81.
Cruelty.
Cruelty,
if uncondoned, would disentitle the husband to a restitution of conjugal
rights.
Explanation.
“Cruelty”
within the meaning of this section means and includes such violence towards the
wife s is calculated to endanger her health or to raise a reasonable
apprehension of it.
Authorities.
11
Moo. Ind. App. 611; 9 C.W.N. 510; I.L.R. XXXIV Cal. 971; 7 Bom L.R. pages 608,
609; I.L.R. XXVII All. 96; I.L.R. XXIX All 222.
(1)
1926,
100 I.C. 169 (Nagpur).
(2)
See
I.L.R. X Bom. 301; XXI Bom. 610; XIII All. 126.
(3)
95
P.R. 1898.
(4)
XI
M.I.A., p. 615; I.L.R. VIII All. 78; I.l.R. V Cal. 500; I.L.R. XXVIII Cal. 37
C.A. 766 of 1919.
(5)
4 Bom.
L.R. 107 and 820.
(6)
I.L.R.
XXVIII Cal. 751; cf. 6 bom. L.R. 728.
Restitution can be refused on the ground of
cruelty.
Restitution
can be refused on the ground of cruelty or likelihood of cruelty or abandonment
(P.L.R. 1900, p. 475; 13 All. 126; 166 P.L.R. 1913). And cruelty in India is
cruelty s understood in English Law. It is means and includes such violence
towards the wife as is calculated to endanger her health or safety, or to raise
a reasonable apprehension of it (see 18 P.R. 1877: 11 M.I.A. 611; 9 C.W.N. 510;
34 Cal. 971; 7 Bom. L.R., pages 608, 609; 27 All. 96; 29 All. 222.
Cruelty
is not necessarily confined to personal cruelty (11 All. 480). The act or acts
or acts, constituting the offence, must be of such nature as to give the wife
just reason to suppose hat the husband is about to do something which will give
her well-founded apprehension for her personal safety (1).
It
may be that gross failure by the husband in the performances of the obligations,
which the marriage contract imposes on him for the benefit of his wife, might,
if properly proved, afford good grounds for refusing the assistance of the
court (2).
Where
a Hindu wife and husband married when former was 13, and after short co-habitation
was ill-treated and expelled owing to husband’s intrigue with brother’s widow,
whom he kept as a mistress, and 13 years later husband sought restitution, held
not entitled (3).
Where
a Hindu keeps a Mussalmani woman, and
by such conduct compels the wife to leave the house, she cannot be compelled to
return (4).
Court
may refuse restitution if the health or safety of the wife is likely to be
endangered if she is forced to return to her husband’s house (5).
But
mere fact or marrying a second wife and consequent unkindness to the first wife
is not sufficient to decline restitution (6).
Effect of abandonment.
A
plaintiff had by executing a deep deliberately abandoned his wife, in which he
said he gave her up and had no further claim upon her, and that another man
might marry her and in consequence of which she was now living with that other man as his wife; held, he had deprived himself of all
right to her custody (7).
The
hasty execution of a deed of abandonment, which was immediately torn up, was
held not to amount to repudiation or divorce (8).
The
desertion by the husband for 10 years after he had turned his wife out
disentitles him (9).
Where
wife leaves her husband and lives with her parents for 15 years without years
without his supporting her or seeking her company, the husband is disentitled
to restitution (10).
(1)
V. Cal
500; see also XIX Cal. 84; XXVII All. 96.
(2)
XI.
Mo. I.A. 551, 615 P.C.
(3)
IV
A.H.C. 109.
(4)
14
W.R. 451.
(5)
C.A.
766 of 1919.
(6)
17
W.R. 451; 24 W.R. 522; see also 9 C.W.N. 510; 7 Bom. XXIX All 222.
(7)
78
P.R. 1893; see also 33 P.R. 1896.
(8)
31
P.R. 1908.
(9)
82
P.R. 1908.
(10)
125
P.L.R. 1909.
Intercourse
with prostitutes will not debar restitution among Muhammadans, where wife has
consistently for five years refused to co-habit (1).
See
also 51 P.R. 1869 and Notes on Punjab
Customs by Ellis, 2nd Edition, pp. 271 to 273.
