P.S. Addul Khader and Others vs A.K. Mohammad Ali and Others

P.K. Shamsuddin, J.—The defendants in O.S. No. 26 of 1984 on the file of the Munsiff''s Court of Alathur are the appellants in this Second Appeal. The respondents herein filed the above suit for a declaration that the plaintiffs have the right of burial in the plaint schedule property and for issue of a perpetual injunction restraining the defendants from interfering with their right of burial in the plaint schedule property and also with their right to offer Janaza prayer in the mosque therein.

It is the plaintiffs'' case that the plaint schedule property was purchased for the, Jamaath of Muslims of Mangalam Dam as per Ext. A1 document and subsequent to this transaction, the plaint schedule property was utilised as the burial ground of Sunni Muslims of Vandazhi Village, Mangalam Dam desom. A mosque was also constructed in the plaint schedule property for the purpose of performance of Janaza prayers. It was "also alleged that Sunni Muslims of Mangalam, Dam have got a right to use the plaint schedule property as burial ground and to offer Janaza prayers in the mosque in the plaint schedule property. The plaintiff were member of Mangalam Dam Sunnath Juma mosque. Since some of the members were dissatisfied with the management of the committee and apprehended that the committee may raise objections in the burial of such members, O.S. No. 33 of 981 was filed. It culminated in a compromise evidenced by Ext. A2 according to which it was conceded that plaintiffs in that suit have right to bury the dead body in the. plaint schedule property. Some of the plaintiffs started a new mosque by name ''Vadakkekalam Mohiyiddin Jumaath Palli; but according to the plaintiffs, they continued to be members of the Mangalam Dam Jamaath. However, the defendants raised objections to their offering prayers at the burial ground and declared openly that the plaintiffs would not be permitted to use the plaint schedule property as burial ground. Therefore, the Secretary of the Mohiyiddin Juma Mosque lodged a complaint before the District Collector of Palghat on 25-12-1982. Again on 30-12-82, Secretary of the Mohiyiddin Juma Mosque made representations to a Parliament member and also to the Circle Inspector of Police, Alathur. Proceedings under Sections 145 and 146 of the Code of Criminal Procedure were also sought to be instituted. When the dead body of one Veera Umma was taken to the plaint schedule property for burial the defendants raised objections. Ultimately the police intervened and the body was buried. The members of Mohiyiddin Jamaath including the plaintiffs have no other burial ground except the plaint schedule property. It is with these averments the suit was filed.

Defendants 1 to 3 filed a written statement denying the right of the plaintiffs to bury the dead bodies in the plaint schedule property. It was admitted in the written statement that the plaint schedule property was purchased for the purpose of the Muslims of Mangalam Dam Jumaath. But the rights to use the burial ground and to offer Janaza prayers are vested only in, the members of the Mangalam Dam Juma Mosque. The plaintiffs ceased to be members of the Mangalam Dam Juma Mosque and they are members of Mohiyiddin Jamaath and therefore they are not entitled to any reliefs. It was also contended that the compromise evidenced by Ext. A2 would apply only to the parties in that suit.

The trial court dismissed the suit holding that only the members of Mangalam Dam Jamaath have got the legal right to use the burial ground.

On appeal to the court of, Subordinate Judge of Palghat in A.S. No. 158 of 1985, the judgment and decree of the trial court were reversed and a decree as prayed for was passed holding that the plaintiffs are entitled to the reliefs.

In this Second Appeal, the learned counsel for the appellants has challenged the decree granting reliefs of declaration of right of burial and injunction restraining the defendants from interfering with such right.

The main contention raised by the learned counsel for the appellants is that the plaint property belongs to an organisation, namely, ''the Mangalam Jumaath Committee'' and since the plaintiffs ceased to become members of that organisation, they are not entitled to any right.

In other words, the plaintiffs have established a new mosque and thereby ceased to be the members of the Mangalam Dam Jamaath and as such they are not entitled to claim any right of burial in the plaint schedule property:

Ext. A1 is the document under which the plaint schedule property was purchased. It is stated therein that the property was purchased for the purpose of establishing a mosque for the Muslim community. The recitals in the document show that it was purchased on behalf of Jammath in the name of some members of the committee. Though the object of purchase is stated to be establishment of mosque, it is not disputed that this property is used as a burial ground only and Mangalam Dam Juma Mosque is situated in another property, which was obtained by the Jamaath Committee under document evidenced by Ext. B1. It is also not disputed that plaint schedule property was used by the Muslims of the Mangalam Dam, including the plaintiffs for burial till the date of the suit. It has also come out in evidence that some members had some difference of opinion with the members of the committee and they had filed a suit praying for the issue of an injunction, restraining the committee from interfering with their right of burial in the plaint schedule property and it led to Ext. A2 compromise. According to the compromise, the plaintiffs'' right to bury the members of their family was conceded and it was agreed that the defendants therein would not obstruct them from exercising that right. It was also agreed that when death takes place in the families of the plaintiffs, they should intimate the same to the Mangalam Dam Jamaath Committee.

If a land is used as a burial ground or for the maintenance of a mosque or establishment of a mosque from time immemorial, then the land becomes a wakf by user. So also, if to the original wakf area is added by the Mutawallies and that area is used by public for religious purposes that has to be treated as an accretion to the wakf. Similarly adjuncts to the mosque which are also used for, religious purposes become as much part of the mosque as the mosque itself. (See Mohammad Shah Vs. Fasihuddin Ansari and Others, , and Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs. and Others, ). The plaint schedule property is used for the burial of the Muslims of Mangalam Dam and the learned counsel for the appellants fairly conceded that the land would be a wakf at least by user. A land which is purchased on behalf of Jamaath Committee for establishment of a mosque for the benefit of Muslim community and subsequently used as a public burial ground by the Muslim public of Mangalam Dam cannot but be regarded as awkf in any view of the matter.

