M. Siddiq (D) through LRS. Vs. Mahant Suresh Das & Ors
[Civil Appeal Nos 10866-10867 of 2010]
[Civil Appeal Nos 4768-4771/2011]
[Civil Appeal No 2636/2011]
[Civil Appeal No 821/2011]
[Civil Appeal No 4739/2011]
[Civil Appeal Nos 4905-4908/2011]
[Civil Appeal No 2215/2011
[Civil Appeal No 4740/2011]
[Civil Appeal No 2894/2011]
[Civil Appeal No 6965/2011]
[Civil Appeal No 4192/2011
[Civil Appeal No 5498/2011]
[Civil Appeal No 7226/2011]
[Civil Appeal No 8096/2011]
An overview of the suits
Evidence: a bird‘s eye view
The aftermath of 1856-7
Response to the wall
Period between 1934-1949
Proceedings under Section 145
Points for determination
The three inscriptions
Judicial review and characteristics of a mosque in Islamic law
Places of Worship Act
Development of the law
Idols and juristic personality
Juristic personality of the first plaintiff
Juristic personality of the second plaintiff
Analysis of the suits
Suit 1: Gopal Singh Visharad
Issues and findings of the High Court
Suit 3: Nirmohi Akhara
Conflict between Suit 3 and Suit 5
Issues and findings of the High Court
Limitation in Suit 3
Oral testimony of the Nirmohi witnesses
Nirmohi Akhara‘s claim to possession of the inner courtyard Documentary evidence in regard to the mosque (1934-1949)
Suit 5: The deities
Array of parties
No contest by the State of Uttar Pradesh
Issues and findings of the High Court
Shebaits: an exclusive right to sue? A suit by a worshipper or a person interested Nirmohi Akhara and shebaiti rights
Limitation in Suit 5 The argument of perpetual minority
The Suit of 1885 and Res Judicata
Nature and use of the disputed structure: oral evidence
Photographs of the disputed structure
Vishnu Hari inscriptions
The polestar of faith and belief Travelogues, gazetteers and books Evidentiary value of travelogues, gazetteers and books
Suit 4: Sunni Central Waqf Board
Analysis of the plaint
Issues and findings of the High Court
Limitation in Suit 4
Applicable legal regime and Justice, Equity and Good Conscience
Grants and recognition
Disputes and cases affirming possession Impact of Suit of 1885 Incidents between 1934 and 1950
Proof of namaz
Placing of idols in 1949
Waqf by user
Possession and adverse possession
Doctrine of the lost grant
The smokescreen of the disputed premises - the wall of 1858
Analysis of evidence in Suit 4
The Muslim claim to possessory title
Analysis on title
Marshalling the evidence in Suit 4 and Suit 5
Conclusion on title
Reliefs and directions
1. These first appeals centre around a dispute between two religious communities both of whom claim ownership over a piece of land admeasuring 1500 square yards in the town of Ayodhya. The disputed property is of immense significance to Hindus and Muslims. The Hindu community claims it as the birthplace of Lord Ram, an incarnation of Lord Vishnu. The Muslim community claims it as the site of the historic Babri Masjid built by the first Mughal Emperor, Babur. The lands of our country have witnessed invasions and dissensions. Yet they have assimilated into the idea of India everyone who sought their providence, whether they came as merchants, travellers or as conquerors. The history and culture of this country have been home to quests for truth, through the material, the political, and the spiritual. This Court is called upon to fulfil its adjudicatory function where it is claimed that two quests for the truth impinge on the freedoms of the other or violate the rule of law.
2. This Court is tasked with the resolution of a dispute whose origins are as old as the idea of India itself. The events associated with the dispute have spanned the Mughal empire, colonial rule and the present constitutional regime. Constitutional values form the cornerstone of this nation and have facilitated the lawful resolution of the present title dispute through forty-one days of hearings before this Court. The dispute in these appeals arises out of four regular suits which were instituted between 1950 and 1989. Before the Allahabad High Court, voluminous evidence, both oral and documentary was led, resulting in three judgements running the course of 4304 pages. This judgement is placed in challenge in the appeals.
