there is a prohibition in Mohammedan Law against the construction of a mosque over a graveyard. 9. The learned counsel then refers to the decision in Abdul Gafoor v. Rehmat Ali (AIR 1980 Oudh 245) where the question was whether a graveyard closed for further use under orders of the Municipal Authorities would cease to be a graveyard under Mohammedan Law and in that context it was held that once a land has been dedicated for the purpose of a cemetery it must always be regarded as a cemetery unless for any reason the land turns out to be unfit for use as a cemetery. It is also stated that once a wakf is established whether by evidence of dedication or by evidence of user, it is the essence of the wakf that it should be permanent. This decision was not concerned with the question whether the construction of a mosque is permissible under Mohammedan Law over a graveyard. It is also stated that once a wakf is established whether by evidence of dedication or by evidence of user, it is the essence of the wakf that it should be permanent. This decision was not concerned with the question whether the construction of a mosque is permissible under Mohammedan Law over a graveyard. That decision concerns the question whether an admitted graveyard not in use for sometime can cease to be a graveyard. I am not, in this case, concerned with any such question and this decision is of little help to decide the case on hand. So also is the decision in Motishah v. Abdul Gaffoor (AIR 1956 Nag. 39) referred to by the learned counsel for the appellant. All that is held in the said decision is only that a cemetery on a graveyard is a consecrated ground and it is not a private property. It is also held that if the land has been used for a long time as a burial ground, it is by user a wakf even though there is no evidence of an express dedication and that a cemetery once created continues to be so even though there remain in it no traces of the dead, not even bones. In the decision in Lata Jhao Lal v. Ahmudullah (AIR 1934 Allahabad 335) it is held that once a land is shown to be a graveyard the Zemindar has no right over the land because it becomes a wakf, and no person has any right to graze cattle over the graveyard. The law is stated as follows: "Once a plot of land has been proved to be a graveyard, the zemindar has no rights left at all for the simple reason that the grave yard becomes a wakf for the purpose of burying the dead. The zemindar cannot interfere with the use of the land as graveyard so long as it is used for this purpose. It would be novel, and indeed against public interest to rule that a zemindar has a right to graze cattle upon a graveyard. If he had indeed such a right there would be nothing in law to prevent him from grazing a pig upon the same land. It would be novel, and indeed against public interest to rule that a zemindar has a right to graze cattle upon a graveyard. If he had indeed such a right there would be nothing in law to prevent him from grazing a pig upon the same land. When a community buries its dead the land which is used for this purpose becomes sacred and should not be used for any other purpose whatever." This decision also is not at all concerned with the question arising in the present case. No such question arose before the Allahabad High Court in the decision cited whether there was any prohibition in Mohammedan Law against the construction of a mosque over a graveyard. The decision in Mohammed Yaqub Khan v. Mt. Aziz-Un-Missa (AIR 1935 Oudh 437) cited by the learned Counsel also does not relate to this question. The learned counsel refers to the Malayalam translation of a book in Arabic by name "Fathul Mueen", a true translation in English of a passage at page 183 will be as follows: "Unless there is special necessity construction inside or over a Kabar is 'Karabat'. It has been commanded not to do so. In case of danger to the Kabar from wild animals, or from floods or if there is a possibility of the Kabar being excavated masonry construction can be done to the Kabar. Such construction is 'Karabat', only if the Kabar is in one's own land. If the land is not his own, construction of the Kabar is 'Haram'. In the absence of any reason as aforesaid construction of a Kabar in a public place or putting up a Gopuram over it is 'haram'. The place where the people of the locality bury their dead is a common place. Whether the land is Wakf and whether the person who granted the Wakf and its traditions are known or unknown construction of a Kabar is 'Haram'. If anybody constructs the Kabar, such construction should be demolished and removed. The reason is that unless such construction is removed the space will be lost to the Muslim Community for future burial of dead bodies after the body in the Kabar is disintegrated." Whatever be the authority of this book the passage cited also does not refer to the construction