CA Bhai Beebi and Others v. A. M. M. Naeem and Others
BHAI BEEBI AND OTHERS
v.A. M. M. NAEEM AND OTHERS
COURT OF APPEAL
SOZA. J. AND RANASINGHE. J.
C.A. IS.C. 55/731F)
O.C. RATNAPURA NO. 4806/LMARCH 18. 19. 23 AND 25,1981.
Muslim Law— land claimed as held in trust— Wakf property for benefit of mosque anduse as a graveyard for Muslim public— dedication – Wakf.
The word 'wakf' literally means detention. It signifies appropriation of the subject-matter in such a manner as subjects it to the rules of divine property.
The wakf must be created by dedication for which no formalities are required. Thededication can be in writing or oral or inferred from long user and the surroundingcircumstances. The law looks only at the intention whatever the language.
As a concept, in Sri Lanka, the expression wakf is treated as akin to the concept ofa charitable trust. Even after dedication legal title to the mosque property remains inthe wakif or dedicator but he becomes a trustee holding the property in trust for thebenefit of the objects of the dedication. A deed of dedication can provide for the appo-intment of trustees. Where there is no such provision the wakif is the trustee.'
In the concept of wakfs, law and religion are interwoven and changing social needshave by the operation of statute and custom brought about certain changes and modif i-cations in the pristine doctrine relating to wakfs. Burial grounds reserved for the Muslimcommunity do have the attributes which with appropriate dedication can constitutethem wakfs. The graveyard in suit is an adjunct of the mosque and held along with themosque which is wakf property and the substituted plaintiffs as trustees were entitledto sue for its recovery.
Cases referred to:
(11 Vidya Varuthi Thirthia Swamigal v. Baluswami AyyarAIR 1922 Privy Council 123. 127.
(2) Jewan Donn Saboo v. Shah Kubeeroodduen (1837)2 M.IJt. 390.
13) Ambalavana Pandara Sannidhi v. Meenakshi Sundareswaral Devastanamf1920) Indian Appeals 191, 198.
(4) Court of Wards for The property of Makhdum Hasten Baksh v. tlahi Baksh11912)LR 40 1A 18.
Mehraj Din Ghulam Muhammad AIR 1931 Lahore 607.
Lata Jhao Lai v. Ahmudullah AIR 1934 Allahabad 33S.
(7) Munshi Abdul Rahim Khan v. Fakir Mohammed Shah AIR 133) 1946Nagpur 401.
18) Kvmja Muhammed Hamid v. Mian Mahmud [1922J LR SOI A 92.
Sammugam v. Arumugam (1936) IS C.L. Rec. 222.
Kumarasamy Kurukal v. Katthigesa Kurrukal (1923) 26 NLR 33. (3 Times
Sri Lanka Law Reports
of Ceylon Law Reports 1201.
Maula Buksh v. Hafuud-Om AIR ' 1926!Lahore 372.
(12! The Mosque Known as Mas/id Shahid Ganj v. Gurdwara Parbandhak Commi-ttee, Amristrar (1940! 67 IA 251.
Appeal from the District Court, Hatnapura.
tV. Jayewardene. Q.C. with S. C. Chandrahasan and IV. Siriwardena for the defendantappellants
C. Ranggnathan Q.C. with M. S. M. Naeeem and M. Yogasunderam for Substitutedplaintiff respondents.
Cur adv vult
May 29, 1981
The original plaintiff in this suit sued the defendants for a decla-ration that the land called Madame watte alias Andigewatte depic-ted as Lots 1 and 2 in plan No. 997 of 16.12.1968 marked Xbelongs to the Janneth Mosque and is vested in him as its trustee.He also prayed for ejectment of the defendants and damages.During the pendency of the action the original plaintiff died. Thepresent substituted plaintiffs who are respondents to this appealare the duly appointed trustees of the mosque in succession to theoriginal plaintiff. The learned District Judge at first refused toallow them to be substituted and dismissed the action. On appealthe order of the learned District Judge was set aside. Thereafterthe present substituted plaintiffs were duly substituted in theroom of the original deceased plaintiff.
The case of the substituted plaintiffs as set out in their amen-ded plaint of 28.11,1969 is that the premises depicted in Plan Xare vested in them es the trustees of the Janneth Mosque. The pre-mises are claimed as a graveyard of the Muslim Public of Ratna-pura belonging and appertaining to and/or appropriated to theuse of and/or held irt trust or a Wakf property exclusively for thebenefit of the Jarmeth Mosque at Ratnapura.
The plaintiffs trace title to the original ownership of ColondaMarikar Cumister Uduaman Lebbe Marikar Mudaliyar and ColondaMarikar Cumister Hassana Marikar Notary. These two personsobtained Certificate of Quiet Possession No. 3035 dated 14.4.1874(P3). The land as referred to in P3 however bears the name Andi-gewatte and is depicted in Plan No. 91011 – T 202 of 7.6.1873(P4). There are differences between the land depicted in P4 andthe land depicted as Lots 1 and 2 in Plan X. But the defendantshave admitted the original ownership and the identity of the land
CA Bhai Beebi and Others v. A. M. M. Naeem and Others337
depicted in Plan X — see the amended answer of 8.7.1970. Hencethe Court is relieved of the duty of considering these questions.
The burden of setting out and proving the devolution of title ison the substituted plaintiffs. They rest their claim-on dedicationby the original owners. They plead that the land has been heldby the trustees of the Janneth Mosque for use by the MuslimPublic of Ratnapura as a graveyard. The land has been consecratedor exclusively set apart for burials of Muslim persons and is Wakfproperty vested in the substituted pjaintiffs as trustees.
