The A.P. State Wakf Board Hyderabad Vs. All India Shia Conference (Branch) A.P. & Ors.
EmailAppeal: Civil Appeal No. 1805 of 1989
(From the Judgment and Order dated 15.3.88 of the Andhra Pradesh High Court in C.C.C.A.No.41 of 1980)
(From the Judgment and Order dated 15.3.88 of the Andhra Pradesh High Court in C.C.C.A.No.41 of 1980)
Petitioner: The A.P. State Wakf Board Hyderabad
Respondent: All India Shia Conference (Branch) A.P. & Ors.
Apeal: Civil Appeal No. 1805 of 1989
(From the Judgment and Order dated 15.3.88 of the Andhra Pradesh High Court in C.C.C.A.No.41 of 1980)
(From the Judgment and Order dated 15.3.88 of the Andhra Pradesh High Court in C.C.C.A.No.41 of 1980)
Judges: M. JAGANNADHA RAO & Y.K. SABHARWAL, JJ.
Date of Judgment: Mar 02, 2000
Appearances:
Mr. A.K. Sen, Mr. F.S. Nariman, Mr. P.A Choudhary, Mr. M.S. Ga-nesh, Senior Advocates, Mr. Syed Ali Ahmad, Mr. Mohan Pandey, Mr. A.D.N. Rao, Mr. A.Subba Rao, Mr. T.V.S.N.Chari, Ms. A.Subhashini, Mr. B.Sridhar, Mr. K. Ram Kumar, Mr. Syed Tanweer Ahmad, Mr. M.M. Ali, Mr. Y.S. Rao, Mr. A.T. Rao, Advocates with them for the appearing parties.
Head Note:
WAKFS LAW
Muslim Wakfs Act 1954
Section 56 – Code of Civil Procedure 1908, Order 41, Rules 25,27 and 28 – Wakfs – Distinction between Shia and Sunni Wakfs – Commissioner of endowments notifying certain institutions like ‘Asthanas’ ‘Imambadas’, ‘Ashrukhanas’ and ‘Alams’ as Sunni Wakfs – Suit by All India Shia Conference for declaration that such institutions are Shia Wakfs – State Wakf Board however maintain-ing the description of these as Sunni Wakfs as correct – High Court decreeing the suit and holding the institutions to be Shia Wakfs – Validity. Held in the absence of evidence straightaway it cannot be declared that such institutions was Shia Wakfs. Since no evidence was adduced by either party before trial court matter remanded to High Court with direction to receive additional evidence through Add. Distt. Judges or Sub-Judges of two named Districts and then decide the matter in the light of evidence.
Muslim Wakfs Act 1954
Section 56 – Code of Civil Procedure 1908, Order 41, Rules 25,27 and 28 – Wakfs – Distinction between Shia and Sunni Wakfs – Commissioner of endowments notifying certain institutions like ‘Asthanas’ ‘Imambadas’, ‘Ashrukhanas’ and ‘Alams’ as Sunni Wakfs – Suit by All India Shia Conference for declaration that such institutions are Shia Wakfs – State Wakf Board however maintain-ing the description of these as Sunni Wakfs as correct – High Court decreeing the suit and holding the institutions to be Shia Wakfs – Validity. Held in the absence of evidence straightaway it cannot be declared that such institutions was Shia Wakfs. Since no evidence was adduced by either party before trial court matter remanded to High Court with direction to receive additional evidence through Add. Distt. Judges or Sub-Judges of two named Districts and then decide the matter in the light of evidence.
