JAMILA v. MOSQUE — 1987 DIGILAW 75 (HP)

JUDGMENT V. P. Gupta, J. —This regular second appeal is directed against the judgment and decree, dated 7-4-1977 passed by the learded District Judge, Nahan. 2. Briefly, the facts are that Shri Sondha son of Hussain Bux was the owner and in possession of the disputed house (detailed in the plaint). He bad one son Nur Ali, who migrated to Pakistan at the time of partition of the country. 3. Respondents Nos. 1 to 4 (hereinafter plaintiffs Nos. 1 to 4) have filed the present suit for possession of the disputed house in the court of Senior Sub-Judge, Nahan on 21-1-1970, alleging that Sondha had executed a valid will, dated 12-12-1962, in favour of plaintiffs Nos. 1 and 2 by this will he had appointed Abdul Shakoor and Chaudhry Hussain Bux of Nahan town as executors. The executors were to take steps to hand-over the possession of the disputed house to plaintiffs Nos. 1 and 2 (mosque situate in Mohalla Kachha Talab, Nahan and mosque situate in Mohalla Shamsher Ganj, Nahan) as wakf property. Plaintiffs Nos. 3 and 4 joined in the suit under Order 1, Rule 8, C. P. C. in a representative capacity on their behalf and on behalf of other worshipers and followers of the Islam community, Nahan town. 4. The allegations in the plaint are that Sondha was occupying one room in the disputed house and the rest of the house was in possession of the appellant (hereinafter defendant No. 1), who was a tenant under Sondha during his life-time but in case the tenancy was not proved then the possession of defendant No. 1 was of a licensee. Sondha died in January, 1963 and the executors performed the last rites of Sondha with the amount which they realised by auctioning the movable property of Sondha and Ks. 200 cash left by Sondha. The executors handed over the ownership of the suit property to plaintiffs Nos. 1 and 2, that is, the two mosques, and thus plaintiffs Nos. 1 and 2 are the owners of the suit property. 5. The defendant No. 1 took illegal possession of the room which was in possession of Sondha, and thus he is now in possession of the whole of the disputed house. 1 and 2, that is, the two mosques, and thus plaintiffs Nos. 1 and 2 are the owners of the suit property. 5. The defendant No. 1 took illegal possession of the room which was in possession of Sondha, and thus he is now in possession of the whole of the disputed house. Defendant No. 1 was approached to settle the dispute with the plaintiffs amicable and he premised and agreed to vacate the possession of the room which had illegally been occupied by him after the death of Sondha. Regarding the other portion of the disputed house, he agreed to pay Rs. 100 per year, but later on he resiled from the assurance and promise given by him and refused to hand-over the vacant possession of the disputed house to the plaintiffs. Hussain Bux, executor is dead while only Abdul Shakoor, executor is alive and therefore, Abdul Shakoor has been impleaded as defendant No. 2. According to the will, Abdul Shakoor (executor) has no right to file a suit for possession of the suit property. 6. The suit was contested by the appellant (defendant No. 1) who alleges that the plaintiffs have no locus standi to file the suit and he was not a tenant or a licensee of the disputed property. He claims the disputed property adversely and alleges that he had taken possession of the same immediately after Nur Ali son of Sondha left for Pakistan. The house was lying vacant and he occupied the same without the consent of Sondha deceased. He never conceded the rights of Sondha to the suit property. It is further alleged that Sondha never executed any valid will in favour of plaintiffs Nos. 1 and 2 and after the death of Sondha, he (defendant No. 1) never entered into any agreement and never agreed to pay annual rent of Rs. 100 in respect of the half of the suit property to the plaintiffs. An application for ejectment under section 13 of the Eeast Punjab Urban Rent Restriction Act was filed against him by defendant No. 2, but the same was dismissed. The plea of limitation was also raised by defendant No. 1. On the pleadings of the parties, the following issues were framed : — 1. Whether the plaintiffs 1 and 2 have any locus standi to file this suit ? Opp 1 and 2. 2. The plea of limitation was also raised by defendant No. 1. On the pleadings of the parties, the following issues were framed : — 1. Whether the plaintiffs 1 and 2 have any locus standi to file this suit ? Opp 1 and 2. 