Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (civil) 1805 of 1989
PETITIONER:
A.P. STATE WAKF BOARD HYDERABAD
RESPONDENT:
ALL INDIA SHIA CONFERENCE (BRANCH) A.P. AND ORS.
DATE OF JUDGMENT: 02/03/2000
BENCH:
M. JAGANNADHA RAO & Y.K. SABHARWAL
JUDGMENT:
JUDGMENT
2000 (2) SCR 78
The Judgment of the Court was delivered by
Delay condoned.
Application for substitution is allowed.
This appeal is preferred by the Andhra Pradesh Wakf Board against the
judgment of the High Court of Andhra Pradesh in CCC Appeal No. 41 of 1980,
dated 15.3.1988. By that judgment, a Division Bench of the High Court of
Andhra Pradesh confirmed the declaration granted by the Third Additional
Judge, City Civil Court, Secunderabad, in O.S. No. 96 of 1963, on 31st
August, 1979- The suit O.S. No. 96 of 1963, in which the declaration was
granted by the said Civil Court was decreed in favour of the three
plaintiffs, the first plaintiff being the All India Shia Conference
(Branch) Andhra Pradesh, the second plaintiff being Syed Hassan Pasha and
the third plaintiff, being Askar Nawaz Jung, being the President of All
India Shia Conference. In the suit, the State of Andhra Pradesh and the
Andhra Pradesh Muslim Wakf Board were impleaded as defendant Nos. 1 and 2.
But subsequently, at the instance of the Wakf Board, defendant Nos. 3 to 52
were impleaded as defendants.
The suit was filed by the plaintiffs (respondents in this appeal) for a
declaration that all the institutions going by the name ’Panjas, Alams,
Ashur. Khanas, Asthanas and Imambadas are Shia Wakfs and that the necessary
corrections be directed to be made in the concerned notifications and
Regis-ters of Endowments by showing the above said institutions as Shia
Wakfs. Lists of endowed property from time to time are published in the
Gazette. Such a list was published in the Gazette on 28.6.1962. It was
averred that while preparing the said list, the Commissioner of Endowments
had described some of the above said Shia Wakfs as Sunni Wakfs. It is the
case of the plaintiffs that all Panjas, Alams, Ashthanas, Ashurkhanas and
Imambadas were wrongly classified as Sunni Wakf instead of Shia Wakf in the
list published by the Andhra Pradesh Wakf Board. They cannot be Sunni in
origin inasmuch as they are connected with Muhurrum celebrations and
pertain exclusively to Shia faith. It is pleaded that the Sunni section of
the Muslims does not use these institutions nor are they interested in the
same. The Alams, Panjas, Ashthanas, Ashurkhanas and Imambadas have some of
the important features of Shia Sect distinguishing them from the Sunni
Wakfs. The Noti-fications also referred to celebrations on Muhurrum, which
is a function exclusively connected with the Shias. The suit was preceded
by a notice under Section 56 of the Muslim Wakfs Act. It is stated that the
defendants are likely to repeat mistakes in future Notifications and that
the plaintiffs are interested in having rectification made in the
Notifications and the Register of Wakfs be modified by showing the above
said institutions as Shia Wakfs and not Sunni Wakfs.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
A written statement was filed by the Wakf Board denying the plaint
allegations and contending that the Notifications showing these
institutions as Sunni Wakfs was correct and did not require any
modification. It was also contended that Panjas, Alams, Ashurkhanas or
Imambadas do not exclusively pertain to Shias nor were they exclusively
connected with the Muhrrum festival observed by Shia Muslims. Sunnis also
observe Muhrrum in thek own way and these institutions were rightly endowed
as Sunni Wakfs in the Gazette Notifications dated 19.4.1962 and 28.6.1962.
In the suit, the learned Government pleader appeared for the State and
another counsel represented the 2nd defendant, the Muslim Wakf Board. The
mutawallies representing defendant Nos. 3 to 52 remained exparte, except
defendant Nos. 36 and 41. Therefore, only defendant Nos. 36 and 41 were
represented by counsel and therefore the rest of the defendants were set
exparte.
Defendant No. 36 in his written statement stated that the defendant had
filed a suit as O.S. No. 218 of 1963 on the file of the District
Magistrate’s Court, Tenali for a declaration that the properties were
absolute properties of defendant No. 36 and that the suit was decreed on
24.12.1964. The said judgment became final and the suit may be dismissed
against him.