Held:
It appears on a reading of the various passages from the above books that, generally, such institutions known by the above said names are Shia Wakfs, but it is not an absolute rule. There are creation exceptional cases where such institutions are also established by Sunni Sect and can be Sunni wakfs. On a reading of the passages from the above said books, the highest that can be said in favour of the plaintiffs – respondents is that, generally such institutions can be Shia wakfs, though it is possible that some of them can also be Sunni wakfs. But we are of the view that, on the basis of the above proposition, it cannot be straight away declared that every institutions known as ‘Asthanas, Imambadas, Ahrukhanas or Alam’ is a Shia wakf and that it cannot be a Sunni wakf. Whether any particular institution even if it is known by the above names, is prima facie a Shia wakf or not is a matter upon which it will be necessary to lead evidence in relation to each one of the institutions. (Para 14)
We are of the view that instead of dismissing the suit, the justice of the case requires that the parties are to be given an opportunity to produce evidence so as to enable this Court to render a satisfactory judgment on the issue as to whether these institutions are Shia Wakfs or Sunni Wakf. In this context, the decision of this Court in K. Venkaramaiah v. A. Seetha Rama Reddy & Ors. (AIR 1963 SC 1526) is apposite. In that case, this Court observed that under Order 41, Rule 27(1) (b) of the C.P.C., whenever Court felt difficulty in deciding an issue, the Court could direct additional evidence to be adduced, treating the need for evidence as ‘a requirement of the Court’ for pronouncing a satisfactory Judgment. It would be “other substantial cause” in Order 41, Rule 27(1)(b). (Para 17)
The High Court is requested to pass an order under Order 41, Rule 28 C.P.C. directing the District Judges in each of these Districts of Krishna and Guntur, either by themselves or by transferring the matter to one of the Additional District Judges or Sub Judges in the respective Districts, to receive additional evidence oral or documentary, to be adduced by the plaintiffs and defendants on the questions whether each of the institutions represented by the defendant Nos. 3 to 52 is a Shia Wakf or Sunni Wakf. Ini-tially, the High Court may therefore call for this evidence from the concerned District Judge leaving it open to the District Judges to allocate this work to one of their Additional District Judges or to a Sub Judge in the respective District, as the case may be. It will be for the said Judges to whom the above function is allocated to receive the additional evidence as stated above and after receipt of such evidence, to forward the evidence so received to the High Court for use in the City Civil Court Appeal above mentioned. (Para 21)
After receipt of the evidence from the said Court, the High Court is requested to dispose of the appeal in the light of the evidence already recorded and also such evidence as may be sent by the said Courts in the respective Districts, as stated above. (Para 22)
Cases Reffered:
1. K. Venkaramaiah v. A. Seetha Rama Reddy & Ors. (AIR 1963 SC 1526)
JUDGEMENT:
1. Delay condoned.
2. Application for substitution is allowed.
3. This appeal is preferred by the Andhra Pradesh Wakf Board against the judgment of the High Court of Andhra Pradesh in CCC Appeal No. 41 of 1980, dated 15.3.1988. By that judgment, a Division Bench of the High Court of Andhra Pradesh confirmed the declaration granted by the Third Additional Judge, City Civil Court, Secunderabad, in O.S. No. 96 of 1963, on 31st August, 1979. The suit O.S.No. 96 of 1963, in which the declaration was granted by the said Civil Court was decreed in favour of the three plaintiffs, the first plaintiff being the All India Shia Conference (Branch) Andhra Pradesh, the second plaintiff being Syed Hassan Pasha and the third plaintiff, being Askar Nawaz Jung, being the President of All India Shia Conference. In the suit, the State of Andhra Pradesh and the Andhra Pradesh Muslim Wakf Board were impleaded as defendant Nos. 1 and 2. But subse-quently, at the instance of the Wakf Board, defendant Nos. 3 to 52 were impleaded as defendants.
4. The suit was filed by the plaintiffs (respondents in this appeal) for a declaration that all the institutions going by the name ‘Panjas, Alams, Ashrukhana Asthanas and Imambadas are Shia Wakfs and that the necessary corrections be directed to be made in the concerned notifications and Registers of Endowments by showing the above said institutions as Shia Wakfs. Lists of endowed property from time to time are published in the Gazette. Such a list, was published in the Gazette on 28.6.1962. It was averred that while preparing the said list, the Commissioner of Endowments had described some of the above said Shia Wakfs as Sunni Wakfs. It is the case
of the plaintiffs that all Panjas,
Alams, Ashthanas, Ashrukhanas and Imambadas were wrongly classi-fied as Sunni Wakf instead of Shia Wakf in the list published by the Andhra Pradesh Wakf Board. They cannot be Shia in origin inasmuch as they are connected with Muharram celebrations and pertain exclusively to Shia faith. It is pleaded that the Sunni section of the Muslim does not use these institutions nor are they
interested in the same. The Alams, Panjas, Ashthanas, Ash-rukhanas and Imambadas have some of the important features of Shia Sect distinguishing them from the Sunni Wakfs. The Notifica-tions also referred to celebrations on Muharram, which is a function exclusively connected with the Shias. The suit was preceded by a notice under Section 56 of the Muslim Wakfs Act. It is stated that the defendants are likely to repeat mistakes in future Notifications and that the plaintiffs are interested in having rectification made in the Notifications and the Register of Wakfs be modified by showing the above said institutions as Shia Wakfs and not Sunni Wakfs.
5. A written statement was filed by the Wakf Board denying the plaint allegations and contending that the Notifications showing these institutions as Sunni Wakfs was correct and did not require any modification. It was also contended that Panjas, Alams, Ash-rukhanas or Imambadas do not exclusively pertain to Shias nor were they exclusively connected with the Muharram festival ob-served by Muslims. Sunnis also observe Muharram in their own way and these institutions were rightly endowed as Sunni Wakfs in the Gazette Notifications dated 19.4.1962 and 28.6.1962.
