Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Regular Second Appeal No. 33 of 1974, decided on 11th June 1975.
------Ss. 12 & 22-Pre-emption suit-Suit by Waqf-Acquisition by pre emption-Amounts to acquisition by compulsion-Sanctity of mosques and Waqfs demands their not being dragged into litigation-Waqf Has no right to bring suit for pre-emption.
Suits cannot competently be brought by or against such institutions as artificial persons. There is wisdom in not allowing 'Waqf' properties the right to pre-empt, for, such properties are not normally put to sale. In modern society the pre-emption law can only be defended on the principles of reciprocity. Again it will be highly undesirable if 'Masjid' and 'Waqf' were to become litigants and subject to resentful remarks of the disgruntled opponents who decry pre-emption as piratical. The sanctity of the 'Mosque' and 'Waqf' properties would demand that those should not be dragged into litigation. In the days of our pristine glory of Islam sites for Mosques were not acquired compulsorily and extension of Mosques was not without the consent of the neighboring owners.
Jindu Ram v. Hussain Bakhsh and another A I R 1914 Lah. 444 ; Waqf Banam Khudawand Karim Mahal Faiz Muhammad Khan v. Mst. Raj Kali A I R 1938 All. 157 and Maula Bux v. Hafizuddin and others 94 I C 7 held not conclusive.
Mosque known as Masjid Shahid Ganj and others v. Shiromani Gurdawara Parhbandhak Committee, Amritsar and another A I R 1940 P C 116 ; Baillie's Digest of Muhammadan Law, 3rd Impression, pp. 477-478 and Majelle by C. R. Tyser, Art. 950, p. 150 rel.
M. Sardar Khan for Appellant.
D. M. Kamil for Respondent.
Date of hearing : 26th May 1975.
Madrassa Qazi Hisamuddin through its 'mutawalli Qazi Shafi-ud-Din brought a suit for possession by pre-emption against Mst. Shah Gulla as respects house measuring 6 marlas comprised in Khasra No. 549/319 in Kohat City, alleging that Madrassa was the owner of the contiguous property in Khasra No. 318 while the defendant-vendee had no such qualifications and that the actual sale price was- Rs. 3,000 but it was shown to be Rs. 13,000.
2. The suit was contested on several grounds that are fully incorporated in the under-mentioned issues :-
(1) Whether plaintiff has got a superior right of pre-emption
(2) Whether the amount of Rs. 13,000 was actually paid or fixed in good faith as price of the suit land
(3) What is the market value of suit land
(4) Whether the sale is exempt from pre-emption under section 5(c) of the Pre-emption Act
(5) Whether defendant has made improvements, if so, how much and with what effect
(6) Whether plaintiff has got no cause of action
(7) Whether the plaintiff is estopped to bring this suit
(8) Whether the suit is benami
(9) Whether the suit is bad for partial pre-emption
(10) Whether the suit is not properly valued for purposes of court-fee and jurisdiction
(11) Relief.
3. The learned Senior Civil Judge, Kohat, who tried the case, discussed the first issue quite elaborately and came to the conclusion that Khasra No. 318 to the North and Khasra No. 619/550/319 and 620/551/319 towards the East belonged to Madrasa Taleem-ul-Qur'an. The learned trial Judge relied on 59 P R 1914 and held that the present suit by the 'Mutawall' of the Madrassa for pre-emption was quite competent. On issue No. 2 the learned trial Judge was of the view that the ostensible price of Rs. 13,000 was neither paid, nor fixed in good faith. He doubted that Rs. 5,000 was the mortgage amount and that Rs. 8,000 were paid some 7/8 years after the mortgage for the disputed house. The averages regarding market value produced before me by the Patwari as in Exh. P. W. 1/5 and D. W. 1/2 were not accepted, as in the former case it was shown to be Rs. 1,631.16 and by the latter. Rs. 1,375. The learned Senior Civil Judge in the circumstances while answering issue No. 3 fixed the market value at Rs. 3,000, the price which the plaintiff-pre-emptor admitted to have been paid. Issue No. 4 which relates to exemption under section 5(c) of the Pre-emption Act was disposed of against the defendant with the remarks that she had not uttered even a single word to claim the exemption. While discussing issue No. 5, the learned trial Judge disbelieved the defence contention that after the sale in her favour she had made improvements worth R. 7,000. Issues 5, 6, 7, 8, 9 and 10 were taken up together and disposed of against the defendant with the remarks that the learned counsel for the defendant did not say anything about them at the bar. On the view of the matter that the learned Senior Civil Judge took, he decreed the suit of the plaintiff on payment of Rs. 3,000, leaving the parties, however, to bear their own costs.
