8. Right of worshippers to contest an improper alienation.

All persons who are beneficially interested in the preservation of a religious institution have a locus standi to contest an improper alienation of the wakf property. Worshippers in a temple, being persons beneficially interested in the maintenance there of, can sue to restrain alienations by a mahant (6). Wroshippers at the shrine have a locus standi to impeach improper alienations (Bhabras of Jagraon) (7).

Worshippers may restrain by injuction a mutwalli encroaching on the mosque enclosure. A mutwalli cannot, independent of the opinion of the worshippers, determine if such encroachment is for the benefit of the mosque or not (8).

Every Muhammadan, who has a right to use a mosque, can sue anyone who interferes with his right to sue, and therefore can sue anyone who has committed an injury to wakf property, e.g., he can sue to evict a trespasser (9).

Pujaris of Baba Atal, Amritsar, can sue to restrain a defencant from coverting a building into shops when they show the site was granted to defendant’s father for religious purposes and the building has been erected thereon by public subscription under the auspices of the Golden Temple (10).

(1) 39 P.R. 1882.

(2) 3. P.R. 1902.

(3) 31 P.W.R. 1916.

(4) See Para 91 of the Digest.

(5) 45 P.R. 1903; 3 P.R. 1902; see somewhat to the contrary XXIV Cal. 77 and VI Mo. I.A. 393 under Hindu Law.

(6) 75 P.R. 1884.

(7) 27 P.R. 1885; see also 66 P.R. 1892; 122 P.R. 1890

(8) 81 P.R. 1869.

(9) 87 P.R. 1892.

(10) 29 P.R. 1897.

Representatives of community, which erected samadh, may sue to restrain alienations by mahant (1).

In 9 P.R. 1904 doubt was expressed as to whether a single worshipper could contest alienation by mahant without joining other worshippers.

III – THE RIGHT OF MANAGEMENT

The presumption is that only the mahant has the right of the management, but a custom may be proved to the contrary (3). In the case of Nureila Thakardwara, Delhi, where no mahant had been appointed, the chelas of the last mahant were held to equally manage (4).

The mahant of a religious institution is presumed to be the manager of the institution over which he presides and he is not bound to submit accounts for the information or the approval of the worshippers at the shrine, unless it be proved by evidence that it is the custom and practice of the institution for him to do so (5).

The officers of the sajjada-nashin and mutwalli are distinct. There may be two distinct heads, one presiding over the spiritual affairs of the institution, called a sajjadu-nashin; the other acting as a trustee of its temporal affairs, and called a mutwalli (6).

In the Peshawar shrines, a mutwalli can dismiss the mujawars (7). Similarly, a mutwalli in Attock District was held to have power to dismiss the mnjawars. The latter’s long service or their building houses on the shrine land is no bar and they are at the best entitled to compensation for materials (8).

(1) 31 P.W.R. 1916.

(2) 30 P.R. 1908 (F.B.).

(3) 76 P.R. 1867.

(4) Ibid.

(5) 89 P.r. 1901; cf. I.L.R. XV Mad. 44.

(6) 67 P.R. 1868, cf. 6 Bom. L.R. 1058; I.L.R. XXVII Cal. 674.

(7) 154 P.R. 1868.

(8) 6 P.R. 1911.

A.I.R. 1949 East Punjab 233 – Gift or right of management to stranger is void (obiter, A.I.R. 1949 East Punjab 233).

Worshippers can interfere to prevent mutwalli occupying b lakhan over the prayer-hall of a mosque and the upper story of the mosque hujra as a private residence (1).

The office of a mutwalli is a personal trust, and cannot be transferred (2).

Bungah Nurmahleyan walah, Golden Temple, Amritsar.

Where there is no absolute dedication of property to religious uses, but an imperfect trust, the nature of the property remains unchanged, and its application is at the discretion of the founder. Such imperfect trusts are common enough in the Punjab in the case of serais and dharamsalas. The bungahs are hostels which, generally speaking, do not rank as religious institutions pure and simple; the bungahlis are not equal to mahants, and if they make appointments of successors, there is no bhek or college to control them; accordingly held that the representative of the founder’s family was entitled to control the bungah and the Bungahli could not hold adversely to the rights of the founder’s family or appoint a successor as an independent incumbent of the institution (3).