6. In the suit, the learned Government Pleader appeared for the State and another counsel represented the 2nd defendant, the Muslim Wakf Board. The mutawallies representing defendant Nos. 3 to 52 remained exparte, except defendant Nos. 36 and 41. There-fore, only defendant Nos. 36 and 41 were represented by counsel and therefore the rest of the defendants were set exparte.
7. Defendant No. 36 in his written statement stated that the defendant had filed a suit as O.S.No. 218 of 1963 on the file of the District Magistrate’s Court, Tenali for a declaration that the properties were absolute properties of defendant No. 36 and that the suit was decreed on 24.12.1964. The said judgment became final and the suit may be dismissed against him.
8. The 41st defendant contended that the plaintiffs’ contention regarding certain institutions being Shia Wakfs are not correct. These institutions are Sunni in origin and Sunni Muslims also observe Muharram. The institutions, Ashrukhanas, Alams, Asthanas and Imambadas are endowed by the generous Sunnis and they are managed by Sunnis. The Ashrukhana Takikonda of Guntur District is a Sunni Wakf which is endowed by ancestors of the present manag-ers who have been performing Muharram with great zeal.
9. On these pleadings, the trial Judge framed the following issues.
(1) Whether the plaintiffs are entitled to the declaration and correctness as prayed for?
(2) Whether the said institutions are of significance to both Sunnis and Shias and whether they are not places of worship fre-quented by Shias as alleged by defendant No.2 in para 9 of Writ-ten Statement ?
(3) Whether the classification of the aid institution as Sunnis Wakf does not
affect the interest of the Shia community ?
(4) Whether the suit is bad on account of misjoinder of cause of action ?
(5) Whether the suit is barred by limitation ?
(6) Whether the notices dated 27.6.63 under Section 56 of the Muslim Wakfs Act is defective as alleged in para 8 of the Written Statement of defendant No. 2 ?
(7) Whether defendant No.2 is entitled to any separate notice under Section 80 of the C.P.C. ?
(8) Whether the suit is not properly
valued and the court fee paid is insufficient ?
(9) To what reliefs the plaintiffs are entitled ?
(10) Whether the institutions known as Ashrukhana Imambadas, Asthanas, Panjas, Alams where Muharram ceremonies are performed are governed by Sunni Law or Shia Law ?
10. The plaintiffs examined five witnesses and marked Exts. A1 to A6 while the defendants examined 5 witnesses and marked Exts. B1 to B5. Except P.W. 2 who belonged to Machilipatnam, it appears that the other plaintiffs did not belong to any of these Villages in Krishna or Guntur Districts where these institutions were located. The position on the side of the defendants does not appear to be any different.
11. The trial court’s finding on issue No. 1 was that the plain-tiffs were entitled to a declaration and correction as prayed for; on issue No. 2, it was held that the institutions were of significance especially to Shias even though Sunnis also frequent them; on issue No.3 , it was held that the classification made already affected the interests of the Shia community, on addi-tional issue framed on 2.8.1979, it was held that the institu-tions known as ‘Ashrukhanas, Imambadas, Asthanas, Panjas and Alams’, where Muharram ceremonies were performed were governed only by Shia law and on issue No.5 it was held that no finding was necessary. On issue Nos. 4 & 8, it held that there was no misjoinder of causes of action and that the suit was properly valued. On issue Nos. 6 & 7, it was held that notice under Sec-tion 56 was not defective and on issue No. 7 that there was proper notice under Section 80 C.P.C. A final declaration was given under issue No. 9 in para 21 as follows:
“For the various reasons set out in my discussion, the suit is decreed in favour of the plaintiffs granting the declaration to the effect that all the Imambadas, Ashrukhanas, Asthanas, Alams and Panjas are Shia wakfs in this State and they must be classi-fied as such. Secondly, the registers should also be modified or altered to show the correct classification in pursuance of this declaration. This suit is dismissed against D-42 Merman Hussain, who seems to have died eight years earlier to 1977, on his be-half. The suit also is dismissed against D-36 since the Plaintiff did not adduce any separate evidence to show that the properties claimed by D-36 are not his personal properties. Considering the prolonged period for which this suit remained pending, and also having regard to have this litigation, I consider the ends of justice would be met with by directing the parties to bear their own costs”.
The said Judgment was affirmed by the Division Bench of the High Court.
12. Aggrieved by the said judgment of the Division Bench, the Andhra Pradesh Wakf Board filed this appeal in this Court in the year 1989. In this appeal, we have heard learned senior counsel for the appellants Mr. M.S. Ganesh and learned counsel for the respondent Sri. A. Subba Rao. We have also heard learned counsel for the State of Andhra Pradesh. Other respondents in the appeal have not appeared before us.