Cruelty : habitual beating of wife, or unfounded accusation of adultery.
If
the wife has been subjected to beatings by her husband at irregular intervals
extending over a considerable period which have been given to her through no
fault of her own and as a result thereof she is in a condition of perpetual
anxiety, apprehension and unhappiness, then that in itself is sufficient reason
for a court to offer no relief to a husband whose conduct is of that character.
“Mr. Mehta (the judge of the lower appellate Court) seems to have approached
this case from the point of view that people in the social position of Kallu
and Mst. Tarni (the parties in this case) habitually resorted, the one to the
beating of the wife and the other to submitting to the beating. He says, ’there
must have been occasional beatings of the wife by the appellant as is commonly
seen among illiterate persons of the lower strata of society to which the
parties belong.’ When one knows that ninety per cent of the people of this
country are illiterate, that means, according to Mr. Mehta, that approximately
the male portion of about one hundred million of the lower strata of people
habitually beat their wives from time to time….We think that Mr. Mehta entirely
misled himself by the assumption that the male part of one hundred millions of
people of this country habitually beat their wives….Moreover, we are inclined
to think that passage of the judgement of the learned judge (? Mr. Justice
Sulaiman) in which he says, ‘Unless the assault is of such a nature as to
endanger the safety of life or person of the wife, if cannot among to legal
cruelty’ takes rather too narrow a view of the present-day regard for the
position of women.” Mears, C.J. and Lindsay, J.l (reversing the judgement of
Sulaiman, J.); 1927, 25 A.L.J. 1100.
Principle of justice equity and good conscience applicable.
An
unfounded accusation of adultery by a husband against his wife constitutes
legal cruelty and the husband, where he has made such an accusation, is not
entitled to a decree for restitution of conjugal rights against his wife. The
principles of justice, equity and good conscience not inconsistent with any
positive rule of Muhammadan Law may well be applied in determining the grounds
on which a claim for restitution of conjugal rights may be refused by the
Courts of Justice. In suits between Muhammadans for restitution of conjugal
rights an Indian Court might well admit defences founded on the violation of
marital rights. There is no rule of Muhammadan Law by which in all
circumstances and even in the face of unfounded accusation of adultery decree
for restitution of conjugal rights must be granted against the wife; 1927, 101
Ind. Cas. 261, (Oudh), (case-law considered); compare 1926, 101 Ind. Cas. 760,
(Calcutta), (husband openly charging the wife with adultery with another man,
when she has in truth been so living in adultery, is not tantamount to
‘cruetly’).
(1)
41
P.R. 1878.
Where
cruelty on the part of the husband has been condoned by the wife, a much
smaller measure of offence would be sufficient to neutralize codonation thatn
would justify the wife in the first instance separating from her husband
(I.L.R. Cal. 500). Cf. I.L.R. XIX
Cal. 84.
Miscellaneous circumstances.
Under
Hindu Law the fact that a husband had adulterous intercourse with another
woman, which has ceased at time of suit, is no answer to a suit for restitution
(I.L.R. 8 All. 78). Similarly inssanity is
no ground for desertion (1) and poverty of husband is no bar to restitution
(2). In I.L.R. XVI Bom. 639 impotency was considered as a ground of nullity. An
impotent party cannot refuse restitution on ground of own impotency (3). Plea
of wife that she is unfit for marriage owing to incurable disease, or physical
malformation is no defence, as a court can only refuse on grounds that the wife
has a legal right to resist restitution and has no concern with questions as to
what would be for the benefit of parties, and it is not sufficient reason to
refuse that the husband’s claim is only a counter-move to a suit for
maintenance (4).
If
the wife has been subjected to beatings by her husband as irregular intervals
extending over a considerable period which have been given to her through no
fault of her own and as a result thereof she is in a condition of perpetual
anxiety, apprehension and unhappiness, then that in itself is sufficient reason
for a court to offer no relief to a husband whose conduct is of that character
(5).
An
unfounded accusation of adultery by a husband again his wife constitutes legal
cruelty and the husband, where he has made such an accusation, is not entitled
to a decree for restitution of conjugal rights against his wife. The principles
of justice, equity and good conscience not inconsistent with any positive rule
of Muhammadan Law may well be applied in determining the grounds on which a
claim for restitution of conjugal rights may be refused by the courts of justice
(6).