The word "wakf" literally means detention..According^to theMuslim jurists it signifies the appropriation of the subject-matterin such a manner as subjects it to the rules of divine property.Conceptually, when a property is described as wakf,.it signifiesextinction of the appropriator's ownership in the thing dedicatedand the detention of the thing in the implied ownership of God.A wakf extinguishes the right of the dedicator or wakif and trans-fers ownership to God.. The land becomes God's acre for thebenefit of the community. The manager of the wakf is the muta-waili or modimayar but the property does not vest in him as itwould in a trustee in English law. To constitute a valid wakf theremust be a dedication of the property to the ownership of God orto religious or charitable purposes. The endowment must be per-manent, inalienable. It cannot be contingent or revocable orsubject to an option. If for instance, the wakfnama containsa condition that in case of mismanagement the property should bedivided among the heirs of the settlor, the intended dedication isvoid. The object of the wakf must be one recognized by theMahomedan Law as religious, pious or charitable and must beindicated with reasonable certainty.
There is no essential formality nor is the use of any expressphrase or term requisite for the constitution of a wakf. A wakf canbe created by a writing or orally. The law looks only to the intertion of the ddhor. Where a dedication is intended the law wiii giveeffect to it, in whatever language it may be couched or in whateverterms the wish may be formqlated. It is not even essential that theword "wakf" should be used in the dedication if from the generalnature of the dedication a wakf can be inferred. Further, the dedication can be implied from the circumstances just as mucn as itcan be express – see the Hedaya (Hamilton's translation) ?r>d Ed1870 pp. 231, 234, 23S; Ameer Ali, Mohamedan taw 3rd Ed.(1904) Vol. 1 pp. 132, 148. 158, 159. 163; Fyaee: Outlines ofMuhammedan Law 2nd Ed. (1955) pp. 239 241 to 245.
The Mahomedan law on the subject has been well summarisedby Mr. Ameer Ali in the Privy Council decision in Vidya VaruthiThirthia. Swamigal v Baluswami A yyar:1
Sri Lanka Law Reports
"But the Mahommedan law relating to trusts differs funda-mentally from the English law. It owes its origin to a rule laiddown by the Prophet of Islam; and means 'the tying up ofproperty in the ownership of God the Almighty and the devo-tion of the profits for the benefit of human beings.' Whenonce it is declared that a particular property is wakf, or anysuch expression is used as implies wakf, or the tenor of thedocument shows as in the case of Jewan Doss Sahoo v. ShahKubeeroodeen1 2 that a dedication to pious or charitable purposes is meant, the right of the wakf is extinguished and theownership is transferred to the Almighty. The donor mayname any meritorious object as the recipient of the benefit.The manager of the wakf is the Mutwali the governor, superin-tendent, or curator. In Jewan Doss Sahu's case the JudicialCommittee call him 'procurator.' It related to a Khankha, aMahommedan institution analogous in many respects to aMutt where Hindu religious instruction is dispensed. The headof these Khankhas, which exist in large numbers in India, is
called a sajjada-nashinBut neither the sajjada-nashin
nor the Mutwalli has any right in the property belonging to thewakf; the property is not vested in him and he is not a 'trustee'in the technical sense."
Referring to the Hindu Law Mr. Ameer Ali declared as follows atpage 126:
"It is also to be remembered that a 'trust' in the sense in whichthe expression is used in English law, is unknown in the Hindusystem, pure and simple."
On the question of the legal personality of the Hindu deities HisLordship said at p. 126:
"Under the Hindu law, the image of a deity of the Hindupantheon is, as has been aptly called a 'juristic entity,' vestedwith the capacity of receiving gifts and holding property."
On the question of the capacity of a Hindu deity to receive gifts.His Lordship made the following observations at page 126:
"When the gift is directly to an idol or a temple, the seisen iscomplete the gift is necessarily effected by human agency.Called by whatever name, he is only the manager and custo-dian of the idol or the institution. In almost every case he isgiven the right to a part of the usufruct, the mode of enjoy-
1.A.I.R. 119221 Privy Council 123,127.
2.11837)2 M.I.A. 390.
CA Bhai Beebi and Others v. A. M. M. Naeem and Others
ment and the amount of the usufruct depending again onusage and custom. In no case was the property conveyed to orvested in him; nor is he a 'trustee' in the English sense of theterm, although in view of the obligations and duties resting onhim, he is answerable as a trustee in the general sense formaladministration."
A similar view of the Hindu Law was expressed by Lord Moultonin the Privy Council decision in Ambalavana Pandara Sannidhi v.Meenakshi Sundareswaral Devastanam3 where His Lordship poin-ted out that the general trustee is only a representative of the idolwho is a juridical personage, and who is true owner.
As I said before a dedication can be implied from the circums-tances. A dedication sufficient to create a wakf can be implied byimmemorial or long user. As Fyzee says where land has for longbeen used as a wakf proof of express dedication is not necessary,and the legal dedication will be inferred — see Fyzee ibid pp. 239,241, Mulla: Principles of Mohamedan Law 14th Ed. (1955) pp.173 to 175. The Courts in India have often upheld the wakfof mosques and graveyards on this ground.
The decision of the Privy Council in the case of Court ofWards For The Property Of Makhdum Hassan Bakhsh v. IlahiBakhsh3 4 is relevant on the question of long usage. This was a suitto restrain the appellant from selling as his private propertycertain land in a place called Multan of which he was the nominalowner. There was an entry on record to the effect that an area ofwhich the land in suit formed part was a graveyard which had beenset apart for the Mussulman Community. It was agreed in that casethat the area described as a graveyard was not one continuousburial ground but merely an area of uncultivated land in whichhere and there were to be found graves or clusters of graves. Itwas claimed that the vacant ground unoccupied by graves remai-ned the private property of Makhdum Hassan Bakhsh and that theCourt of Wards should deal with it for the benefit of his estatewithout regard to the’ claim advanced by or on behalf of theMohamedans of Multan. Lord Macnaghten delivering the Judg-ment of the Board said as follows at page 23.