2. Whether defendant No. 1 was a licensee/tenant of Sondha deceased regarding the disputed house minus one room towards East side as alleged ? OPP. 3. If issue No. 2 is not fund for the plaintiffs, whether defendant No, 1 had acquired adverse title to the entire house in question during the life-time of Sondha deceased ? OPD, 4. Whether Sondha executed a valid will with respect to the property in dispute in favour on the plaintiffs is sound and disposing mind? OPP. 5. Whether the suit is within limitation ? OPP. 6. Relief. 8. The learned Senior Sub-Judge held that the plaintiffs Nos. 3 and 4 had locus standi to file the suit and defendant No. 1 was not a tenant or a licensee of the disputed property. He also held that defendant No. 1 had acquired title to the disputed property by adverse possession. The suit was not found to be within time and it was also found that a valid will was not executed in favour of the plaintiffs Nos. 1 and 2. On these findings, the plaintiffs suit was dismissed by the learned Senior Sub-Judge on 7-5-1974. 9. Feeling aggrieved from the judgment and decree of the learned Senior Sub-Judge, an appeal was filed by the plaintiffs in the court of District Judge, Nahan. The learned District Judge by his judgment, dated 7-4-1977 accepted the appeal after setting aside the judgment of the learned Senior Sub-Judge and granted a decree for possession in favour of the plaintiffs. The learned District Judge found that a valid will was executed by Sondha deceased in favour of plaintiffs Nos. 1 and 2 and that the plain tiffs entitled to file the suit. He also held that the defendant No. 1 had failed to prove adverse possession and the plaintiffs suit was within time. The defendant was not found to be in possession as a licensee or a tenant. 10. I have heard the learned counsel for the parties. 11. The learned counsel for the appellant (defendant No. 1) contends that Sondha (deceased) never executed any will in favour of plaintiffs Nos. The defendant was not found to be in possession as a licensee or a tenant. 10. I have heard the learned counsel for the parties. 11. The learned counsel for the appellant (defendant No. 1) contends that Sondha (deceased) never executed any will in favour of plaintiffs Nos. 1 and I. He supports the reasonings of the judgment of the learned Senior Sub-Judge and contends that the will is not proved to be a genuine document. The next contention is that under the Mohamadan Law, Sondha could not excess a will in exercise of legal third of his property, meaning thereby that he could bequeath only one third of his property by a will. The learned counsel also contends that defendant No. 1 has acquired title by adverse possession. He relies upon the oral and documentary evidence in support of this contention and argues that the defendant is in possession of the disputed property since long without the consent of the true owner. The learned counsel does not claim any tenancy or licensees rights in this property and states that such rights were never claimed at any stage. 12. The learned counsel for the respondents (plaintiffs) contends that the judgment of the learned District Judge is correct and there are no grounds to interfere with the various findings of the learned District Judge. The will in dispute was executed by Sondha deceased with a sound disposing mind and the same was duly proved. Sondha had absolute rights in the property and was fully competent to execute a will even under the provisions of Mohamadan Law. The will is a genuine document. It is also contended that the plaintiffs have alleged tenancy in the plaint but defendant No. 1 has denied the title of the owners/landlords, therefore, defendant No. 1 is liable to be dispossessed on the grounds of denial of title. Defendant No. 1 has miserably failed to prove adverse possession over the suit property or ever any part of the same and the oral and the documentary evidence does not establish adverse possession of defendant No. 1. It is contended that mere possession for a long period cannot amount to adverse possession. 13. I have considered the contentions of the learned counsel for the parties and have also gone through the records of the case. 14. The will Ex. It is contended that mere possession for a long period cannot amount to adverse possession. 