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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 42 of 155)
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" Sunna," or the practice of the Prophet, it is regarded by Muhammadans -IF;B.).
as an essential part of the prayers, as a word representing earnestness in
devotion. The word is pronounced at the end of the first chapter of the
Kuran, which consists of the following prayers.

Praise be to God, the Lord of all creatures ; the most merciful ; the
king of the day of judgment. Thee do we worship, and of thee do we
beg assistance. Direct us in the right way, in the way of those to whom
Thou hast been gracious, not of those against whom Thou art incensed,
nor of those who go astray."

I then went on to point out that the Sunnis, or followers of the Pro-
phet's traditions, recognise as great exponents of the orthodox doctrines
four principal Imams or founders of the schools of juris- [424] prudence,
namely, Abu Hanifa, Shafai. Malik, and Hanbal, all of whom flourished
within the first two centuries of the Muhammadan era, and whose doctrines
have been accepted by the bulk of the Muhammadan population of the

The doctrines of those Imams proceed upon the same principles, and
the differences of opinion are limited only to matters of detail, such as the
form or manner of the performance of religious rituals.

In the case of Queen-Empress v. Ramzan (1) (see p. 471) I held, what
I hold now, that it is an indisputable matter of the Muhammadan ecclesi-
astical law that the word ' amin ' should be pronounced in prayers after
the Sura-i-Fdteha or the first chapter of the Kuran, and that the only
difference of opinion amongst the four Imams is, whether it should be
pronounced aloud or in a low voice. The Hedaya, which is the most
celebrated text-book of the Hanafi school of law, lays down the rule in the
following terms :

" When the Imam (leader in prayers) has said ' nor of those who go
astray,' he should say " amim," and so should those who are following
him in the prayers, because the Prophet has said that when the Imam
says ' amin ' you must say 'amin ' too. But this saying of the Prophet
does not support Malik as to the distinction (between saying 'amin' aloud
and sayicg it in a low voice) because the Prophet after saying ' when the
Imam says nor of those who go astray you should say 'amin,' also
added that the Imam should pronounce it, and they (i.e., followers in the
prayers) should repeat it inaudibly. Such is the tradition which has been
related by Ibn-i-Masud ; and, moreover, the word is a prayer, and should
therefore be pronounced in a low voice."*

(1) 7 A. 161.


1889 [425] That this doctrine is the result of weighing the authority of

NOV. 4. conflicting traditions is apparent from the commentary of Ibn-i- Human,

- a celebrated author of the Hanafi school, on the passage of the Hedaya

ITULIi which I have quoted above, and I wish to quote the commentary also in

BENCH, order to show the manner in which such questions are dealt with in the

Muhammadan ecclesiastical law. The cornmentary runs as follows : -

" He (author of the Hedaya) says that the followers in the prayer
.(F.B.). should also say it (i.e., amin) : this doctrine is common to prayers which
are repeated aloud and prayers which are repeated in a low voice when
audible; but as to the latter class of prayers some have maintained that
it (amin) should not be said, since loudness of voice is not applicable to

The commentator then mentions the names of various traditionists
who have differed as to whether the word amin should be pronounced
aloud, and finally points out that the author of the Hedaya has only pre-
ferred the tradition as to its being pronounced in a low voice. He does not,
however, say that the other traditions are untrustworthy or should be
absolutely rejected. Indeed he could not say so. as these traditions are to
be found in the most authoritative and celebrated collections of traditions
(Siha) of Bukhari and Muslim, both equally acknowledged as accurate
traditionists by all the schools of Sunni Muhammadans. The former of
these in the chapter relating to the pronouncing of amin has the following:

" Ata has said that amin is a prayer, and it was pronounced by Ibn-
i-zubair and those who were behind him (in prayers), so much so that the
mosque resounded. Abu Huraira used to ask the Imam aloud not to for-
sake him in pronouncing ' a min.' Nafe has said that Ibn-i-Umar never
omitted ' amin ;' and used to induce [426] others to say it, and that he
had heard favourably about it from him as to its being beneficial (1)."