4. The defendant was not satisfied and she preferred an appeal to the District Judge, who partly accepted the appeal and granted the plaintiff a decree on payment of Rs. 7,000. The finding of the trial Court on the point of the plaintiff's superior right of pre-emption was maintained. It may be mentioned that the District Judge was also of the view that mortgage had not been proved. The plaintiff was required to pay the balance amount of Rs. 5,000 on or before 15-2-74 failing which, his suit was to stand dismissed. The District Judge also left the parties to bear their own costs.
5. The defendant is still not satisfied and she has preferred the present regular second appeal. Several contentions that have been pressed on her behalf are that the plaintiff was not competent to bring the suit, the Madrasa was not a juristic person and as such could not possess a right of pre-emption; the decision of the Courts below on the vendee's claim for exemption with reference to section 5(c) of the Pre-emption Act was wrong, she was an old lady and the house acquired by her comprised of six marlas, her previous house which was a 'kacha kotha' being on five marlas only; the mortgage was admitted in the plaint and it was on the basis of two mutations of 1965 prior to the present sale, and it was otherwise proved by the statement of Muhammad Insha Khan, Advocate, who was the mortgagor and appeared as a witness for the defendant.
6. Before I enter upon an elaborate discussion on the crucial issue, VIZ. the competency of the suit brought by the Madrassa, I should like to dispose of the contentions of the appellant that she had acquired the house as a resident of the village/town where she had no other house or site, measuring more than five marlas; she being the owner of five marlas in Khasra No. 318 on account of gift from one of the co-owners, namely, Khawaja Muhammad Khan has right equal to the plaintiff I and price.
7. The house which the defendant-vendee claims to have been construct ed by her on the land gifted to her by Khawaja Muhammad Khan, marked as 'A. E. F. & G' on Exh. D. W. 1/3 (a site plan which was prepared by Abdul Aziz, Patwari, Exh. P. W. 1, at the spot) will measure five marlas, for, the total area of Khasra No. 318 is 4 kanals, for the total area of Khasra No. 318 is 4 kanals and 3 marlas and portion 'X' out of it, according to Patwari P. W. 1, measures 3 kanals and 17 marlas. It comes to this that the ownership of this 'kacha' structure, if established, will not affect the defendant-vendees' claim to exemption adversely, but the all important question on which the defendant-venndee's defence had been knocked out is that she had not said a word as to whether she was not having a house or a vacant site other than the one alluded to above in the village/town. So to speak even if one was to uphold her claim that she has been living in the house in dispute for 40 years, and as such she was resident of Kohat village/ city there will be still no basis to sustain her claim to exemption. The issue, it appears to me, has been rightly decided against the defendant vendee.
8. It remains to be seen if the appellant has established a gift by Khawaja Muhammad Khan as far as 5 marlas in Khasra No. 318 is concerned. She has not produced any title deed and the revenue record is also silent on the point. Neither Khawaja Muhammad Khan who is no doubt a co-sharer in the number nor any of his heirs have been produced. The statement of Abdul Aziz Khan, P. W. 1, is also not helpful and on this point the mere word of the appellant and the support given to her by Insha Khan cannot be conclusive. In the circumstances I hold that appellant is not the owner of the contiguous property.