13. I have considered the contentions of the learned counsel for the parties and have also gone through the records of the case. 14. The will Ex. p-4 (also P/A) dated 22-12-1962 was allegedly executed by Sondha who died in January 1963. Shri Devender Datt petition writer, (PW 4) is the scribe of the will and many witnesses have signed this will as attesting witnesses. Shri Devender Datt (PW 4) states that the will (Ex. PA) was scribed by him on the instructions of Sondha in the presence of Manzur Ali, Hafiz Mohamad, Munshi Gulam Quadar and five-six other persons. It was read over to Sondha in the presence of these persons and Sondha, after admitting its contents to be correct, thumb marked the same. It was attested by the witnesses who were present there and was written at the house of Murtab Ali (PW 7) where Sondha was residing. He knew Sondha personally and the son of Sondha (who used to reside in the disputed house) left India for Pakistan during the partition of the country in or about 1947, In his supplementary statement recorded on 6-10-1972, he states that Sondha was hale and hearty and had a sound disposing mind. 15. Gulam Quadar (PW 5) states that the will (Ex. PA) was scribed by Devender Datt (PW 4) on the instructions of Sondha who thumb marked the same after admitting its contents to be correct, in the presence of the marginal witnesses. He signed the will as a marginal witness and some other persons also attested the will. In his supplementary statement recorded on 6-10-1972, be states that Sondha was in sound disposing mind and the will was scribed at his instance. 16. Murtab Ali (PW 7) corroborates the statement of Devender Datt (PW 4) and Gulam Quadar (PW 6) and further states that the will was scribed by Devender Datt (PW 4) in the presence of the attesting witnesses when Sondha was having a sound disposing mind. 17. In the will (Ex. PA) some of the witnesses have given dates under their signatures, but this fact does not make the will a doubtful document because every person, has his own habit of signing a document. 17. In the will (Ex. PA) some of the witnesses have given dates under their signatures, but this fact does not make the will a doubtful document because every person, has his own habit of signing a document. The property was being given by the testator for a religious purpose and for the benefit of the Muslim community. The testator was admittedly not having any heir living in India at that time and therefore, it was natural for many members of the Muslim community to be present at the time of the execution of the will. Hence the mere fact that several members of the Muslim community have attested the will, cannot be considered to be a suspicious circumstance. Further the witnesses who have proved the will, were not cross-examined to shatter their credibility or to make the will a suspicious document. The scribe has given the dates at the top of the will and also at the end of the will, but this is not material and cannot be a suspicious circumstance specially when the scribe of the will was not cross- examined regarding this fact The learned District Judge, Nahan has considered the various aspects in detail and has rightly held that the will (Ex. PA) was validly executed by Sondha deceased. The learned counsel for the appellant mainly relies upon the reasons given by the learned Senior Sub-Judge in his judgment, but I find that the learned Senior Sub-Judge did not appreciate the evidence correctly. In these circumstances, the findings of the learned District Judge upholding due execution of the will are affirmed and I agree with the same. 18. The next contention is that Sondha (deceased) could not execute a valid will in excess of legal third of his property .because Nur Ali, son of Sondha had not consented to this will, and for this purpose sections 118 and 119 of the Mullas Principles of Mohamedan Law by M. Hidayatullah are referred. Sections 118 and 119 read as follows : "118. Limit of Testamentary power.—A Mohamedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator. 119. Sections 118 and 119 read as follows : "118. Limit of Testamentary power.—A Mohamedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator. 119. Abatement of legacies.— If the bequests exceed the legal third, and the heirs refuse their consent, the bequests abate rateably. 19. It is contended that the will (Ex. DA) to the extent of 2/3rd share is invalid and the consent could not be implied. Further it had to be established that the heirs who were excluded by the will had consented to such an arrangement. Reference was also made to AIR 1951 Nag 394. Nanhoobeg v. Gulam Hussain and others and AIR 1957 Nag 84, Izzul Jabbar Khan Azizul Jabbar and others v. Chairman District Council Kuchery Ward Seoni District Chindwara and others. 20. Murtab Ali (PW 7) states that Sondha left no heirs in India. The contents of the will (Ex. PA) also prove that Nur Ali was not living in India. 