Koyamutty vs Muhammad and Others

N.V. Iyengar J.

The second appeal is by the plaintiff in a suit for permanent injunction which was decreed by the trial court but dismissed by the court below in appeal by the defendants. The plaint property originally belonged to Unnipathumma. On her death, Moyankutty the plaintiff''s father and his brothers divided the same along with other properties under Ext. A1 partition deed dated 2-10-1080. The partition deed mentioned that the income from the plaint property should be devoted for the purpose of reciting Koran for the salvation of the souls of Unnipathumma and other ancestors of the parties. The plaintiff''s father was constituted the first manager of the property with obligation to see to the proper recitation of the Koran. On his default to do so, the other parties were to appoint one among them to manage. According to the plaintiff his father managed without default till his death and thereafter he had been doing so. The defendants had been let into occupation of a house in the property under lease by the plaintiff. They were now trespassing into the property and committing waste and also attempting to put up other houses. So the suit was laid for permanent injunction restraining the defendants from committing waste in the plaint property or improving the same. The defendants accepted the original arrangements under Ext. A1 under which the plaintiff''s father came into management, but they contended that he was disposed by his brothers on account of his default and they were, as the sons of a brother, rightfully in present management and the plaintiff had accordingly no locus standi to maintain the suit. They also questioned the allegations as to waste and improvements. The simple questions that thus arose on the pleadings were how far the plaintiff was the wakf manager and whether he was entitled to damages or injunction. The trial court on a consideration of the evidence, found that the story of the plaintiff''s father''s displacement set up by the defendants was untrue bur because the document Ext. A1 was silent as to future management after the death of the plaintiff''s father or his brothers, the plaintiff could not claim proper appointment as wakif at present. As person in de-facto management of the property, however, the plaintiff was entitled to maintain the suit. In appeal, the learned Sub-Judge of South Malabar, allowed fresh point to be taken as to the validity of the wakf constituted under Ext. A1 and having found this in the negative, he dismissed the suit, without more, because the parties were then in the position of co-owners of ordinary property and the suit for injunctions as framed could not lie.

Learned counsel for the plaintiff, appellant urges before me that the court below was wrong in entertaining the plea as to the validity of the wakf which not only did not arise on, but was even negatived in, the pleadings and that even so, it was wrong in its conclusion on the merits. Mr. Pocket appearing for the respondents-defendants replied by saying that the question did not after all involve the ascertainment of any new facts but turned only on the application of Mohammedan Law to the recitals in Ext. A1 and was therefore properly gone into. He also supported the finding of the court below that the wakf was invalid.

On the first question as to the propriety of the court below in entertaining the fresh point in appeal it is well settled that parties ought not to be permitted to raise new points not covered by the pleadings or the issues. No appellate court will be justified in reversing the Judgment of the trial court without pleadings being amended and the necessary issues being raised. No amount of evidence can be looked into upon a plea which was never put forward. See AIR 1933 117 (Privy Council) where the Privy Council refused to allow a new point to be raised before it without any pleadings or evidence on it. There is no doubt the observation of Lord Watson in Connecticut Fire Insurance Co. v Kavenagh, (1892 A.C. 473 that)

Where a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea.

But that cannot authorize a point of law to be taken for the first time in appeal, if it sets up a new right differing in kind from that asserted throughout the trial. See Rachawa v Shivayogapa, T.L.R. 18 Bom. 679. The court below was therefore wrong in reversing the judgment of the trial court on the basis of the invalidity of the wakf, a point on which both parties stood agreed to the contrary.

On the merits also, the court below has in my judgment gone wrong. Reading of the Koran whether in public places or at private houses is included as one of the valid objects of a wakf in Mulla''s Mohammedan Law, 14th Edn. at page 165. The authority relied on by the learned author is Abdul Sattar Ismail Vs. Abdul Humid Sait, . In that case one of the objects for which the wakf trustees could devote the income was the reading of the Koran in public places and also at private houses. The learned Judges quoted Ameer Ali''s Mohammedan Law, Vol. I, p. 273 as follows:-

The words ''piety'' and ''charity'' have a much wider significance in Mussalman law and religion that in any other system. Khair, birr, ishan, etc., include every purpose which is recognized as good or pious under the Mussalman religion and Mussalman law; and the rest of what is ''good'' or ''pious'' or ''charitable'' is the approval of the Almighty. Every ''good purpose'' (Wajah-u-Khair) which God approved or by which approach (Kur bat) is attained to the Deity, is a fitting purpose for a valid and lawful wakf or dedication. A provision for one''s self, for one''s children, for one''s relatives, is as good and pious an act as a dedication for the support of the general body of the poor.

and after distinguishing Kunhamkutty v Ahamad Mudaliar. ILR 58 Mad. 204, said:

The reading of the Koran in public and private places can only be regarded as religious and pious and it seems to us that it must also be regarded as charitable for the reading is for the benefit of all Mussalmans. The fact that money may be expended on the reading of the Koran in private places as well as in public places does not detract from the religious, pious and charitable character of the object.

Now, the court below relied on the ruling in Kunhamutty v Ahmad Musaliar, ILR 58 Mad. 204 to hold that under the Mohammedan law the dedication of the property the income of which is to be devoted merely for the purpose of reciting Koran does not bring about a valid wakf, unless there is an ultimate disposition of the property for charitable purposes. But that was a case where the founder of wakf directed the Koran to be read over his tomb. But even here it is worthwhile to note the different view expressed by Mirza, J., in Abdulbaker v Abubaker, ILR 54 Bom. 358. In later case in the Madras High Court, Syed Ahmed and Another Vs. Julaiha Bivi and Others, , the learned Judges turned down the broad contention based on 58 Mad. 204, that unless there was an element of public benefit or welfare no object or purpose could be regarded as charitable under the Wakf Act of 1913 and held that pious acts recognized among the Mussalmans as being for the good of the soul of the settlor or his ancestors are valid objects of a wakf. Stanley C.J. no doubt expressed in 33 All. 400 that the reading of the Koran in private served no purpose of public utility. But against this there is the observation of Banerjee, J. in the same case following Ameer Ali on Mohommadan Law that the provision for salary for the recitation of Koran is a perfectly valid expenditure under a wakf arrangement. I hold therefore that the validity of the wakf in this case is beyond challenge.

I therefore, in reversal of the decree of the court below allow this appeal. But as the court below has not decided the real question in controversy between the parties I direct that court to restore the appeal back to its file and dispose of it in due course of law and in the light of the observations herein. The respondents will pay the appellant his costs in this court. The rest of the costs incurred so far will be provided for in the decree to be passed by the court below.