Abdul Gaffoor Hadjuxr v. Ahamodu Lebbe Marikar.
mtPresent: Lyall Grant and Brleberg JJ.
ABDUL GAFFOOR HADJI AR et al.' e. AHAMADU LEBBEMARIKAR et al.
■367-8—D. C. Colombo, 34,834
Action—Trustees ofmosque—Appointment ofpriests—Meetingofcongregation
—Exclusion of electors—Declaration thattheproceedings are irregular—
Civil right—Maradona Mosque Ordinance. No. 22 of 192d.
By OrdinanceXo. 22of 1924 meetingsofthe congregationof the
Maradana Mosque have to be called by the 'Secretary of the Board ofTrustees on the request of tbe Board or tbe Executive Committee or offiftymembers of the congregation.Thecontrol ofthepriests is .vested
in the Executive Committee; who are given, inter alia, the power to fillany vacancy caused among the priests, subject to the approval or other-wiseof the congregation. A charteredaccountanttoaudit the half-
yearly balance sheet hasto be selectedbythe congregation.Certain
members of theExecutiveCommittee actinginconcert excludedfrom a
meeting held for submitting for approval the appointment of two priestsandfor appointing an auditor, alargenumber ofthecongregation who
had not registered themselves, registration not being a test of membership- under the Ordinance.
Held, that action lay against the members of the Executive Committeewhorequired the Secretary of theBoardof Trusteestocall the meeting,
and the Secretary of the Board of Trustees, at the suit of the plaintiffsas members of the congregation, for a declaration that the meeting wasirregular and the proceedings void.
A claim by the congregation to appoint a priest of their choice is not amatter involving any question of religious rites or practice.
The right of the congregation to select a chartered accountant to auditthe accounts of the mosque funds is a civil right.
HE plaintiffs instituted this action against the first to fifteenthdefendants for a declaration that a meeting of the congregation
of the Maradana Mosque' held on August 25, 1929, was irregularly held,that it was null and void, and that the resolutions passed there were notduly passed, and they asked that the resolutions be expunged from theminute book. The plaintiffs also prayed that the defendants be directedto submit a half-yearly balance sheet. The plaintiffs were members ofthe Board of Trustees of the mosque, and the defendants, with the exceptionof the second defendant, who is the Secretary of the Board of Trustees,are members of the Executive Committee. It would appear that on theresignation of a priest of the mosque, the Executive Committee on May 80appointed two others in his place, but no action was taken to obtainthe approval of the congregation, until July 18, when the ExecutiveCommittee resolved to’ call a meeting for the purpose. The plaintiffs’ casewas that the defendants wrongfully excluded from the meeting a largenumber of thb congregation by limiting the meeting to those who hadregistered. themselves as members of the congregation in compliance
41 W. A 989X0 (8/50i
Abdul Gajfoor Hadjiar v. Ahamadu Lebbe Marikar.
with a notice issued by the Committee. They said that that was illegaland not bona fide and was a dishonest device to exclude many membersof the congregation from the meeting. The learned District Judge gavejudgment for the plaintiffs holding that the action of the defendants inrequiring registration as a qualification for attending the meeting wasunlawful.
H. V, Perera (with him Ismail and Mahroof), for first to sixth and fifteenthdefendants, appellants.—The District Court has jurisdiction only wherea plaintiff asserts he has a civil right, e.g., a right of property. As todistinction between civil and religious rights see Marshall*s Judgments,(1893), p. 656, 88. 7, 8. A right to vote in the deliberations of a body ofpeople is not a civil right.
A civil right and an infringement of it are necessary ingredients of acivil action. In 1 S. C. R. 354, action lay for a declaration that a priestof a temple was entitled to certain income as priest, because a right ofproperty, hence a civil right was involyed. Where a plaintiff cannot referto a civil right of his, whether proprietary or contractual, that- has beeninfringed he has no cause of action.
The act complained of here is a collective act, the resolution of a bodyof people. Against whom or what body of people can relief be claimedappropriately in this case? How can an act be attacked without makingthem parties whose act it is? All the parties are not before the Court.Persons not before the Court will not be bound by the order of the Court.What will the effect be of a declaration that the resolution is void?Relief claimed must be against a party in respect of right of plaintiff.Here relief asked for is in connection with the resolution, i.e., to declare,acts, not of the defendants, but of the congregation, void, members ofthe congregation not being parties.
Section 64 of the Courts Ordinance confers civil jurisdiction on DistrictCourts. Vide section 40, Civil Procedure Code, for requirements of plaint.Damages were claimed from a Muhammadan priest for failure to assistat a burial. It was held that the matter was purely ecclesiastical, thatno civil right of plaintiff was infringed, and hence the District Court hadno jurisdiction (Ram. Rep., 1863-1888, p. 340).