The 41st defendant contended that the plaintiffs’ contention regarding
certain institutions being Shia Wakfs are not correct. These institutions a
Sunni in origin and Sunni Muslims also observe Muhrrum. The institutions,
Ashrukhanas, Alams, Asthanas and Imambadas are endowed by the generous
Sunnis and they are managed by Sunnis. The Ashurkhana Takikonda of Guntur
District is a Sunni Wakf which is endowed by ancestors of the present
managers who have been performing Muhrrum with great zeal.
On these pleadings, the trial Judge framed the following issues.
(1) Whether the plaintiffs are entitiled to the declaration and
correctness as prayed for?
(2) Whether the said institutions are of significance to both sunnis and
shias and whether they are not places of worship frequented by shias as
alleged by defendant No. 2 in para 9 of Written Statement?
(3) Whether the classification of the said institution as sunnis Wakf does
not affect the interest of the Shia community?
(4) Whether the suit is bad on account of rnisjoinder of cause of action?
(5) Whether the suit is barred by limitation?
(6) Whether the notices dated 27.6.63 under Section 56 of the Muslim Wakfs
Act is defective as alleged in para 8 of the Written Statement of defendant
No. 2?
(7) Whether defendant No. 2 is entitled to any separate notice under
Section 80 of the C.P.C.?
(8) Whether the suit is not properly valued and the court fee paid is
insufficient?
(9) To what reliefs the plaintiffs are entitled ?
(10) Whether the institutions known as Ashrukhana Imabadas, Asthanas,
Panjas, Alams where Muhrrum ceremonies are performed are governed by Sunni
Law or Shia Law?
The plaintiffs examined five witnesses and marked Exts. Al to A6 while the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
defendants examined 5 witnesses and marked Exts. Bl to B5. Except P.W. 2
who belonged to Machilipatnam, it appears that the other plaintiffs did not
belong to any of these Villages in Krishna or Guntur Districts where these
institutions were located. The position on the side of the defendants does
not appear to be any different.
The trial Court’s finding on issue No. 1 was that the plaintiffs were
entitled to a declaration and correction as prayed for; on issue No.2, it
was held dial the institutions were of significance especially to shias
eventhough sunnis also frequent them; on issue No.3, it was held that the
classification made already affected the interests of the Shia community,
on additional issue framed on 2.8.1979, it was held that the institutions
known as ’Ashurkhanas, Imambadas, Asthanas, Panjas and Alams’, where
Muharum ceremonies were performed were governed only by Shia law and on
issue No.5 it was held that no finding was necessary. On issue Nos. 4 & 8,
it was held that there was no misjoinder of causes of action and that the
suit was properly valued. On issue Nos. 6 & 7, it was held that notice
under Section 56 was not defective and on issue No. 7 that mere was proper
notice under Section 80 C.P.C. A final declaration was given under issue
No. 9 in para 21 as follows:
"For the various reasons set out in my discussion, the suit is decreed in
favour of the plaintiffs granting the declaration to the effect that all
the Imambadas, Ashurkhanas, Asthanas, Alams and Panjas are shia wakfs in
this State and they must be classified as such. Secondly, the registers
should also be modified or altered to show the correct classification in
pursuance of this declaration. This suit is dismissed against D-42 Merman
Hussain, who seems to have died eight years earlier to 1977, on his behalf.
The suit also is dismissed against D-36 since the Plaintiff did not adduce
any separate evidence to show that the properties claimed by D-36 are not
his personal properties. Considering the prolonged period for which this
suit remained pending, and also having regard to have this litigation, I
consider the ends of justice would be met with by directing the parties to
bear their own costs".
The said Judgment was affirmed by the Division Bench of the High Court.
Aggrieved by the said judgment of the Division Bench, the Andhra Pradesh
Wakf Board filed this appeal in this Court in the year 1989. In this
appeal, we have heard learned senior counsel for the appellants Mr. M.S.
Ganesh and learned counsel for the respondent Sri. A. Subba Rao. We have
also heard learned counsel for the State of Andhra Pradesh. Other
respondents in the appeal have not appeared before us.
