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Judgment
The plaintiff, Gh. Hassan Geelani, has commenced this suit for(A) a declaration to the effect that he is the hereditary Sajadahnashin of the
Khankah called 'Ziarat Syed Abdul Qadir Jeelani situate at Khanyar, Srinagar and that, as such, he is entitled, jointly with his brother, defendant
No. 1, and in his absence, solely, to administer and manage an the affairs of the Ziarat and to realise and disburse the offerings and other income
accruing to the Ziarat without interference by anyone, be it one person or a group of persons: and (B) a perpetual injunction restraining the
defendants from interfering with his rights in that behalf.
The contesting defendants have resisted the suit inter alia on the ground that the valuation for purposes of courtfee and jurisdiction is insufficient
and that the suit, as framed, is not maintainable because, as the written statements put it, ""there is land and property attached to the Ziarat which
have not been included in the suit and no further relief has been sought."" It is averred by Defendants that under instructions from defendant No. 1,
who is the sole rightful Sajadahnashin of this Ziarat and his duly appointed attorney, defendant No. 3 the Central Auqaf Islamia, defendant No. 7,
is looking after the affairs and management of of the Ziarat and its property. These technical pleas are the subjectmatter of issues 1 and 6 which
have been tried as preliminary issues. The two issues are framed thus:
Has the suit not been properly valued for the purposes of courtfees and jurisdiction? OPDIs the suit liable to be dismissed for noninclusion therein
of some property belonging to Ziarat Dastgir Sahib Khanyar and for omission to sue for additional reliefs open to the plaintiff? OPD.
The contesting defendants led six witnesses who depose, almost unanimously. that management of the Ziarat and its property consisting of two
parks, one vacant piece of land and two buildings at Srinagar and some agricultural lands at Pulwama is held and controlled by Idara Auqaf
Islamia, defendant No. 7, who have rented out one of the buildings to the Government for running a school and use the other for purposes of the
Ziarat for imparting religious education. The plaintiff has not produced any evidence in rebuttal. The conclusion is, therefore, irresistible that the
Ziarat and the property appertaining thereto are under the control and management of Idara Auqaf Islamia defendant No. 7. I hold accordingly.
The question arises whether, in the circumstances, the plaintiff should have sued for possession of the Wakf property. The contention of the
counsel for the defendants is that the plaintiff claims title to the control and management of the Wakf which he does not in fact have at present and,
cannot have, unless he obtains possession of the Wakf property. Accordingly, they say, that the relief for injunction cannot be granted to him and
that he should have instead asked for a relief for possession of the Wakf property and since he has not done so, the suit is not maintainable. This is,
in fact, the basis of their objection covered by issue No. 6. The argument raises questions under Sections 42 and 56 of the Specific Relief Act. In
effect it is pleaded that the relief for injunction is barred by Section 56 of the Specific Relief Act as an 'equally efficacious relief by way of
possession was fairly open to the plaintiff and since be has not claimed that relief, be cannot be granted a bare declaration under proviso to Section
42 of the Specific Relief Act which precludes the granting of a declaration ""where the plaintiff being able to seek further relief omits to do so.
These, therefore, are the questions which merit consideration in order to arrive at a decision regarding issue No. 6.