Counsel also cited Mohammadu Lebbe v. Kareem Supramaniam Ayarv. Ghangaranpillai2. A duly appointed Lebbe of a Muhammadanmosque to whose office certain dues attached has a right of actionagainst persons interfering with the performance of HTs duties as Lebbe,because a civil right of his was involved (2 Curr. L. R. 22).
The result of the proceedings was the appointment- of two priests,which does not touch the civil rights of the plaintiffs either as membersof the congregation or as Board of Trustees. Persons who were excluded*were not the plaintiffs. Therefore, in respect of the exclusion plaintiffshave no cause of complaint. If a person with a statutory right to voteis excluded, then he has a right of action for damages (Ashby v. White 3).In such a case, the proper defendants would be those who kept theplaintiff out.
« N. L. R. 351.
4 N. L. R. 30.
3 Engl. Rep. 417.
Abdul Gafloor Hadjiar v. Ahamadu Ltbbe Marikar.
Buie 9 of Ordinance No. 22 of 1924 provides for one approval only. Ifa subsequent meeting could not be convened for avoiding the proceedingsof an earlier meeting, then the remedies are (d) quo warranto against thepriests, (6) mandamus against the Secretary if he refuses to convene ameeting for the approval of the appointment of priests. That wouldgive complete relief, and bind everybody.
If there is no statutory right given in a particular case, then we mustfall back on the ordinary principles according to which actions may bebrought. The right of each member is a right to vote. If that is violatedhe has an action for damages. No Court can enforce agreementsstrictly personal in nature. Counsel cited Rigby v. Connel l; Bairdt>. Wells 2.
If the declaration asked for here is one in respect of status (vide section217, Civil Procedure Code), then the priests must be parties.
In the case of corporations owing property, e.g., limited liabilitycompanies, each shareholder has a right of vote. The vote would be inthe nature of property, for each shareholder has as many votes as shares.If a shareholder is dissatisfied with the act of the corporation, he will beallowed an action.
As to misjoinder of causes of action.
The first cause of action is against a number of individuals, of whomall but the second defendant are members of the Executive Committee.That- is, they are sued as a number of individuals alleged to have donecertain acts. Assuming that the plaintiffs have this cause of actionagainst these individuals, then the second cause of action can be joinedonly if all the defendants are jointly liable on that second cause of action(Kanagasabapathy v. Kanagasabai9).
The second cause of action is in respect of the failure to submit abalance sheet as required by rule 15, which casts a duty on certain officers.If this cause of action is under this part of the rule, then the action canbe only against the Managing Trustee and Treasurers. If this cause ofaction is under the latter part of the rule (re audited balance sheet) thenthat cause of action can only arise after an audit. If this cause of actionis available at this stage, the action must be against those who were undera duty to submit a balance sheet.
A. E, Keuneman (with him Marikar and Salman), forseventh to fourteenthdefendants, appellants—appellants in appeal No. 367—associated himselfwith the argument which was addressed the Court in appeal No. 368.No 'cause of action has arisen in these plaintiffs. The main issue in thiscase is whether first to fifteenth defendants acting in concert wrongfullyand illegally refused to admit a large number of persons to .the meeting ofAugust 25, 1929.
Certain office-bearers may have been affected, but seventh to
fourteenth defendants are not affected at all.
> L. R. (1880.) 14 Ch. D. 482 at 487.
8 25 N. b. R. 173.
2 1890f 44 Ch. D. 661.
Abdul Gaffoor Hadjiar v. Ahamadu Lebbe Marikar.
The first to fifteenth defendants are said to have acted in concert. Ifthey did not so act, the whole action against them must fail.
It is necessary to show that these defendants acted in concert for aparticular purpose. The plaintiffs themselves do not complain of theregister. The Executive Committee never imposed any condition withregard to the preparation of the register.
The Executive Committee took the right view when they said that theregister is a matter for the Secretary of the Board of Trustees to dealwith.
Under rule 17, meetings of the congregation are always called by theSecretary of the Board of Trustees when the Board or Executive Com-mittee has business to transact.
If a register is necessary, Secretary of Board of Trustees is the properofficial to prepare it.
Executive Committee left matters quite properly in the hands of theSecretary of Board-of Trustees. (See 1 D 24.)
Actual evidence—There is no evidence at all touching seventh tofourteenth defendants, only ” nodding of heads " on the platform.
The Judge finds tha.t the Executive Committee until October, 1929,had been kept in the dark as to the transactions of the sale of the mosquepremises to the Municipality. Then, how can Executive Committee" pack *' the meeting of August 25, 1929, in order to stifle free discussionregarding acquisition of mosque lands by the Municipality?