13. It may not be necessary to go into the matter in detail in view of the order we propose to make in this appeal. The general principles as applicable to Shia and Sunni Wakfs are set out in the Judgment of the Division Bench of the High Court and refer-ence has been made to various standard works on the subject, such as ‘Mohammedan Law’ by Amir Ali, ‘ Principles of Mohamedan Law’ by Mulla, Muslim Law of India” by Dr. Tahir Mohmood, ‘Outlines of Mohammedan Law” by A.A. Fyzee ‘The People of Mosque’ by L. Bevan Jones, P.R. Ramanatha Aiyar’s ‘The Law Lexi-con’ and also a book entitled ‘Muharram in Hyderabad City’ pub-lished by Director of Census Operations, Andhra Pradesh.
14. It appears on a reading of the various passages from the above books that, generally, such institutions known by the above said names are Shia Wakfs, but it is not an absolute rule. There are certain exceptional cases where such institutions are also established by Sunni Sect and can be Sunni wakfs. On a reading of the passages from the above said books, the highest that can be said in favour of the plaintiffs – respondents is that, generally such institutions can be Shia wakfs, though it is possible that some of them can also be Sunni wakfs. But we are of the view that, on the basis of the above proposition, it cannot be straight away declared that every institutions known as ‘Asthanas, Imambadas, Ahrukhanas or Alam’ is a Shia wakf and that it cannot be a Sunni wakf. Whether any particular institution even if it is known by the above names, is prima facie a Shia wakf or not is a matter upon which it will be necessary to lead evidence in relation to each one of the institutions.
15. The curious position on the facts of this case is that as per the survey made by the Wakf Board the various institutions were notified as Sunni wakfs. The persons whom the Wakf Board, the 1st defendant impleaded as other defendants were the various Mutawal-lies representing the other Wakfs. Except two of these Mutawal-lies, all others chose not to contest the suit filed by the plaintiffs. This appears to be mainly because the plaintiff had not sought removal of any of the Mutawallies. Most of them might perhaps be governed by the law of succession. As long as their position was not disturbed, they were not inclined to contest the case in the trial court, Appellate Court or in this Court. It did not matter very much for them whether it was to be declared as Shia wakf or a Sunni wakf as long as their position remained secure. Neither the plaintiff nor the Wakf Board made any effort in the trial court to produce evidence relating to each of the Wakfs in these two Districts of Krishna and Guntur.
16. Learned senior counsel for the appellant Sri Ganesh contended that on the evidence of the plaintiffs and the law as stated in these various texts, the trial court and the High Court could not have given a declaration that all such institutions known by the above names should be declare to be Shia wakfs. Learned counsel pointed out that the evidence in regard to individual institu-tions had to be produced. On the other hand, learned counsel for the plaintiffs – respondents tried to sustain the declaration granted by the trial court and the High Court. As stated earli-er, we are not inclined to give a vague and general declaration that these institutions would have a prima facie status as Shia Wakfs, though some of them could also be Sunni Wakfs in excep-tional case. Inasmuch as such a declaration cannot be granted on the basis of the evidence led, the plaintiff has to adduce satis-factory evidence in relation to each of these institutions cov-ered by the Notifications. In the above situation, it has not become possible to give any positive finding one way or the other and we have found difficulty in giving a satisfactory finding as to whether these defendant institutions are governed by Shia law or Sunni law. The question then is, what is the procedure to be followed in such a situation, particularly in the light of the fact that the suit had been filed in the year 1963 ?
17. We are of the view that instead of dismissing the suit, the justice of the case requires that the parties are to be given an opportunity to produce evidence so as to enable this Court to render a satisfactory judgment on the issue as to whether these institutions are Shia Wakfs or Sunni Wakf. In this context, the decision of this Court in K. Venkaramaiah v. A. Seetha Rama Reddy & Ors. (AIR 1963 SC 1526) is apposite. In that case, this Court observed that under Order 41, Rule 27(1) (b) of the C.P.C., whenever Court felt difficulty in deciding an issue, the Court could direct additional evidence to be adduced, treating the need for evidence as ‘a requirement of the Court’ for pronouncing a satisfactory Judgment. It would be “other substantial cause” in Order 41, Rule 27(1)(b). This Court in that judgment observed as follows;
“In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admis-sion of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy’s age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence “to enable it to pronounce judgment”. The requirement it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evi-dence to find out whether we would have required such additional evidence to enable “us” to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it require such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”, there may well be cases where even though the court finds that it requires additional evidence” to enable it to pronounce judgment”, it still considers that in the interest of justice something which can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing addi-tional evidence “for any other substantial cause” under Rule 27(1) (b) of the Code”.
