Holding

A general declaration that all institutions named Panjas, Alams, Ashrukhanas, Asthanas and Imambadas are Shia wakfs cannot be made; each must be proved with evidence, and the case is remitted for fresh evidence and determination.

Summary

The All India Shia Conference (Branch) and others sued the Andhra Pradesh State Wakf Board seeking a declaration that institutions such as Panjas, Alams, Ashrukhanas, Asthanas and Imambadas were Shia wakfs and not Sunni wakfs. The trial court and the Andhra Pradesh High Court declared all the institutions to be Shia wakfs. The Wakf Board appealed to the Supreme Court. The Court held that a blanket declaration that every institution bearing those names is a Shia wakf cannot be made without specific evidence for each institution, as some may be Sunni wakfs in exceptional cases. Since the Court faced difficulty in reaching a satisfactory conclusion, it exercised its power under Order 41 of the CPC to direct the taking of additional evidence. Accordingly, the Supreme Court set aside the High Court judgment and remitted the matter to the High Court to obtain further evidence from the appropriate district courts under Order 41 Rule 28, directing a fresh determination on a case‑by‑case basis. The appeal was allowed and no costs were awarded.

Issues considered

Whether institutions named Panjas, Alams, Ashrukhanas, Asthanas and Imambadas are per se Shia wakfs or can be Sunni wakfs.
Whether a court can issue a general declaration that all such institutions are Shia wakfs without specific evidence for each.
Whether the court may direct the taking of additional evidence under Order 41 of the CPC when it faces difficulty in deciding an issue.
Whether the suit should be dismissed or remanded given its age.

Legislation cited

Code of Civil Procedures. Order 41 Rule 25, s. Order 41 Rule 27(1)(b), s. Order 41 Rule 28, s. Section 80

Subjects

WakfShiaSunniDeclarationCode of Civil ProcedureAdditional evidenceReligious endowmentsCivil appeal

Judgment

A THE A.P. STATE WAKF BOARD HYDERABAD
v.
ALL INDIA SHIA CONFERENCE (BRANCH) A.P. AND ORS.

MARCH 2, 2000

B [M. JAGANNADHA RAO AND Y.K. SABHARWAL, JJ.]

Muslim Law:

Wakf-Shia or Sunni-Determination of-A/ams, Panjas, Ashthanas,
Ashrukhanas and Imambadas are generally Shia Wakfs-In, exceptional cases
c such institutions can be Sunni Wakfs-But court cannot declare these institu-
tions as a Shia Wakf-It has to be decided on evidence in relation to each ofthe
institutions-Thus, the decision of the trial court and High Court declaring !

such institutions as Shia Wakf is set aside-Fw1her as the matter is 37 years old (
instead of dismissing the suit or remanding it to the trial cow1, matter to be

!..
D remanded to the High Court-High Court directed to call for additional evi-
-dence from courts other than whose decision was impugned before High
Court-Code of Civil Procedure, Order 41, Rule 27( 1)(b ), 28 and 25.

Respondents filed a suit for a declaration that all the institutions -,
going by the names of 'Alams Panjas, Asthanas, Ashrukhanas and
E Imambadas' were Shia wakfs and not Sunni wakfs. The trial court decreed
the suit and granted the declaration. High Court affirmed the decision.
Hence this appeal.

Allowing the appeal, the Court
-
F
HELD : 1.1. The court cannot straightaway declare that every insti-
tution known as 'Panjas, Asthanas, Imambadas, Ashrukhanas or Alam' is
a Shia Wakf and it cannot be a Sunni wakf. Generally, institutions like
'Panjas, Asthanas, Imambadas, Ashrukhanas or Alam' are Shia wakfs,
but it is not an absolute rule. There are certain exceptional cases where
G such institutions are.also established by Sunni Sect and can be Sunni
wakfs. A vague and general declaration that these institution would have a
prima f acie status as Shia wakfs, though some of them could also be Sunni
wakfs in exceptional cases, cannot be given. Thus, in such a matter it will
be necessary to lead evidence in relation to each one of the institutions.
H [83-G-H; 84-A-B]
78
A.P. STATE W AKF BOARD v. ALL INDIA SHIA CONFERENCE 79

Mohammedan Law by Amir Ali; Principles of Mohammedan Law by A
Mulla; Muslim Law ofIndia by Dr. Tahir Mahmood; Outlines ofMohammedan
Law by A.A. Fyzee; The People of Mosque by L Bevan Jones; The Law
Lexicon by P.R. Ramanatha Aiyar; Muharram in Hyderabad City published by
Director of Census Operations, Andhra Pradesh, referred to.

2.1. Whenever Court finds difficulty in deciding an issue, it could B
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" under order 41Rule27(i)(b) of Code of
Civil Procedure. (85-C]

K Venkaramaiah v. Seetha Rama Reddy & Ors., AIR (1963) SC 1526,
c
relied on.