Sahib Muslim has the following tradition in regard to saying amin:

Harmala bin Yhaya related to us that it was related to him by
Ibn-i-Wahab, who said that he had been informed by Amru, that he
had been told by Abu Yunus, who had heard from Abu Huraira, that the
Prophet has said : ' Whenever any one among you says ' amin ' in prayers
whilst the angels in heaven are saying ib, and the two coincide with each
other, then his past sins will be forgiven." (2)

JIS ^ ^i-


^ ( 2 )

J^ loj Jl>
U e) i

( J>!



This passage of Sahib Muslim is fully explained in his celebrated 1889
commentary of Nawawi, which deserves quotation here, as it explains NOV. 4.
exactly how the Muhammadan ecclesiastical law stands as to the pro-
nouncing of amin in prayers : EULL

" In these traditions (hadis) is enjoined the pronouncing of ' amin ' BENCH.
after the Sura-i-Fateha (first chapter of the Kuran) both for the leader in ~~~
prayer as well as those who follow him and also for him who may be _ '
praying singly. It is proper that the pronouncing of ' amin ' by the <*/
followers should be simultaneous with that of the leader in prayer, that
is, neither before nor after, because the Prophet has said : 'When he
(Imam says nor of those zvho go astray you should say amin. By
saying when the Imam says ' amin ' you should also say it, is meant when
he is [427] about to say it. It is the Sunna or the Prophet's precept
both for the Imam and the person praying singly to say ' amin ' loud, and
the same applies to the follower in prayer according to the correct doctrine.
This is an explanation of our doctrine ; and there is a general consensus
of opinion among the faithful that for the person praying singly, as well
as for the Imam and the followers in oraypr which are repeated in a low
voice, the word ' amin ' should be pronounced ; and a vast number have
maintained that the same is the rule for prayers which are repeated aloud.
There is a statement of the opinion of Malik that the Imam should not
say ' amin ' in prayers which are repeated aloud. Abu Hani/a and the
Kufis and Malik in one of bis statements of opinion maintain that ' amin'
should not be pronounced aloud : but there is a vast number who hold
that it should be pronounced in a loud voice."

This commentary on the Sahib Muslim is according to the Shafai
school ; but none the less is it considered orthodox and authoritative by
all Sunni Muhammadans, which the parties to this suit are. The
defendants state themselves as belonging to the Hanafi school, and it is
only upon this ground that they obstruct the plaintiffs from worshipping
in the mosque.

It is therefore necessary to consider whether they have any real or
just cause of complaint against the plaintiffs. Upon this noint I may
repeat what I said in Queen- Empress v. Ramzan (1), as the [428] obser-
vations which I then made are equally applicable to the circumstances of
the present case. In that case I said :

kif AX-jIjj .Uf j ^-l \jp ^Jl^y, JI5 jjj

? JjjyflaHJ j^sJj^JlS ujtaf j ijvcJIslj'vill 9 ^j^U]^ *Uilj_&cy$
J ? o/l|j XiA-^t J15 ? ^3vJ|^> j.UD^/'jl ^| ); ^'^^ J

r 1 **^ c^ <- f >' ) ^^^ ux^ v U 6 ) c^- u ^ ;^^ y *'^?; us' v - gu )


A VII-35

(1) 7 A. 461.