Such requirement of the court is not likely to arise ordinarily unless some inherent lacuna or defect become apparent on an examination of the evidence. It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands”.
18. The further question then is whether we should remit the matter to the High Court or to the City Civil Court, Secunderabad by setting aside both the judgments which proceeded on the same line of reasoning. Inasmuch as the suit is of the Year 1963, we are not inclined to send back the matter to the trial court, but we would send back the matter to the High Court for a fresh deci-sion in the matter after receiving further evidence as stated above.
19. But then inasmuch as the various defendants institutions are located in the Krishana and Guntur Districts of Andhra pradesh, we do not think that this is a fit case where the City Civil Court in Andhra Pradesh should be directed to receive evidence and give its finding under Order 41, Rule 25 C.P.C. to be sent up
to the High Court. Instead, we think that one of the Sub Judges of Machilipatnam and similarly one of the Sub Judges in the Guntur District or one of the Additional District Judges in Guntur & Krishna could receive the evidence in this case under the provisions of Order 41, Rule 28 C.P.C. The provision reads as follows:
“Order 41, Rule 28: Mode of taking evidence: wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other Subordinate Court, to take such evidence and to send it when taken to the Appellate Court.
The above rule permits the appellate Court to direct the trial court or any Subordinate Court to record evidence and send up the evidence to the Appellate Court.
20. Thus it is open to the High Court, being the Appellate Court to call for additional evidence from the City Civil Court, Secun-derabad which decided the suit or call for such evidence from any other Court subordinate to the High Court. The said Court can submit the same to the High Court for the purpose of the decision on the issue in the CCCA No. 41/1980, in the High Court.
21. We, therefore, set aside the impugned judgment of the High Court and remit the matter to the High Court for fresh decision on the question as to whether each of the defendant – institu-tions was Sunni Wakf or Shia Wakf. For the aforesaid purpose the High Court is requested to pass an order under Order 41, Rule 28 C.P.C. directing the District Judges in each of these Districts of Krishna and Guntur, either by themselves or by transferring the matter to one of the Additional District Judges or Sub Judges in the respective Districts, to receive additional evidence oral or documentary, to be adduced by the plaintiffs and defendants on the questions whether each of the institutions represented by the defendant Nos. 3 to 52 is a Shia Wakf or Sunni Wakf. Ini-tially, the High Court may therefore call for this evidence from the concerned District Judge leaving it open to the District Judges to allocate this work to one of their Additional District Judges or to a Sub Judges in the respective District, as the case may be. It will be for the said Judges to whom the above function is allocated to receive the additional evidence as stated above and after receipt of such evidence, to forward the evidence so received to the High Court for use in the City Civil Court Appeal above mentioned.
22. We hope that the above exercise will be completed as early as possible. After receipt of the evidence from the said Court, the High Court is requested to dispose of the appeal in the light of the evidence already recorded and also such evidence as may be sent by the said Courts in the respective Districts, as stated above.
23. The appeal is allowed and the matter is remitted to the High Court as stated above. There shall be no order as to costs.
2. Application for substitution is allowed.
3. This appeal is preferred by the Andhra Pradesh Wakf Board against the judgment of the High Court of Andhra Pradesh in CCC Appeal No. 41 of 1980, dated 15.3.1988. By that judgment, a Division Bench of the High Court of Andhra Pradesh confirmed the declaration granted by the Third Additional Judge, City Civil Court, Secunderabad, in O.S. No. 96 of 1963, on 31st August, 1979. The suit O.S.No. 96 of 1963, in which the declaration was granted by the said Civil Court was decreed in favour of the three plaintiffs, the first plaintiff being the All India Shia Conference (Branch) Andhra Pradesh, the second plaintiff being Syed Hassan Pasha and the third plaintiff, being Askar Nawaz Jung, being the President of All India Shia Conference. In the suit, the State of Andhra Pradesh and the Andhra Pradesh Muslim Wakf Board were impleaded as defendant Nos. 1 and 2. But subse-quently, at the instance of the Wakf Board, defendant Nos. 3 to 52 were impleaded as defendants.