The vice of the argument of the learned counsel for the defendants is that it overlooks the distinction between a trust in the technical sense and a
trust called the Wakf under the Muslim Law and the implications that such distinction has. In its technical sense which is also how it is understood
under the English Law:
A. 'trust' is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner, or declared
and accepted by him, for the benefit of another, or of another and the owner; the person who reposes or declares the confidence is called the
'author of the trust'; the person who accepts the confidence is called the 'trustee'; the person for whose benefit the confidence is accepted is called
the 'beneficiary'; the subjectmatter of the trust is called 'trust property', or trust money'; the ""beneficial interest"" or 'interest' of the beneficiary is his
right against the trustee as owner of the trust property; and the instrument if any, by which the trust is declared is called the ""instrument of trust
Clearly, in this sense, the concept of a trust is that specific property is conveyed to and wests in the trustee as the owner thereof in trust for the
beneficiary. This concept of a trust is completely alien and unknown to Muslim Law. Wakf, the equivalent for trust under Muslim Law, means the
detention of a thing in the implied ownership of God and the appropriation of its profits or usufruct in charity on the poor or other good objects,"" as
Abu Hanifa puts it, or 'for the benefit of mankind,' as his two disciples Abu Yusuf and Mohamad have expressed it. Under the Muslim Law, once
a Wakf is created, the property vests in the Almighty and, ideally, the Almighty becomes the holder and possessor of all the rights therein. The
curator or person in charge of such property, whether described as Mohtamim, Mutwali or Sajadahnashin, acts merely as a representative or
manager. The property does not vest in him and he is surely not a 'trustee' in the technical sense. Herein lies the distinction between a trust in the
technical sense and a Muslim Wakf. A similar distinction is noticeable between a trust in the technical sense and a dedication of property made to
an idol or temple under the Hindu Law. There the property vests in the idol or the institution while the person in charge, called the Shibait or
Mahant, acts merely as a custodian and manager. These distinctions were elaborately and succinctly brought out by their Lordships of the Privy
Council in Vidya Varuthi v. Baluswami, (AIR 1922 PC 123), Delivering the judgment of the Board, his Lordship, Mr. Ameer Ali observed:
It is also to be remembered that a 'trust' in the sense in which the expression is used in English law, is unknown in the Hindu System, pure and
simple. (J. C. Ghose, 'Hindu Law,' 276) Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious
institutions of every kind, and for all purposes considered meritorious in the Hindu social and religious system; to Brahmins, Goswamis, Sanyasis
etc. When the gift was to a holy person, it carried with it in terms or by usage and custom certain obligations. Under the Hinds law, the image of a
deity of the Hindu pantheon is, as has been aptly called a 'juristic entity,' vested with the capacity of receiving gifts and holding property. Religious
institutions, known under different names, are regarded as possessing the same 'juristic' capacity, and gifts are made to them eo nomine. In many
cases in Southern India, especially where the diffusion of Aryan Brahmanism was essential for bringing the Dravidian peoples under the religions
rule of the Hindu system, colleges and monasteries under the games of Mutt were founded under spiritual teachers of recognised sanctity. These
men had and have ample discretion in the application of the funds of the institution, but always subject to certain obligations and duties, equally
governed by custom and usage. When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human
agency. Called by whatever name, he is only the manager and custodian of the idol or the institution. In almost every case he is given the right to a
part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case was the property
conveyed to or vested in him; nor is he a 'trustee' in the English sense of the term, although in view of the obligations and duties resting on him, he is
answerable as a trustee in the general sense for matadministration.
The conception of a trust apart from a gift was introduced in India with the establishment of Moslem rule. And it is for this reason that in many
documents of later times in parts of the country where Mohammedan influence has been predominant, such as Upper India and the Carnatic,
expression Wakf is used to express dedication.
But the Mehommedan law relating to trusts differs fundamentally from the English law. It owes its origin to a rule laid down by the Prophet of
Islam, and means 'the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings.'
When once it is declared that a particular property is wakf, or any such expression is used as implies Wakf, or the tenor of the document shows,
as in the case of Jewan Doss Sahoo v. Shah Kubeerooddeen, that a dedication to pious or charitable purposes is meant, the right of the wakf is
extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit. The
manager of the wakf is the Mutwali the governor, superintendent, or curator. In Jewan Doss Sahu's case the Judicial Committee call him
'procurator'. It related to a Khankha a 'Mahommedan institution analogous in many respects to a Mutt where Hindu religious instruction is
dispensed. The head of these Khankhas, which exist in large numbers in India is called a Sajjadanashin. He is the teacher of religious doctrines and
rules of life, and the manager of the institution and the administrator of its charities, and has in most cases a larger interest in the usufruct than an
ordinary Mutwalli. But neither the Sajjadanaship nor the Mutwalli has any right in the property belonging to the wakf; the property is not vested in
him and he is not a 'trustee' in the technical sense. (Emphasis supplied).
