024-NLR-NLR-V-71-N.-M.-ISHAK-since-deceased-and-others-Appellants-and-L.-L.-M.-THOWFEEK-and-.pdf
LORD PEAR80N—lahak v. Thowfetk
101
[Prtvy Council]
1968 Present: Viscount Dilhorne, Lord MacDermott, Lord Hodson,Lord Pearce, and Lord PearsonX. M. ISHAK (sinco deceased) and others. Appellants, and
L. M. THOWFEEK and another. Respondents
Privy Council Appeal No. 32 of 1966
*5. C. 14611961—D. C. Colombo, S37fZL
Muslim Mosques and Charitable Trusts or Wakfs Act No. 31 of 1930—Sections 3, 10,11, 12, 13, 14 (1), 14 (4), 10. (1), 20 (1)—Appointment of trustees of mosques —Scope of the discretionary power vested in the Mosques and Muslim CharitableTrusts or Wakfs Board.
In selecting a person or persons as a trustee or trustees under the provisionsof subsection (1) of Section 14 of the Muslim Mosques and Charitable Trusts orWakfs Act, the Board, although they are bound to take into consideration thefour matters stated in paragraphs (a), (6), (c) and (d) of the subsection, have anultimate discretion and are not bound to seleot a porson or persons whom theyconsider unsuitable.
A-PPEAL from a judgment of the Supreme Court.
M.Markhani, with N. M. Curtis, for the defcndants-appellants.
No appearance for the respondents.
Cur. ado. vuU-.
June 27, 1968. [Delivered by Lord Pearson]—
The parties to this appeal are rival claimants to the trusteeship of amosque in Colombo and of the property belonging to the mosque.
The defendants to the action were N. M. Ishak, A. R. M. Rauoof andC. M. Shahul Hamid. Shahul Hamid explained in an affidavit that hesuffered from ill-health and had ceased to act as trustee and was makingno claim and would abide by the Court’s decision. Therefore Ishak andRauoof were the effective defendants. They claimed title by descent.
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LORD PEARSON'—Ishak v. Thowjeek
They said that their ancestor Mamina Pullai created the trust in the year1857 and provided that the trusteeship should descend to his maledescendants ; that this provision had been recognised and carried out insubsequent awards and practice ; and that the defendants, being MaminaPullai’s male descendants, were entitled to the trusteeship accordingly.Undoubtedly they held the trusteeship for some years up to 22nd August1959, but their right to retain it after that date was and is in dispute.
The first respondent, who was the plaintiff in the action, is not adescendant of Mamina Pullai. He claimed a statutory title. He saidthat under the Muslim Mosques and Charitable Trusts or Wakfs ActNo. 51 of 1956 he was duly appointed trustee of the mosque and itsproperty from 22nd August 1959 and his appointment had beencontinued.
The District Court decided in favour of the plaintiff’s claim, ordering(inter alia) that the defendants should deliver up the mosque and itsproperty to him. Oh appeal the Supreme Court affirmed the decision ofthe District Court by dismissing the appeal, but did not give reasons.
The defendants, Ishak and Rauoof, obtained leave to appeal to theirLordships’ Board, but afterwards died, and the present appellantsSiddeekand Shaukath have been substituted for them. The defendantShahul Hamid, who . had taken no active part in the action for thereasons stated above, was second respondent to the appeal.
On behalf of the appellants it has been argued (i) that there was noadequate proof of the appointment of the first respondent (the plaintiff)as trustee, (ii) that his appointment was not valid, (iii) that the propertiesAvcre not included in the Wakf or charitable trust of the mosque, butwere the subject of a family trust.
Neither of the respondents lodged any case or was represented at thehearing of this appeal.
It is necessary to consider the relevant provisions of the Act which hasbeen mentioned (No. 51 of 1956) and the steps taken under it as appearingfrom the evidence in the action.