4. The suit was filed by the plaintiffs (respondents in this appeal) for a declaration that all the institutions going by the name ‘Panjas, Alams, Ashrukhana Asthanas and Imambadas are Shia Wakfs and that the necessary corrections be directed to be made in the concerned notifications and Registers of Endowments by showing the above said institutions as Shia Wakfs. Lists of endowed property from time to time are published in the Gazette. Such a list, was published in the Gazette on 28.6.1962. It was averred that while preparing the said list, the Commissioner of Endowments had described some of the above said Shia Wakfs as Sunni Wakfs. It is the case
of the plaintiffs that all Panjas,
Alams, Ashthanas, Ashrukhanas and Imambadas were wrongly classi-fied as Sunni Wakf instead of Shia Wakf in the list published by the Andhra Pradesh Wakf Board. They cannot be Shia in origin inasmuch as they are connected with Muharram celebrations and pertain exclusively to Shia faith. It is pleaded that the Sunni section of the Muslim does not use these institutions nor are they
interested in the same. The Alams, Panjas, Ashthanas, Ash-rukhanas and Imambadas have some of the important features of Shia Sect distinguishing them from the Sunni Wakfs. The Notifica-tions also referred to celebrations on Muharram, which is a function exclusively connected with the Shias. The suit was preceded by a notice under Section 56 of the Muslim Wakfs Act. It is stated that the defendants are likely to repeat mistakes in future Notifications and that the plaintiffs are interested in having rectification made in the Notifications and the Register of Wakfs be modified by showing the above said institutions as Shia Wakfs and not Sunni Wakfs.
5. A written statement was filed by the Wakf Board denying the plaint allegations and contending that the Notifications showing these institutions as Sunni Wakfs was correct and did not require any modification. It was also contended that Panjas, Alams, Ash-rukhanas or Imambadas do not exclusively pertain to Shias nor were they exclusively connected with the Muharram festival ob-served by Muslims. Sunnis also observe Muharram in their own way and these institutions were rightly endowed as Sunni Wakfs in the Gazette Notifications dated 19.4.1962 and 28.6.1962.
6. In the suit, the learned Government Pleader appeared for the State and another counsel represented the 2nd defendant, the Muslim Wakf Board. The mutawallies representing defendant Nos. 3 to 52 remained exparte, except defendant Nos. 36 and 41. There-fore, only defendant Nos. 36 and 41 were represented by counsel and therefore the rest of the defendants were set exparte.
7. Defendant No. 36 in his written statement stated that the defendant had filed a suit as O.S.No. 218 of 1963 on the file of the District Magistrate’s Court, Tenali for a declaration that the properties were absolute properties of defendant No. 36 and that the suit was decreed on 24.12.1964. The said judgment became final and the suit may be dismissed against him.
8. The 41st defendant contended that the plaintiffs’ contention regarding certain institutions being Shia Wakfs are not correct. These institutions are Sunni in origin and Sunni Muslims also observe Muharram. The institutions, Ashrukhanas, Alams, Asthanas and Imambadas are endowed by the generous Sunnis and they are managed by Sunnis. The Ashrukhana Takikonda of Guntur District is a Sunni Wakf which is endowed by ancestors of the present manag-ers who have been performing Muharram with great zeal.
9. On these pleadings, the trial Judge framed the following issues.
(1) Whether the plaintiffs are entitled to the declaration and correctness as prayed for?
(2) Whether the said institutions are of significance to both Sunnis and Shias and whether they are not places of worship fre-quented by Shias as alleged by defendant No.2 in para 9 of Writ-ten Statement ?
(3) Whether the classification of the aid institution as Sunnis Wakf does not
affect the interest of the Shia community ?
(4) Whether the suit is bad on account of misjoinder of cause of action ?
(5) Whether the suit is barred by limitation ?
(6) Whether the notices dated 27.6.63 under Section 56 of the Muslim Wakfs Act is defective as alleged in para 8 of the Written Statement of defendant No. 2 ?
(7) Whether defendant No.2 is entitled to any separate notice under Section 80 of the C.P.C. ?
(8) Whether the suit is not properly
valued and the court fee paid is insufficient ?
(9) To what reliefs the plaintiffs are entitled ?
(10) Whether the institutions known as Ashrukhana Imambadas, Asthanas, Panjas, Alams where Muharram ceremonies are performed are governed by Sunni Law or Shia Law ?
10. The plaintiffs examined five witnesses and marked Exts. A1 to A6 while the defendants examined 5 witnesses and marked Exts. B1 to B5. Except P.W. 2 who belonged to Machilipatnam, it appears that the other plaintiffs did not belong to any of these Villages in Krishna or Guntur Districts where these institutions were located. The position on the side of the defendants does not appear to be any different.