"Their Lordships agree with the Chief Court in thinking thatthe land in suit forms part of a graveyard set apart for theMussulman community, and that by user, if not by dedication,the land is waqf. The entry in the record of rights seems con-clusive on the point. It is obvious that, if it were held thatwithin the area of the graveyard land unoccupied or appa-rently unoccupied by craves was private property and at the
3.(1920) Indian Appeals 191,198.
4.(1912) LR40 IA18.
Sri Lanka Law Reports
disposal of the recorded owner, it would lead to endless dis-putes, and the whole purpose of the Government in settingaside land as an open graveyard for the Mahomedan commu -nity in Multan would be frustrated."
This decision was followed in the case of Mehraj Din v. GhulamMuhammad* Where a long period has elapsed since the origin ofthe alleged wakf, user can be the only available evidence to showif the property is wakf. Where there is no evidence to show howand when the alleged wakf was created, the wakf may be established by evidence of long user. In this case Shadi Lai C. J. saidas follows at page 608:
"When a long period has elapsed since the origin of the allegedwakf user can be the only available evidence to show whetherthe property is or is not wakf."
In the case of Lala Jhao Lai v. Ah mu dull ah6 it was held thatwhere there is a finding that the land has been used as a graveyardfrom time immemorial, a dedication of the land as wakf for thispurpose is presumed. It is not necessary in such cases to prove adedication.
In the case of Munshi Abdul Rahim Khan v. Fakir MohammadShah7 the history of the wakf claimed by the plaintiff was lost inantiquity. The defendant admitted the mosque premises were wakfbut asserted he retained ownership over the other parts of theproperty. Grille C. J. said as follows at page 407:
"The contention of the defendant also appears to us to bebaseless. In a case of this nature where ancient history is notavailable a decision will have to be based on such evidence ascan be gathered from how the public regarded this property,its environment and the conduct of the parties."
In this case the plaintiffs were not in a position to trace thededication of the properties as wakf but they were entitled to relyon immemorial user of these properties as wakf. The mosque andthe other properties were within one compound with one gate andthey were so inter-connected as to form one property. As it wasadmitted the mosque was wakf the Court, it was held, was entitledto presume that the other properties were also wakf. It is relevantto observe that the Court did not accept the facts that the defen-dant received the rents from the tenants who occupied parts of the
A.I.R. (1931 > Lahore 007.
A.LR. (1934) Allahabad 335.
A.I.R. (33) 1946 Nagpur 401.
CA Bhai Beebi and Others v. A M. M. Naeem and Others
property or that he constructed kothas and shops on the propertyas proving that it was in his ownership — see page 416 of thejudgment.
In the case of Khwaja Muhammad Hamid v. Mian Mahmud5the Privy Council held that wnere the mosque was admittedlywakf property the astanas used by the fakirs and pilgrims beingholy ground, the huts used by the dervishes, the religious schoolsconnected with the Khankah and the Maharwi bungalow given byan adherent for the use ot the superior of Mahar, the parentshrine, on his visits are ail wakf.
The weight of authority therefore favours the proposition thatonce it is admitte.d that a mosque is wakf, properties belonging toor pertaining to it or appurtenant to it are also wakf.
An examination however of our legislation regarding Wakfsshows that we in Sri Lanka have veered away from some of thebasic principles relating to wakfs laid down by the Islamic jurists.The Muslim Intestate Succession and Wakfs Ordinance No. 10 of1931 impliedly accorded wakfs the same standing as Muslim Chari-table Trusts. A charitable trust as defined in this ordinance inclu-ded any trust or wakf for the benefit of the Muslim public or anysection of it or any of the following categories:
the relief of poverty, or
the advancement of education or knowledge, or
the advancement of religion or the maintenance of amosque, takkiya or shrine, or the maintenance of reli-gious rites and practices; or
any other purposes beneficial or of interest to mankindin general.
A burial ground will fall at least under (d) above if not under
. A trustee under this Ordinance was a person appointed to be atrustee of a charitable trust either orally or under any deed or ins-trument by which such trust has been created or by a court ofcompetent jurisdiction and includes any person appointed by thetrustee to perform the duties of the trustee and any person who isfor the time being administering any charitable trust property —see section 5 of the Ordinance. Sections 15 and 16 make provi-sion for application to be made to the Court for formulatingschemes of management of trusts and also for appointing trustees.The same principles with greater elaboration were retained in the 8
8.(1922) LR 50 1A 92.
Sri Lanka Law Reports
11981} 2 S.L.R.