9. As far as the price is concerned, a reference to paragraph 1 of the plaint would show that it was admitted that Muhammad Insha Khan had mortgaged the 'kotha' and the 'devri' after its construction with the defen dant. Shah Gulla. It would follow that the observations of the lower Appellate Court that there was no evidence on the record to show that there was mortgage, is not well grounded. The learned trial Judge, however, did advert to the mortgage mutations 1442 and 1444 attested on 10-3-65, and was of the view that the mutations alone would not prove that Rs. 5,000 had been actually paid. Since this mortgage transaction was about five years earlier than the impugned sale, there does not appear to be any reason why the parties to that transaction should have inflated the mortgage amount. Be that as it may, on this point the words of Muhammad Insha Khan, Advocate, who appeared as D. W. 2, are conclusive. He stated that he mortgaged the house to Shah Gulla for Rs. 5,000. It is true that all that Qazi Shafiullah, P. W. 3, has stated is that the property was worth Rs. 6,000/7,000, but it cannot be overlooked that according to this very witness "the property is in Kohat City and it is within the limits of Municipal Committee, Kohat. Towards the East of the property in dispute, there is a 'Nali' (sic) and from that place up to Tehsil Gate there are shops and other residential property". It comes to this that even though the property has got the area of six marlas, is being capable of being used for commercial purposes and on the road and near the police lines, as Exh. D. W. 1/3 would suggest, might well be worth the amount at which the sale purports to be. I will, however, prefer to go by the word of Muhammad Insha Khan and assess the market value at Rs. 11,000. He admitted Rs. 5,000 as mortgage money and added that the equity of redemp tion was sold by him at Rs. 6,000/7,000 and I think the lowest figure of Rs. 6,000 should be taken against the respondent, for, he happens to be the witness of the defendant-appellant. If the suit is to be decreed, the plaintiff-respondent shall pay Rs. 11,000 and make up the price by depositing the deficient amount in the trial Court within one month, failing which his suit may be dismissed.
10. The authority viz. 59 P R 1914 on which reliance has been placed by the, trial Judge is Jindu Rama v. Hussain Bakhsh and another. It has also been reported as A I R 1914 Lah. 444. No doubt this gives the "Mutawali" of a mosque the right to claim pre-emption on behalf and for the benefit of the mosque. It may be mentioned that this has been followed in Wakaf Banam Khudawand Karim Mahal Faiz Mohammad Khan v. Mst. Raj Kali (A I R 1938 All. 157), which is a case under the Agra Pre-emption Act and lays down that no disability whatever attaches to the juristic right in the case of a wakf and the wakf has a perfect right to bring a suit for pre-emption. There is also a Single Bench authority of the Lahore High Court in Maula Bux v. Hafiz-ud-din and others (94 I C 7), wherein a mosque has been held to be a juristic person. These authorities, are, however, not conclusive, for, in a subsequent Privy Council authority as in Mosque known as Masjid Shahid Ganj and others. v. Shiromani Gurdawara Parhbandhak Committee, Amritsar and another (AIR 1940 P C 116), their Lordships after noticing these authorities observed as follows:
"It is not necessary in the present case to decide whether in any circum stances or for any purpose a Muslim institution can be regarded in law as a "juristic person". The recognition of an artificial person is not to be justified merely as a ready means of making enanctments-well or ill-expressed work conveniently. It does not seem to be required to the word "Person" as it appears in the Punjab Pre-emption Act, 1905, or in the definition of 'gift' contained in section 122, T. P. Act. It is far from clear that it is required in order that property may be devoted effectively to charitable purposes without the appointment of a trustee in the sense of the English Law. It would seem more reason able to uphold a gift, if made directly to a mosque and not by way of wakf, as having been made to the mutawali than to do so by inventing an artificial person in addition to the mutawalli (and to God in Whom the ownership of the mosque is placed by the theory of the law).
Their Lordships do not understand that in this respect a mosque is thought to be in any unique position according to the authorities on Mahomedan law. "A gift may be made to a mosque or other institu tion" (Tyabji's Principles of Mahomedan law, Edn. 2, 1919, page 401, of Abdur Rahim's Muhammadan Jurisprudence, page 918). A gift can be made to a Madrasah in like manner as to a Masjid. The right of suit by the mutwalli or other manager or by any person entitled to a benefit (whether individually or as a member of the public or merely in common with certain other persons) seems hitherto to have been found sufficient for the purpose of maintaining Mahommedan endowments. At best the institution is but a caupt mortuum, and some human agency is always required to take delivery of property and to apply it to the intended purposes. Their Lordships, with all respect to the High Court of Lahore, must not be taken as deciding that a "Juristic personality" may be extended for any purpose to Muslim institutions generally or to mosques in particular. On this general question they reserve their opinion; but they think it right to decide the specific question which arises to the present case and hold that suits cannot competently be brought by or against such institutions as artificial persons in the British Indian Courts."