Restitution
should be refused if there has been condonation or connivance (7). Where
cruelty on the part of the husband has been condoned by the wife, a much
smaller measure of offence would be sufficient to neutralize condonation than
would justify the wife in the first instance separating from her husband (8).
Restitution
is discretionary and should be refused where a widow was surprised into chadar-andazi with her brother-in-law
and without delay repudiated it and went off to her own family (28 P.W.R.
1916).
(1)
XIII
All. 127/
(2)
IX
Bom. 529.
(3)
XXI
Bom. 610.
(4)
Ibid.
(5)
1927,
25 A.L.J. 1100.
(6)
1927,
101 I.C. 261. (Oudh); cf. 1926, 101 I.C. 760.
(7)
150
P.R. 1884; see also 6 P.R. 1885 and 95 P.R. 1898.
(8)
I.L.R.
XIX Cal. 84.
Maintenance order.
A
decree for restitution supersedes a maintenance order, and if wife persists in
refusing to live with her husband the Magistrate should treat his order as
determined (1).
Where
claim for restitution is brought merely to defeat a maintenance order, a decree
cannot be refused (2).
A
magistrate’s order for maintenance cannot be enforced after divorce (3). A
claim for arrears of maintenance abates on the death of the person against whom
it is made, and cannot therefore be enforced against his estate (4).
Where
cruelty on the part of the husband has been condoned by the wife, a much
smaller measure of offence would be sufficient to neutralize condonation than
would justify the wife in the first instance separating from her husband (5).
Valuation and jurisdiction.
Where
a suit by a husband for restitution of conjugal rights against the wife and for
an injunction against her parents and brothers restraining them from preventing
her return to him was valued for purposes of court-fee at Rs.200 and for purposes
of jurisdiction at Rs.1,000; held,
that the claim for an injunction against relatives of the wife was merely an
ancillary and incidental relief to the claim for restitution of conjugal
rights, against the wife. Accordingly, the Munsif, 1st Class, had jurisdiction
to try the case and that the plaint was sufficiently stamped. Section 7, clause
4 (d) or the Court-fees Act did not apply as that relates to suits in which the
main relief is an injunction (21 P.R. 1919).
82.
Non-payment of dower.
The
non-payment of prompt dower would also be a bar to the enforcement of such a
claim amongst Muhammadans where consummation had not previously taken place.
Authorities.
No.
141 P.R. 1884; No. 119 P.R. 1885; No. 164 P.R. 1889; No. 14 P.R. 1891. Compare
I.L.R. VIII All 149, followed in I.L.R. XVII Cal. 670; I.L.R. XI Mad. 327; Bom.
L.R. Vol. 6, page 684, and I.L.R. XXX Bom. 122.
Explanation – “Prompt dower.”
A
fair proportion of the dower must be considered as “prompt.” What is a fair
proportion must be determined with reference to the woman, he mount of dower,
and also what is customary (No. 5 P.R. 1891, following No. 109 P.R. 1880). See
also Wilson’s Digest of Anglo-Muhammadan
Law (2nd edition), para. 46. That portion of the dower which is
payable immediately on remand is called the mahr-al-muajjal,
“Prompt” or “exigible”; and the wife can refuse to enter the conjugal domicile
until the prompt portion of the dower
has been paid. The other portion is calle dmahr-al-muwajjal,
“deferred dower” which does not become due until the dissolution of the
contract, either by death or divorce. It is customary in India to fix half the
dower as prompt and the remaining moiety as deferred;
but the parties are entitled to make any other stipulation they chose; Amir Ali’s Handbook on Muhammadan Law,
p. 117. If the dower be prompt , it must be paid before restitution (35 P.R.
1873; 45 P.R. 1876; 141 P.R. 1884; 1 All. 483; 2 All. 831). After consummation,
non-payment of prompt dower cannot be pleaded as a defence to a suit for
restitution of conjugal rights; (ibid,
at p. 118); Mulla’s Muhammadan Law, 8th ed., p. 180.
(1)
I.L.R.
XIII Bom. 484; XIII Cal. W.R. 52.