Subject to the restricted power of alienation, a mahant is otherwise uncontrolled in his administration of the affairs of the institution of which he is the head, and is under no necessity to keep regular accounts (4).

Transfer of right of management.

Where a Hindu widow was left in possession of considerable immovable property by her husband, and she executed first a sapurdnama of certain wakf properties attached to deceased’s samadh which were to remain in charge of a mahant C.S., and subsequetly under a will certain other property was also made wakf to meet the expenses of langar and sadabart, and this alienation was upheld by the court as a necessary one, and after the death of C.S., his chela was appointed to carry out the duties of management regarding the dedication in perpetuity with a right of succession by his chelas and afterwards a special agent of the widow made a gift of a certain bunga to the widow’s religious preceptor B.S., (whereupon the reversioners of the deceased brought a suit against the chela of C.S., and the donee B.S.,) held, that institutions like bungahs being partly religious and partly charitable, the offices of manager partakes of the nature of a religious office, and the sale of the right of the management for the personal gain of the vendor was therefore invalid (5).

(1) 31 P.R. 1917.

(2) X Cal. L. Reps. 529.

(3) 81 P.R. 1903; dist. 9 P.R. 1917.

(4) 3 P.R. 1902.

(5) 146 P.R. 1919.

IV – THE REMOVAL OF A MAHANT

10. Removal of a mahant on account of misconduct or incompetency or otherwise.

A mahant, if he is found incompetent or if he in any way misconducts himslef, may be expelled (1). But before he can be removed, the misconduct or mismanagement alleged against him must be clearly proved; further, it must be also clearly shown that the alleged misconduct or mismanagement is of so serious a nature as to render the retention of the mahant in question undesirable and detrimental to the interest of the shrine and its worshippers (2).

The following judicial decisions on the point may be studied with advantage :-

122 P.R. 1890 - Ker Baba (Gujrat District). Worshippers are not competent to remove a mahant and appoint his successor.

C.A. 359 of 1891 -Where there is no proof of immorality or waste, self-constituted objectors, who belong to the proprietary body of the village, which as a body is not shown to have had any right to interfere and are not all desirous of interfering, cannot get a mahant removed.

105 P.R. 1892 - Nirmal Sadhs. (Thakar Bhawal Singh, Amritsar). When a mahant misconducts himself, the brotherhood can dismiss him.

3 P.R. 1899 - Akhara Chitta, Amritsar. The bhek can remove a mahant for misconduct.

53 P.R. 1904 - In a suit by a person claiming as a mahant to recover a dera it appeared he had enticed away a young widow from the village, and gone off with such property of the dera as he had been able to seize, and deserted the dera as he had been able to seize, and deserted the dera, which had been supported by the villagers and in the arrangements of which they had always taken a prominent part, and had, after plaintiff’s desertion, appointed another mahant in his place without objection by the bhek. Held, plaintiff’s conduct being unworthy of his office, worshippers were fully justified in removing him and were competent to appoint his successor.

13 P.L.R. 1906 – Before a mahant of a shrine can be removed, the misconduct or mismanagement alleged must be clearly proved and to be of such a nature as to render the retention of the mahant undesirable and detrimental to the interests of the shrine and its worshippers – vague allegations of immorality are not sufficient.

37 P.W.R. 1908 - The general body of worshippers has not right to remove a mutwalli and imam at their will and pleasure without assigning or establishing sufficient cause therefor.

(1) 81 P.R. 1869; C.A. No. 1197 of 1877; C.A. No. 1089 of 1881; 15 P.L.R. 1905.

(2) Ram Kishen v. chet Ram = 13 P.L.R. 1906.

30 P.W.R. 1912 - A plaintiff must prove his own title before he can oust a trespasser on the gaddi.

83 P.W.R. 1912 - A person in possession of a gaddi can only be ousted by one with a superior title.

181 P.W.R. 1912 - Dharamsala Siri Tilok Nath, Tahsil Nurpur, Kangra. Granthi cannot be removed even by founder without good reason.

See also 94 P.R. 1885; 122 P.R. 1890; 27 P.R. 1897; 7 P.R. 1908; 52 P.L.R. 1905 cf. I.L.R. XVII Mad. 447.