Hayley, K.C.. (with him Garviv-), for plaintiffs, respondents.—It is unques-tionable that the Secretary with the consent of the Executive Committeeconceived the idea of adding to the statutory requirement of the members'right to vote, the necessity of registration. Then, are plaintiffs entitled toa declaration that the meeting is invalid? Plaints to obtain declarationsdiffer slightly from ordinary plaints. This plaint does not ask declarationof liability on anybody. Defendants are the members of the Committee.Certain defendants said there were others (sixteenth to nineteenthdefendants) who were members of the Committee. No attempt to makeseventh to fourteenth defendants liable. Seventh to fourteenth defend-ants specifically pleaded that meeting was duly convened and held. If Isue some for declaration that meeting out of order, and they deny thatmeeting is out of order, I can continue the action. In action for declara-tion, if party has no dispute, he should say so and claim to be discharged:if he denies, and puts plaintiff to proof, he cannot later say that he is notconcerned.
This is not an ecclesiastical matter. Confirmation of priests is not areligious matter. The question is whether officers of a statutory incor-porated body have in accordance with statutory rules performed theirduties. Complaint is that Executive Committee has done an act whichis ultra vires. Action is only one for declaration. Vide section 5, CivilProcedure Code, " neglect to perform a duty.” Decree may declare aright or a status, section 217. Declaration made under section 217 (g) is
Abdul Gaffoor Hadjtar v. Ahamadu Lebhe M anker.
similar to declarations made under English procedure (0 XXV. r. 5Annual Practice, 1931). Counsel also cited Oram v. Hutt *, LondonShipowners’ Association v. London and India Docks 3, Coke v.Cr088ingham 3.
When Executive Committee had business to transact, plaintiffs hadstatutory right to have that business transacted in accordance withOrdinance: Confirmation by congregation of appointment of priests bycommittee is required by rule 9 (6). If that meeting of congregation isirregular, plaintiffs as members of congregation have the right to apply forinjunction restraining priests from acting, and a fortiori, declaration thatmeeting was irregular. There is 'no power in anyone to add to quali-fications in rules any further qualification of registration. Qualificationarises from status, not registration; idea of registration is purely artificial.
What is position of parties who do not complain personally? Can theyobtain declaration that proceedings were irregular and ultra vires ?Injunctions have been granted to prevent companies or directors fromholding meetings otherwise than in accordance with articles (Kay v.Croydon Tramtvays 4).
When there is a right to vote. Court interferes where certain voteswere excluded (Pender v. Luskinytons). Counsel also cited Cronch vSteel •, Grovers v. Winbourne 7, Ross v. Rugg-Price
Judgment by declaration is a comparatively new remedy. Quowarranto does not lie except in respect of public offices (Wood Renton’sEncyclopaedia of Laws of England, VoL 12, 185-186).
As to misjoinder, vide section 22, Civil Procedure Code. Any objectionmust be taken at outset, in all cases before the hearing (24 N. L. R. 199).On plaint as it stands, there is misjoinder neither of parties nor of causesof action. Defendants are members of the Executive Committee. It isnot sufficient to say now that one of them is not a member. No action isto be defeated by reason of misjoinder or nan-joimler of parties (section17, Civil Procedure Code).
Rajapakse (with him D. S. Jayawickreme), for sixteenth to nineteenthdefendants, respondents.—Plaintiffs brought action originally againstfirst to fifteenth defendants-appellants asking for declaration. Appellantspleaded in answer that there were certain others, including sixteenth toeighteenth defendants, who were members of Executive Committee.Presumably, position of appellants in answer was that sixteenth toeighteenth defendants should be . joined. Plaintiffs moved to havesixteenth to eighteenth defendants joined. District Judge orderedappellants to pay sixteenth to eighteenth defendants their costs.Supreme Court will not readily interfere with orders as to costs, wherethere is sufficient reason for the exercise of the discretion of the DistrictJudge as to costs.
H. V. Perera, in reply.—There is a distinction in respect of breach ofstatutory duties between private and public acts. When act is a publicact though there may be a penalty for breach of statutory duty, action for’ (J9J3) 1 Ch. 259.• (l‘877) 6. Gh. D. 70.
* (1892) 3 Ch. 242.
(1908) 2 Ch. 624.
(189S) L. K. 1 Ch. 358.
« 1 E.dbB. 402.
7 (1898) 2 Q. B. 402.
* (1876) 1 Ex. Bit7. 209.
102 DBIEBERG J.—Abdul Gaffoor Hadjiar v. Ahamadu Lebbe Matikar.
damages lies at suit of individual who suffers. When the act is a privateact no action lies at>.suit of individual (Atkinson v. Newcastle WaterworksGo.1). As to use of word “ right ", and whether there is an enforcible
right in a particular individual (vide Allen v. Flood *).
Every shareholder o£ a company has a pecuniary interest in the assetsof a company. Member of congregation has no proprietary right in.mosque; he has not the right of a beneficiary under a private trust.Position of a shareholder is different from that of person whose pecuniaryrights are not affected, who questions act of a body. Unless he can sayhis right of vote is violated, he is out of Court.