Section 5 of the Act provided for the establishment of a Board, to becalled the Mosques and Muslim Charitable Trusts or Wakfs Board and toconsist of the Commissioner and seven other members appointed by theMinister. Section 10 of the Act provided that the trustee for the timebeing of a mosque . . . opened for public worship before the appointeddate should, within six months after that date, make a written applicationto the Board for registration of the mosque. Section 11 providedthat, upon receipt of an application under Section 10, the Board might bynotice require the applicant to furnish to the Board … all suchinformation and documents regarding the mosque … as the Boardmight consider necessary. Section 12 provided that a Register ofMosques should be maintained. Section 13 provided that . . . upon
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receipt of such information and documents the Board, after making suchinquiries as it might deem necessary for verifying such information andthe particulars contained in the application and in such documents,,should cause that mosque to be registered in the. Register of Mosquesby the entry therein of the prescribed particulars relating to thatmosque.
Section 14 subsections (1) and (4) of the Act provided as follows :—
“ 14.(1) As soon as may be, after a mosque has been registered
under section 13, the Board shall appoint a person or persons to be atrustee or trustees of that mosque. In selecting a person or personsfor appointment as a trustee or trustees of a mosque, the Board shallhave regard to the following matters :—-
(а)the terms of any trust instrument relating to that mosque ;
(б)the religious law and custom of the sect of the Muslimcommunity concerned;
the local custom with reference to that mosque ; and
the practice and other arrangements in force for theadministration of the mosque.
On the Board making an appointment or appointments, theperson responsible immediately before such appointment orappointments for the exercise of powers and the performance ofduties: in connexion with the mosque shall forthwith hand over allproperty and documents relating to the mosque to the trustee ortrustees appointed by the Board.”
Section 16 subsection (1) of the Act provided as follows :—
“ 16.(1) There shall vest in the trustee or trustees of a registered
mosque—
(а)any movable or immovable property which—
belongs to, or in any wise appertains to, or is appropriated tothe use of, that mosque, or
is held in trust by, or in the name of, any person exclusivelyfor the benefit of that mosque.
(б)the rents and profits of such property ; and
(he offerings and contributions made for the use of, or to thefunds of, or for the performance of religious ceremonies at,that mosque,
subject to any lease, charge or encumbrance already affecting thatproperty and to the term3 of any trust to which that property may besubject.”
Section 26 (1) of the Act empowered the trustee of a registered mosque,with the approval of the Board, to sue for the recovery of any propertyvested in such trustee.
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LORD PEARSON—lahai: v. Thmvjeek
At the hearing of the action an administrative assistant in theDepartment of Mosques and Muslim Charitable Trusts, Colombo, wascalled as a witness for the plaintiff. He had brought to court the filesrelating to the mosque in question, which is the Dewatagaha Mosque,and he produced the relevant documents showing the steps which hadbeen taken under the Act in relation to the mosque.
In pursuance of Section 10 of the Act the defendants by a letter fromthe defendant Ishak to the Commissioner dated 26th October 1957 madean application to the Board for registration of the mosque under the Act,and they annexed a statement containing particulars of the names of thetrustees, the title, the properties, the income, the rates and the expenses.The particulars relating to the properties were as follows :—
“ Properties :
Shrine No. 14 Baptist Chapel Road, Colombo 7Mosque No. 12 Baptist Chapel Road, Colombo 7Boutiques Nos. 8, 10, 16 and 18 Baptist Chapel Road,Colombo 7
Tenements Nos. 3, 5,7 and 9 Baptist Chapel Road, Colombo 7Tenements are occupied by the families of the trustees.”
In pursuance of Sections 11 and 13 of the Act the Board called forinformation and documents and held an enquiry, in which the defendantsand others gave evidence. The defendant Ishak, giving evidence on 16thMay 1959, said : t; I state that the land and buildings bounded on theEast by Baptist Chapel Road, North by Baptist Chapel, South and Westby the Colombo Municipal Printing Office, are all Wakf property. Thepremises Nos. 18,16,16A, 16B, 10C, 12,10A and 10 Baptist Chapel Road,and building houses Nos. 14/2, 14/2A, 14/3, 14/4, 14/6, 14/7, 14/8 and14/9 Baptist Chapel Road, are all Wakf property.” He went on to giveinformation as to the leasing and occupation of these properties. After-wards on 30tli May 1959 the defendant Ishak was recalled and said thatthe properties other than No. 12 and No. 14 were not Wakf propertiesbut family trust properties. In answer to questions by the Commissionerhe admitted that he had given his evidence at the previous hearing withoutcompulsion and voluntarily but he said that he had not known themeaning of the word “ Wakf” and that he now understood its meaningand now said that the land on which the mosque and shrine stood was“ family trusts ” and there was no Wakf property. Evidence was givenby the defendant Rauoof also, and in the course of his evidencethe advocate for the trustees admitted that the letter of 26-10-58 ”(which is presumably to be identified with the letter of 26th October1957 mentioned above) was written to the Commissioner by the defendantIshak as Chief Trustee on behalf of himself and the other trustees, andthat the facts and the particulars given in that letter were true.