Where plaintiffs, four of the tenants of the land endowed on two temples in Kulu, sued to remove the defendant kardar or manager, and prayed for the money value of temple property which defendant was alleged to have misappropriated, and two of the plaintiffs, with some others had obtained the permission of the District Judge to sue, under S. 18, Act XX of 1863. Held, (I) that the Bengal Regulation XIX of 1810 must be held to have been extended to the Punjab by general rules and orders which were given the force of law by the Indian Councils Act, and that consequently Act XX of 1863, which was based upon the Regulation, was applicable to this Province; (ii) that the endowment in question was one of the nature of those contemplated in the Act; (iii) that the suit had been duly instituted after sanction given under S. 18 of the Act, on application, and “that the facts that the application made no mention of the Act, and that all the plaintiffs were not applicants did not constitute defects vitiating the court’s order for removal of defendant from the managership,” and (iv) that the defendant though not liable for the embezzled temple property, was guilty of connivance at his sarbarah’s misappropriation and sufficient neglect of duty had been established to justify the order directing the removal of the defendant from his post as manager (1)

Where a complaint as to mismanagement by the managers of a temple was presented to the Deputy Commissioner, who enquired into the matter and directed the appointment of a committee to ensure better arrangements, and the committee dismissed the managers on their failing to furnish security in a certain required sum, and the dismissed managers sued for reinstatement; held (1) (a) that no sufficient case had been established for depriving plaintiffs of their position as managers of the temple, in so far as no neglect of duties or abuse of trust or immorality, waste of institution funds, or even general unfitness for the position was proved (b) that the proper course for persons objecting to a duly constituted manager is to bring a civil suit after proper sanction, either under Ss. 14, 18, of Act XX of 1863 or S. 539, Civil Procedure Code, and it is not open to self-constituted committee in the event of a dispute with the manager to take the matter into their own hands, and if they do so, they run the risk of a successful suit by the ex-manager for reinstatement; (2) that a suit instituted by a dismissed manager for reinforcement; (2) that a suit instituted by a dismissed manager for reinstatement does not require a sanction under S. 59, Civil Procedure Code.

(1) Gokal Ram v. Kahani Ram = 95 P.R. 1900.

Held also, that the executive authorities have the right of superseding a muafidar for improper application of the funds entrusted to him and in that case they have the sole responsibility for appointment of his successor within the conditions of the original grant (1).

Change in religious views.

Where a suit had been brought for the removal of the defendant, from the ofifces of iman and mutwalli in connection with a certain mosque, on the ground of a change in his religious views in conflict with the beliefs of the founders and the congregation, held, that the defendant iman was not merely a servant of the congregation or body of worshippers and not liable to removal from his office of mutwalli and imam at their own will and pleasure without assigning and establishing sufficient cause for such remofal (2).

Where the mahant of Murti Ramwali Dharamsala, Amritsar, had executed a will in favour of defendant, describing him as his chela, and leaving everything to him subject to the control of one B, and defendants having taken possession, plaintiff who clamed to have the right to nominate a successor to the mahantship, sued to have the right to nominate a successor to the mahantship, sued to have defendant removed and to have it declared that plaintiff had the right to nominate a new mahant on the ground of spiritual relationship to the late mahant, and plaintiff being the mahant of the parent shrine, held, (1) that a decree for removal from the post of mahant does not necessarily mean defendant’s physical removal from the property, and that when a successor was duly appointed he could eject the defendant from possession of the property bringing a suit if necessary; (2) that the mere fact that in the future another person would be entitled to sue for physical possession was not legal bar to giving plaintiff a declaratory decree in the present case (3).

V – MISCELLANEOUS

11. Application of Section 92, Code of Civil Procedure.

75 P.R. 1884 – Section 539, Civil Procedure Code (corresponding to Section 92 of the new Code of Civil Procedure, Act of 1908) has not application to a suit by a worshipper restraining an alienation of temple property.

122 P.R. 1890 – Section 539 has not applicability to a suit by a person claiming to be a lawful mahant to recover possession of a shrine and lands appertaining hereto. The section deals only with cases, (a) where there is an alleged breach of trust erected for public, charitable or religious purpose and (b) where the direction of the court is necessary for the administration of any such trust.