11. The dictum of their Lordships of the Privy Council which is being underlined* is binding upon me and in all humility I must say that it is in accordance with the Muslim Law on the subject. Apart from the statement of Baillie in his Digest of Mohammadan Law, Third Impression, pages 477 and 478 which reads:
There must be milk or ownership of the shufee, or pre-emptor, at the time of the purchase, in the mansion on account of which he claims the right of pre-emption. So that he has no right on account of a mansion of which he is merely the tenant for hire, or that he has sold before the purchase, or has converted into a Musjid, or place of worship . . . . .
When it is said that akar are proper objects of the right of pre-emption, it is by virtue of a right of Milk, or ownership, that they are, so. Hence, if a mansion were sold by the side of a wakf, the appropriator would have no right of pre-emption; nor could the Mutawalli or superintendent, take it under that right.
There is the law for the guidance of the Courts in the erstwhile dominions of Turkey as in Mejelle. I have before me the English Translation of Mejelle by C. R. Tyser, Article 950 on page 150 defines 'Shufa' as the right to acquire possession of a Mulk property sold, for the amount which the property cost the purchaser. The two conditions that cover 'Shufa' are contained in Articles 1017 and 1018 which read:--
"1017. It is a condition that the thing, which there is a right to purchase, should be immovable Mulk property. Therefore,' the right of pre-emption is not allowed in respect of ships, and other movable property and in respect of immovable property which is wakf, or Arazi-Miria.
1018. It is a condition also that the property, in respect of which the right is claimed, should be Mulk property. Therefore, when a Mulk property is sold, the Muteveli or possessor of immovable wakf property, which adjoins, cannot have a right of pre-emption."
As to what is 'Mulk property' one can refer to Article 125 ibld and the same read:--
"Mulk" is a thing of which man has become the owner, whether it be the things themselves (A'yan, Art. 159) or whether it be the use (Menafi').
It comes to this that in the Turkish domains where 'Sunni Fiqha', was being practised the 'Mutawalli' or possessor of immovable wakf property could not have a right of pre-emption over the adjoining mulk property. That contrary view will be quite obviously inconsistent with the concept of God in the 'Muslim law, will stand amply demonstrated on a reference to Waqf Banam Khudawand Karim Mahal Faiz Muhammad Khan v. Mt. Rai Kali, where Rennet, J. has projected the contrary view in the following words:-
Learned counsel for the respondent has not been able to define exactly what is the defect which would prevent God Almighty from being a juristic person. No ruling has been produced which indicates that there is any legal difficulty in the conception of the deity as a juristic person. In the case of a Hindu deity the conception of a deity as a Juristic person is well known and has been laid down many years ago by their Lordships of the Privy Council. We are quite unable to see any defect or difficulty in the conception of the deity as a juristic person in the case of a Mahomedan wakf.
All that I would like to say with respect is that Allah Almighty as known to the Muslim jurists cannot be compared with a deity of any other religion. As a matter of fact he is the master of all that we survey and hold. He is certainly not amenable to the jurisdiction of the Courts.
12. There is also wisdom in not allowing 'Waqf' properties the right to pre-empt, for, such properties are not normally put to sale. In modern society the pre-emption law can only be defended on the principles of recipro city. Again it will be highly undesirable if 'Masjid' and 'waqf' were to become litigants and subject to resentful remarks of the disgruntled opponents who decry pre-emption as piratical. The sanctity of the mosque and 'waqf' properties would demand that those should not be dragged into litigation. In the days of our pristine glory sites for mosques were not acquired compul sorily and extension of mosques was not without the consent of the neighboring owners.
13. I hold that the plaintiff was not competent to bring the suit. He had no right of pre-emption. The appeal is hereby accepted and the suit of the plaintiff is dismissed with the direction that the parties shall bear their own, costs throughout.
S. A. H. Appeal accepted.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer