Adam Sheik and others vs Isha Sheik and others

The plaintiffs in this suit seek for a declaration of their right in a certain mosque which appears to have been erected some years ago by the defendants in conjunction with the plaintiffs 1 and 7 on a piece of land belonging jointly to both the parties to the suit. The defendant''s answer (inter alia) was that the plaintiffs had forfeited the right to offer their prayers in the mosque in question owing to their refusal to conform to the ritual observed by the defendants. The Munsiff, who tried the case in the first instance, held that inasmuch as the plaintiffs 1 and 7 had contributed towards the erection of the mosque, they were entitled to worship therein; and that the fact of their having adopted a different ritual was no bar to their claim. But he was of opinion that the other plaintiffs had no right to perform their devotions in that mosque, as it did not appear, that the site had been "publicly appropriated to the purpose of a musjid or that the house was consecrated by public prayer."

In the result, he made the following declaration:--"The court declares that the plaintiffs 1 and 7 are entitled to frequent the mosque for the purpose of worship and that the plaintiffs are co-owners with the defendants of the land in suit."

On appeal the District Judge has held that none of the plaintiffs has any right to pray in the mosque in question. "Admitting "he says, "that these two plaintiffs (i.e., plaintiff 1 and 7) assisted in the building of the musjid, the fact of their having since adopted another form of worship and joined the plaintiffs, is sufficient to act as a bar to their worshipping in the temple used by the defendants. These plaintiffs have renounced the doctrines of the defendants and their form of worship, and it would be preposterous to allow them the right to disturb the defendants by any mode of worship repugnant to them, or foreign to the customs which prevail in the musjid."

The plaintiffs have appealed to this court; and they take exception not only to the order of the District Judge but also to that of the Munsiff. They contend that under the Mahomedan law every Musulman is entitled to enter the mosque and offer his prayers therein; that the Judge was wholly wrong in supposing that the plaintiffs had adopted a different form of worship and that their so-called secession was no ground for excluding them from a place of worship open to all the followers of the Prophet. Babu Nilmadhub Bose, on the other hand, endeavours to support the order of the Judge on two grounds. He contends in the first place that the mosque is not a public mosque, and in the second place, that as the plaintiff''s have adopted a different ritual, their secession has worked a forfeiture of their right. We are of opinion that both these grounds are untenable and that the lower Courts have proceeded upon an erroneous apprehension of the law applicable to the subject.

It is clear upon the finding of the Munsiff himself that the mosque was used for purposes of public worship ever since its construction. He says :--"The mosque has been used from the beginning as a place of worship by the people of the defendant''s party only, which included plaintiffs 1 and 7 also till lately."

This finding has not been disaffirmed by the District Judge, and we may take it that the prayers have all along been duly performed there;in the manner prescribed by the Mahomedan religion. One of the essentials for the due performance of prayers in a mosque is the azan, the public call of the Muezzin who summons "the faithful" at stated hours to join in the worship, and, as we shall show later on, it is the first azan which in the absence of express dedication, consecrates the building as a place of public worship. It is also clear from the finding of the Munsiff already referred to, that the prayers must have been performed in Jamat, in other words, must have been congregational in character, for he says---"The mosque was used as a place of worship by the defendant''s party."

It is well known that among the Sunnis prayers offered in Jamat are considered more meritorious than those offered in private, especially on Fridays and on occasions of religious festivals, and hence wherever there is a mosque in any particular locality, people of the neighbourhood congregate in it for public prayers. In the present case also the reasonable inference is that the mosque in question was used for the same purpose. And this inference is thoroughly borne out by the finding of the First Court.

The Munsiff has fallen into an error in supposing that in order to hold that the building was a public mosque, it was necessary to find that the site was publicly appropriated to the purpose of a musjid or that the house was consecrated by public prayer. There is no provision in the Mahomedan law that we are aware of, which insists upon a public appropriation of the site. Besides in this particular case the question of the appropriation of site seems wholly immaterial, for the defendants have admittedly built on land jointly belonging to the parties a mosque which the plaintiffs claim to be a public mosque. If it is a mosque consecrated to public worship, the land becomes w�kf ex-necessitate re.

The Munsiff seems to be equally in error in thinking that the constitution of. a public mosque depends on its consecration by public prayer.

According to all the authorities, a mosque becomes consecrated for public worship either by delivery to a Mutwalli (see Baillie''s Digest, page 616) or on the declaration of the w�kf that he has constituted it into a musjid or on the performance of prayers therein (Ruddul-- Mukhtar, vol. III, p. 571). The prayers of one individual alone would be sufficient so long as it is accompanied by azan. In the Fatwa Kazi Khan the principle is thus stated:--the delivery of possession as regards a musjid is complete when only one person has prayed in it with azan and ikamat.

The view universally adopted is that prayers offered by one person in a mosque is sufficient to constitute it a public mosque devoted to the worship of God, for a mosque belongs to the Deity and there affixes to it a right of the Musulman on general, and one person can be a proxy for the establishment of the right of the Creator and the public.

According to Abu Yusuf, consignment is not necessary for the validity of any dedication, whether it be a mosque or any other w�kf. Therefore, if a person create a mosque and give permission to people to pray therein, it is an absolute w�kf, and this opinion we adopt. (See also Fatwa Alamgiri, vol. VI, and Baillie''s Digest, p. 616.) The special purpose of a mosque is that persons should perform their devotions therein; and according to the accepted doctrine even where there is no evidence of an express dedication in words, if it appears that one single individual (other than the w�kif) has offered his prayers at the place after the usual summons or call to the public, the consecration is complete. The Munsiff, therefore, was in error in our opinion in holding that the building was not a public mosque.

In this connection we may refer to the case of Queen-Empress v. Ramzan ILR 7 All. 464 quoted with approval by the Judicial Committee of the Privy Council in L. R. 18. I. A. p. 59.

We think, therefore, that all the plaintiffs are entitled to offer their prayers in the mosque in question unless the other contention of the defendants be correct, viz., that they have forfeited their right by reason of their non-conformity.

In the Musulman system, a building which is consecrated for the worship of God does not belong to any particular sect. Any Moslem to whatever sect he may belong is entitled to offer his prayers according to his own ritual in any mosque, so long as he does not wilfully disturb or annoy the other members of the congregation. It must be borne in mind that each sect supports its ritual by an appeal to the traditions or the example of the prophet. And consequently the Mahomedan law does not recognize any such disability as the District Judge has imposed upon the plaintiffs, though for obvious reasons if declares that there may not be two Azans (calls to prayer) and two Jamats at one and the same time in one mosque.

In the present case the parties are admittedly Sunnies. The non-conformity of the plaintiffs consists, according to the Munsiff only in the form of the lower garment worn at the time of prayer. And he adds "Now there is no doubt that the form adopted by the plaintiffs 1 and 7 is the more approved form according to the Mahomedan Ecclesiastical Law."

In the kerbala itself the several sunnisects, divided from each other on many points of ritual and doctrine pray together; and frequently a congregation belonging to one sect offers its prayers behind an Imam belonging to another.

In the case of Ata-ullah v, Azimullah ILR 12 All. 494 where a similar question, was raised, Edge, C. J., expressed himself as follows :--" As I understand, a mosque to be a mosque at all must be a building dedicated to God, not a building dedicated to God with a reservation that it should be used only by particular persons holding particular views of the ritual. As I understand it a mosque is a place where all Mahomedans are entitled to go and perform their devotions as of right, according to their conscience."

The question was also discussed at considerable length by their Lordships of the Privy Council in the case of Fazlul-karim v. Moula Buksh L. R. 18 I. A. 59. In that case it appeared that the Matwalli and Imam of a mosque had the doctrines of the Sanil-bil-Hadis sect who in their prayers conform to the "Shafee" rites. The Hanafi congregation objected to the Mutwalli and Imam holding their offices any longer, or leading the prayers in the mosque. Upon a suit brought by the two officers to establish their right, their Lordships made a declaration in their favour holding that the adoption by them of the Sanil-bil-Hadis doctrines or the Shafee rites constituted no disqualification.

A fortiori therefore non conformity on matters of ritual on the part of any member of the congregation cannot lead to the forfeiture of his right which belongs to him as a follower of Islam.

We accordingly discharge the order of the District Judge and in lieu thereof make a decree in favour of the plaintiffs declaring their right to have access to and to offer their prayers in the mosque in question. The plaintiffs will get their costs in all the Courts.