It was in view of this fundamental difference between the juridical conceptions on which the English law relating to trusts is based, and those which
form the foundations of the Hindu and the Mahommedan systems that the Indian Legislature in enacting the Indian Trusts Act (II of 1882)
deliberately exempted from its scope the rules of law applicable to wakf and Hindu religious endowments.''
Because of this difference, it may be added, the J. and K. Limitation Act, 1995 makes a special provision to equate a trust created under the
Muslim Law and that created under the Hindu Law with a trust made in the technical sense. By Section 10 it provides:
Suits against express trustees and their representatives:
Notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose,
or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such
property, or the proceeds thereof or for an account of such property or proceeds, shall be barred by any length of time.
For the purposes of this section any property comprised in a Hindu, Mohammadan, Budhist religious or charitable endowment shall be deemed to
be property vested in trust for a specific purpose, and the manager of any such property shall be deemed to be the trustee thereof.
The deeming provision at the end of this section clearly explains the difference which is amplified further by Articles 134, 134A, 134B, 134C in the
schedule making separate provisions for limitation in respect of suits directed against alienations made by a 'trustee' and those made by the
Manager of a Hindu or Muslim endowment. Similar provisions appear in the Limitation Act in force elsewhere in India.
The distinction noticed above between a 'trust' and a 'Wakf is not without difference. The difference, it must be conceded, does not lie in the
duties and obligations of a 'trustee' and the Manager of a Wakf, by whatever name called. These are similar. A manager of a wakf is as much
answerable for the acts of maladministration as a trustee in the usual sense. The difference is reflected into and appears in their personal rights in the
matter. One who has a right to be the trustee has also the right to be in possession of the trust property and until he obtains possession, he cannot
have the control and management of the trust. The two rights go together and cannot be separated. The position of the person claiming to be
Manager of a Wakf is quite different. If he has the right to be the manager, that by itself, entitles him to the control and management of the wakf
property. Thus the personal rights of the two persons; one claiming to be trustee and the other claiming to be Manager of a wakf are not
comparable. That makes all the difference in the reliefs that each one of them can and must seek to enforce his rights. On principle, therefore, a
person suing for declaratin of title as 'trustee' can and, in fact, must sue for possession, if he is out of possession of the trustproperty. On the other
hand a person suing for a declaration of title as Manager of a Wakf, by whatever name called, need not and, if I may say so, cannot sue for
possession, even if he is out of possession of the Wakf property. The only other relief that he can appropriatly ask for is the relief for injunction. In
fact he must. The declaration of title may otherwise become infructuous and useless. Here I am thinking of cases where the defendant denies the
title of the Plaintiff to be the Manager but does not deny that the property is wakf property. Cases are however, conceivable where the defendant
does not only deny the title of the plaintiff to be the Manager of the Wakf but also denies that the property is Wakf property. The question arises
whether in such cases the plaintiff need ask for possession alone with declaration of his title. Surely so. Not merely because the declaration of title
would otherwise be meaningless but also because the plaintiff cannot split up the cause of action which, in the circumstances, is the same.
Challenging the fact that the property is wakf property may not constitute the denial of right of the plaintiff to be Manager but it clearly constitutes
denial of his right to control and manage the property, a right which, as, stated earlier, is contained in the right to be Manager. These are then the
general principles governing the frame of suits by persons claiming to be the Managers of Muslim Wakfs. In view of the fact that the Managers of
Hindu Idols and temples stand in the same relation to the endowed property as the Managers of Muslim Wakfs to the wakf property, these
principles apply mutatis mutandis to the frame of suits by persons claiming to be Managers of Hindu idols and temples.