11. The trial court’s finding on issue No. 1 was that the plain-tiffs were entitled to a declaration and correction as prayed for; on issue No. 2, it was held that the institutions were of significance especially to Shias even though Sunnis also frequent them; on issue No.3 , it was held that the classification made already affected the interests of the Shia community, on addi-tional issue framed on 2.8.1979, it was held that the institu-tions known as ‘Ashrukhanas, Imambadas, Asthanas, Panjas and Alams’, where Muharram ceremonies were performed were governed only by Shia law and on issue No.5 it was held that no finding was necessary. On issue Nos. 4 & 8, it held that there was no misjoinder of causes of action and that the suit was properly valued. On issue Nos. 6 & 7, it was held that notice under Sec-tion 56 was not defective and on issue No. 7 that there was proper notice under Section 80 C.P.C. A final declaration was given under issue No. 9 in para 21 as follows:
“For the various reasons set out in my discussion, the suit is decreed in favour of the plaintiffs granting the declaration to the effect that all the Imambadas, Ashrukhanas, Asthanas, Alams and Panjas are Shia wakfs in this State and they must be classi-fied as such. Secondly, the registers should also be modified or altered to show the correct classification in pursuance of this declaration. This suit is dismissed against D-42 Merman Hussain, who seems to have died eight years earlier to 1977, on his be-half. The suit also is dismissed against D-36 since the Plaintiff did not adduce any separate evidence to show that the properties claimed by D-36 are not his personal properties. Considering the prolonged period for which this suit remained pending, and also having regard to have this litigation, I consider the ends of justice would be met with by directing the parties to bear their own costs”.
The said Judgment was affirmed by the Division Bench of the High Court.
12. Aggrieved by the said judgment of the Division Bench, the Andhra Pradesh Wakf Board filed this appeal in this Court in the year 1989. In this appeal, we have heard learned senior counsel for the appellants Mr. M.S. Ganesh and learned counsel for the respondent Sri. A. Subba Rao. We have also heard learned counsel for the State of Andhra Pradesh. Other respondents in the appeal have not appeared before us.
13. It may not be necessary to go into the matter in detail in view of the order we propose to make in this appeal. The general principles as applicable to Shia and Sunni Wakfs are set out in the Judgment of the Division Bench of the High Court and refer-ence has been made to various standard works on the subject, such as ‘Mohammedan Law’ by Amir Ali, ‘ Principles of Mohamedan Law’ by Mulla, Muslim Law of India” by Dr. Tahir Mohmood, ‘Outlines of Mohammedan Law” by A.A. Fyzee ‘The People of Mosque’ by L. Bevan Jones, P.R. Ramanatha Aiyar’s ‘The Law Lexi-con’ and also a book entitled ‘Muharram in Hyderabad City’ pub-lished by Director of Census Operations, Andhra Pradesh.
14. It appears on a reading of the various passages from the above books that, generally, such institutions known by the above said names are Shia Wakfs, but it is not an absolute rule. There are certain exceptional cases where such institutions are also established by Sunni Sect and can be Sunni wakfs. On a reading of the passages from the above said books, the highest that can be said in favour of the plaintiffs – respondents is that, generally such institutions can be Shia wakfs, though it is possible that some of them can also be Sunni wakfs. But we are of the view that, on the basis of the above proposition, it cannot be straight away declared that every institutions known as ‘Asthanas, Imambadas, Ahrukhanas or Alam’ is a Shia wakf and that it cannot be a Sunni wakf. Whether any particular institution even if it is known by the above names, is prima facie a Shia wakf or not is a matter upon which it will be necessary to lead evidence in relation to each one of the institutions.
15. The curious position on the facts of this case is that as per the survey made by the Wakf Board the various institutions were notified as Sunni wakfs. The persons whom the Wakf Board, the 1st defendant impleaded as other defendants were the various Mutawal-lies representing the other Wakfs. Except two of these Mutawal-lies, all others chose not to contest the suit filed by the plaintiffs. This appears to be mainly because the plaintiff had not sought removal of any of the Mutawallies. Most of them might perhaps be governed by the law of succession. As long as their position was not disturbed, they were not inclined to contest the case in the trial court, Appellate Court or in this Court. It did not matter very much for them whether it was to be declared as Shia wakf or a Sunni wakf as long as their position remained secure. Neither the plaintiff nor the Wakf Board made any effort in the trial court to produce evidence relating to each of the Wakfs in these two Districts of Krishna and Guntur.
16. Learned senior counsel for the appellant Sri Ganesh contended that on the evidence of the plaintiffs and the law as stated in these various texts, the trial court and the High Court could not have given a declaration that all such institutions known by the above names should be declare to be Shia wakfs. Learned counsel pointed out that the evidence in regard to individual institu-tions had to be produced. On the other hand, learned counsel for the plaintiffs – respondents tried to sustain the declaration granted by the trial court and the High Court. As stated earli-er, we are not inclined to give a vague and general declaration that these institutions would have a prima facie status as Shia Wakfs, though some of them could also be Sunni Wakfs in excep-tional case. Inasmuch as such a declaration cannot be granted on the basis of the evidence led, the plaintiff has to adduce satis-factory evidence in relation to each of these institutions cov-ered by the Notifications. In the above situation, it has not become possible to give any positive finding one way or the other and we have found difficulty in giving a satisfactory finding as to whether these defendant institutions are governed by Shia law or Sunni law. The question then is, what is the procedure to be followed in such a situation, particularly in the light of the fact that the suit had been filed in the year 1963 ?