21. Now, Sondha had no legal heir except one son Nur Ali. The admitted position is that Nur Ali left India in the year 1947 during the partition of the country and went to Pakistan. The will was execute d in December, 1962 and Sondha died in January, 1963, There is no evidence to prove that Nur Ali is alive or had ever objected to the will of Sondha. In fact, the appellant had never raised this plea in the written statement and never claimed that the will executed by Sondha (deceased) was invalid in view of sections 118 and 119 of the Principles of Mohamedan Law. Sondha himself in the will (Ex. PA) has mentioned that his wife had died long ago and his son Nur Ali had left for Pakistan during 1947 inspite of the fact that he (Sondha) did not kike him (Nur Ali) to migrate to Pakistan. There is no evidence that after 1947 Nur Ali ever visited India, and he came to meet his father Sondha or to manage and claim the property of his father. There is no evidence that Nur AH has any property in India. It is also not proved that Nur Ali was alive in 1962. 22. There is no evidence that after 1947 Nur Ali ever visited India, and he came to meet his father Sondha or to manage and claim the property of his father. There is no evidence that Nur AH has any property in India. It is also not proved that Nur Ali was alive in 1962. 22. Under section 118 of the Principles of Mohamedan Law, it is mentioned that the consent need not be express and it may be signified by conduct showing a fixed and unequivocal intention, that is, if a property is bequeathed and the sons of the testator, who are his only heirs, attest the will, then in such a case this may be taken sufficient to constitute consent on the part of the sons or persons claiming through them. Similarly, if the testator has no heir, then he can bequeath his whole property to a stranger. 23. In the facts and circumstances of the present case, it can safely be presumed that Nur Ali, son of Sondha, was not interested in any property in India because he had left for Pakistan in 1947 against the will and can- sent of his father Sondha. His conduct proves that he had abandoned all his rights with respect to property in India which was in the ownership of Sondha and he had abandoned all his rights of heir ship to the property of Sondha. It was not possible in these circumstances to get the written consent of Nur Ali. It can be presumed that Nur Ali had given implied consent to Sondha for disposal of the property. 24. In these circumstances, the judgments AIR 1951 Nag 394 and AIR 1957 Nag 84 (supra) are not applicable in the facts and circumstances of the present case. The contention of the learned Counsel for the appellant is without any force and is rejected. 25. The learned Counsel for the appellant then contends that the appellant has acquired title by adverse possession. The case of the respondent was that the appellant was in permissive possession of one room of the disputed property as a tenant but later on he illegally occupied the other room This fact is not proved and the appellant has not been held to be a tenant or a licensee of the suit property. The case of the respondent was that the appellant was in permissive possession of one room of the disputed property as a tenant but later on he illegally occupied the other room This fact is not proved and the appellant has not been held to be a tenant or a licensee of the suit property. The learned Counsel for the appellant does not claim any rights in the suit property as a tenant or a licensee. 26. For proving adverse possession, the defendant-appellant has to plead and prove that he was in possession of the property adversely and in hostility to the knowledge of Sondha. By mere possession for a period of twelve years or more a person cannot claim adverse possession. 27. The defendant AH Jan (DW 1) states that Nur Ali migrated to Pakistan about 23 years back and the house was lying vacant. He entered the house and celebrated his marriage in this house about 20 years back. His eldest daughter aged about 20 years, was also born in this house. His father was in the service of Murtab Ali (PW 7) and Dsondha alias Sondha, an employee of Murtab Ali (PW 7) was living with Murtab Ali (PW ?). The burial of Sondha was arranged by Murtab Ali (PW 7). Diwan Chand (DW 3) states that he saw the defendant residing in the suit property from 1951 and Jagat Singh (DW 2) does not state anything on this count. Besides this oral evidence, there is no evidence to prove adverse possession. There is no evidence to prove that the defendant ever claimed adverse possession to the suit property or denied the title of Sondha in the suit property, 28. An agreement marked A’ dated 19-6-1956 is proved by Maru (PW 6). The recitals in this agreement prove that Sondha deceased was exercising ownership rights over the disputed property in 1956. Similarly, the list of articles (Ex. D-2/I) dated 26-1-1963 is proved by Abdul Shakoor and articles of Sondha were found in the disputed house, meaning thereby that Sondha was exercising all the rights of ownership in the suit property, Murtab Ali (PW 7), Fateh Mohamed (PW 2) and Ali Mohamed (PW 1) also state that the defendant was residing in the house with the consent of Sondha on payment of monthly rent. There is no even act or hostile act on the part of the defendant to prove that he claimed ownership to the suit property or disclaimed the title or ownership of Sondha. In these circumstances, I am of the view that the learned District Judge is right in holding that the defendant has failed to prove adverse possession to the suit property. 