It is essential to an action in test that the act complained of prejudi-cially affects the plaintiff in his legal right ( (1860) 13 Moors’ P. C.Cases S09.)i
October 14, 1931. Drieberg J.—
These two appeals were heard together. No. 367 is an appeal by theseventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenthdefendants; No. 368 is by the first, second, third, fourth, fifth, sixth,and fifteenth defendants.
The plaintiffs brought this action against the first to the fifteenthdefendants for a declaration that a meeting of the congregation of theMaradana Mosque held on August 25, 1929, was irregularly held, that itwas null and void, and that the resolutions passed at it were not dulypassed, and they asked that the resolution be expunged from the minutebook. The plaintiffs also prayed that the defendants be directed tosubmit a half-yearly balance sheet for 1927, 1928, and to June 30, 1929,but the last half-yearly balance sheet was filed before the trial.
The respondents are members of the Board of Trustees of the mosqueand the appellants, with the exception of the second defendant-appellant,who is the Secretary of the Board of Trustees, are members of theExecutive Committee.
The constitution of the governing body of the mosque and its powersand duties so far as are necessary to be known for the purpose of thisappeal are as follows. In August, 1924, Ordinance No. 22 was passed toincorporate the board of electors of the mosque. Seventy-five of theirnumber were incorporated as the Board of Trustees of the MaradanaMosque, the property of the mosque and the Zahira College were vestedin them and provision was made for the affairs of the corporation to beadministered by an Executive Committee to be elected in pursuance of- rules to be framed under the Ordinance. The rules provided for the termof office of the original members of the Board of Trustees and' for theappointment by the congregation of • their successors. The Board ofTrustees had to elect eighteen of their number as an Executive Com-mittee, and of these a President, a Vice-President, a Secretary, twoTreasurers, and. a Managing Trustee of the Executive Committee. TheSecretary of the Executive Committee could not be the same person as
> (1S77) L. J?. 2 Exch. 441.* (2898) 1 App. Cas. 2 at 28 and 29.
JIRIEBERG J.—Abdul Gaffoor Hadjiar 9. Ahomadu Lebbe Marikar.
the holder of the office of Secretary of the Board of Trustees, the latterbeing elected by the congregation. The control of the priests by rule 9 (b)was vested in the Executive Committee, who were given the power tdremove any of the priests from office, if necessary, and appoint hissuccessor, and to fill any vacancy caused otherwise among the priests,subject to the approval or otherwise of the congregation.
Under rule 17 the Treasurers of the Executive Committee are requiredindividually and jointly to furnish the Executive Committee with ahalf-yearly balance sheet duly audited by a chartered accountant selectedby the congregation.
Meetings of the congregation have to be called by the Secretary of theBoard of Trustees on the request of the Board or'the Executive Committeeor of fifty members of the congregation (rule 17). The proceedings of 11meeting of the congregation have to he recorded in a minute booksigned by the Chairman and Secretary of the meeting, and the minutebook has to be kept in the custody of the Secretary of the Board ofTrustees (rule 2 (h) ).
The first defendant is the President, the fifteenth defendant the Vice-President, the fourth defendant the Managing Trustee, and the fifth andsixth defendants the Treasurers of the Executive Committee. Therewere two priests, Hasana Segu Lebbe and Wahu Marikar Abdul Bahiman;the latter retired in May, 1929, and at a meeting of the Executive Com-mittee held on May 30, two priests were appointed in bis place, MohamedIsdeen Hadjiar and Mohamed Yoosoof Alim. The record in the minutesis that they were appointed " for the present ” but no action was taken tosubmit the appointments for the approval of the congregation untilJuly 18, when the Executive Committee resolved on calling a meeting ofthe congregation for the purpose. But this was after 305 persons whoclaimed to be members of the congregation had complained on June 10(P 4a) that the two appointments- were made without the consent of thecongregation. The meeting of the congregation was held on August 25.The case for the plaintiffs is that the appellants wrongfully excluded fromthe meeting a large number of the congregation by limiting the meetingto those who hnd registered as members in compliance with a noticewhich was published on August 8, that all members of the congregationshould apply for registration and that those who had not registered wouldnot be considered members for the purpose of voting at a meeting of thecongregation. They say that this was illegal as it imposed a test ofmembership not required by rule 1, further, that this' was not done bonafide but that it was a dishonest device by which they hoped to excludemany members from the general meeting which they announced onAugust 14 would be held on the 25th of that month for the purpose ofappointing an auditor and of submitting for approval the' appointment ofthe two priests. They say that registration was designedly carried out- in a manner which resulted in the exclusion from the meeting of about 540members of the congregation whose presence at the meeting the appellantsfeared as there had been grave irregularity or neglect on their part in themanagement of the mosque funds and accounts of which, further, theyhad not prepared proper balance sheets as required by the rules.
104 DBIEBERG J“.—Abdul GaJJoor Hadjiar v. Ahatnadu Lebbe Marikar.
The learned District Judge, Dr. Pieris, has formed a very clear andstrong opinion on the facts that the action of the appellants was not bonafide and that they had the intention the plaintiffs impute to them. Hewas also of opinion that the action of the appellants in requiring registra-tion as a qualification for attending or taking part in the meeting wasunlawful.