1889 "The prosecutor states himself and the founder of the mosque to be

Nov. 4. Hanafis, that is the followers of Imam Abu Hanifa's doctrines. One of
- the highest authorities of that school is the Durr-i-Mukhtar, in which .the
FULL strongest text is to be found against saying 'amin' aloud ; but the text
BENCH, itself falls far short of substantiating the rule of ecclesiastical law, upon
establishing which the case for the prosecution in my opinion depends.
The text is as follows : ' It is in accord with the practice of the Prophet
(F.B.). fo gav ' am j n ' i n a j ow voice, but the departure from such practice does
not necessitate invalidity (of the prayer), nor a mistake, hut it is only a
detriment.'* Even this passage only relates to the efficacy or vali-
dity of the prayer of the person who says 'amin' aloud or in a low
tone. There is absolutely no authority in the Hanafta or any other
of the three orthodox schools of Muhammadan ecclesiastical law,
which goes to maintain the proposition that if any person in the
congregation says the word 'amin' aloud at the end of the Sura-i-Fateha
utterance of the word causes smallest injury, in the religious sense, to the
prayers of any other person in the congregation, who, according to his
tenets, does not say that word aloud. It is a matter of notoriety that in
all the Muhammadan countries like Turkey, Egypt and Arabia itself,
Hanafis and Shafais go to the same mosque, and form members of the
same congregation, and, whilst the Hanafis say the word 'amin' in a, low
voice, the Shafais pronounce it aloud. To say that the utterance of the
word 'amin' aloud after the Imam has recited the Sura-i-Fateha, causes
the distrubance in the prayers of a congregation, some or many of whom
say the word in a low tone, is to contradict the express provisions of the
Muhammadan ecclesiastical law as explained by all the four orthodox Imam.
I now pass to the next step in the case, namely, whether the accused in
this case had the legal right to [429] enter into and worship in the mosque
with the congregation according to their own tenets. There is abso-
lutely no evidence in the case to substantiate the accusation brought
by the prosecutor against them that they are 'no longer Muham-
madans.' They call themselves 'Muhammadi,' which is the Arabic
for 'Muhammadan,' and although the prosecutor brands them as
Wahabis,' there is nothing to prove that they belong to any heterodox
sect. Indeed, the only tangible ground upon which the prosecutor
objects to their worshipping in the mosque, and calls them. ' Wahabis,'
is their saying the ' amin ' aloud, a practice which, as I said before,
is commended by three out of the four orthodox Imams of the
Sunni persuasion and which, according to the doctrine of Imam Abu
Hanifa himself, does not vitiate the prayers. Now, it is the fundamental
principle of the Muhammadan law of wakf, too well known to require
the citation of authorities, that when a mosque as built and con-
secrated by public worship, it ceases to be the property of the
builder and vests in God (to use the language of the Hedaya) ' in
such a manner as subjects it to the rules of Divine property, whence
the appropriator's right in it is extinguished, and it becomes a pro-
perty of God by the advantage of it resulting to his creatures." A
mosque once so consecrated cannot in any case revert to the founder, and
every Muhammadan has the legal right to enter it, and perform devotions



according to his own tenets, so long as the form of worship is in accord with 1889
the recognized rules of Muhammadan ecclesiastical law. The defendants NOV. 4.
therefore were fully justified by law in entering the mosque in question
and ia joining the congregation, and they were strictly within their legal FULL
rights, according to the orthodox rule of the Muhammadan ecclesiastical BENCH,
law, in saying the word the ' amin ' aloud."

Viewing the authorities which I have quoted and referred to, I have 13 A> 419
no doubt that under the Muhammadan law of wakf, and the Muhammadan (F.B.)
ecclesiastical law. which we are bound to administer in such cases under
s. 24 of the Civil Courts Act (VI of 1871), the provisions of which have
been reproduced in s. 37 of Act XII of 1887, a mosque when public is
not the property of any [430] particular individual or even a body or
corporation or any other human organization which in law has a
personality. In the eye of the Muhammadan law a mosque is the property
of God, it must be recognised as such, and subject only to such limitations
as the Muhammadan ecclesiastical law itself provides, it is public
procerty being the property of God for the use of his servants, and every
human being is entitled to go and worship there so long as he conforms
to the rules of the Mubammadan ecclesiastical ritual of worship.

This being so, the plaintiffs in the case, who are obviously Muham-
madans, and as to whom even Pandit Sundar Lai for the appellants, has
foregone the contention that they are not Musaimans, have a right to enter
the mosque and to use it for Divine worship and to say the words 'amin'
aloud or in a low voice in their prayers, since the Muhammadan
ecclesiastical law permits them to have their choice as to the tone of voice
in which the word is to be pronounced.

I am anxious to point out that the question as to the exact vocal scale
or notes of the octave of the human voice is nowhere dwelt with in the
Muhammadan law of ecclesiastical ritual, and Pandit Sundar Lai for the
appellants has conceded that no definition or statement in this respect is
to be found in the sacred traditions Hadis or authoritative legal texts, and
it follows that the matter must necessarily be left to the ear of the person
who pronounces the word 'amin' aloud, and the powers of hearing which
those who may be close or at a distance from him may happen to possess.