(2)
See
XXI Bom. 610.
(3)
VII
Bom. 180; cf. XLI Cal. 88.
(4)
XLI
Cal. 88.
(5)
I.L.R.V.
Cal. 500; df. I.L.R. XIX Cal. 84.
Remark 1.
The
demand and refusal to pay exigible dower must be made in clear and unambiguous
language, otherwise Art. 103, Schedule II of the [Limitation Act (Act IX of
1908)] will not come into operation (No. 63 P.R. 1892); see also Rustomji’s Law of Limitation, 4th
ed., p. 534 and cases there cited.
Remark 2. Conjugal rights :
non-payment of dower.
Although
non-payment of dower is not a bar to the maintenance of suit for restitution of
conjugal rights when the wife has once yielded her person to her husband, the
Court is competent in the exercise of an equitable jurisdiction, when granting
the husband a decree for custody of his wife, to impose upon him as a condition
of the decree the payment to her of the prompt dower 9No. 164 P.R. 1889 (F.B.); Nos. 5 and 14 P.R. 1891). Cf. 7 Bom. L.R. page 610; see also 1920,
1 Lah. 597.
Remark 3. Widow retains
possession till dower paid.
Where
a Muhammadan widow is in possession of the property of her deceased husband,
having obtained such possession lawfully and without force or fraud, and her
dower or any part of it is due and unpaid, she is entitled as against the other
co-heirs of her husband to retain possession of such property until her dower
debt is paid (No. 80 P.R. 1900; 9 Bom. L.R. 188). It is immaterial to such
widow’s right to retain possession that such possession was obtained originally
without the consent of the other-co-heirs (XVI All. 225). But a Muhammadan
widow in possession of immovable property of her late husband in lieu of her
dower has no power to mortgage such property (XVII All. 19). The right of the
widow under the Muhammadan Law to retain possession of her husband’s property
until satisfaction of the dower debt does not carry with it the right of
selling, mortgaging or otherwise transferring the property; 1927, 101 Ind. Cas.
683 (Oudh). Where ancestral land is transferred by a Muhammadan husband to his
wife in lieu of dower without objection by his collaterals, it becomes the
self-acquired property of the wife which she is at full liberty to alienate in
any manner she pleases; 1925, 99 Ind. Cas. 1004; 1924, 92 Ind. Cas. 278 at p.
281. An alienation by the heirs of a husband while a suit for dower on the part
of his widow was pending will not only prejudice a decree in the latter suit
(I.L.R. XIX All. 504). But cf. I.L.R.
XXVI All 28.
Succession to dower.
According
to custom among the Arains, the
parents do not inherit in the dower payable to their daughter in the presence
of her husband; 1932, 139 Ind. Cas. 716; (the parties, Arains of Batala, District gurdaspur, were governed by agricultural
custom and not by Muhammadan Law, and Jai Lal, J., held, on the evidence, that
the above custom was established. The decision is not apparently an authority
for the proposition that this custom is prevalent among the Arains generally throughout the Punjab),
followed in 1934, 151 Ind. Cas. 28, (another Arain case from Batala), where Rashid, J., held that in accordance
with the rule laid down in para. 270 of the Digest, when a married woman dies
childless during her husband’s lifetime, the husband succeeds to all movable
property of which she was in possession at her death.
83.
Dower : amount of.
Amongst
Muhammadans the dower that a woman is entitled to, in the absence of agreement,
is the average rate of dower granted to females of her father’s family.
Authorities.
Macnaughten’s
M.L., Ch. VIII Prin. 21; Wilson’s Digest
of Anglo-Muhammadan Law (2nd edition), para 42.
Remark – Law of Afghanistan.
In
this Province it was formerly held that the Courts have discretionary power in
awarding dower, and are not bound to decree the sum fixed at the time of
marriage (No. 49 P.R. 1867). But s this decision was professedly based on the
old Punjab Civil Code, which has ceased to have any legal force, it can no
longer be relied upon as an authority. It is believed, however, that agreements
for the payment of large dowers are in practice never strictly enforced. But except
upon proof of custom allowing such a reduction or that the amount fixed was
merely nominal and not intended by the parties to be enforced, a Court, it
would seem, has no power under the existing law to reduce the amount to what it
considers a reasonable sum (No. 123 P.R. 1880); C.A. 980 of 1894; No. 19 P.R.