66 P.R. 1892 – Nor to suits by worshippers seeking to restrain an alienation.

29 P.R. 1897 – Nor to suits by pujaris seeking to restrain illegal alterations.

(1) Bansidhar v. Changa Ram – 7 P.R. 1908.

(2) 53 P.R. 1909.

(3) 95 P.R. 1916.

89 P.R. 1901 – When sanction is given to the institution of a suit under S. 539, Civil Procedure Code, the suit must be limited to matters included in the sanction, and it is not competent to the Civil Court to enlarge the scope of the suit, and to grant reliefs other than those included in the terms of the sanction. A Civil Court is not justified in forcing a scheme of management on an institution unless there is clear proof of such misconduct or incompetence as calls for judicial interference.

110 P.R. 1907 – In enacting S. 539, Civil Procedure Code, the legislature intendd to lay down strict rules with a view to protecting trustees of religious institutions from vexatious or irresponsible suits, and “if close correspondence between the terms, and “if close correspondence between the terms, of the sanction and the prayers in the plaint field upon that sanction is not insisted upon, the objects of S. 539, Civil Procedure Code would be frustrated.” Consequently, plaintiff in such suits must conform to the terms of the sanction given.

78 P.R. 1907 – The section applies to suit for the removal of a mahant and appointment of plaintiff in his place on account of misbehaviour and misappropriation of funds.

12. Takia.

Where the Takia in dispute contained the Muslim graveyard which constituted the bulk of the land and which had been in existence there from time immemorial and adjacent to which graveyards there was always a place for saying prayers funeral or otherwise and there also invariably existed a kotha to afford shelter to the faqir who looked after the graves and the proprietary body thought it fit to divest themselves of the nominal ownership of the site underneath and to acknowledge the takia as the owner thereof, and the revenue authorities corrected the entries to end all future disputes and controversies; held, that the takia in suit was meant for the use of the Muslim community alone and was not open to use by the members of all communities and creeds and the mere fact that any wayfarer taking shelter in the kotha was not objected to by the faqir did not show that the proprietary body had some rights left with them (1).

The word “takia” as used in ordinary parlance by non-Muhammadans does not necessarily mean a “religious institution” as is understood in the Muhammadan Law (2).

(1) A.I.R. 1935 Lah. 698; 1931 Lah. 379 and 1925 Lah. 420 ref.; 1918 Lah. 117 and 1919 Lah. 115. Dist.

(2) A.I.R. 1932 Lah. 220=135 I.C 681=33 P.L.R. 180

13. Suit by mutwalli of mosque.

Where P sued as mutwalli of a certain mosque, referring to certain persons by name as joint mutwallis or co-trustees with him and the suit being dismissed. P appealed to the Chief Court but died pending appeal, and the court declined to put the persons referred to as joint mutwallis on the record as the representatives of the deceased until they had proved their status by a regular suit, and the appeal was postponed pending decision of the suit which was instituted as directed but dismissed by the first court and so on appeal it was contended that inasmuch s P had referred to the present plaintiffs as joint mutwallis with him, there could be no objection to their obtaining a decree declaring them his legal representative for the purpose of continuing the appeal originally preferred by him without going into the question of how they may have become his co-trustees. Held, (i) that the intention of the previous order of the court was to oblige the present plaintiffs to prove their status as trustees or co-trustees with the deceased; (ii) that as the plaintiffs had failed to establish how they became mutwallis of the mosque, the defendant’s title to retain possession of the mosque, whether good or bad, could not be interferred with by the plaintiff, “who must gain the case on the strength their own (1).”

14. Partition of a joint property belonging to a shrine.

Where plaintiffs and defendants were mujawars of a shrine and plaintiffs claimed joint possession of certain residential and shop property belonging to the shrine and their share of the income that had accrued from the said property, but the plaint, strictly construed, appeared to claim the exclusive possession, and the lower court had granted a decree for joint possession; held (1) (a) hat plaintiffs as mujawrs were clearly entitled to joint possession of the property in suit and (b) that the principle of hotehpot applicable to the case of co-sharers applying for partition was inapplicable to the case of mujawars who were not oweners of the property but were trustees of it on behalf of the shrine which is under law the owner (2).

