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Judgment
Wadsworth, J.—This appeal arises out of a suit brought by respondent 1 for an injunction restraining the defendants (appellants) from
interfering with him in performing his services as peish imam in the Masjiday Mohmood, Pudupet, Madras. He also prayed for damages. The suit
was docreed and the defendants appeal. We are this day passing judgment in a connected appeal (C.C.C. A. No. 36 of 1935) from a suit brought
by the present defendants against the present plaintiff for an injunction restraining him from interfering with the defendants'' management of the same
mosque and from collecting subscriptions in the guise of mutwalli of that mosque. It is alleged that the Pudupet mosque was founded by one
Ghulam Mohammad in 1849 and has been financed from its inception by public subscriptions. It was founded to serve the needs of the
Mahomedans living in the neighbourhood of Pudupet. The first mutwalli was the maternal grandfather of the plaintiff. The plaintiff bases his title to
the offices of both of mutwalli and peish imam on what is called a towliatnama (EX. 1) of the year 1887 in which the plaintiff''s grandfather purports
to assign to the plaintiff the offices of mutwalli and peish imam. The instrument purports to be attested by Ghulam Mohammad, the original founder
of the mosque. The lower Court has given various reasons for rejecting this document as a forgery. Besides those reasons set forth by the learned
Judge, there are two circumstances which in our opinion go to confirm this conclusion. One is the improbability that Ghulam Mohammad who
founded this mosque in 1849 would have been alive in 1887. There is of course no evidence of his death, but ordinarily the founder of a mosque
would be a man of some standing in the community and it is unlikely that in 1849 he was very young. Even if he was in early middle age, it is hardly
probable that he would have been alive 38 years later. The more decisive circumstance is the fact that the plaintiff at the time of this towliatnama
appears to have been only about 12 years old and it is not very probable that the offices of mutwalli and peish imam would have been conferred
upon an immature boy. The probability therefore seems to be that this document is not genuine.
In our opinion however this does not seriously affect the plaintiff''s case, for it is common ground that the plaintiff did exercise the functions of
mutwalli and peish imam of this mosque without challenge to his title for very many years upto the year 1918, when the leading members of the
congregation including the plaintiff himself formed themselves into a registered society for the purpose of managing the affairs of the mosque and
raising subscriptions to finance it. It is indubitable that this society known as the Masjiday Mohamood Jamait Managing Committee was in control
of the business affairs of the mosque from 1918 until the quarrels started in 1932. During this period it appears that the office of mutwalli was
treated as having lapsed, the function of the mutwalli being performed by the committee. The plaintiff, though he ceased to describe himself as the
mutwalli and ceased to exercise the functions of that office, continued to be one of the two peish imams of the mosque and in that capacity he was
paid a salary by the committee. He also functioned for a considerable period as the assistant secretary of the committee and received additional
emoluments for that office. In 1932 quarrels began and the plaintiff resigned from the committee and repudiated its authority. He also attempted to
revive the office of mutwalli which he had not in fact exercised for a period of about 14 years. In the connected appeal we have held that the
Jamait Committee, whatever be the defects of its original constitution, has prescribed for the right to manage the secular affairs of the mosque and
to perform those functions which had hitherto been performed by the mutwalli and that it is not open to the present plaintiff to revive the lapsed
office of mutwalli by virtue of which he claims the right of exercising those functions which have in effect been established as the legitimate functions
of the Jamait Committee.
It is contended for the appellants in the present appeal that once their committee is recognized as the legitimate successor of the mutwalli with his
powers of control over the mosque and its servants, it follows that the committee has the right to dismiss the plaintiff from his office of peish imam
of the mosque; and that the plaintiff having repudiated the authority of his master, there can be no question as to the propriety of his dismissal. It
seems to us that this argument overlooks the weakness of the position of the committee based as it is on prescription. It does not appear that any
powers were conferred upon the committee at its inception otherwise than by the general consent of the congregation of the mosque including the
plaintiff himself. The nature of the objects with which this committee started its work can be ascertained from its memorandum of association. Quite
clearly it was intended firstly to collect subscriptions for the maintenance of the mosque and secondly to pay the expenses of the committee and of
the mosque and utilise any balance for religious, educational and charitable purposes connected with the mosque and for the creation of
endowments for the mosque. The rules purport to carry out these objects, but do not expressly confer upon the committee any disciplinary
powers. The proceedings of the committee throughout the following years indicate that the committee has exercised a general control over the
servants of the mosque including the two peish imams, has required that they should not absent themselves without leave, has reproved them for
un-punctuality and has paid the wages and when subscriptions were insufficient to meet the wages has decided on the proportionate reductions.