Muslim Mosques and Charitable Trusts or Wakfs Act No. 51 of
1956 — see especially part V. Section 109(b) of our Trusts Ordi-nance stipulates that Chapter X of the Ordinance will not apply toreligious trusts regulated by the Muslim Intestate Succession andWakfs Ordinance No. 10 of 1931 in so far as this Chapter isinconsistent with the provisions of the Ordinance. The expression"charitable trust" includes not only religious trusts but also othercategories of trusts – see section 99 of the Trusts Ordinance. Thusa muslim charitable trust which is not a religious trust can begoverned by section 107 relating to de facto trusts which occursin Chapter X of the Trusts Ordinance. Even where the origin ofthe trust is not traceable but the circumstances of the case warrantit, the Court can hold that a trust in fact exists or ought to bedeemed to exist — see Summugam v. Arumugam.9 10 In KumarasamyKurukal v. Karthigesa Kurukat.10 the Supreme Court had occasionto consider whether a charitable trust was created by the circums-tances of that case. There was evidence that a Hindu temple hadbeen publicly dedicated with the traditional ceremonies. No ins-trument of trust appropriating the property for the purpose of thetrust was executed. In 1898 however a deed of management hadbeen drawn up providing for the trusteeship to vest in B and Ctogether and thereafter in the survivor of them and then in B'sson R. On a dispute to the title arising the Court held thatalthough no formal instrument of trust had been executed a defacto trust could be inferred from the circumstances and legal titlevested in K subject to the religious trust under which the templewas founded and subject to the deed of management of 1898.Bertram, C. J. who was in fact the author of the Trusts Ordinancestated the legal position as follows at page 36:
"According to Hindu religious law, the position is perfectlyclear. The temple is conceived as being the property of thedeity to whom it is dedicated. Or, to put it in another way, thefoundation, as in Roman law, is personified, and the temple isconceived as belonging to the foundation. We are no doubtauthorized in these questions to have regard to the religious lawand custom of the community concerned (see Trusts Ordi-nance, section 106(ii)), but I take it that in so 'having regard'we cannot subordinate to any such law or custom our ownexpress law. According to our own law as declared and definedby the Trusts Ordinance, the dominion of the propertyremains vested in the legal owners, but is so vested on behalfof the beneficiaries, and the beneficiaries consist of that sec-tion of the public for whose benefit the trust was founded.
9.(1936) 15 CL Rec. 222.
10.(1923) 26 NLR 33 (2 Times of Ceylon Law Reports 120).
CA Bhai Beebi and Others v. A. M. M. Naeem and Others
Though there is a difference in form between our own concep-tion and that of the Hindu religious law, there is no differencein substance."
Regarding the scheme of management His lordship said at pages 37and 38:
"It is perfectly clear that subject to any arrangement made bythe founder, the right of the management of the foundationvests in the founder himself and his heirs, but the founderhimself is entitled to make express provision for its futuremanagement."
Although the Hindu deity is a juristic person the principles appli-cable to Hindu religious trusts are analogous to those applicableto Wakfs or Muslim charitable trusts. This is so even in regard todevolution of trusteeships under Muslim law and Hindu law. InKarthigesa's case (supra) Bertram C. J. had the following com-ments to make in regard to the devolution of the trusteeship(page 39):
"In Hindu religious law, the manager is the trustee. Althoughthe property is conceived of as vested in the deity, the mana-ger has all powers of a proprietor subject to a trust, and accor-ding to Hindu religious law the control of the property passeswith the office (see Mayne, p. 601). According to our ownlaw, however, the legal ownership is actually vested in.the trus-tee, but it does not under ordinary circumstances devolvewith the office. This only takes place in certain defined cases(see section 113 of the Trusts Ordinance and in particular sub-section (2)). In cases within that section, upon the executionof a prescribed memorandum of appointment, the trust pro-perty passes from trustee to trustee without the necessity ofany conveyance or vesting order. That sub-section, however,does not provide for trusteeships which under the instrumentof trust devolve according to a fanTily succession. Upon thedeath of a trustee holding office under such an agreement, thelegal ownership does not pass to the new trustee, but in theabsence of any formal instrument it would pass to the trustee'sheirs, and in the absence of a transfer the only way of vestingit in a succeeding trustee is to obtain a vesting order under sec-tion 112. It will thus be seen that in a trust of this sort confu-sion is always likely to arise on the death of a trustee, unlesshe provides for the devolution of the trust property either bywill or by an instrument executed during his lifetime. If hedoes not do so, the legal ownership passes to his heirs. The
Sri Lanka Law Reportt
11981 J 2 SLR
heirs, it is true, hold it subject to the trust, and can be made to
transfer the legal ownership to the new trustee, but it must
always be very troublesome to induce them to do so."
The rights of the trustee woq|g be affected if a mosque could beregarded as a juristic person. In the case of Maula Buksh v. Hafiz-ud-Dinx 1 Shadi Lai C. J. held that a mosque is a juristic person. Inthe case of The Mosque Known As Masjid Shahid Ganj v. GurdwaraParbandhak Committee, Amristar'2 the Privy Council discussedthe question but did not pronounce upon it. Yet the discussion inthe case shows that the view of the Lahore High Court did notcommend itself to the Board. Their Lordships however held thatsuits cannot be brought by or against mosques as artificial persons.
In Sri Lanka a mosque is not recognised as a legal person.Title is vested in trustees. Succession to a trusteeship can accor-ding to the circumstances be by inheritance or conveyance or ves-ting order under the Trusts Ordinance or where there is a schemeof management in operation, according to such scheme.
What is a Wakf in Muslim law is not necessarily a wakf in ourlaw. A burial is not a religious rite and in Sri Lanka we have notaccepted the principle that dedication to God is the foundationof a wakf. This is a fundamental departure from the law of wakfsas propounded by the early Muslim juris'.-,. The principles relatingto wakfs have received differing modtons in India and in SriLanka. In India the Mussalmar, Wakt Validating Act No. 6 of1913 (s.2) defines a wakf as a permanent dedication by a personprofessing the Mussalman faith of any property for any purposerecognized by the Mussalman law as religious, pious or charitable.The Privy Council held that this was a definition for the purpose ofthe Act and was hot necessarily exhaustive. Our Muslim Mosquesand Charitable Trusts or Wakfs Act No. 51 of 1956 (amended byAct No. 21 of 19&2) dpes not attempt to define the expression"wakf." As a concept, in Sri Lanka, it is treated as akin to theconcept of a charitable trust. Even after dedication legal title tothe mosque property remains in the. wakif or dedicator but hebecomes a trustee holding the property jn trust for the benefit ofthe objects of the dedication. Of course the deed of dedication(where there is one) can make provision for the appointment oftrustees. Where no such provision is made the waklf is trusteeand the observations of Bertram C. J. which I have cited in regardto die devolution of trusteeship though mode in connection with 11
11.A.LA. (1926) Lahore 372.