3. The disputed land forms part of the village of Kot Rama Chandra or, as it is otherwise called, Ramkot at Ayodhya, in Pargana Haveli Avadh, of Tehsil Sadar in the District of Faizabad. An old structure of a mosque existed at the site until 6 December 1992. The site has religious significance for the devotees of Lord Ram, who believe that Lord Ram was born at the disputed site. For this reason, the Hindus refer to the disputed site as Ram Janmabhumi or Ram Janmasthan (i.e. birth-place of Lord Ram). The Hindus assert that there existed at the disputed site an ancient temple dedicated to Lord Ram, which was demolished upon the conquest of the Indian sub-continent by Mughal Emperor Babur. On the other hand, the Muslims contended that the mosque was built by or at the behest of Babur on vacant land. Though the significance of the site for the Hindus is not denied, it is the case of the Muslims that there exists no proprietary claim of the Hindus over the disputed property.
4. A suit was instituted in 1950 before the Civil Judge at Faizabad by a Hindu worshipper, Gopal Singh Visharad seeking a declaration that according to his religion and custom, he is entitled to offer prayers at the main Janmabhumi temple near the idols.
5. The Nirmohi Akhara represents a religious sect amongst the Hindus, known as the Ramanandi Bairagis. The Nirmohis claim that they were, at all material times, in charge and management of the structure at the disputed site which according to them was a 'temple' until 29 December 1949, on which date an attachment was ordered under Section 145 of the Code of Criminal Procedure 1898. In effect, they claim as shebaits in service of the deity, managing its affairs and receiving offerings from devotees. Theirs is a Suit of 1959 for the management and charge of 'the temple'.
6. The Uttar Pradesh Sunni Central Board of Waqf ("Sunni Central Waqf Board") and other Muslim residents of Ayodhya instituted a suit in 1961 for a declaration of their title to the disputed site. According to them, the old structure was a mosque which was built on the instructions of Emperor Babur by Mir Baqi who was the Commander of his forces, following the conquest of the subcontinent by the Mughal Emperor in the third decade of the sixteenth century. The Muslims deny that the mosque was constructed on the site of a destroyed temple. According to them, prayers were uninterruptedly offered in the mosque until 23 December 1949 when a group of Hindus desecrated it by placing idols within the precincts of its three-domed structure with the intent to destroy, damage and defile the Islamic religious structure. The Sunni Central Waqf Board claims a declaration of title and, if found necessary, a decree for possession.
7. A suit was instituted in 1989 by a next friend on behalf of the deity ("Bhagwan Shri Ram Virajman") and the birth-place of Lord Ram ("Asthan Shri Ram Janmabhumi"). The suit is founded on the claim that the law recognises both the idol and the birth-place as juridical entities. The claim is that the place of birth is sanctified as an object of worship, personifying the divine spirit of Lord Ram. Hence, like the idol (which the law recognises as a juridical entity), the place of birth of the deity is claimed to be a legal person, or as it is described in legal parlance, to possess a juridical status. A declaration of title to the disputed site coupled with injunctive relief has been sought.
8. These suits, together with a separate suit by Hindu worshippers were transferred by the Allahabad High Court to itself for trial from the civil court at Faizabad. The High Court rendered a judgment in original proceedings arising out of the four suits and these appeals arise out of the decision of a Full Bench dated 30 September 2010. The High Court held that the suits filed by the Sunni Central Waqf Board and by Nirmohi Akhara were barred by limitation. Despite having held that those two suits were barred by time, the High Court held in a split 2:1 verdict that the Hindu and Muslim parties were joint holders of the disputed premises. Each of them was held entitled to one third of the disputed property. The Nirmohi Akhara was granted the remaining one third. A preliminary decree to that effect was passed in the suit brought by the idol and the birth-place of Lord Ram through the next friend.
9. Before deciding the appeals, it is necessary to set out the significant events which have taken place in the chequered history of this litigation, which spans nearly seven decades.
10. The disputed site has been a flash point of continued conflagration over decades. In 1856-57, riots broke out between Hindus and Muslims in the vicinity of the structure. The colonial government attempted to raise a buffer between the two communities to maintain law and order by set ting up a grill-brick wall having a height of six or seven feet. This would divide the premises into two parts: the inner portion which would be used by the Muslim community and the outer portion or courtyard, which would be used by the Hindu community. The outer courtyard has several structures of religious significance for the Hindus, such as the Sita Rasoi and a platform called the Ramchabutra. In 1877, another door was opened on the northern side of the outer courtyard by the colonial government, which was given to the Hindus to control and manage. The bifurcation, as the record shows, did not resolve the conflict and there were numerous attempts by one or other of the parties to exclude the other.