1914. See also I.L.R. XXI All. At page 20; 9 Bom. L.R. 188). Cf. I.L.R. XXI Cal. 135, a decision of the Privy Council under the
Oudh Laws (Act XVIII of 1876, section 5), where the dower fixed was ten lakhs
of rupees, and the District Court, whose decision was upheld, awarded only
Rs.25,000. (Cf. X.M.I.A. 252; I.L.R.
XIX Cal. 689). Plaintiff sued for Rs.5,000 as her fixed dower, and obtained a decree for Rs.3,000 in the Trial Court.
Held, on appeal, that as the plaintiff claimed her dower s fixed at the time of
her marriage, the lower court, on finding that no sum was fixed, could not
allow the sum of Rs.3,000 as being a suitable amount having regard to the
history and position of the family but could only allow the amount which the
defendant admitted or agreed to pay; (105 P.R. 1914, followed). The learned
judges accordingly accepted the appeal and allowed only Rs.32, the amount
admitted by the defendant; 1926, 7 Lah. 447. According to a law enacted for his
subjects by the Amir of Afghanistan in 1883, a fixed scale has been prescribed
for dower. In the case of members of the Royal Family it must not exceed
Rs.12,000 nor be less than Rs.3,000; in the case of nobles, chiefs, and high
officials the limit is between 1,000 and 3,000 rupees; and in the case of
persons of lesser rank between 300 and 900 rupees; and in the case of persons
of lesser rank between 300 and 900 rupees. No written contract under penalty of
a fine must contain a provision for dower in excess of the maximum limit. (The Constitution and Laws of Afghanistan by
Mir Munish Sultan Muhammad Khan, page 150).
In
A.I.R. 1940 Lah. 104 it was held that there is nothing in the customary law of
the Attock District which prevents a husband from increasing the dower of his
wife during the subsistence of the marriage. The customary right of the husband
to make gifts of land in favour of his wife on account of dower cannot be
disputed. Custom would obviously not sanction a gift of this kind made for
purpose of defrauding the rightful heirs and the amount of land so gifted
together with the circumstances of the giver are doubtless considerations of
some weight in the eye of custom.
GUARDIANSHIP
Guardianship.
Under
Section 5 of the Punjab Laws Act, 1872, custom in this Province in the first
rule of decision in all matters regarding (inter
alia) guardianship. Thus under the Customary Law the mother or brother has
the power to bind a minor if she or he deals with his property for the benefit
of the minor (1).
Under
the Muhammadan Law, no relative other than the father or paternal grandfather
has any right to interfere in any way with the property of a minor unless
appointed by the Court under Guardians and Wards Act (Amir Ali’s handbook of Muhammadan Law, page 85). See also Wilson's Muhammadan
Law, page 187).
In a suit by two brothers to recover
possession of their land sold by their elder brother during their minority it
was found that they had atained their majority more than 3 years prior to the
date of institution of the suit. The parties were Muhammadans governed by
Muhammadan Law. Held, that under
Muhammadan Law, a brother is not a guardian of the property of his minor brothers
and an elder brother not appointed a guardian by any court had no legal
authority to alienate the property of the plaintiffs (2).
Under the Muhammadan Law a brother
is not entitled to be the legal guardian of he property of his minor brother
and he has no power to transfer property belonging to the minor (3).
The rule is, however, different
under the Punjab Customs. In a case relating to Arains of Muzaffargarh District, where plaintiffs sued for
possession of certain land alienated by their elder brother during their
minority on the ground that the vendor was not a legal guardian under
Muhammadan Law, and that the alienation was not for their benefit; held, that the entry in teh Riwaj-i-am of Muzaffargarh District
permitting alienations by guardians de
facto for necessity, or benefit of the minors, though unsupported by
instances, was according to custom generally prevailing in the Punjab, where a
guardian in the case of Hindus and Sikhs, can alienate his ward's property for
a ncessary purpose (4).