CA Bhai Beebi and Others v. A. M. M. Naeem and Others
a case relating to a Hindu religious trust apply on the question ofsuccession.
Although a dedication to God is not essential to create a wakfin our country there is no authority to say that the other princi–pies do not apply. The endowment must be permanent, inalienableand irrevocable. It cannot be contingent or subject to an option —The object must be religious or charitable and reasonably certain.The wakf must be created by dedication for which no formalitiesare required. The dedication can be in writing or oral or inferredfrom long user and the surrounding circumstances. The law looksto the intention whatever the language used.
In the case before us the burial ground is being claimed by thetrustees as a wakf on the footing that it is part of the property ofthe Janneth Mosque which admittedly is wakf. Hence it is notnecessary to go into the question whether burial grounds per sewhich are not adjuncts of a mosque must be treated as wakf. Butin passing it must be observed that in the concept of wakfs, lawand religion are interwoven and changing social needs have by theoperation of statute and custom brought about certain changesand modifications in the pristine doctrine relating to wakfs. Burialgrounds reserved for the Muslim Community do have the attribu-tes which with appropriate dedication can constitute them wakfseven in Sri Lanka.
Section16(i)(a)(i)of our WakfsAct vests in the trustees of aregistered mosque movable or immovable property which belongsto, or in any wise appertains to, or is appropriated to the use ofthat mosque. There is no dispute that the Janneth Mosque is aregistered mosque. If the land shown as Lots 1 and 2 in Plan X canbe proved to belong to or in any wise to appertain to the JannethMosque then plantiffs as its duly appointed trustees can by virtueof section 25 of the Wakfs Act with the approval of the Mosquesand Muslim Charitable Trusts or Wakfs Board sue for the recoveryof the said land.
The substituted plaintiffs claim that there has been a validdedication of the disputed land by deed and user. Further, astrustees the land is vested in them and they are entitled to suefor its recovery. This is the title pleaded by them which if theyestablish they are entitled to succeed. The land depicted in Plan Xis separated from the Janneth Mosque premises only by a road.Lot 1 as shown in Plan X comprises the burial ground, vacant landand a row of boutiques. Three of these buildings are said to havebeen put up in 1952. The 1st defendant occupies one of them.
Sri-Lanka Law Reports
 2 S.L.R.
The 2 — 5 defendants are her children. Although they do notclaim title to any portion of the land in suit, still the burden ofproving title is on the plaintiffs.
In the instant case an examination of deed No. 931 of27.1.1866 (P5) which is the source of plaintiffs' title shows thatit cannot be regarded as a deed of dedication. Far from being adeed of dedication it is an agreement between Pakeer Thamby andthe two owners of the property to grant an usufruct of the propertyand the right to build a house. The mere exclusion of the burialground from the grant cannot amount to a dedication of the burialground. The grant to Pakeer Thamby was conditional on goodadministration by him and obedience to the donors. My view thatthis is not a deed of dedication is further strengthened by thefact that long after the so- called dedication these two originalowners claimed the land before the Crown and obtained Certifi-cate of Quiet Possession No. 3035 of 14th April 1874 (P3) in theirfavour. Further, one of the donors revoked the deed P5 by execu-ting deed No. 3993 of 23.9.1870 (P6). There is in additionevidence that in 1910 Hassana Marikar Notary's son MohammedMowjood sued one Pakir Pulle Pitche a son of Pakeer Thambyseeking a decree for half the land referred to in Certificate ofQuiet Possession and ejectment of the defendant. Pakir ThambyPitche filed answer laykjg claim by prescription to the Northernportion of the land which he described as bounded on the northand west by roads, south by canal and east by Sannasigewatte.The Court gave judgment for plaintiff holding that Pitche was amere squatter — see D9, D9(a) to D9(c).
Although the plaintiffs have not established dedication bydeed, their claim to title rests also on user.
On 21.2.1898 one Mahallam Ibrahim Lebbe MohammaduLebbe Priest of the Ratnapura Mosque on behalf of the Mohame-dam community moved that the land shown in the sketch markedP2A be registered as a Mohamedan burial ground. This was interms of regulations published in the Ceylon Government GazetteNo. 5583 of 11.11.1898 (P1). The application was granted andMohamadu Lebbe was informed by letter P2B of 1.3.1899 that his.cemetery was duly registered. The shape of the land, the extentand the northern boundary shown as a main road and the southernboundary as a candl in the sketch P2A are sufficient to lead oneto the inference that the sketch is a representation of Lots 1 and 2of the land shown in Plan X. The tenement list P8 shows the regis-tration of this land in the books of the G.A. as a burial-ground.The letter P8A indicates that the land depicted in Plan P4 (No.