of a mosque over a graveyard either as "Karabath" (not totally forbidden), or as "haram" (forbidden). In the Encyclopaedia of Islam, Vol. 3 at page 16 it is stated that the prophet himself got a mosque built over a graveyard in Madeena. It cannot therefore be said that there is any prohibition in the construction of a mosque over a graveyard if the prophet himself had done that. That could be taken as an example and the authority of the prophet himself that there is no prohibition for the construction of a mosque over a graveyard. Sri P. Muhammed appearing for the first defendant and Sri K. M. Abdul Kader appearing on behalf of the Kerala Wakf Board also told me that this mosque at Madeena built by the prophet over a graveyard houses the tombs of the prophet himself and of the first two Caliphs, namely Abubacker and Ummer. 10. In text books on Mohammedan Law no prohibition is found mentioned against the construction of a mosque in cemetery. The decisions cited do not refer to this question. There is example of the prophet himself as having got a mosque built over a graveyard in Madeena. Under these circumstances I have no hesitation to hold that there is no prohibition in Mohammedan Law against the construction of a mosque in a graveyard. 11. The next point urged by the learned Counsel for the appellants is that the Managing Committee of the mosque cannot delegate its functions to the subcommittee, of which the defendants are the office bearers and members and the subcommittee on such delegation gets no authority to demolish the existing mosque and construct a new one in the compound. The lower appellate court has found at Para.15 of its judgment that the defendants are the members of a subcommittee formed for the purpose of reconstruction of the mosque and the subcommittee was authorised to put up a new mosque at a different site. This finding is supported by the evidence in the case. Exts. B-15 and B-16 minutes books already referred to show that the decision to reconstruct the mosque was taken at meetings of the general body of members of the Mahal held in the mosque's premises, and the subcommittee consisting of the defendants was authorised to carry out the work. The mosque itself is managed by a Committee of which the 2nd defendant is the President. The mosque itself is managed by a Committee of which the 2nd defendant is the President. Apparently the Managing Committee has authorised the subcommittee, to carry out the construction work on its behalf. By this there is no delegation of functions of the Managing Committee. The Managing Committee is itself acting through the subcommittee. The Managing Committee itself is responsible for the work to accomplish which a subcommittee is formed. The decision in AIR 1963 SC 309 and AIR 1971 SC 1691 cited by the learned counsel for the appellants to show that a trustee cannot delegate his office or any of his functions except in certain special circumstances, have no application to the facts of the case. There is no delegation of office or functions by the Managing Committee of the mosque. The Managing Committee is only getting the work done through the subcommittee formed for that purpose. In these circumstances, I have no hesitation to reject the contention of the appellants that the defendants who are the members of the subcommittee constituted for the purpose of reconstruction of the mosque have no right to carry out the work of reconstruction. 12. In the view that I have taken it is not necessary for me to consider the question raised Dy the learned counsel for the respondents that the suit is barred under S.55 of the Wakf Act read with S.92 of the Civil Procedure Code. It is already seen as found by the courts below that the plaintiffs have failed to prove that the site of the new mosque is a place of burial. It is also found that there is no prohibition in Moharnmedan Law against the construction of a mosque over a graveyard. It is further found that the defendants are the members of the subcommittee constituted for the purpose of carrying out the reconstruction work on behalf of the mosque. It can also be found that the plaintiffs have not shown in what way they are aggrieved by the decision to reconstruct the mosque at the site where the foundation had been laid and the basement constructed. The result is, the second appeal fails and it is dismissed with costs. It can also be found that the plaintiffs have not shown in what way they are aggrieved by the decision to reconstruct the mosque at the site where the foundation had been laid and the basement constructed. The result is, the second appeal fails and it is dismissed with costs. I record my appreciation of the assistance by Sri K. M. Abdul Kader, who appeared on behalf of the Kerala Wakf Board on my request, though no notice of the second appeal is seen issued to the Wakf Board under S.57 of the Wakf Act.