There is, however, as the learned Chief Justice has mentioned, a
statement in the judgment of the Court of first instance, to the effect that
the decree which was to follow upon that judgment was a decree requiring
that the plaintiffs should pronounce the word ' amin ' loudly, but not at
the top of their voices, nor in such a manner as to trouble the ears of the
fellow-worshippers in the congregation. But this is a matter which
depends upon the powers of hearing possessed by the fellow-worshippers,
and cannot form the subject of a restriction or limitation of the right decreed.

[431] This being so, I expected that some argument wou'd be ad-
dressed to us in opposition to what I said, in the case of Queen- Empress
v. Ramzan (1), that according to the tenets of Imam Azam, that is,
Imam Abu Hanifa himself, there is no such rule in the Muhammadan
ecclesiastical law as would render it illegal to pronounce the word ' amin,'
at the top of the voice or in any other note in the octave of the human
voice. I was anxious to hear some such argument, because if it were true
that according to the doctrines of Imam A bu Hanifa the pronouncing
of the word 'amin' in a voice audible to any of the fellow-worshippers is a
matter which, in the spiritual or religious sense, not only vitiates the

(1)7 A. 461.


1889 prayers of the person who pronounces it aloud, but also of those who hear

Nov. 4, I*' I should have been inclined to hold that some nuch limited decree

should be passed as that passed by the Court of first instance. But, as I

FULL have shown, no such limitations as to the tone or note of the voice are

BENCH, required by the Muhammadan ecclesiastical law of ritual, and I am glad to

find that this view recommends itself to the approval of the learned Chief

13 A. 419 Justice and my learned brethren.

I only wish to add that,' on the opening of the case, I felt that it might
possibly be a difficult question whether the action was maintainable or
not ; but Pundit Sunder Lai, on behalf of the appellants, has expressly
relinquished all arguments upon the point, and I think that he was right
in doing so.

I agree with the learned Chief Justice in passing the decree which ha
has pronounced.

Appeal dismissed.

13 A 432 F B.)

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight,
Mr. Justice Tyrrell, Mr. Justice Mahmood and Mr. Justice Knox.

(Defendants)* [25th July, 1891.]

Mortgage Rights of -prior and subsequent incumbrancers inter se Rights of mortgagee
purchasing equity of redemption Right of sale of mortgaged property Suit to brinq
mortgaged property to sale, who necessary parties to "Property," mtaning of the
term in Act IV of >882~Act IV of 1882 (Transfer of Property Act), ss. 3 and 6,
Chap. IV passim Act I of 1868 (General Clauses Act), s. 2, els. (5) and (6).

A and B jointly mortgaged certain immoveahle property to X by a simple
mortgage-deed on the 10th September 1882. They again mortgaged the same
property to X on the 23rd February 1884. On the 6th August 1885, A mort-
gaged a portion of the said property to Y. On the 12ch August 1885, B mort-
gaged a portion of the same property to X. On the 21st August 1885. A mortgaged
a portion of the same property to Z. Oa the 20th September 1886, A and B
sold to X the property mortgaged to him and with the proceeds of that sale X's
three mortgages were paid off. On the 8th January 1887, Y sued A, B and X
for cancelment of the d.eed of sale of the 20th September 1K86, and for sale of the
property mortgaged to him under his deed of the 6th August 1885. Y did not
make Z a party to this suit. He did not ask for redemption of X's mortgages
nor for foreclosure of Z's mortgage.

Upon the facts it was held by EDGE, C.J., STRAIGHT, TYRRELL and KNOX,
JJ.: MAHMOOD, J., dissentients.

(1) That X not having exhibited any intention of foregoing altogether his rights
in respect of the mortgages of the 10th September 1882 and the 523rd February
1884, was entitled <r> keep those securities alive and to use them as a shield
against the claim of Y, the subsequent mortgagee, to the extent of the amount
which was due under them on the 20th September 1886. Qofaddoss Gopaldoss v.
Eambux Sheochand (1); Gaya Prasad v. Salik Prasad (2); Mul Chunaer Kuberv.
Lallu Trikam (3) ; Shantapa v. Balapa (4) ; Ramu Naikan v. Subbaraya
Mudali (5) ; Sirbadh Rai v. Raghunath Prasad (6) ; Janki Prasad v. Sri
Matra Mautangui Delia (7) ; and Gangzdhara v. Sivarama (8) referred to.