15. Jurisdiction.

73 P.R. 1877 - Where plaintiff claimed as mutwalli to recover certain sums from 188 P.R. 1888 defendant representing himself to be mutwalli, held, that the case 84 P.R. 1892 was recognizable by the Small Cause Court.

27 P.R. 1880 - A suit by a family of priests for a decree prohibiting another branch of the family from conducting religious services in a shrine held to be cognizable a Civil Court.

95 P.R. 1900 - Act XX of 1863, Regulation X1X of 1810. Jurisdictin of Civil Court to remove manager, permission to sue.

112 P.R. 1960 - A Civil Court is bound to recognize a custom if it is established unless it is contrary to morality. It is no part of its functions to decide whether the breach of any particular rule of a religious order involves forfeiture of status as a member of the order, and where such rule has been departed from in numerous instances without incurring any penalty, it must recognise the fact and refrain from deciding civil questions on is own ideas of what is proper.

20 P.R. 1911 - A suit by the heir of a pujari to recover a share in offerings is cognizable by the Small Cause Court.

(1) 28 P.R. 1900.

(2) 94 P.r. 1915.

16. Valuation of suit.

In the suit for the removal of a mahant, the value of the suit both for the computation of court-fees and for purposes of jurisdiction is detrminable according to th amount at which the relief sought is valued in the plaint or memorandum of appeal (1). It is not necessary in such a suit, where the plaintiffs does not seek possession of he property of the institution for himself as a trustee or manager, to compute the court-fees on the value of property (2).

17. Limitation.

8 P.R. 1899 - A suit by a person interested in management for dispossession of an heir of a purchaser in execution against a manger of dharmsala is not a suit for possession under Articles 142, 144 of the Limitation Act, but for the declaration of a right and is governed by Article 120.

9 P.R. 1904 - In 1899 plaintiff brought a suit as a worshipper to contest an alienation made in 1889 by the last manager of the endowed property, and asked for the dispossession of the assignee in favour of he endowment; held, the limitation applicable to such suit was that prescribed by Article 120, time running from date of alienation.

127 P.R. 1908 (F.B.) - The period of limitation applicable to a suit by mahant to recover possession of wakf property attached to a religious institution which had been sold by his predecessor in office for value, is tat provided for by Art. 134 of the Limitation Act.

30 P.R. 1908 (F.B.) - In a suit by a mahant to set aside an alienatin (mortgage) by his predecessor, Article 144 (not Article 134) is applicable, and time runs from the date of appointment of the, mahant i.e., the date on which by virtue of his appointment he becomes entitled to possession.

See XXVII Bom. 363, opposed to this.

53 P.R. 1909 - In a suit to declare a mutwalli of a mosque is liable to dismissal, by reason of a change in his religious views at variance with the beliefs of the founder, is governed by Article 120, and time runs from the date when the change took place.

See also IV Cal. 683; XIX Cal. 776; XX All. 482.

(1) 58 P.R. 1893.

(2) 56 P.R. 1895.

CHAPTER VII

PRE-EMPTION

INTRODUCTION

Origin of law of pre-emption in the Punjab

The law of pre-emption in the Punjab deals with two distinct classes of immovable property, viz., rural and urban.

Opinions have differed as to whether the law or pre-emption in India owes its origin exclusively to the Muhammadan Law, or is an older institution but influenced in its development by that Code of law. At least so far as the Punjab is concerned, the law of pre-emption is primarily a village institution, intimately connected with the origin and development of village communities. Separate ownership of land is of modern growth. Originally the soil belonged in common to communities of kinsmen and as society progressed the idea of individual ownership gradually grew. In the Punjab, however, the right of free disposal of land vesting in an individual owner has never been recognised. From the earliest times the power to alienate land, which is theory belonged to the tribe or village, was limited by the power of the tribe or village to prohibit it absolutely, then to prohibit certain forms of a alienation or to restrict the purposes for which alienation might be effected, or, even when land could be alienated to limit the choice of the alienees to members of the tribe who would have the first right to take up the alienation, in other words, had the right to pre-empt.