Under the Muslim Law, once a property becomes a wakf, it is vested in God and neither the person who dedicated the land as wakf nor the Mutawalli or the Committee which administers such wakf has got any proprietary right therein. Mutawalli has a right to supervise or manage the property. He has no right to, the property which is a wakf. The property is not vested in him, (See the - Principles of Mohamedan Law, 17th Edn, Mulla-Page 202, AIR 1924 44 (Privy Council) , AIR 1939 185 (Privy Council) , Daw Kin v. Daw Chan Tha ( AIR 1939 Ran 365), Kuthukutty Kunhali''s son Kunhalavi Musaliar and Others Vs. Pakkath Enu''s son Abdulla and Others, ).

The Allahabad High Court had occasion to consider the right of the Muslim community in a public grave in Hazira and others v. Sukhdarshan Lal and others (1936 All. L. J. 651). In that case, a portion of the land was used as wakf and a Division Bench of the Allhabad High Court consisting of Sulaiman C.J. and Bennet J. held that the spot should be considered as wakf land in which the members of the Mohammedan community would be interested and to which they would be entitled to have access.

The Supreme Court considered the question of right of muslims in regard to the use of mosque and burial ground in Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs. and Others, ;. In para 28 of the judgment., the court said:-

The High Court has clearly held that the burial ground consisted of two parts as shown in the sketch map and as been proved to be a public grave-yard by immemorial user - There is Overwhelming oral and documentary evidence to prove this. In fact the defendants themselves have not denied that the Mahomedan public of the village used to bury their dead in this grave-yard and they have only sought to protect their right to realice pit fee and other incidental charges which has been accepted by the High Court. The Mahomedan Law on the subject is very clear. Under the Mahomedan Law, the grave-yards may be of two kinds - a family or private grave-yard and a public grave-yard. A grave-yard is a private one which is confined only to the burial of corpses of the founder, his relations or his descendants. In such a burial ground no person who does not belong to the family of the founder is permitted to bury his dead. On the other hand, if any member of the public is permitted to be buried in a grave-yard and this practice grows so that it is proved by instances adequate in character, number and extent, then the presumption will be that the dedication is complete and the grave-yard has become a public grave-yard where the Mahomedan public will have the right to bury their dead.

(Emphasis supplied)

This position is again reiterated in para 33 of the judgment:

It is true that the burial ground contains the graves of the saint and the members of his family also, but that by itself would not show that the grave-yard was a private one. On a consideration of the oral and documentary evidence and the circumstances of case we find ourselves in complete agreement with the finding of the High Court that the entire burial ground as shown in the sketch map is a public grave-yard and the Mahomedan community have a right to bury their dead subject to payment of pit fees and other charges that may be fixed by the defendants.

(Emphasis supplied)

It is not disputed that the Muslims of Mangalam Dam were burying the dead bodies of the members of their families in the plaint schedule property till the date of the suit. When some of the members had an apprehension that the Managing Committee of the Mangalam Dam mosque would object to the burial of the members of their families, they filed a suit and in the compromise decree, the right of the plaintiffs to use the land for the burial of their family members, was conceded. As indicated above, once a property is dedicated as wakf or property becomes wakf by user, then such property vests in Almighty and, nobody can claim proprietary right to the said property. As pointed out by the Supreme Court, every member of the Muslim community has a right to bury the dead body of the family members in a public grave-yard. That being the legal position, the contention of the learned counsel for the appellants that the plaint schedule property which is used as a grave-yard belongs to the organisation called ''Mangalam Dam Jamaath and that since the plaintiff had established another mosque, they ceased to have any right to bury the dead bodies of the members of their families in the plaint schedule property is untenable. It is not disputed that the Mohiyiddin Jumma Mosque has no burial ground attached to it.

A person who is dead has a right to have a decent burial, though ordinarily speaking, the personality of a human being may cease to exist at death (See Salmond on Jurisprudence, 12th Edition, page 301). If the defendants'' case is accepted, it will amount to negation of such right.

Lastly the learned counsel for the appellants submitted that the plaintiffs are opposed to the Mangalam Dam Jumaath and established a new mosque and if such persons are allowed to continue to enjoy the right to bury the member of their family in the plaint schedule property, that would tend to encourage fissiparous tendencies in, the Mahal and enable the dissidents to flout successfully the Rules and traditions of the Mahal. I am unable to accept this contention. The concept of universal brotherhood and the right recognised by Islamic Law relating to prayer in a, mosque and the burial in a public grave is so fundamental that it cannot be brushed aside on the ground that the practical implementation of such concept would weaken the organisational set up of the Mahal. Mangalam Dam Jamaath Committee has right of administration of the plaint schedule property and therefore while confirming the decree of the lower appellate court, it is necessary to direct the plaintiffs to give intimation to the Mangalam Dam Jamaath committee when the dead bodies of the family members of the plaintiffs are sought to be buried in the plaint schedule property.

In the result, the judgment and decree of the lower appellate court are confirmed and the Second Appeal is dismissed subject to the above direction. The parties will bear their respective costs.