* Second Appeal, No. 1210 of 1888, from a decree of W.R. Burkitt, Esq., District
Judge of Gorakhpur, dated the 30ib May 1888, confirming a decree of Maulvi Ahmad-
ullah Khan, Subordinate Judge of Gorakhpur, dated the 24th August 1887.

(1) 11 I. A. 126^10 C. 1035. (2) 3 A. 682. (3) 6 B. 404.

(4) 6 B. 561. (5) 7 M.H..B. 229. (6) 7 A, 568.

(7) 7 A. 577. (8)-8M. 246.



13 All. 434

(2) That Y as subsequent mortgagee could not bring to sale under his
mortgage-deed the property mortgaged to him without first redeeming X's two
prior mortgages. [433] Syud Wajed Hosein v. Hafez Ahmed Rezah (1) ; Khub
Chand v. Kalian Das (2) ; Kasum-un-nisa Bibi v. Nilmtna Base (3) ; Har
Prasad 7. Bhagwan Das (4) ; Muhammad Ibrahim v. Tek Chand (5) ; All
Hasan v. Dhirja (6) ; Zalim Gir v. Rani Charan Singh (1) and Umes Chunder
Sircar v. Zadur Fatima (8) referred to. in addition to the case cited above.
Raghunath Prasad v. Jurawan Rai (9) distinguished. Vencatachella Kandian
v. Panjanadien (10) ; Gangadharah v. Sivarama (11) and the judgments of Mah-
mood, J., in Sirbadh Rai v. Raghunath Prasad (12) and in Janki Prasad v.
Sir Matra Mautangui Debia (13) dissented from.

(3) That Z's mortgage of the 21st August 1885 having been registered, Y must
be taken to have had notice of it, and, having had notice thereof, was bound to
make Z a party to the suit for salo under bis (Y's) mortgage.

Damcdar Dev Chand v. Naro Mahadev Kelkar (14) and Dullabhdas Dev Chand
v. Lakshrnondas Sarttp (15), referred to.

(4) That the term " property as used in Chapter IV of Act of 1882 means an
actual physical object and does not include mere rights relating to physical

Beld by the FULL BENCH.

That the Transfer of Property Aot (Act IV of 1882), so far as the question of
reliefs and procedure is concerned, applies to mortgages executed before the
coming into force of the Act. Ganga Sahai v'. Kishen Sahai (16) ; and Bhobo
Sundari Dcbi v. Rakhal Chundtr Boie (17) referred to.

MAHMOOD, J., contra :

Inasmuch as a mortgagee cannot bring the mortgaged property to sale without
the intervention of a Court, a private purchase by the mortgagee of the rights
remaining to the mortgagor in such property, though it may be valid as against
the mortgagor, can have no effect in defeating the rights of puisne and mesne
inoumbrancers. Moreover, where a second mortgage to a third party intervenes
between the mortgage to and the purchase by the prior mortgagee of the rights
of the mortgagor, such intermediate mortgage prevents the merger of the rights
of the prior mortgagee as such with those which he might acquire by his

The right of sale is an essential incident of a simple mortgage, and inheres as
will in puisne and mesne as in prior mortgagees subject to the rights of the
prior mortgagees. The puisne or mesne mortgagee is not bound by the terms of
the prior mortgage, or mortgages, but is entitled to bring the property mortgaged
to sale suKject to such prior mortgage or mortgages.

[434] Tbe provisions of s. 85 of Act IV of 1882 are not absolutely imperative,
and though thereunder a subsequent inoumbrancer ought to be made a party to
a suit by a prior mortgagee on his mortgage, tha non-joinder of such subsequent
incumbranoer is not a fatal defect in the suit. Registration of a subsequent
mortgage is not necessarily any notice to a prior mortgagee of the existence of
such subsequent mortgage ; it being no part of a mortgagee's duty to be on the
watch for inoumbrances subsequent to his own.