There is a record of the removal from service of an acting muazzin, but even that is not clearly shown to have been a disciplinary act. Taking the
history of this period as shown in the records, it must be conceded that there is no instance of an assertion by the committee of a right to punish the
peish imam, though there are instances of the exercise of a general supervision over him along with other servants.
It is contended that if the committee has power to supervise and control, it must necessarily have a power of dismissal in case its authority is
flouted. It is doubtful whether this proposition is sound. The peish imam was certainly not appointed by this committee. Whatever be the origin of
the plaintiff''s appointment, he had certainly been in unquestioned enjoyment of the office of peish imam for very many years before the committee
came into being. Although the committee took over the functions hitherto exercised by the mutwalli, it never described itself as a mutwalli of the
mosque and there are obvious difficulties in asserting that the surrender by the plaintiff himself of the functions of mutwalli to the committee
automatically invested this committee with the power of dismissal of the peish imam. Doubtless it is customary in many mosques for the mutwalli to
exercise full disciplinary powers over the servants of the mosque. But this power cannot have vested in the mutwalli of the suit mosque, for the
mutwalli was himself the peish imam and it is absured to contemplate the exercise of the power of dismissal by the individual who is himself liable to
be dismissed. It seems therefore necessary to postulate that at the time when the plaintiff was the mutwalli, the disciplinary control over him in his
capacity of peish imam must ultimately have resided elsewhere, whether in the congregation as a-whole or in the descendants of the founder or in
the Court as representing the Kazi. The natural conclusion therefore is that the surrender by the plaintiff of his functions as mutwalli to the
committee cannot have invested that committee with a power of dismissal over the plaintiff, which he as mutwalli could not have exercised.
Ameer Ali in his Mahomedan Law (Bdn. 4, p. 105) states that in the absence of a mutwalli the power of nomination and appointment of an
imam to a mosque is given to the wakif''s descendants and the members of his family preferentially to others. At p. 467 it is suggested that if the
person appointed by the wakif is incompetent or unfit, the congregation have a right to select a more fit person but with the proviso that an
application will have to be made to the Kazi for the removal of the incompetent servant and the appointment of the person selected by the
congregation. Now, in this case though the committee has doubtless for many years functioned with the consent and approval of the congregation,
it is not constitutionally a representative body acting for the congregation, but an independent self-constituted society owing no formal allegiance to
any general body. It cannot therefore have any disciplinary powers over the staff of the mosque by the force of Mahomedan law. Any powers
which it has must have been acquired by prescription or by grant. There is no evidence of any valid grant of powers to this committee. The extent
of its powers must therefore be governed by the extent to which it has established those powers by the exercise of thorn during the 14 years during
which those powers were unquestioned. There having been no acquisition during this period of a power to dismiss a peish imam of the mosque, the
necessary conclusion is that the committee is not clothed with such a power.
It is contended that the absence of such a power will make the proper control of the mosque impossible. The answer to that contention is that
there is now pending a suit for framing a scheme for the proper control of the mosque in which any defects in the system whereunder it is
administered can be put right. For the present we are only concerned with the powers of the parties as they stood at the time when these disputes
began. Our conclusion must be that the plaintiff was in lawful possession of the office of peish imam and was entitled to perform its functions and
receive its emoluments and that the defendants were not clothed with any authority to remove him from that office. It follows therefore that the
dismissal of the plaintiff was without authority and that the plaintiff is entitled to the injunction which he seeks. It is represented that the plaintiff does
not press for the nominal damages of Rs. 25 awarded by the trial Court. The decree will therefore be modified by the exclusion of the relief of
damages. In other respects the appeal is dismissed with costs. We desire to observe that this judgment in no way affects the relation between the
committee and the other peish imam who is not a party.