Bhai Beebi and Others v. A. M. M. Naeem and Others
91011 — T 202) attached to the Certificate of Quiet Possession isseparated “as a burial-ground of the Muslim Mosque." From theadmission by the defendants of the original ownership and of theidentity of the corpus in dispute as depicted in Plan X, it can beinferred that the land depicted in Plan P4 is identical with theland depicted in Plan X. Hence the conclusion is justified that theburial-ground of the Muslim Mosque referred to in P8A is noneother than the land depicted in Plan X. There is also the evidencethat there was a criminal case (P11) filed on 24.9.1934 against twopersons — Abdulla Mohideen and H. M. Zackariah — for criminalmisappropriation of the collections of the shrine and mosque ofthe Janneth Mosque. The dispute in the case was referred toMr. T. B. Jayah for arbitration. Mr. Jayah made his report (P10)for the management of the mosque which was filed in the case on11.11.1935 and the criminal case was compounded by all partiesagreeing to abide by Mr. Jayah's recommendations (P10). It hasbeen submitted by learned senior counsel for the respondents thatthe recommendation (PI0) made by Mr. T. B. Jayah for the mana-gement of the mosque cover the burial-ground also. The internalevidence in the Jayah report itself is'inconclusive on tHe point.H. M. Mackariah however appears to have acted contrary to thescheme recommended by Mr. Jayah. On a petition (P16) filed on18.2.1937 in the District Court of Ratnapura in proceedingsNo. 150/Special under section 16 of the Ordinance No. 10 of1931 the Court made order directing inter alia that all propertyof the mosque shall vest in the 1st respondent I. L. M. IbrahimLebbe — see P18. The 2nd respondent V. M. Zackariah stood remo-ved from office as from 8.7.1936. Thereafter the trustee of themosque carried on the management of the burial-ground alsoand one A. L. M. Thahir Marikkar the Trustee of the JannethMosque on 1.3.1947 gave a letter of authority (P19) to OssenLebbe Seinadeen father of 2 to 5 defendants and husband of the1st defendant to look after and clear the land. This letter gives thenorthern boundary of the land as Main Road and Western boun-dary as Mosque Road clearly taking in the portion where the buil-dings which are the bone of contention in this case stand. On31.12.1959 S. M. Subair the 4th defendant wrote to the’Trusteeof the Janneth Mosque for permission to erect a temporary shedon the “non-burial portion of the mosque burial-ground" (empha-sis mine) undertaking to pay a rent of Rs. 10/- and to abide by therules and regulations of the mosque committee. The 4th defen-dant appended a sketch to his application which is marked P20and this depicts the portion of land which was proposed to bebuilt on as lying between the mosque road and main road. In thesame year, that is, in 1959 an inquiry was held by the, Commi-ssioner of Wakfs in connection with the registration of the Jan-
Sri Lanka Law Reports
 2 S.L.R.
neth Mosque. In connection with this application Sheik IbrahimLebbe the Katheeb gave evidence and so also did S. M. Zubairthe 4th defendant supporting the Katheeb. The taxes in respect ofthe buildings on this land have always been paid in the name ofthe trustee of the mosque —see P22 to P31. On 14.10.1960 thetrustee for the time being of this mosque by Deed P32 leased anextent of twenty-five feet by twenty feet out of the vacant land inLot 2 of Plan X to the 3rd defendant subject to the usual condi-tions. The 1st defendant however made application P33 to thelocal authority to build on the corpus. This application wasobviously sent up by the 1st defendant when one Cyril made anabortive attempt to build on this land. In P33 the 1st defendantfor the first time claimed to be owner but even in the present caseshe does not claim owrfership of the land.
It will be seen that the father of the 2 to 5 defendants as wellas the 4th defendant has recognized that the burial-ground belongsto the mosque. So also have the Government Agent and the localauthority. It is significant that the father of the 2 to 5 defendants(and husband of the first) was one of the five persons who petitio-ned the District Court of Ratnapura on 18.12.1937 in case No.D. C. 150/Special praying inter alia that the Court do settle ascheme for the management of the mosque, sanction arid confirmthe appointment of I. L. Ibrahim Lebbe as Trustee and vest in thetrustee the mosque and land on which it stands. The Courtapproved the scheme of management which had been proposed byMr. T. B. Jayah in his report P10. This provided for the electionof trustees every two years by the congregation in ordinary generalmeeting. In addition the properties of the mosque were vested inthe trustee. At the relevant time Mr. M. L. A. Jabbar functioned astrustee and in 1961 wrote to the father of the 2 to 5 defendantsand to another asking for ground rent (see D2 and D3). It has beenpointed out that no income has been shown in the accounts ofthe trustee from the properties of this mosque — see D4, D5. The2 to 5 defendants claimed that their great grandfather PakirThamby who was given an usufruct on deed-No. 931 (P5) builthouse marked C in plan X (Assessment No. 53). Pakir Thambydied leaving his son Sheik Madar who died leaving two childrenAsia Umma and Abdulla who continued to live on this land. AsiaUmma built house marked B in Plan X (Assessment No. 51). The2 to 5 defendants whose mother the 1st defendant was a daughterof Asia Umma built house marked A (Assessment No. 49) andE (Assessment No. 55) in Plan X and possessed them.
Althoufft no deed of dedication has been produced, there is. cogent evidence of long user which serves just as well to establish
CA Bhai Beebi and Others v. A. M. M. Naeem and Others
i?.PT r>f—;r.in vvufc? as that term is understood in
Sri Lanka. Dedication must be presumed from long user and theparties in their conduct and dealings have acted on this presump-tion. The land in suit is Wakf property and an adjunct of the mos-que. The next question is whether the original plaintiff and afterhim the substituted plaintiffs are trustees.
Learned senior counsel for the appellant complained that theoriginal plaintiff has not set out the devolution of his title. Afterthe first trustee Ibrahim Lebbe's demise who became the trustee?Who was elected trustee after Ibrahim Lebbe? These questionsremain unanswered. But I do not think such continuity in the trus-tees need be proved. The title of the trustees does not proceed onthe basis of devolution from trustee to trustee. Rather thetrustee for the time being holds his title on the basis of appropriatedirect appointment. The appointment of Jabbar the original trusteeas stated in paragraph 2 of the original answer was denied by thedefendants but when the 4th plaintiff gave evidence that Jabbarand the plaintiffs were duly appointed trustees there was noserious attempt to dispute that assertion. In fact the defendantsmarked documents D2 and D3 which Jabbar had written as trus-tee. One of these letters was to the 4th defendant and apparentlyevoked no challenge to Jabbar's capacity as trustee. No specialconveyance is required as the succession is regulated by thescheme of management put into operation by the.of Court in D.C.Ratnapura case No 150/Special – see also s 113(2) of the TrustsOrdinance.