Plowden, S. J. observed in 98 P. R. 1894 (F.B.): “No member of the proprietary group is competent to sell his share, or land representing that share, to a stranger to the village, of his own sole will and irrespective of the assent of the remainder of the co-shares. That is to say, every one of the co-shares is under an obligation to all the rest to abstain from selling to a stranger irrespective of their assent…..

“What then is the source of the obligation to which the right corresponds ? The cause of it is that the subject of sale is part of a thing which is viewed as conjointly held by a group, of which the vendor is a member. It is, in the absence of agreement to the contrary, a necessary consequence of this view that a member of the group should be incompetent to sell part of the thing conjointly owned by the group irrespective of their assent. The view which is commonly taken of the relation between a group of proprietors in a village community and the land of the village community in its entirety, is that the land is deemed still to belong to the group notwithstanding it has been in part distributed into parcels for separate enjoyment by portions of the group. The unity of the village and of the proprietary body as an individual local group is deemed to continue unaffected by the distribution of the land for purposes of enjoyment among the members of the group.”

Roe, J. similarly observed in 87 P.R. 1895 – “The general principles governing the enjoyment of land held by village communities have now, speaking generally, been ascertained to be these. A proprietor, or holder of a particular portion of this land, has not an unrestricted power over it. He is entitled to the full enjoyment of it for his life time, but his power of alienating it, except for necessity, whether by sale, gift, or the appointment of an heir or successor, is subject to the control of the other members of the village community, who are known as his “warisan ek gaddi,” that is, who are decendants from a common ancestor, from whom the proprietor has derived his title to the land. It is this principle of limited and not the Muhammadan Law, which is the foundation of the custom of pre-emption in village…..

“The basis of the power of control is the fact that the land with which the proprietor is dealing is part of the original, ancestral holding : the fact that the descendants of this ancestor held their different portions of the ancestral estate jointly, or separately, is a mere accident.”

See also remarks of Chatterji, J. in 52 P.R. 1896 and of Shah Din, J. in 90 P.R. 1909 (F.B.).

The following passage from Roe and Rattingan’s Tribal law is worth perusal :-

“Pre-emption (in villages) is merely a corollary of the general principle regulating the succession to and power of disposal of land. In these matters the holder of the estate for the time being is subject, generally speaking, to the control of the group of agnates who would naturally succeed him, his warisan yak gaddi. They can, as a general rule altogether prevent alienation by adoption or gift or by sale for the holder’s own benefit; it would be only a natural rule that when a proprietor was compelled by necessity to sell, those agnates should be offered the opportunity of advancing the money required and thus saving what is really their own property.

“Pre-emption is the last means by which the natural heirs can retain ancestral property in the family, when they are unable altogether to prevent an act of alienation by the holder of the estate. It is a mere branch of the Tribal Law, and has no connection with the pre-emption of the Muhammadan Law.”

History of ligislation regarding pre-emption in the Punjab.

The Punjab Civil Code was the first attempt in the Punjab to codify the rules and orders applicable to this Province on its annexation, and it assumed the force of law under section 25 of the Indian Councils Act of 1861. The sections dealing with the right of pre-emption were only two in that Code. Section 13 dealt with the right of pre-emption in a manner consonant with contemporary records of custom and is of some historical interest, so far as the development of statute law on the subject is concerned, as containing the germs which subsequently expanded into the pre-emption provisions of the Punjab Laws Act, 1872, (47 P.R. 1870).

The Punjab Laws Act, 1872.

The Punjab Laws Act, 1872 contained some eleven sections on the point and was subsequently amended from time to time by Acts XII of 1878, XII of 1891, VII of 1895 and I of 1903. Sections 10 and 11 of that Act provided :

“10, Unless the existence of any custom or contract to the contrary is proved such right shall, whether recorded in the settlement record or not, be presumed.

(a) to exist in all village communities, however constituted, and

^(b)to extend to the village suit, to the houses built upon it, to all lands and shares of land within the village boundary, and to all transferable rights of occupancy affecting such lands.

11. The right of pre-emption shall not be presumed to exist in any town or city, or any sub-division thereof, but may be shown to exist therein, and to be exercisable therein by such persons and under such circumstances as the local custom prescribes.”

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