I shall deal with these matters later and shall now consider thearguments placed before us that on the facts found the action is notmaintainable.
If the action is maintainable the plaintiffs have sued the right parties.The appellants, they say, were the members of the Executive Committeewho were responsible for this; the other members whom they did not suebut who were subsequently added, the sixteenth, seventeenth, eighteenth,and nineteenth defendants, repudiate the action of the appellants andsupport the plaintiffs. For the purpose of declaring the meeting irregularand the proceedings void the necessary parties have been sued—themembers of the Executive Committee who required the Secretary of theBoard of Trustees to call the meeting and the Secretary of the Boardof Trustees. The first defendant presided at the meeting and the seconddefendant acted as Secretary though the report P 50 does not show thatthey were elected.
It was contended that the right of appointing priests was not a civilright but one concerning religious matters which were not within thejurisdiction of the Court. But this is not a purely ecclesiastical matteror one involving any questions of religious rites or practice; it is merelya claim by the congregation to appoint a priest of their choice. Suchclaims are recognized by our Courts (Aydroos Lebbe v. Saibu Dorai ’).This case is referred to in Mohammadu Lebbe v. Kareem 2. But there isthe right of the congregation to select a chartered accountant to audit theaccounts of the mosque funds which is a civil right.
It was said that all the members of the congregation or at any rate allthose present at the meeting should have been made parties to this actionas the resolutions were passed on their votes. I do not think this neces-sary. A member present did ask the Chairman to admit those who wereoutside and who had been refused admission; the first defendant, who wasChairman, did not take the opinion of those present on this point butmerely stated that only registered members holding cards of admissioncould take part in the meeting.
If the plaintiffs have a right to a declaration that the meeting was heldirregularly and not in compliance with law, the proper persons to be suedare those on whom the law imposes the duty of calling and arranging forthe meeting, and this, as I have pointed out, has been done.
But it was contended that though this duty was imposed by theOrdinance there was no corresponding right to enforce it by an action ofthis nature. The duties in question are of a purely ministenal natureand in carrying them out irregularly the appellants have not acted 6o-nafide but out of malice or improper motive. Whether such an action will* Legal Miscellany, Special Decisions 17.9 (1893) 1 A L. R. 351.
DRIEBEBG 3.—Abdul Gaffoor Hadjiar n. Aliamadu Lebbe Mnrikar.
lie “ must to a great extent depend on the purview oi the legislature inthe particular statute and the language they have employed and moreespecially when, as here, the act with which the Court have to deal is notan act of public or general policy " (Atkinson v. Newcastle WaterworksGo.'). The Ordinance was passed to incorporate the existing Board ofEleotors; this appears from the Ordinance and is stated so expressly inthe statement accompanying the draft published for information, 16 D 3.It is not suggested that there is anything new in these rights given to thecongregation under the Ordinance and I do not see anything in theOrdinance which would detract bom the right which the congregationhad before of enforcing such rights as these by action. It is contendedthat the plaintiffs have no right of action as they -were not excluded fromthe meeting, but this does not necessarily bar them from complaining ofthe irregularity of the meeting and the exclusion of others; nor is itnecessary that the plaintiffs should have adopted the course provided bysection 102 of the Trusts Ordinance, No. 9 of 1917.
On the first issue the trial Judge has found that the appellants actingin concert illegally refused to permit a large number of the members of thecongregation to be present at and take part in the meeting and vote andexercise their rights of management. Mr. Perera contended that therewas no evidence to support this finding, that the only person refusedadmission whose right to membership the plaintiffs sought to prove wasP. E. M. Usuf and that proof of this ha4 failed.
The right of specified persons who were entitled to but were refusedadmission has not been placed before the Court very fully, but there isenough evidence of this nature to support the finding. The trial Judgebelieves that the signatories to the letter P 4a were bona fide members ofthe congregation and that at the time the Executive Committee acceptedthis. There is muoh to support this view. The first defendant and thethird defendant say that an inquiry was ordered on this point and thatonly 10 or 15 members were found among the signatories, but the trialJudge does not believe that such an inquiry was made, and I think he isright. The Executive Committee then knew of the growing oppositionand I do not think such a reply as P 5 would have been sent by them ifthey had regarded such a majority of the signatories as outsiders. Theletter concludes with an undertaking that their petition would be con-sidered when the question of a permanent priest was considered.
The trial Judge holds that numbers of those who signed P 4a and who .formed themselves into the Association of the members of the congregationof the Maradana Mosque were prevented by the condition of registrationfrom attending the meeting. They were present however in largenumbers at the mosque premises.
There was another opportunity for the Executive Committee to takeup this position when they received the letter of July 9, in which therequest was made for the use of the mosque premises for a protest meeting.