Where the parties belong to the
Arain tribe of the Gurdaspur Tahsil of the Gurdaspur District, the guardian of
the minor plaintiffs is not competent to sell immovable property of the
plaintiffs (R.S.A. No. 603 of 1946 decided on 22nd Nov., 1950).
(1) A.I.R. 1927 Lah. 378=104 I.C. 123.
(2) 83
P.R. 1916.
(3) A.I.R.
1929 Lah. 810=10 Lah. 385; see also 1912, 34 All. 213 P.C. and 1918, 34
Cal. 878 P.C.
(4) 133
P.R. 1919.
Where three brothers and their uncle
owned a certain property half and half and the two brothers and the uncle
executed a sale-deed in respect of that property, one of the brothers
purporting to act as guardian of the third minor brother, and who instituted a
suit for possession of his share, by partitio, claiminig that the transfer of his
share was not for his benefit and void; held,
that the record of right of the plaintiff's village provided that the borther
was a guardian enjoined to follow Muhammadan Law in thd discharge of his duty
as guardian, and if the guardian was guilty of any breach of the duty enjoined,
the remedy was by suit within 3 years under Art. 44 of the Limitation Act (1).
Where plaintiff's elder brother,
being at that time the sarbarah of
the plaintiff, a minor, and actually managing his land sold to the defendant,
the plaintiff's share of the joing property in addition to his own, and
plaintiff contended that the sale was not good and binding, as it was not made
for necessity: held, that the
transfer of his share by the elder borther was valid (2).
Mother cannot be considered to be an
unfit person to be guardian of her minor daughters so as to give preference to
grand-mother on the mere plea that they would be better looked after by their
grandmother, unless it can be shown by direct reliable evidence that the character
of mother is bad and the interests of the minor demand interference by court in
ignoring mother's preferential rights in the best interests of the minors (3).
Under the Hindu Law, next to the
father the mother is the natural and legal guardian of the separate property of
her minor children, i.e., she is
guardian both de facto and de jure (4).
There can be a guardian of the
separate property of a minor in the joing Hindu family. After the death fo the
father, the mother is the natural guardian of the separate property of her
minor children; and it is only the minor's share in the comparcenary property
which cannot be brought under guardianship so long as there is an adult member
of the coparcenary alive. If there is no adult member of the coparcenary even
the joint family property can be brought under guardianship. Mother can
therefore be the guardian of the property of the minor under certain
circumstances. - Rajputs of Jagadhri
Tahsil, Ambala District (5).
See also A.I.r. 1934 Lah. 902=16 Lah.
12,
A.I.R. 1930 Lah. 855=17 Lah. 139;
A.I.R. 1936 Lah. 21=17 Lah. 133;
A.I.R. 1937 Lah. 148 (F.B.)=18 Lah.
125 (F.B.).
(1) P.R.
1902.
(2) 57
P.R. 1891.
(3) A.I.R.
1930 Lah. 445=127 I.C. 216.
(4) A.I.R.
1925 Lah. 619 (2); I.L.R. 1925, 6 Lah. 447.
(5) A.I.R.
1936 Lah. 220=161 I.C. 861.
RELIGIOUS INSTITUTIONS AND WAQF PROPERTY
1.
Each institution is governed by its own customs and usages.
2.
Succession.
3.
Right of natural son to succeed.
6.
Forfeiture on joining religious order.
7.
The right of the head of a religious institution to
alienate property belonging to the institution.
8.
Right of worshippers to contest an improper alienation.
10.
Removal of a Mahant on account of misconduct or
incompetency or otherwise.
11.
Application of section 92, Code of Civil Procedure.
12.
Talsia.
13.
Suit b a Mutwalli of mosque.
14.
Partition of a joint property belonging to a shrine.
15.
Jurisdiction.
17. Limitation.
Introduction
There
is no general law applicable to religious institutions in this Province, and
each institution must be deemed to be regulated by its own custom and
practice.There are, however, certain board propositions which judicial
decisions have shown to have received very general recognition, and these
propositions are embodied in the following pararaphs:-
84.
Customs and usages.
The
members of such institutions are governed exclusively by the customs and usages
of the particular institution to which they belong.
85.
Mahant.
The
office of Mahant is usually elective
and not hereditary. But a Mahant may
nominate a successor subject to confirmation by his fraternity.