,,, 2.2. As this instant case is 37 years old, instead of dismissing the suit
or remanding the case to the trial court, the matter is remitted back to the
High Court for a fresh decision. On the question whether eacb of the D
respondent institutions was Shia wakf or Sunni wakf after receiving addi-
tional evidence from the courts other than whose decisions were impugned
before the High Court under the provisions of Or<Jer 41, Rule 28 of the
code. (87-A-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1805 of 1989. E
From the Judgment and Order dated 15.3.88 of the Andhra Pradesh
High Court in C.C.C.A No. 41 of 1980.

AK. Sen, F.S. Nariman, P.A. Choudhary, M.S. Ganesh, Syed Ali
Ahmad, Mohan Pandey, AD.N. Rao, A Subba Rao, T.V.S.N. Chari, Ms. A F
Subhashini, B. Sridhar, K. Ram Kumar, Syed Tanweer Ahmad, M.M. Ali, Y.S.
Rao and AT. Rao for the appearing parties.

The Judgment of the Court was delivered by

Delay condoned. G
Application for substitution is allowed.

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 H
80 SUPREME COURT REPORTS (2000] 2 S.C.R.
A of And.bra 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) And.bra
Pradesh, the second plaintiff being Syed Hassan Pasha and the third plain~,
B
being Askar Nawaz Jung, being the President of All India Shia Conference.
In the suit, the State of And.bra Pradesh and the And.bra Pradesh Muslim Wakf
Board were impleaded as defendant Nos. 1 and 2. But subsequently, at the ·
instance of the Wakf Board, defendant Nos. 3 to 52 were impleaded as
defendants.
c
The suit was filed by the plaintiffs (respondents in this appeal) for a
declaration that all the institutions going by the name 'Panjas, Alams, Ashur.
Khanas, Asthanas and Imambadas are Shia Wakfs and that the necessary I
I
corrections be directed to be made in the concemed notifications and Regis~
ters of Endowments by showing the above said institutions as S,hia Wakfs. ·I
D
Lists of endowed property from time to time are pubiished in· the Gazette.
Sri~h 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, Ashurkhanas and Imambadas
E were wrongly classified as Sunni Wakf instead of Shia Wakf in the list
published by the And.bra Pradesh Wakf Board. They cannot be Sunni in origin
inasmuch as they are connected with Muhurrum celebrations and pertain
exclusively to Shia faith. It is pleaded .that the Sunni section of the Muslims
does not use these institutions nor are they interested in the same. The Alams,
F Panjas, Ashthanas, Ashurkhanas and Imambadas have some of the important
features of Shia Sect distinguishing them from the Sunni Wakfs. The Noti-
fications also referred to celebrations on Muhurrum, 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
G in having rectification made in the Notifications and the Register of Wakfs
b~ modified by showing the above said institutions as Shia Wakfs and not
Sunni Wakfs.

A written statement was filed by the Wakf Board denying the plaint
H. allegations and contending that the Notifications showing these institutions as
A.P. STATE WAKF BOARD v. ALL INDIA SHIA CONFERENCE 81
Sunni Wakfs was correct and did not require any modification. It was also A
contended that Panjas, Alams, Ashurkhanas or Imambadas do not exclusively
pertain to Shias nor were they exclusively c9nnected with the Muhnum
festival observed by Shia Muslims. Sunnis· also observe Muhrrum 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.
B
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. Therefore, only defendant Nos. 36 and 41 were
represented by counsel and therefore the rest of the defendants were set C
exparte.

Defendant No. 36 in his written statement stated that the defendant had
filed a suit as 0.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 D
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.

The 4lst defendant contended that the plaintiffs' contention regarding.
certain institutions being Shia Wakfs are not correct. These institutions a· ·
Sunni in origin and Sunni Muslims also observe Muhrrum. The institutions, E
Ashrukhanas, Alams, Asthanas and Imambadas are endowed by the generous
Sunnis and they are managed by Sunnis. The Ashurkhana Takikonda of
Guntur District is a S~ Wakf which is endowed by ancestors of the present
managers who have been performing Muhrrum with great zeal.
F
On these pleadings, the trial Judge framed the following issues.

(1) Whether the plaintiffs are entitiled to the declaration and
correctness as prayed for?

(2) Whether the said institutions are of significance to both sunnis G
and shias and whether they are not places of worship frequented by
shias as alleged by defendant No. 2 in para 9 of Written Statement?

(3) Whether the classification of the said institution as sunnis
Wakf does not affect the interest of the Shia community? H
82 SUPREME COURT REPORTS [2000] 2 S.C.R.
A (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
B 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.?

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 Imabadas,
D Asthanas, Panjas, Alams where Muhrrum ceremonies are performed
are governed by Sunni Law or Shia Law?

The plaintiffs examined five witnesses and marked Exts. Al to A6
while the defendants examined 5 witnesses and marked Exts. Bl to B5.
Except P.W. 2 who belonged to Machilipatnam, it appears that the other
E 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.