I should have expected the Committee to have added in their reply thevery good reason that the majority of the applicants were not members1 (1877) 2 Ex. Din. 441, 448.
106 DRIEUEBO J.—.1 bilul (luffoor Hadjiar t. Ahamadn Lcbbr Marikar.
of the congregation. The first defendant admitted that so far as he wasconcerned he had no objection to the application being allowed and hecould not remember whether he opposed it.
In the first defendant’s speech at the meeting of August 25 there is nosuggestion of the opposition consisting of non-members trying to intrudeinto the management of the mosque; on the contrary, he describes themas a “ core of rot ”—ungrateful men who, forgetting what had been donefor them by those who had devoted their lives to the mosque and theZahira College, were behaving in an ungentlemanly and low bornmanner.
P. K. M. Usuf claims to have been a member of the congregationand a worshipper at the mosque for thirty years and that he has hadthe services of the mosque priests for religious ceremonies at his house.He mentions two instances: one, the marriage in July, 1926, of ThahiraUmma; the certificate of this marriage, P 48, supports his statementthat M. A. L. Sheikku Levvai, the mosque priest, officiated at it. Theother is the marriage in November, 1929, of Hanifa with XJmmalMasahira whom he calls Zubeida Umma, at which the same priestofficiated, P 49. The mosque priest conducted the naming ceremonyof his children. The second plaintiff says that Usuf is a prominentmember of the congregation.
At Usuf's marriage the officiating priest was one from another mosquewho was brought in by his wife’s relations but he says that both thepriests of the Maradana Mosque were present on his invitation.
Against this is the statement of the fourth defendant that he did notrecognize him as a member of the congregation and of the first defendantthat he is not a member. It was also said that his father was not aCeylon Moor but a‘ Coast Moorman, one from Southern India. Butthe children of a Coast Moor who settles in Ceylon are recognized asCeylon Moors and there is – the evidence of the eleventh defendant ofone such being a trustee of the mosque. The trial Judge has formed avery poor opinion of the truthfulness of the first and fourth defendantsand I cannot say that he is wrong. I take it that he accepts the evidenceof Usuf and the second plaintiff on this point.
There is also the evidence of the second plaintiff that M. L. Samsudeen.Pitcha Thamby Samsudeen, Miskin Bawa Ahamed, P. C. M. Usoof, tfhdS. D. M. Usuf, who are members of the congregation, applied for forms,* and were refused.
In the cross-examination of the first defendant it was elicited thatamong the signatories to P 4a were two of the trustees, A. L. AbdulHamid and M. B. Mohamed; that two other signatories, Mahar Babooband Mashood, were the sons of Aboobacker, a member of the congregationwho had himself signed the petition.
The trial Judge has rightly found that the action of the originaldefendants in limiting the meeting to those only who had registeredwas illegal in that it imposed a qualification of membership not requiredby the Ordinance. It was conceded that there could be no objectionto a register of members being prepared; it would be helpful in many
DRIEBERG J.—Abdul Gaffoor Hadjiar v, Ahamadu Lebbe Marikat. 107
ways and, if done well and with the genuine object of having as completea list as possible of the members, it would be of special assistance at ageneral meeting of the congregation, for all those on the register couldbe admitted without any further inquiry into their qualifications. Butit was not within the power of the Executive Committee to refuse amember admittance on tbe ground only that his name was not on theregister.
But the trial Judge finds that the idea of registration was conceivedand carried out with the object of keeping out the opposition membersfrom the meeting, and that the whole thing was a farce; this undoubtedlyappears to be so. The first defendant admits that' the Committeedecided on registration when it was reported that only ten or fifteenof the signatories of P 4a were members. But the Judge does notbelieve that there was suoh an inquiry or report. It had never beenfound necessary before to have a register. The Colombo Moors belongeither to this mosque or to the New Moor street mosque and the firstdefendant says that it would be at once known whether a person was amember or not. The document of 1913 was not a complete list.
On August 8 appeared the notice requiring registration on or beforethe 19th; there was no announcement there of a meeting. The timeallowed appears to me to be suspiciously short; the notice was addressedto people many of whom are not well educated and would not actpromptly in such a matter. When a very reasonable request was madeby the Association of the then Maradana Mosque Congregation by P 9 ofAugust 13 for an extension of time to September 10, the meeting wasfixed on the same day for August 25; this left only six days for registra-tion. Whatever might be said of the request of the Secretary of theAssociation for 2,000 forms, the suggestion that forms should be availableat the mosque was a most reasonable one and it has not been explainedwhy this was not done, though the first defendant admits that themosque was the proper place for this purpose. Application for formshad to be made to the second defendant at his house. By P 14 ofAugust 16 the second defendant as Secretary of the Board of Trusteeswrote to Mr. Akbar that forms would only be issued on the Board beingsatisfied that an application was bona fide and that it should be madeto the Secretary or his authorized agents. The first defendant saysthat there were no authorized agents and he could not say whom thesecond defendant referred to by that description. P. ,K. M. Usuf saysthat the second defendant' insisted on personal application to him;when he sought the second defendant he was not in his office and he hadto go to the courts; there he told him that he was a Coast Moormanand not entitled to a form. Now the second defendant is a proctorand would ordinarily be at the Courts during the most part of what thefirst defendant says would be the proper time for registration, namely,from 9 o’clock in the morning to 5 o’clock in the evening. The positionis further complicated by the fact that the seqond defendant practises$lso at the Court at Avissawella, about 26 miles from Colombo^ and alsokeeps an office, at Rottawa which is outside Colombo.