The case of Sankatha v. Brij Mohan. AIR 1958 All 371 (SB) supports my view. It was a case in which a suit by the plaintiff for declaration of
his rights as a coshebait with a relief for injunction was held to be not bad on account of the plaintiff not suing for possession or joint possession
although the possession of the endowed property was admittedly with the defendant. Their Lordships observed at page 371:
The various deities are in possession of the endowed property. The Shebait only manages it and exercises control over it on behalf of the deities.
The reliefs claimed contained everything which tine plaintiff really wanted, viz. a declaration of his rights as a coshebait and being allowed to act as
a joint shebait. It was not, therefore, necessary to ask for any further relief for joint possession even if it was possible to grant it.
But the defendants relied on three decisions in support of their contention that a person suing for title to be manager of a Muslim Wakf must
necessarily sue for possession of the wakf property if he be out of possession. The first is the decision of the Lahore High Court in Jamiat Dawat
wa Tabligh Islam v. Mohammad Sharif, 180 Ind Cas 799 : (AIR 1938 Lah 869). In this case the plaintiff sued for declaration that he was the
Mutwalli of Jammia Mosque called 'Mohd. Sharif Wall' and as such he was entitled to manage the affairs connected with the mosque and to realise
and disburse the income derived from the property appertaining to the mosque for the benefit thereof. The plaintiff did not admittedly have the
management and the control of the mosque and the buildings appertaining thereto. In the circumstances, it was held, that the suit for mere
declaration could not lie. The pith of the judgment lay in the following observations at page 805:
It may not be necessary to institute a suit for possession in certain cases, but it cannot be denied that unless some sort of further relief is obtained,
a mere declaration will not be of any use to those persons who are out of possession and who on the basis of a mere declaratory decree cannot
obtain possession.
Thus the judgment supports my view rather than the view advanced by the defendants. In fact these observations are the epitome of the general
principles stated by me in the matter.
The second decision relied upon in support of the defendants' contention is the case of Erfan Mandal v. Samiruddin Mandal, (1912) 15 Ind
Cas 552 (Cal). It was a case in which the plaintiffs had put their case in the alternative. In the first place they had asked for declaration that the
WakfNama of 1888 was collusive and inoperative and therefore the first defendant had not acquired any valid title as Mutwalli. In the second
place they had asked for a declaration that if the WakfNama was treated as valid, the defendant had not been legally appointed Mutwalli, because
the entire body of persons competent to appoint the Mutwalli did not join in making his appointment. It was held that if the first alternative was
established to be true, the plaintiffs were entitled to recover possession as owners and if the second alternative case was established to be true,
they were entitled to seek the removal of the defendant and for the appointment of a trustee duly appointed by persons competent in that behalf but
neither of the two consequential reliefs were asked for. In the circumstances it was held that the suit was not competent. This case has clearly no
bearing whatsoever on the question before me whether a person suing for declaration of his title to be the Manager of a Wakf need also sue for
possession, if he does not have the control and management of Wakf property and if so, under what circumstances. As such it is easily
distinguishable.
The third decision relied upon by the defendants is of the Madras High Court in Kandaswami Thambiran v. Vagheesam Pillai. (AIR 1941 Mad
822 (FB)). It was a case in which the plaintiff asked for a declaration of his title to the office of Mahant without also asking for possession although
he was out of the possession of the endowed property. It was held that the plaintiff should have asked for possession by reason of Section 42 of
the Specific Relief Act and since he had failed to do so, the suit was vitiated. The decision proceeded on the hypothesis that the position of Mahant
was comparable to a trustee in the technical sense. On this hypothesis, the conclusion, which the learned Judges arrived at was inevitable. With
respect. I may say that the learned Judges have overlooked the distinction between Hindu religious endowment and a trust in the general sense and
the hypothesis on which the judgment proceeds is not correct. The learned Judges tried to support this hypothesis on the following observations of
Lord Shaw in Ram Parkash Dass v. Anand Das. ILR 43 Cal 707 : (AIR 1916 PC 256).