It must be remembered that the defendants do not claim theland for themselves. The evidence that Jabbar was trustee cannotbe said to be discredited. The graveyard in question is, as I saidbefore, an adjunct of the mosque and held along with the mosquewhich is wakf property even as known to our law. Therefore thefindings of the learned District judge are sustainable and should beupheld.
The award of compensation has not been challenged. Hence itis not necessary to get into the question whether compensation islegally payable.
The judgment and decree appealed from are affirmed. Theappeal is dismissed with costs.
Sri Lanka Law Reports
Appeal dismissedNote by Editor:
An appeal was preferred from this judgment to the SupremeCourt (S.C. No. 44/81) but the case was settled on the paymentof compensation. The Court wrote no judgment with reasons butCadef J who was one of the members of the Supreme Court Benchthat heard the appeal made the following observations:
ABDUL CADER J.
The original plaintiff sued the defendants for a declaration thatthe land in dispute belonged to the Janneth Mosque and is vestedin him as trustee and for ejectment of the defendants and dama-ges. The portion in dispute is a part of the graveyard. The defen-dants have put up buildings on the northern portion of the grave-yard and they claim to be entitled to the right to possess thesebuildings on some form of nebulous right which is not clear. Thedefendants stake their claim to these buildings on P5 wherebythe grandfather of these defendants Meera Pulle Pakir Thambywas given and granted charge of this said portion of land and wasauthorized to live thereon and enjoy and possess all the produceand plantations from the graveyard and while “doing and dischar-ging well and truly the duties incumbent on hirr as Modimiyar ofthe mosque called Janneth Palli, Ratnapura, during his incum-bency reserving the right of burial within the said premises for theMussalman public." Pakir Thamby promised and bound himself todo and perform these duties well and truly “according to the rulesand customs of their religion all the duties and services allotted toModimiyar aforesaid," always acting under the orders of thegrantors and he also agreed to keep the garden clear and in goodorder refraining from all kinds of work and acts thereon whichmay hinder or render inconvenient the interment and burial abovereserved for the benefit of the Mussalaman Public excepting suchportion as may be justly necessary for a house and compound. Inconsideration of the services to the mosque, Pakir Thamby wasgranted "the sole use of the usufruct of the garden aforesaid" and"the right to live in it by building a house at the public expense ofMussalamans." It was also provided in this deed that if PakirThamby died or was removed, this right would accrue to any ofhis sons who shall succeed him in office as Modimiyar and whenthe office of Modimiyar shall go to a person other than a memberof his family, all the benefits granted by this deed shall cease tothis particular family.
CA Bhai Beebi and Others v. A. M. M. Naeem and Others
Counsel for the appellant agreed that this was a land which hasbeen used for public burial before this deed was executed in 1866.Therefore, it is clear that this land has been given to Pakir Thambyto live on it and enjoy the produce more or less as a caretaker. AModimiyar is a minor functionary in a mosque. He chants the callto prayer five times a day (which is today heard through loudspea-kers (Azan); he recites the second call to prayer five times a day(Iqamat); if there is a burial ground, he must attend to the burialof deceased Muslims assisted by labourers who dig the grave. Hisduty is to attend the home of any deceased Muslim to prepare thebody for burial first by washing the body clean immediately afterdeath and then after all the materials have been procured to batheand clothe the body in accordance with the rites as prescribed andthen to assist the members of the deceased's family to carry thebody to the graveyard. Before burial he will participate in thefuneral prayers which is normally done in the mosque or in a buil-ding specially built for that purpose in the graveyard and after thebody is buried he will recite a certain prescribed recital (Thalquen)which refers to the life in the grave and beyond and ends with aprayer for the repose of his soul unless the priest does it.. In addi-tion to these he is obliged to visit homes of the worshippers ofthat mosque for recitals from the Quran or from* songs in praiseof the Prophet and saints (Moulood) for which he will be compen-sated. These are the main functions of a Modimiyar.* He is a paidemployee appointed by the trustees and removable by the trus-tees and subordinate to the priest of that mosque who will haveimmediate control of him, if there is such a priest attached to thatmosque.
The Janneth Mosque referred to is situated to the West of thegraveyard and is separated from this graveyard by a road (vide X).For the performance of duties in this mosque and the duties inthe graveyard, Meera Puile was permitted to occupy the house putup along the road which is marked X. It was in these premises thathis grandchildren have erected these various buildings which formthe subject-matter in this case.
It is clear that the usufructuary rights to take the produce andthe right to occupy the house which does not even belong toMeera Pulle were given to him for and during the performance ofhis duties as functionary of this mosque. Counsel for the appellantattempted to claim some form of right for these appellants on thebasis of this deed which he was unable to support and very rightlyabandoned'. Then, it became a question of how much compensa-tion the appellants were entitled to. The Court of Appeal had saidthat the award of compensation has not been challenged and,
Sri Lanka Law Reports
therefore, it was not necessary to go into the question whetr ercompensation was legally payable.
Before us. Counsel for the respondents agreed to pay a sum ofRs. 35,000/- as compensation and the terms of settlement wi rerecorded by this Court.
Counsel for the respondents then drew our attention to astatement made by the Court of Appeal that “what is Wakf inMuslim Law is not necessarily Wakf in our Law." He submittedthat this is not a correct statement of law. Since it was not neces-sary to hear parties on the law in view of the settlement before us,the Court did not go into this question whether the law as statedby the Court of Appeal is a correct exposition of the Muslim Lawas applicable to Sri Lanka. I, therefore, agreed to make my ownobservations as regards the statements made by the Court ofAppeal, not only on this particular question, but in respect ofother matters, too, so that the position may be made clear in theevent of the Judgment of the Court of Appeal being cited asauthority for the propositions contained therein.