108 DBIEBERG J.—Abdul Gaffoor Hadjiar v. Ahamadu Lebbe Marikar,
The second defendant was not called and we do not know how manyregistrations, if any at all, were effected us the result of. applicationsto him. No signed application forms have been produced. The book1 D 80 does not contain the signed forms but the first defendant saysthat it was made up from them; he could not say how many formshad been issued by the second defendant and can speak of only one claim,that of a brother of Mr. Macan Marker, being referred to the ExecutiveCommittee for decision. Usuf’s case was not put before the Committee.Jabar, the third defendant, admits that paid canvassers were employedby the Committee to get members to register and he admits that thesecond defendant may have been trying to get his supporters beatenup; but we find the second defendant on August 16 writing to Mr. Akbar—there were then only three more days for registration—that forms wouldonly be supplied on the application of individual members.
Much time was taken at the trial in inquiry into the circumstancesunder which the first defendant took the sum of Bs. 23,323.76 for hisprofessional services in the acquisition by the Municipality of landbelonging to the mosque. In the plaint it was alleged that the firstdefendant, acting in concert with the other defendants, had appropriateda sum of about Bs. 30,000 and that their object was to keep out of themeeting all who questioned the first defendant's right to take this money.An issue was framed whether the first defendant in concert with thesecond to fifteenth defendants had wrongfully appropriated this sum.Objection was taken to this issue but counsel for the plaintiffs statedthat it was only needed to explain the conduct of the appellants in thematter of the meeting and the Judge accepted it for that purpose.
The trial Judge has dealt with this matter very fully. Bs. 23,323.76was an enormous sum to pay the first defendant for the simple workhe had to do and it was not remuneration on the usual basis for profes-sional services but a bargain for a share of the proceeds of the acquisition,the first defendant undertaking to defray all expenses. The onlyexpenses he incurred were a fee for a consultation with counsel and a feeto Mr. Eastman whose valuation he- obtained. He did not say whathe paid counsel but he said he paid Mr. Eastman a fee of Bs. 300 andcould not remember whether he paid him more, but from his later evidenceit appears that this was all he paid Mr. Eastman and for it secured hisservices in the matter of another acquisition as well in which he wasappearing. He said he used to receive large fees in acquisition mattersbut he keeps no record of his professional earnings. It is clear thatit was the intention of the fourth defendant that the books shouldcontain no reference to the amount paid to the first defendant but onlyso much as was .received after the deduction of the latter’s fees.
The first defendant’s manner of obtaining bi6 balance fee out of thesqQOQd payment was very irregular and unworthy of his position asPresident of the Executive Committee. It is 6aid that he is the mostprominent member of the Board of Trustees and the others look to himfor guidance. On April 19, 1929, the Chairman issued in favour of thefourth defendant a cheque for Bs. 13,557.32 and sent it to the firstdefendant; on July 9 it was endorsed by the fourth defendant; the
DRIEBGBO J.—Abdul Gaffoor Hadjiar v. Ahamadu Lethe Marikar.
first defendant passed it into his account and gave the fourth defendanta cheque for Rs. 6,778.86 which was credited to the mosque accounton July 15. The Judge finds that the original entry in the books wasof this amount only without any disclosure of the price paid and thepayment of Rs. 6,778.86 to the first defendant. The Judge believesthat the reference to these sums which appear in the books was madelater.
Between April 19 and July 9 there went on what the trial Judgerefers to as a tug-of-war between the first defendant and the fourthdefendant for the cheque, the fourth defendant refusing to endorse itand the first defendant refusing to give it to the fourth defendant. Thefourth defendant says that hoping his heart would melt he made ferventappeals to the first defendant to forego his claim and let the mosquehave the whole amount. The first defendant had already receivedRs. 16,545.10 out of the Rs. 119,945.10 paid on the first acquisitionand the fourth defendant’s letter (P 59) of May 10 to the first defendantshows that he then took the position that the first defendant had beenoverpaid by Rs. 6,545.10 as he had asked for a fee of Rs. 10,000. Ifthe fourth defendant was, as he suggests, wrongly questioning his rightto a further fee, 1 should have expected the first defendant to haveat once placed the matter before the Committee; but the meetingsof May 26 and 30 passed without his making any reference to the matterthough he was present and presided.