29. The next contention of the appellants counsel is that the plaintiffs have no locus standi to file this suit. It is contended that no suit could be filed on behalf of the Mosques as the Mosques cannot be considered to be a juristic person. The plaintiffs have not claimed themselves to be Mutwalis of the Mosques and there is no evidence to prove that the plain tiffs Nos. 3 and 4 were ever appointed Mutwalis under Mohamedan Law or were managing the properties of any Wakf as its Mutwalis. Further, no Wakf property could vest in the Mutwalis. 30. The learned Counsel for the respondents admits that there was no Mutwali of the Mosques, that is, plaintiffs Nos. 1 and 2, but he contends that the management of the Mosque was in the hands of Anjaman Islamia’ which was constituted to manage the affairs of these mosques and other Wakf property of Nahan. It is contended that the president of the Anjaman Islamia was, therefore, competent to file the suit. 31. Another contention of the learned counsel is that the plain tiffs Nos. 3 and 4, being the followers of Islam and residents of Nahan town had a locus standi to file the suit for their benefit and for the benefit of the followers of Islam. It is contended that the suit by plaintiffs Nos. 3 and 4 was in representative capacity under Order 1, Rule 8, C. P. C. and was maintainable. 32. There is no dispute that the suit has been filed by plaintiffs Nos. 3 and 4 under Order 1, Rule 85 C. P. C. in a representative capacity and that these two plaintiffs are followers of Islam. They bad specifically pleaded that the suit was being filed for the benefit of the Muslim community and the court vide its orders dated 2-3-1970 and 2-4-1970 permitted these two plaintiffs to tile the suit in a representative capacity. Suit on behalf of the plaintiffs Nos. They bad specifically pleaded that the suit was being filed for the benefit of the Muslim community and the court vide its orders dated 2-3-1970 and 2-4-1970 permitted these two plaintiffs to tile the suit in a representative capacity. Suit on behalf of the plaintiffs Nos. 1 and 2 has been filed through the president of Anjaman Islamia, Nahan, which, according to respondents/plaintiffs, is managing the affairs of the Mosques and Muslim brotherhood in Nahan. It is correct that generally a Mutwali has no right in the Wakf property, but a property which is dedicated permanently by a person professing the Muslim faith for a religious, pious or charitable purpose can be deemed to be a Wakf property. The Mutwali, in these circumstances, is entitled to manage the property or supervise the same. The Anjaman Islamia is a body which, according to the plaintiffs, is managing the Muslim property of Nahan town and thus the Anjaman Islamia, being in the management of the Muslim property which is dedicated permanently for the purpose of mosques, would be deemed to be in management of such property and could supervise this property. The suit by the President of Anjaman lslamia would, therefore, be competent for the benefit of the general Muslim community of Nahan. Further, even if plaintiffs Nos. 1 and 2 are considered to be having no locus standi to file the suit, still plaintiffs Nos. 3 and 4 would be entitled to file the suit for the benefit of the general Muslim community on behalf of all the Muslims of Nahan because the property had been given by Sondha deceased for a religious public purpose. 33. In view of this, although the plaintiffs Nos. 1 and 2 cannot be considered to be Mutwalis, in the strict sense, and the Mosques being not juristic persons, still I am of the view that the plaintiffs for the reasons already stated earlier, were having a locus standi to file the suit. The learned District Judge in his judgment has also held that the plaintiffs had the locus standi to file the suit and this finding of the learned District Judge is affirmed. 34. No other point was urged before me. 35. As a result of the above discussion, I find that there is no merit in this appeal which is hereby dismissed. Appeal dismissed.