On 1st August 1959 the Board decided to call for applications for thepost of trustee. A notice inviting applications was issued, requiringapplications to be received by 13th August 1959. The notice stated that
LORD PEARSON—Ishak v. Thoxafesk
105
preference would be given to descendants in the male line of the late-Mamuna Pillai. On 15th August 1959 it was decided to call Messrs.A. H. G. Bhaila, M. I. Abdul Hassan, S. D. M. Makeen and I. L. M.Thowfeek (the plaintiff) for an interview on 22nd August 1959 and toacknowledge receipt of other applications and tell the applicants thattheir applications would be considered along with the others.
Then the decisions taken at the meeting of 22nd August 1959 arerecorded in the minutes as follows :—
“ The Board decided to register this Mosque and Shrine bounded asfollows :—East: Baptist Chapel Road, North : Baptist Chapel, Southand West: Colombo Municipal Printing Office. Messrs. A. H. G.Bhaila, S. D. M. Makeen and I. L. M. Thowfeek were interviewed.Mr. Abdul Hassan absented himself from the interview. The Boardthen considered the applications of these four persons and Messrs. N. M.Ishak, A.R.M. Rauff and C. B. Abdul Cader.. The Board is of opinionthat although the terms of the previous awards and the documentsrelating to this mosque indicate that preferably a descendant ordescendants of Mamuna Pillai should be trustees, such descendantsas were interested in applying for trusteeship are unsuitable forappointment. Therefore the Board decided to appoint Mr. I. L. M.Thowfeek as trustee till 31-12-59 in the first instance. The Boarddecided to request the Inspector-General of Police to give the trusteesall assistance and protection. All other applicants to be informed ofthe decision pertaining to the appointment of trustee. Messrs. Ishak,Rauff and Shahul Hameed are to be informed that all propertiesbelonging to this Mosque and Shrine should be handed over to thetrustee.”
On the same day, 22nd August 1959, the Board in pursuance of Clause13 of the Act caused the mosque to be registered in the Register ofMosques by the entry therein of the prescribed particulars relating to themosque. A certified extract from the Register of Mosques was producedat the trial of the action by the administrative assistant who gaveevidence for the plaintiff. The certified extract gave particulars relatingto this mosque showing the Dewatagaha Mosque and Shrine situated atNo. 14 and No. 12 Baptist Chapel Road, and the plaintiff as trustee andhis initial appointment up to 31st December 1959 in the first instanceand subsequent re-appointments. Under the heading “ Particulars ofmovable or immovable properties belonging to or appropriated to the useof the Mosque, Shrine, etc.” there were then entered “ all the immovableproperties ” within certain specified boundaries, and the properties wereeta ted to include certain specified buildings. The specified boundarieswere the same as those which had been stated in the evidence given bythe defendant Ishak to the Board on 16th May 1959 and in the Board’sminutes of 22nd August 1959. The specified properties were the same{substantially at any rate) as those listed in the particulars annexed to
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the defendant Ishak’s letter to the Commissioner dated 26th October1957 and in the evidence given by the defendant Ishak to the Board on16th May 1959.
On 5th September 1959 the plaintiff applied to the Board forpermission to sue the defendants for the recovery of the mosque andits properties, and the permission was granted. The properties set outin the schedule to the application were the same (or substantially thesame) as those previously mentioned.
Then on 19th October 1959 the plaintiff commenced his action, filinghis plaint. It is sufficient to say that in his plaint he relied on hisstatutory title. The defendants Ishak and Rauoof filed an answer dated29th February 1960. It is sufficient to say that they (relied on theirtitle by descent. The plaintiff’s witnesses in the action were theadministrative assistant, who has already been mentioned, and theplaintiff himself, who gave evidence that the defendants had not givenhim possession of the mosque or of the immovable properties belongingto the trust. No evidence was given on behalf of the defendants.As mentioned above, the District Court decided in favour of the plaintiffand the defendants* appeal to the Supreme Court was dismissed.