In the first instance, in the circumstances that I have outlinedabove, all the discussion on the Muslim Law appears to me to beunnecessary and, therefore, obiter. However, I deem it necessarythat I should put forward my understanding of the Muslim Lawas applicable in Sri Lanka, so that it will have some persuasivevalue if the Court of Appeal decision is cited. I have stated abovethe functions of a Modimiyar who is a subordinate official. There-fore, the statement that the manager of the Wakfs is "the mota-walli or modimiyar" (page 3) is an error insofar as it refers to theModimiyar.
In view of the various types of Muslim communities followingdifferent forms of thought in India the law of Wakfs has beenreduced to a Statute in India, and, therefore, it would be unsafe todepend on the Indian decisions unless we have similar provisionsin. our Statute Legislation to declare that our law is different fromthe pristine Muslim Law.
When the Court of Appeal held that what is Wakfs in MuslimLaw is not necessarily a Wakfs in our law, it appears that thisproposition has been influenced also by the definition of Wakfsin chapter 5 of Act No. 51 of 1956. It is significant that exceptfor Section 32 of this Chapter, all the other Sections in that chap-ter are in respect of administrative matters and have nothing to dowith the law of Wakfs. Thus, Sections 33 and 35 deal with the
CA Bhai Beebi and Others v. A. M. M. Naeem and Others
duty of trustees to furnish statements, 34 with contents of suchstatements; 36 with auditing of accounts; 37 inspection of certaindocuments; 38 power of the Board to call for information; 39which has been amended substantially by Section 33 of 1982 dealswith rights of certain defined persons to take action against thetrustees, and Sections 40 and 41 deal with the powers of theTribunal. If at all there is any Section in this chapter which dealswith the Muslim Law of Trust other than Section 32, Section 42states that "the Court" (Tribunal) "shall not be debarred fromexercising any of its powers by the absence of evidence of theformal constitution of such trust or Wakf, if the Court is ofopinion from all the circumstances of the case that such trust orwakf in fact exists or ought to be deemed to exist." In this case, itmay be noted that it was not denied that this land was Osed as aburial-ground even before P5.
Section 32(1) reads as follows: —
"The provisions of this Part shall apply to every Muslim chari-table trust or wakf created for all or any of the following
purposes other than a Muslim charitable trust or wakf which is
solely for the benefit of a registered mosque:—
the relief of poverty among Muslims or any sectionthereof;
the advancement of the education of Muslim or any sec-tion thereof;
the advancement of Islam generally;
the rpanagement of any mosque or Muslim shrine or placeof religious resort or the performance of religious rites orpractices at such mosque, shrine or place; and
any other purpose beneficial to Muslims or any sectionthereof.
Even as the Court of Appeal has stated a burial-ground will fallwithin Section 32(1) (d) or under (e) so that there would be noneed to go to the Trust Ordinance for the purpose of deciding thequestion whether this particular property is a Muslim Trust. Itmay be noted that Section 32(2) excludes the applicability ofSection 51 of 1956 to a charitable trust or Wakf created beforeJanuary 1st, 1956 where it is expressly declared that the generallaw relating to trusts shall apply to such trusts or Wakf, so that inall other cases it is the Muslim Law that applies.
It may also be noted that Chapter 5 is a distinct chapter dea-ling, with Muslim Charitable Trust or Wakf, while the earlier Chap-
Sri Lanka Law Reports
[198112 S L P.
ters deal with mosques and shrines. Therefore, the provisions ofChapters 1 to 3 will not apply to Part 5. It may also be noted thatin Part 4, provision is made for the applicability of Parts 2 or 3 of
the Act to Muslim shrines and places of religious resort whilesimilar provision is not found in Part 5 as applicable to MuslimCharitable Trust or Wakf This distinction is maintained in Section57(B).
I have already said that the Indian authorities will not be help-ful unless we have similar provisions in this country.
Taking all these circumstances into consideration, I am of theview that it is wrong to state "what is Wakf in Muslim Law is notnecessarily Wakf in our law."
Various religious rites are performed before, during and afterthe burial of the body — cleansing the body, burying the body,dressing the body, compulsory funeral prayer, burial according tocertain prescribed rites, the head facing a particular prescribeddirection, certain recitals to be made when the body is loweredinto the grave and the recital of Thalqeen after burial. It is notcorrect, therefore, to say that “burial is not a religious rite"(page 13).
I am not aware of any cases in Sri Lanka where it has beenheld "that we have not accepted the principles that dedication toGod is a foundation of Wakf." Nor has the Court of Appealreferred to any such decision. It is possible that the Court ofAppeal may have made this statement with reference to Indianauthorities. I am unable to express an opinion on this propositionas I have not heard Counsel on this question, and I am of the viewthat this is a matter on which a decision should be made only afterarguments are heard in a case where this question arises, (videhowever Ameer Ali, page 191).
The Court of Appeal had also resorted to judicial decisionsrelating to Hindu Trusts and particularly referred to the observa-tions of Bertram C. J. in a case relating to Hindu Religious Trust.The principles of Hindu and Muslim religious laws are far diffe-rent, and it would be dangerous to resort to a decision on HinduLaw to find analogous principles as stated in the Judgment of theCourt of Appeal, (page 12).
As I have not heard Counsel on these matters, l have expressedthese various views from my personal knowledge because I deemit necessary that certain statements in the Court of Appeal, which
CVi Bhai Beebi and Others v. A. M. M. Naeem and Others
I consider to be in error, should not go unchallenged. These viewsdo not constitute an order of this Court but I trust that they willhave some persuasive value if anyone attempts to use the pro-nouncements of the Court of Appeal on the Muslim Law of Wakfas authority. Nor do I say that my views are final and conclusive.