86.
Women.
Women
are eligible for election.
87.
Forfeiture on joining religious
order.
By
entering into a religious fraternity a person presumably ceases to be qualified
to perform purely worldly acts, and loses all rights of inheritance in his
natural family.
88.
Chelas : disciples.
The
chelas or disciples attached to a
religious institution are entitled to maintenance befitting their condition so
long as they behave properly and ovserve a proper subordination to the head of
the institution.
89.
Acquisition of property.
All
property acquired by individual members of a religious fraternity belongs, as a
general rule, to the religious institution to which they are attached.
90.
Alienation for necessity.
Except
for necessary purposes, no property belonging to a religious institution can be
permanently alienated.
91.
Necessity.
The
following are instances of a necessary purpose within the meaning of the last
preceding section :-
(a)
To
defray the proper expenses of keeping up religious worship;
(b)
Repairing
temples or other buildings connected with the institution.
(c)
Defending
hostile litigious attacks.
(d)
Paying
revenue and other charges on lands attached to the institution.
92.
Expulsion of Mahant.
The
Mahant or manager of an institution
may be expelled or misconduct or incompetency.
93.
Sole management by Mahant.
So
long as he retains office he is presumed to have the sole management of te
endowment or institution over which he presides.
94.
Servants of Khankah.
The
servants of a kahankah or other
religious institution are ordinarily subject to the control of the head of that
institution, who can engage or dismiss them at pleasure.
95.
Essentials of Waqf.
To
constitute property Waqf there must be
a special and absolute appropriation of the property to religious or public
purposes.
96.
Waqf.
Property
once legally constituted Waqf cannot
be reclaimed by the former owner.
(1)
Each institution is governed by its
own custom and usages.
There
is no general law applicable to religious institutions in the Province, and all
matters relating to these institutions must be deemed to be governed by its own
custom and usages. The proper rule to follow in deciding cases regarding
succession, appointments, alienation, etc., is the rule has hitherto been
observed therein.
The
decision as regards any particular institution must be guided by the custom
pertaining to that institution (1). The question of succession to office must
be decided by the custom and the practice of the institution as proved by the
evidence (2).
The
principle of succession upon which one member of a religious fraternity
succeeds to another is based entirely upon fellowship and personal association
with that other, and it is for this reason that a stranger, though of the same
order, is excluded (3).
As
regards the appointment or nomination of the mahant of a shrine, the constitution of the particular shrine in
question must govern the succession (4). The question regarding succession to
the office of Mahant depends not on
the general customary law but upon the custom and usage of the particular Math (5).
The
custom of a religious institution must be respected and the court cannot usrup
the authority of the Bhek (Council of
Udasi Mahants) by appointing an Udasi mahant, it being by custom the
duty of the Bhek to do so (6).
The
mahant of a religious institution is
not bound to submit accounts for the information or approval of the worshippers
at the shrine unless it is proved by evidence that it is the custom and
practice of the institution for him to do so (7).
In
the case of a succession to the mahantship
of a Dharamsala or other waqf
property, the first duty of a court is to ascertain the rule of succession
which obtains as regards the particular shrine (8).
See
also I.L.R. IX All. 1 : XIII All. 256; XV Mad. 44 & at p. 185; XVI all.
191; IX Cal. 766; XI Mo. I.A. 209; XI Mo. I.A. 428; XXXVI Bom. 308.
(1)
76
P.R. 1867; see also 52 P.R. 1867; 87 P.R. 1889; 73 P.R. 1869; 21 P.R. 1874; 175
P.R. 1889; 122 P.R. 1890; 49 P.R. 1892; 105 P.R. 1892; 106 P.R. 1892; 3 P.R.
1899: 89 P.R. 1901; 94 P.R. 1909.
(2)
I.L.R.
1 Lah. 511.
(3)
I.L.R.
IV Cal. 543.
(4)
5 Lah.
L.J. 543.
(5)
48
Cal. 707 P.C.
(6)
I.L.R.
1925, 7 Lah. (Distinction between Sikhs and Udasis pointed out).
(7)
1934,
15 Lah. 732 (Sikh Gurdwara).
(8)
22
P.L.R. 1912.