As has been stated, three points (or three main points) have beentaken on behalf of the appellants in this appeal :
It is said that there was no adequate proof of the appointment ofthe plaintiff as trustee of the mosque. When the administrative assistantwas giving evidence for the plaintiff at the trial of the action he purportedto produce as evidence a copy of a letter dated 27th August 1959sent by the Commissioner to the defendants informing them that theplaintiff had been appointed trustee and directing them to hand over allthe properties to the plaintiff. Defendants’ counsel objected to this copyletter being put in evidence because he had not been required by noticeto produce the original, and the objection was upheld. Accordingly thatletter could not be used as evidence. There was however ample otherevidence to show that the plaintiff was appointed as trustee ; there werethe Board’s minutes of the meeting on 22nd August 1959 and there wasthe certified extract from the Register of Mosques, and there was therecord of the Board on 5th September 1959 giving the plaintiff permissionto sue the defendants for recovery of the properties. There is a clearinference that the plaintiff was appointed as trustee.
It is said that if there was a purported appointment of the plaintiffas trustee, it was invalid as contrary to the provisions of Section 14, sub-section (1) of the Act. It is true that the subsection (which has been setout above) states in paragraphs (a), (6), (c) and (d) matters to which theBoard in selecting a person or persons as a trustee or trustees of a mosqueare to have regard, and that all or most of these matters would be infavour of appointing the defendants as trustees. This position, however,was clearly recognised by the Board at their meeting of 22nd August
LORD PEARSON— Ishak r. Thowjeck
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1959 recorded in their minutes. They decided nevertheless not toappoint the defendants as trustees because they were in the opinion ofthe Board unsuitable. Clearly that was a good reason if on the trueconstruction of the subsection the Board had a discretion. If there wereno discretion, a case could arise in which the Board would be bound toappoint as trustee of a mosque some person who was utterly unsuitablein all respects. A construction of the subsection leading to that resultwould be unreasonable and contrary to the public interest, and shouldtherefore be rejected if the other construction allowing the Board to havea discretion is tenable according to the language of the subsection. Infact this other construction is not only tenable but indicated by thelanguage of the subsection. If the intention had been to make the fourmatters stated in paragraphs (a), (5), (c) and (d) conclusive, or the onlyadmissible factors, that would have been provided. The requirementsthat the Board shall “ ha ve regard " to certain matters tends in itself toshow that the Board’s duty in respect of these matters is limited tohaving regard to them. They must take them into account and considerthem and give due weight to them, but they have an ultimate discretionand are not bound to select a person or persons whom they considerunsuitable. Their Lordships agree with the view expressed by thelearned District Judge, who said "In my opinion, Section 14 clearlygives the Board of Trustees a discretion as to who should be appointed atrustee, and for their guidance in the exercise of that discretion thereare laid down subparagraphs (a), (6), (c) and (d) of Section 14 (1) whichare matters they would take into consideration in making the appoint-ment. I am quite unable to hold that they have not taken these mattersinto consideration in making the appointment."
It is said that the District Court should not have decided that theimmovable properties which have been mentioned above-belonged to theWakf or trust of the mosque. It is true that the defendant Ishak ingiving evidence to the Board on 30th May 1959 said that the propertiesother than Nos. 12 and 14 Baptist Chapel Road belonged not to the Wakfbut to a family trust. But there was strong evidence on the other side.The defendant Ishak Lad said in his earlier evidence to the Board on16fch May 1959 that all the properties belonged to the Wakf. Also it ,would be inferred from the defendant Ishak’s letter of 26th October 1957(the application for registration of the mosque) and the particularsannexed to it that all the properties belonged to the Wakf. The Boardaccepted this evidence, deciding that all the properties were included inthe Wakf, and plainly the District Court was entitled to take the sameview and reach the same conclusion.
The appeal fails on all the points. Their Lordships will humbly adviseHer Majesty that the appeal should be dismissed. As neither of therespondents took any part in the appeal there will be no order as-to costs.
Appeal dismissed.