17. We are of the view that instead of dismissing the suit, the justice of the case requires that the parties are to be given an opportunity to produce evidence so as to enable this Court to render a satisfactory judgment on the issue as to whether these institutions are Shia Wakfs or Sunni Wakf. In this context, the decision of this Court in K. Venkaramaiah v. A. Seetha Rama Reddy & Ors. (AIR 1963 SC 1526) is apposite. In that case, this Court observed that under Order 41, Rule 27(1) (b) of the C.P.C., whenever Court felt difficulty in deciding an issue, the Court could direct additional evidence to be adduced, treating the need for evidence as ‘a requirement of the Court’ for pronouncing a satisfactory Judgment. It would be “other substantial cause” in Order 41, Rule 27(1)(b). This Court in that judgment observed as follows;
“In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admis-sion of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy’s age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence “to enable it to pronounce judgment”. The requirement it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evi-dence to find out whether we would have required such additional evidence to enable “us” to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it require such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”, there may well be cases where even though the court finds that it requires additional evidence” to enable it to pronounce judgment”, it still considers that in the interest of justice something which can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing addi-tional evidence “for any other substantial cause” under Rule 27(1) (b) of the Code”.
Such requirement of the court is not likely to arise ordinarily unless some inherent lacuna or defect become apparent on an examination of the evidence. It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands”.
18. The further question then is whether we should remit the matter to the High Court or to the City Civil Court, Secunderabad by setting aside both the judgments which proceeded on the same line of reasoning. Inasmuch as the suit is of the Year 1963, we are not inclined to send back the matter to the trial court, but we would send back the matter to the High Court for a fresh deci-sion in the matter after receiving further evidence as stated above.
19. But then inasmuch as the various defendants institutions are located in the Krishana and Guntur Districts of Andhra pradesh, we do not think that this is a fit case where the City Civil Court in Andhra Pradesh should be directed to receive evidence and give its finding under Order 41, Rule 25 C.P.C. to be sent up
to the High Court. Instead, we think that one of the Sub Judges of Machilipatnam and similarly one of the Sub Judges in the Guntur District or one of the Additional District Judges in Guntur & Krishna could receive the evidence in this case under the provisions of Order 41, Rule 28 C.P.C. The provision reads as follows:
“Order 41, Rule 28: Mode of taking evidence: wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other Subordinate Court, to take such evidence and to send it when taken to the Appellate Court.
The above rule permits the appellate Court to direct the trial court or any Subordinate Court to record evidence and send up the evidence to the Appellate Court.
20. Thus it is open to the High Court, being the Appellate Court to call for additional evidence from the City Civil Court, Secun-derabad which decided the suit or call for such evidence from any other Court subordinate to the High Court. The said Court can submit the same to the High Court for the purpose of the decision on the issue in the CCCA No. 41/1980, in the High Court.
21. We, therefore, set aside the impugned judgment of the High Court and remit the matter to the High Court for fresh decision on the question as to whether each of the defendant – institu-tions was Sunni Wakf or Shia Wakf. For the aforesaid purpose the High Court is requested to pass an order under Order 41, Rule 28 C.P.C. directing the District Judges in each of these Districts of Krishna and Guntur, either by themselves or by transferring the matter to one of the Additional District Judges or Sub Judges in the respective Districts, to receive additional evidence oral or documentary, to be adduced by the plaintiffs and defendants on the questions whether each of the institutions represented by the defendant Nos. 3 to 52 is a Shia Wakf or Sunni Wakf. Ini-tially, the High Court may therefore call for this evidence from the concerned District Judge leaving it open to the District Judges to allocate this work to one of their Additional District Judges or to a Sub Judges in the respective District, as the case may be. It will be for the said Judges to whom the above function is allocated to receive the additional evidence as stated above and after receipt of such evidence, to forward the evidence so received to the High Court for use in the City Civil Court Appeal above mentioned.
22. We hope that the above exercise will be completed as early as possible. After receipt of the evidence from the said Court, the High Court is requested to dispose of the appeal in the light of the evidence already recorded and also such evidence as may be sent by the said Courts in the respective Districts, as stated above.
23. The appeal is allowed and the matter is remitted to the High Court as stated above. There shall be no order as to costs.