It may not be necessary to go into the matter in detail in view of the
order we propose to make in this appeal. The general principles as
applicable to Shia and Sunni Wakfs are set out in the Judgment of the
Division Bench of the High Court and reference has been made to various
standard works on the subject, such as ’Mohammedan Law’ by Amir Ali,
’Principles of Mohamedan Law’ by Mulla, "Muslim Law of India" by Dr. Tahir
Mahmood, "Outlines of Mohammadean Law" by A.A. Fyzee ’The People of Mosque’
by L. Bevan Jones, PR. Ramanatha Aiyer’s ’The Law Lexicon’ and also a book
entitled ’Muharram in Hyderabad City’ published by Director of Census
Operations, Andhra Pradesh.
It appears on a reading of the various passages from the above books that,
generally, such institution known by the above said names are Shia wakfs,
but it is not an absolute rule. There are certain exceptional cases where
such institutions are also established by Sunni Sect and can be Sunni
wakfs. On a reading of the passages from the above said books, the highest
that can be said in favour of the plaintiffs - respondents is that,
generally such institutions can be Shia wakfs, though it is possible that
some of them can also be sunni wakfs. But we are of the view that, on the
basis of the above proposition, it cannot be straight away declared that
every institutions known as ’Asthanas, Imambadas, Ashurkhanas or Alam’ is a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
Shia Wakf and that it cannot be a Sunni wakf. Whether any particular
institution even if it is known by the above names, is prima facie a Shia
Wakf or not is a matter upon which it will be necessary to lead evidence in
relation to each one of the institutions.
The curious position on the facts of this case is that as per the survey
made by the Wakf Board the various institutions were notified as Sunni
wakfs. The persons whom the Wakf Board, the 1st defendant impleaded as
other defendants were the various Mutawallies representing the other Wakfs.
Except two of these Mutawallies, all others chose not to contest the suit
filed by the plaintiffs. This appears to be mainly because the plaintiff
had not sought removal of any of the Mutawallies. Most of them might
perhaps be governed by the law of succession. As long as their position was
not disturbed, they were not inclined to contest the case in the trial
Court, Appellate Court or in this Court. It did not matter very much for
them whether it was to be declared as Shia Wakf or a Sunni Wakf as long as
their position remained secure. Neither the plaintiff nor the Wakf Board
made any effort in the trial Court to produce evidence relating to each of
the Wakfs in these two Districts of Krishna and Guntur.
Learned senior counsel for the appellant Sri Ganesh contended that on the
evidence of the plaintiffs and the law as stated in these various texts,
the trial Court and the High Court could not have given a declaration that
all such institutions known by the above names should be declared to be
Shia Wakfs. Learned counsel pointed out that the evidence in regard to
individual insti-tutions had to be produced. On the other hand, learned
counsel for the plaintiffs - respondents tried to sustain the declaration
granted by the trial court and the High Court. As stated earlier, we are
not inclined to give a vague and general declaration that these
institutions would have a prima facie status as Shia Wakfs, though some of
them could also be Sunni Wakfs in exceptional cases. Inasmuch as such a
declaration cannot be granted on the basis of the evidence led, the
plaintiff has to adduce satisfactory evidence in relation to each of these
institutions covered by the Notifications. In the above situation, it has
not become possible to give any above positive finding one way or the other
and we have found difficulty in giving a satisfactory finding as to whether
these defendant institutions are governed by Shia law or Sunni law. the
question then is, what is the procedure to be followed in such a situation,
particularly in the light of the fact that the suit had been filed in the
year 1963?
We are of the view that instead of dismissing the suit, the justice of the
case requires that the parties are to be given an opportunity to produce
evidence so as to enable the Court to render a satisfactory judgment on the
issue as to whether these institutions are Shia Wakf or Sunni Wakf. In this
context, the decision of this Court in K. Venkaramaiah v. A. Seetha Rama
Reddy & Ors., AIR (1963) SC 1526 is apposite. In that case, this Court
observed that under Order 41, Rule 27(l)(b) of the C.P.C., whenever Court
felt difficulty in deciding an issue, the Court could direct additional
evidence to be adduced, treating the need for evidence as a requirement of
the Court’ for pronouncing a satisfactory Judgment. It would be "other
substantial cause" in Order 41, Rule 27(l)(b). This Court in that judgment
observed as follows:
"In view of what the High Court has stated in this passage it is not
possible to say that the High Court made the order for admission of
additional evidence without applying its mind. It seems clear that the High
Court thought, on a consideration of the evidence, in the light of the
arguments that had been addressed already before it that it would assist
them to arrive at the truth on the question of Seetharam Reddy’s age if the
entries in the admission registers of the school were made available. It
was vehemently urged by the learned counsel for the appellant that there
was such a volume of evidence before the High Court that it could not be
seriously suggested that the Court required any additional evidence "to
enable it to pronounce judg-ment". The requirement it has to be remembered,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
was the requirement of the High Court, and it will not be right for us to
examine the evidence to find out whether we would have required such
additional evidence to enable "us" to pronounce judgment. Apart from this,
it is well to remember that the appellate court has the power to allow
additional evidence not only if it require such evidence "to enable it to
pronounce judgment" but also for "any other substantial cause", there may
well be cases where eventhough the court finds that it requires additional
evidence "to enable it to pronounce judgment", it still considers that in
the interest of justice something which can pronounce its judgment in a
more satisfactory manner. Such a case will be one for allowing additional
evidence "for any other substantial cause" under Rule 27(l)(b) of the
Code".