The trial Court's finding on issue No. 1 was that the plaintiffs were
F 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 eventhough
sunnis also frequent thym; on issue No.3, it was held that the classification
made already affected the interests of the Shia community, on additional issue
framed on 2.8.1979, it was held that the institutions known as 'Ashurkhanas,
Imambadas, Asthanas, Panjas and Alams', where Muharum ceremonies were
G 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 was 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 Section 56 was not defective
and on issue No. 7 that there was proper notice under Section 80 C.P.C. A
H final declaration was given under issue No. 9 in para 21 as follows:
/

A.P. ST ATE W AKF BOARD v. ALL INDIA SHIA CONFERENCE 83

"For the various reasons set out in my discussion, the suit is · A
decreed in favour of the plaintiffs granting the declaration to the effect
that all the Imambadas, Ashurkhanas, Asthanas, Alams and Panjas are
shia wakfs in this State and they must be classified 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
B
against D-42 Merman Hussain, who seems to have died eight years
earlier to 1977, on his behalf. 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 c
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.

Aggrieved by the said judgment of the Division Bench, the Andhra D
Pradesh Wakf Board filed this appeal in this Court in the year 1989. In this
appeal, we pave 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 respondent~
in the appeal have not appeared before us. E
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 reference has been made to various standard works on
the subject, such as 'Mohammedan Law' by Amir Ali, 'Principles of F
Mohamedan Law' by Mulla, "Muslim Law of India" by Dr. Tahir Mahmood,
"Outlines of Moharnmadean Law" by A.A. Fyzee 'The People of Mosque' by
L. Bevan Jones, P.R. Ramanatha Aiyer's 'The Law Lexicon' and also a book
entitled 'Muharram in Hyderabad City' published by Director of Census
Operations, Andhra Pradesh.
G
It appears on a reading of the various passages from the above books
that, generally, such institution known by the above said names are Shia
wakfs, but it is not an absolute rule. There are ceratain 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 H
84 SUPREME CO.URT REPORTS [2000] 2 S.C.R.
A 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 delcared that every institutions known
as 'Asthanas, Imambadas, Ashurkhanas or Alam' is a.Shia Wakf and that it
cannot be a Sunni wakf. Whether any particular institution even if it is known
B
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.

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
C wakfs. The· persons whom the Wakf Board, the 1st defendant impleaded as·
other defendants were the various Mutawallies representing the other Wakfs.
Except two of these Mutawallies, 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 riot
D
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
E Districts of Krishna and Guntur.

Learned senior counsel for the appellant Sri Ganesh contended tl1:it on
the evidem::e of the plaintiffs and the Jaw 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 declared to be Shia Wakfs.
F
Learned counsel pointed out that the evidence in regard to individual insti-
tutions had to be produced. On the other hand, learned counsel for the
plaintiffs - reapondents tried to sustain the declaration granted by the trial
court and the High Court. As stated earlier, we are not inclined to give a
vague and general declaration that these institutions would have a prima facie
G status as Shia Wakfs, though some of them could also be Sunni Wakfs in
exceptional cases. Inasmuch as such a declaration cannot be granted on the
basis of the evidence led, the plaintiff has to adduce satisfactory evidence in

H
relation to each of these institutions covered by the Notifications. In the above
situation, it has not become possible to give any above positive finding one
way or the other and we have found difficulty in giving a satisfactory finding -
A.P. STATE W AKF BOARD v. ALL INDIA SHIA CONFERENCE 85

as to whether these defendant institutions are governed by Shia law o~ Sunni A
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 1~63?
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 B
evidence so as to enable the Court to render a satisfactory judgment on the
issue as to whether these institutions are Shia Wakf 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 C
felt dificulty 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 D
not possible to say that the High Court made the order for admission
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 E
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 judg-
ment". The requirement it has to be remembered, was the requirement F
of the High Court, and it will not be right for us to examine the
evidence 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
G
to pronounce judgment" but also for "any other substantial cause",
there may well be cases where eventhough 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 satisfactozy manner. Such a case
will be one for allowing additional evidence "for any other substantial H
86 SUPREME COURT REPORTS [2000] 2 S.C.R.
A 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
B the defect, but the requirement must be.the requirement of the Court
upon its appreciation of the evidence as it stands".

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
c 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
decision in the matter after receiving further evidence as stated above.

But then inasmuch as the various defendants institutions are located in
D the Krishna 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 upto the High Court. Instead, we think that one of the Sub Judges of
Machilipattanam and similarly one of the Sub Judges in the Guntur District
or one of the Additional District Judges in Guntur & Krishna could receive
E the evidence in this case undei: 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
F
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
G appellate Court.

Thus it is open to the High Court, being the Appellate Court to call for
additional evidence from the City Civil Court, Secunderabad 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
H of the decision on the issue in the CCCA No. 4111980, in the High Court.
) ·'

A.P. STATE WAKF BOARD v. ALL INDIA SHIA CONFERENCE 87

We, therefore, set aside the impugned judgment of the High Court and A
, remit the matter to the High Court for fresh decision on the question as to
whether each of the defendant - institutions 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
B
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 question whether each of the institu-
tions represented by the defendant Nos. 3 to 52 is a Shia Wakf or Sunni Wakf.
Initially, the High Court may therefore call for this evidence from the
concerned District Judges leaving it open to the District Judges to allocate this C
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 Jidence so received
to the High Court for use in the City Civil Court Appeal above mentioned. D
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. E
The appeal is allowed and the matter is remitted to the High Court as
stated above. There shall be no order as to costs.

NJ. Appeals allowed.