But Mr. Perera contends that nothing in these matters concerning theacquisition money could have induced the original defendants to decide onkeeping out the opposition from the meeting for the reason that theJudge finds that it was not until the meeting of October 21, 1929, thatthe rest of the Executive Committee was informed for the first timeof the amounts paid by the Municipality and what was paid to the firstdefendant. It is true that this was the first formal intimation to theCommittee collectively and the first record of it in the minutes. It wasafter the summons in this action had been served on the first fourdefendants and in view of the charge made in the plaint it was verynecessary that the books should contain some record of this kind eventhough belated.* But it does not follow from this that the appellants,other than the first and fourth defendants, did not know on July 18,1929, when they decided on registration that the matter of the acquisitionmoney could afford the opposition a strong ground.for criticism. Theacquisition resulted in a very substantial addition to the mosque funds,there is no secrecy about such proceedings, and it is not unreasonableto suppose that they did inquire what the Municipality has paid, andfrom the amounts brought to account they would have known that avery large sum had been deducted for expenses. The second plaintiffsays that he knew the exact amount the first defendant had taken andthat it was common knowledge that he had taken Rs. 30,000, that it wasa fact known to everyone. Usuf says it was known that a large sum hadnot been accounted for and that it was intended to raise this questionat the meeting. There had been opposition growing since May, 1928,and on July 21, 1929, the Association of the Congregation was formed
110 DRIEBERG J.—Abdul Oaffoor Hadjiar «. Ahamadu. Lebbe Marikar.
at & meeting at the Tower Hall. The Committee apparently realizedthat they had to face criticism for they decided on having the accountsof the first half of 1929 audited; there had been no audit since 1927.But whether they did desire a genuine and effective audit is open tomuch doubt. The trial Judge does not however hold that the appellants,other than the first and fourth, knew as far back as July 18, 1929, ofthe sums retained by the first and fourth defendants but he does findthat the first and the fourth defendants were desperately anxious toavoid any scrutiny of these transactions and that all disliked the ideaof a general meeting and that the register was devised for the purpose ofkeeping the opposition, out of the next general meeting.
It was urged that the appellants at the general meeting were notconscious that they had anything to fear from an examination of theaccounts for they appointed a leading firm of Chartered Accountants,Messrs. Ford, Rhodes, Thornton & Co., as auditors and the first defendant-stated that though it- was said that money had been embezzled and theaccounts • were all wrong, nothing “ would be spent ” without theExecutive Committee's permission. The report P 50 reads thus, butthe context shows that what he did say or meant to say was that nothinghad been spent without their permission. He explained that thoughthe Ordinance required an audit by a Chartered Accountant this wasnot possible as the accounts had been kept in Tamil and there were noChartered Accountants who knew the language. But he said thatfrom 1928 the accounts had been kept in English. It is very difficultto believe that the second defendant did not know this but we find,when on August 14 he inquired by P 28 from Messrs. Ford, Rhodes,Thornton & Co. whether they would undertake the audit, he wrotethat the books were in Tamil. He wrote this to another firm of account*ants as well. The fourth defendant says everybody but the seconddefendant knew that the books were in English. In the absense ofany explanation by the second defendant it is difficult to avoid thebelief that he wrote this hoping that it would discourage those he hadwritten to from undertaking the audit. What reply the second defendantgot from the other firm of accountants to whom the fourth defendantsays he also wrote is not known, but it so happens that Mr. Illingworthof. Messrs. Ford, Rhodes, Thornton & Co. had seen an earlier report-that the accounts were in future to be kept in English and he replied onAugust 16 not consenting but asking the second defendant to make anappointment for a Tamil clerk of the firm to inspect the books, afterwhich he said that he would write to him further. The second defendantdid not reply to this letter and in fact he did not write after the meetinginforming -the firm of their appointment as auditors. The fourthdefendant says that shortly before the meeting of August 25 the seconddefendant told him of what he had written and the fourth defendantthen told him that , the books were in English. I should have expectedthe second defendant to have at once written to Messrs. Ford, Rhodes.Thornton & Co. telling them of his error. The trial Judge has notreferred to this matter but he has set out fully what happened after themeeting and this confirms my doubt that there was a genuine desireto have the accounts audited by a Chartered Accountant.
DftlEBJ&RG J.—Wijcysekcre v. Corea.
1 see no reason to differ from the trial Judge on his findings on thefacts and the appellants have not shown that on those facts the actionis not maintainable. Objection was taken to the order of the trialJudge that the appellants should pay the costs of the sixteenth,seventeenth, eighteenth, and nineteenth added defendants but thisorder is right; it was necessary that all the members of the ExecutiveCommittee should be parties to the action.
Let decree be entered dismissing each of these appeals with costs.
Lyali, Grant J.—I agree.
ABDUL GAFFOOR HADIJAR et al. v. AHAMADU LEBBE MARIKAR et al