Such requirement of the court is not likely to arise ordinarily unless some
inherent lacuna or defect become apparent on an examination of the
evidence. It may well be that the defect may be pointed out by a party, or
that a party may move the Court to supply the defect, but the requirement
must be.the requirement of the Court upon its appreciation of the evidence
as it stands".
The further question then is whether we should remit the matter to the High
Court or to the City Civil Court, Secunderabad by setting aside both the
judgments which proceeded on the same line of reasoning. Inasmuch as the
suit is of the year 1963, we are not inclined to send back the matter to
the trial Court, but we would send back the matter to the High Court for a
fresh decision in the matter after receiving further evidence as stated
above.
But then inasmuch as the various defendants institutions are located in the
Krishna and Guntur Districts of Andhra Pradesh, we do not think that this
is a fit case where the City Civil Court in Andhra Pradesh should be
directed to receive evidence and give its finding under Order 41, Rule 25
C.P.C. to be sent upto the High Court. Instead, we think that one of the
Sub Judges of Machilipattanam and similarly one of the Sub Judges in the
Guntur District or one of the Additional District Judges in Guntur &
Krishna could receive the evidence in this case under the provisions of
Order 41, Rule 28 C.P.C. The provision reads as follows :
"Order 41, Rule 28 : Mode of taking evidence : Wherever additional evidence
is allowed to be produced, the Appellate Court may either take such
evidence, or direct the Court from whose decree the appeal is preferred, or
any other Subordinate Court, to take such evidence and to send it when
taken to the Appellate Court.
The above rule permits the appellate Court to direct the trial Court or any
Subordinate Court to record evidence and send up the evidence to the
appellate Court.
Thus it is open to the High Court, being the Appellate Court to call for
additional evidence from the City Civil Court, Secunderabad which decided
the suit or call for such evidence from any other Court subordinate to the
High Court. The said Court can submit the same to the High Court for the
purpose of the decision on the issue in the CCCA No. 41/1980, in the High
Court. We, therefore, set aside the impugned judgment of the High Court and
remit the matter to the High Court for fresh decision on the question as to
whether each of the defendant - institutions was Sunni Wakf or Shia Wakf.
For the aforesaid purpose the High Court is requested to pass an order
under Order 41, Rule 28 C.P.C. directing the District Judges in each of
these Districts of Krishna and Guntur, either by themselves or by
transferring the matter to one of the Additional District Judges or Sub
Judges in the respective Districts, to receive additional evidence oral or
documentary, to be adduced by the plaintiffs and defendants on the question
whether each of the institu-tions represented by the defendant Nos. 3 to 52
is a Shia Wakf or Sunni Wakf. Initially, the High Court may therefore call
for this evidence from the concerned District Judges leaving it open to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
District Judges to allocate this work to one of their Additional District
Judges or to a Sub Judge in the respective District, as the case may be. It
will be for the said Judges to whom the above function is allocated to
receive the additional evidence as stated above and after receipt of such
evidence, to forward the evidence so received to the High Court for use in
the City Civil Court Appeal above mentioned.
We hope that the above exercise will be completed as early as possible.
After receipt of the evidence from the said Court, the High Court is
requested to dispose of the appeal in the light of the evidence already
recorded and also such evidence as may be sent by the said Courts in the
respective Districts, as stated above.
The appeal is allowed and the matter is remitted to the High Court as
stated above. There shall be no order as to costs.