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TMI Blog1939 (9) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... mosque and contributing to its upkeep. There is no deed of foundation prescribing any rules for the management of the affairs of the mosque or for the appointment of a muthavalli or any servant of the mosque. From a document of 1863 (Ex. VII), it is evident that there was a muthavalli to the mosque and he was one Kasim Ali who was maternal grandfather of the defendant. Kasim Ali appears to have died in 1888. The defendant states that a year before his death the said Kasim Ali executed a will (Ex. I) in favour of the defendant in and by which he appointed the defendant as the muthavalli and on the death of Kasim Ali in pursuance of the will the defendant succeeded to the office of muthavalli and was functioning as such. It appears from the evidence that Kasim Ali was the Pesh Imam of the mosque and on his death the defendant continued to be the Pesh Imam and was doing the duties as such till the date of suit. The genuineness of Ex. I is challenged by the plaintiff. The learned City Civil Judge did not record any finding in regard to it but in a later suit between the parties it was found not to be genuine. It is no doubt a document more than thirty years old, but there are certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was formed and registered under the name and style of Masjiday Mahmood Jamait Managing Committee with twelve members, the defendant being one of them. It was registered on 2nd December, 1918. The memorandum of association is marked as Ex. A-2 in the case and the rules and bye-laws as Ex. A-3., It is clear from them that one of the main objects of the association was to conduct the affairs of the mosque by collecting subscriptions, pay the salaries of the servants and incur expenses for the upkeep of the mosque and do everything which a manager of a mosque is required to do. From the date of the incorporation down to the date of the suit the said society was in undisputed management of the affairs of the mosque and the defendant ceased to function as muthavalli. It was the society that was collecting subscriptions, paying salaries of the Pesh Imam, Muzzein Sahib and the sweeper and directing the performance of the services in the mosque and paying taxes, effecting repairs and generally doing everything which a manager or a muthavalli of a mosque would do. The defendant was only acting as a Pesh Imam under directions given by the society from time to time and he or his son was for so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of six years from 1918 his rights as muthavalli, if any, were lost, that he accepted the subordinate position of a servant under the mosque while continuing to be a member of the Committee and that he is estopped from; questioning the right of the plaintiff to manage the mosque. On the evidence the learned City Civil Judge came to the conclusion that the plaintiff society was properly registered under Act XXI of 1860, that the defendant lost his rights as muthavalli and that the plaintiff would therefore be entitled to the injunction prayed for. 2. The main ground on which Mr. Rajah Aiyar the counsel for the defendant-appellant assailed the decision of the learned City Civil Judge is that the plaintiff society is not competent to sue for or claim the relief sought in the plaint. He formulated his contention thus : (1) the society was a religious society and therefore incapable of incorporation under the Societies Registration Act as only charitable societies could be incorporated thereunder; and (2) even if the society was a validly incorporated society it could not acquire by prescription the office of muthavalli, as the right of a muthavalli is a personal right which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place of public worship would be a charitable purpose and a society formed for such a purpose would be a charitable society. According to that law therefore a religious society would be a charitable society, the only condition required was that it should be for the benefit of the public. Most of the enactments relating to that period were framed by4 English lawyers well conversant with English law. The Indian enactments which related to the charitable and religious endowments before 1860 were the Bengal, Bombay and Madras Regulations, the Madras Regulation being Regulation VII of 1817. In the heading of the Madras Regulation, the language used is for the support of the mosques, Hindu temples and colleges or other public purposes and in the preamble for the support of mosques, Hindu temples, colleges and choultries, and for other, pious and beneficial purposes. It will be seen from the context that the words 'public' and 'pious' were meant to connote both religious and charitable institutions. In.1817 according to the law of England public purposes connoted charitable purposes including religious purposes and the word 'pious' was not confined purely to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s purposes. The society concerns itself only with the management of the secular affairs of the institution. So far s religious services are concerned which only consist in the recitation of prayers in the mosque, they are done through the Pesh Inam who is paid a salary. What the society does' is what exactly a muthavalli could have done and a muthavalli is only concerned, with the management of the secular affairs of the mosque. The society itself does not concern itself with the performance of prayers. There can therefore be no doubt that the paramount object of the society is charitable and therefore the fact that one of the purposes is the management of the affairs of the mosque cannot take away from it the character of the society as a charitable society., We are therefore of the opinion that the plaintiff's society is a charitable society within the meaning of the Act and the registration thereunder is perfectly legal and valid. 4. In regard to the second point that the plaintiff's society has not acquired right of management we are equally of the opinion that it is also untenable. A muthavalli according to Mahomedaa Law is only a manager or a superintendent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that removal. It seems to us that the principle underlying this rule is that a power is vested in the Committee to co-opt members who are liable to be removed, no matter for what cause; it may be death. In fact from time to time vacancies were filled up and the Registrar of the Joint Stock Societies was informed of the change in the membership. The defendant himself was a party to several resolutions filling up vacancies in case of death. We must presume that it was done in pursuance of the power conferred on the Committee by Rule 6. We must therefore overrule this contention also. 7. Lastly it was urged that the understanding come to when the society was formed was that equal numbers of Shafts and Hanafis should be members of the Committee but now the Shafi clement preponderates and dissensions have arisen which if allowed to continue would be the ruin of the society and it was contended that there is no provision in the rules as to what should be done in case of dissensions and how the matter should be regulated. All these are matters with which we have no concern. They may be properly agitated before the learned Judge who would be trying the suit which has been filed under S ..... 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