11. In January 1885, Mahant Raghubar Das, claiming to be the Mahant of Ram Janmasthan instituted a suit1 ("Suit of 1885") before the Sub-Judge, Faizabad. The relief which he sought was permission to build a temple on the Ramchabutra situated in the outer courtyard, measuring seventeen feet by twenty-one feet. A sketch map was filed with the plaint. On 24 December 1885, the trial judge dismissed the suit, `noting that there was a possibility of riots breaking out between the two communities due to the proposed construction of a temple. The trial judge, however, observed that there could be no question or doubt regarding the possession and ownership of the Hindus over the Chabutra. On 18 March 1886, the District Judge dismissed the appeal against the judgment of the Trial Court2 but struck off the observations relating to the ownership of Hindus of the Chabutra contained in the judgment of the Trial Court. On 1 November 1886, the Judicial Commissioner of Oudh dismissed the second appeal3, noting that the Mahant had failed to present evidence of title to establish ownership of the Chabutra. In 1934, there was yet another conflagration between the two communities. The domed structure of the mosque was damaged during the incident and was subsequently repaired at the cost of the colonial government.
12. The controversy entered a new phase on the night intervening 22 and 23 December 1949, when the mosque was desecrated by a group of about fifty or sixty people who broke open its locks and placed idols of Lord Ram under the central dome. A First Information Report ("FIR") was registered in relation to the incident. On 29 December 1949, the Additional City Magistrate, Faizabad-cum- Ayodhya issued a preliminary order under Section 145 of the Code of Criminal Procedure 18984 ("CrPC 1898"), treating the situation to be of an emergent nature. Simultaneously, an attachment order was issued and Priya Datt Ram, the Chairman of the Municipal Board of Faizabad was appointed as the receiver of the inner courtyard. On 5 January 1950, the receiver took charge of the inner courtyard and prepared an inventory of the attached properties. The Magistrate passed a preliminary order upon recording a satisfaction that the dispute between the two communities over their claims to worship and proprietorship over the structure would likely lead to a breach of peace.
The stakeholders were allowed to file their written statements. Under the Magistrate's order, only two or three pujaris were permitted to go inside the place where the idols were kept, to perform religious ceremonies like bhog and puja. Members of the general public were restricted from entering and were only allowed darshan from beyond the grill-brick wall. The institution of the suits
13. On 16 January 1950, a suit was instituted by a Hindu devotee, Gopal Singh Visharad5, ("Suit 1") before the Civil Judge at Faizabad, alleging that he was being prevented by officials of the government from entering the inner courtyard of the disputed site to offer worship.
A declaration was sought to allow the plaintiff to offer prayers in accordance with the rites and tenets of his religion ("Sanatan Dharm") at the "main Janmabhumi", near the idols, within the inner courtyard, without hindrance. On the same date, an ad-interim injunction was issued in the suit. On 19 January 1950, the injunction was modified to prevent the idols from being removed from the disputed site and from causing interference in the performance of puja. On 3 March 1951, the Trial Court confirmed the adinterim order, as modified. On 26 May 1955, the appeal6 against the interim order was dismissed by the High Court of Allahabad.
14. On 5 December 1950, another suit was instituted by Paramhans Ramchandra Das7 ("Suit 2") before the Civil Judge, Faizabad seeking reliefs similar to those in Suit 1. Suit 2 was subsequently withdrawn on 18 September 1990.
15. On 1 April 1950, a Court Commissioner was appointed in Suit 1 to prepare a map of the disputed premises. On 25 June 1950, the Commissioner submitted a report, together with two site plans of the disputed premises which were numbered as Plan nos 1 and 2 to the Trial Court. Both the report and maps indicate the position at the site and are reproduced below:
Report of the Commissioner
I was appointed a commissioner in the above case to prepare a site plan of the locality and building in suit on scale. Accordingly, in compliance with the order of the court, I visited the locality on 16.4.50 and again on 30.4.50 after giving due notice to the counsel of the parties, and made necessary measurements on the spot. On the first day of my visit none of the parties were present, but on the second day defendant no. 1 was present with Shri Azimullah Khan and Shri Habib Ahmad Khan counsel. At about noon defendant no. 1 presented an application, attached herewith, when the measurement work had already finished.