The term " property " throughout Act IV of 1892 is used in its most generic
sense and will include the right known as an " equity of redemption."

[Diss., 29 A. 385(P.B.) = A. W. N. (1907) 97 = 4 A. L.J, 273 = 2 M. L. T. 248 ; 33 C.
425 = 3 C.L.J. 205 ; I O.C. 53 ; N F., 22 C. 33 ; 20 M. 35 ; 1 O.C. 105 ; 5 O.C,
335 ; 1 O.C. 330 ; F. f 18 A. 83 ; 22 B. 701 ; R.. 13 A. 581 ; 17 A. 537 ; 18 A.
109; 19 A. 379; 19 A. 543 ; 20 A. 110 (F.B.); 20 A. 322; 24 A. 549; 25 A.
46; 27 A. 472 = A. W. N. (1905) 58 = 2 A.L.J. 162; 31 A. 352 = 6 A. L.J 426
(431) = 2 Ind. Gas 460; 34 A. 63 (64) = 11 M. L. T. 6 = 16 C. W. N. 97 = (1912)
M.W.N. 32 = 15 C.L.J. 68 = 14 Bom. L.B. 1 ; 34 A. 323 (328) = 9 A.L.J. 323 =
14 Ind. Cas. 674 (676) ; 30 B. 156 = 7 Bom. L. R. 811 ; 23 C. 795 ; 29 C. 1 (F B.)
25 M. 108 = 11 M.L.J. 373 ; 22 A.W N. 216; A.W.N. (19071, 85 = 4 A.L.J. 349; A,
W.N. (1907) 286 = 4 A.L.J. 765; 1 C.L.J. 337 ; 14 C.L.J 530 (534) ; 11 C-P.L.R,
75 ; 12 C.P.L.R. 70 ; 12 C.P.L.R. 86 ; 14 C.P.L.R. 177 ; 7 Ind. Cas. 11 (13) ;

(1) 17 W.R. C.R. 460.

(4) 4 A. 196.

(7) 10 A. 629.
(10) 4M. 213.
(13) 7 A. 577.
(16) 6 A. 262.

(2) 1 A. 240.

(5) 2 A.W.N. (1982) 59.

(8) 17 A. 201 = 180. 164.
(11) 8 M. 246.
(14) 6B. 11.
(17) 12 0. 583.

(3) 8 C. 79.

(6) 4 A. 518.

(9) 8 A. 105.
(12) 7 A. 568.
(15) 10 B. 88.


JULY 25..


13 A. 432



13 AH. 435




. JULY 25.


13 A. 432

7 Ind.' Cas. 36 (37) ; 9 Ind. Caa. 513 (517) = (1911) 1 M.W.N. 165 (177); 21
M.L.J. 213 = 9 M.L.T. 431 ; 12, Ind. Cas. 155 (157) ; 1 L.B.R. 210 ; 8 N.L R.
156 = 8 Ind. Gas. 1121 (1)22) ; 10 0. C. 145 ; 14 O. C. 217 (219) = 9 Ind. Cas.
403; 13-2 P.W.R. H908) = 64 P.R. (1908); 1 S.L.R. 68; D., 23 A. 377; 23 A.
25;29A. 205 = A.W.N. (1907) 18 = 3 A.L.J. 848 ; 109 P.W.R. 1911 = 30 P.L.R.
1911 = 15 P.R. 1911 = 9 Ind. Cas. 549]

THE facts of this case are fully stated in the judgment of Mahmood, J.

Mr. C. Dillon, Munsbi Jwala Prasad and Babu Jogindro Nath
Chaudhri for the appellant.

Pandit Sundar Lai for the respondent Hari Prasad. The other
respondent was not represented.

The following judgments were delivered by the Full Bench :


EDGE, C.J. This is a Second Appeal, and is brought by the plaintiff
in the suit from the decree of the late District Judge of Gorakupur of the
30th of May 1888, which dismissed the plaintiff's appeal below, and
confirmed the decree of the Subordinate Judge of Gorakhpur dismissing the
plaintiff's suit so far as it related to his prayer for a decree for sale of a
4-anna share in mauza Barwa Kutwa in enforcement of an hypothecation

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 42 of 155)