He sits upon the gadi, he initiates candidates into the mysteries of the cult: he superintends the worship of the idol and the accustomed spiritual
rites: he manages the property of the institution, he administers its affairs: and the whole assets are Vested in him as the owner thereof in trust for
the institution itself."" (Emphasis supplied).
The decision was noticed by the Board in a subsequent case (AIR 1922 PC 123) and it was observed:
They thus concur with the first Court that there was no ""specific trust"" which was the foundation of the plaintiff's case. But after examining some of
the judgments of their own Court, they apparently felt constrained to hold that the decision of this Board in ILR 43 Cal 707 : (AIR 1916 PC 256)
had crystallised the law on the subject, and definitely declared the Mohant to be a 'trustee'. It is to be observed that in that case the decision
related to the office of Mohant, but in the course of their judgment their Lordships conceived it desirable to indicate inter alia what, upon the
evidence of the usages and customs applicable to the institution with which they were dealing, and similar institutions, were the duties and
obligations attached to the office of superior; and they used the term 'trustee' in a general sense, as in previous decisions of the Beard, by way of a
compendious expression to convey a general conception of those obligations. They did not attempt to define the term or to hold that the word in its
specific sense is applicable to the laws and usages of the country.
That amply demonstrates that the construction placed by the learned Judges of the Madras High Court on the judgment of the Board in Ram
Prakash Dass's case did not represent its true import and content. The case of Kandaswami can therefore, hardly be treated as an authority in the
decision of the present controversy.
In the present case it is no doubt proved that the wakf property is under the control and management of Idara Auqaf Islamia. defendant No. 7.
but the Idara nor also any other defendants dispute that it is a Wakf property. On their pleadings they even concede that he who has a right to act
as Sajjdahnashin, has the right to control and manage the Ziarat and its property. The conclusion is implied in their averment that the Idara is
looking after the affairs of the Ziarat and its property under instructions from its rightful sajjadahnashin, defendant No. 1 and his duly appointed
attorney, defendant No. 3. On the general principles set out above, it was, therefore, enough for the plaintiff to sue for declaration of his rights as
Sajjadahnashin with a consequential relief for injunction, as he has actually done. He need not and could not sue for possession. The argument to
the contrary made by the learned counsel for the defendants cannot prevail. The argument may atfirst sight appear to be specious and appealing
but a slight examination shows that it depends for its validity on the assumption that the Muslim Wakf is comparable to a trust in the technical sense
which is not correct. In this view I hold that the plaintiff need not have asked for any relief other than those already prayed for by him. He should
however have made mention of the property attached to the Ziarat in the plaint but the omission does not vitiate the suit as the irregularity is one of
form than of substance. Issue No. 6. is, therefore, decided against the contesting defendants.
This brings me to the question of valuation. The valuation of a suit depends on the reliefs claimed. Since I have held that the suit. as framed, is
properly constituted, the decision as regards valuation must be arrived at on the reliefs as, at present claimed. These reliefs are for declaration and
injunction. The relief for injunction has been asked for by way of consequential relief. In these circumstances the suit is covered by Section 7 (IV)
of the Courtfees Act. That being so, it was open to the plaintiff to put his own valuation on the suit for purposes of courtfee which would be the
valuation for purposes of jurisdiction as well. He has valued the suit at Rs. 20,101/. Originally he had paid courtfee separately on the two reliefs
apparently to save some money in this account. Noticing this impropriety Mr. Justice Bhat. on whose file the case then was called on the plaintiff
by his order dated April 16, 11870 to satisfy the Court about the sufficiency of the courtfee paid. So alerted the plaintiff paid deficiency in the
courtfee and Mr. Justice Bhat by his order dated 2651971, closed the matter observing that the plaintiff had already paid up the deficiency. Issue
No. 1 must therefore be treated as concluded.
In view of the fact that the suit survives decision on the preliminary issues, the defendants will lead evidence with regard to the remaining issues.
They will file lists of witnesses within ten days and the witnesses shall be summoned in convenient sets and for dates to be fixed by the Deputy
Registrar.