Plan No. I represents the building in suit shown by the figure ABCDEF on a larger scale than Plan no.II, which represents the building with its locality. A perusal of Plan No.I would show that the building has got two gates, one on the east and the other on the north, known as "Hanumatdwar" and "Singhdwar"respectively. The "Hanumatdwar" is the main entrance gate to the building. At this gate there is a stone slab fixed to the ground containing the inscription "1-Shri Janma Bhumi nitya yatra," and a big coloured picture of Shri Hanumanji is placed at the top of the gate. The arch of this entrance gate, 10' in height, rests on two black kasauti stone pillars, each 4' high, marked a and b, containing images of "Jai and Vijai" respectively engraved thereon. To the south of this gate on the outer wall there is engraved a stone image, 5' long, known as "Varah Bhagwan."
The northern gate, known as "Singhdwar," 19'6" in height, has got at its top images of Garura in the middle and two lions one on each side. On entering the main gate there is pucca floor on the eastern and northern side of the inner building, marked by letters GHJKL DGB on the north of the eastern floor there is a neem tree, and to the south of it there is the bhandara (kitchen). Further south there is a raised pucca platform, 17' x 21' and 4' high, known as "Ram Chabutra," on which stands a small temple having idols of Ram and Janki installed therein. At the south-eastern corner E there is a joint neem-pipal tree, surrounded by a semi-circular pucca platform, on which are installed marble idols of Panchmukhi Mahadev, Parbati, Ganesh and Nandi. On the northern floor there is a pucca platform, 8' x 9', called "Sita Rasoi." On this platform there is a pucca chulha with chauka and belna, made of marble, affixed by its side.
To the east of the chulha there are four pairs of marble foot prints of Ram, Lakshman, Bharat & Shatrunghna. The pucca courtyard in front of the inner (main) building is enclosed by walls NHJK intercepted by iron bars with two iron bar gates at O and P as shown in the Plan no.I. At the southern end of this Courtyard there are 14 stairs leading to the roof of the building, and to the south of the stairs there is a raised pucca platform 2' high, having a urinal marked U at its south-west corner. There are three arched gates, X,Y and Z leading to the main building, which is divided into three portions, having arches at Q and R. There is a chhajja (projected roof) above the arch Y. 31. The three arches, Y, Q and R are supported on 12 black kasauti stone pillars, each 6' high, marked with letters c to n in Plan no. I. The pillars e to m have carvings of kamal flowers thereon. The pillar contains the image of Shankar Bhagwan in Tandava nritya form and another disfigured image engraved thereon. The pillar J contained the carved image of Hanumanji.
The pillar N has got the image of Lord Krishna engraved thereon other pillars have also got carvings of images which are effaced. In the central portion of the building at the north-western corner, there is a pucca platform with two stairs, on which is installed the idol of Bal Ram (infant Ram). At the top of the three portions of the building there are three round domes, as shown separately in Plan no.I, each on an octagonal base. There are no towers, nor is there any ghusalkhana or well in the building. Around the building there is a pucca path known as parikrama, as shown in yellow in Plan Nos.I & II. On the west of the parikrama, the land is about 20' low, while the pucca road on the northern side is about 18' low. Other structures found on the locality have been shown in Plan no.II at their proper places. The land shown by letters S and T is covered by huts and dhunis of sadhus. Adjacent to and south of the land shown by letter T, there is a raised platform, bounded by walls, 4' 6" high, with a passage towards west, known as "shankar chabutra." The pucca well, known as "Sita koop" has got a tin shed over it, and a stone slab is fixed close to it with the inscription "3-Sita koop". To the south - west of this well there is another stone slab fixed into the ground with the inscription "4-Sumitra Bhawan". On the raised platform of Sumitra Bhawan there is a stone slab fixed to the ground, marked, carved with the image of Shesh nag. The names of the various samadhis and other structures as noted in Plan No. II were given by sadhus and others present on the spot. Plans nos.I and II, which form part of this report, two notices given to parties counsel and the application presented by defendant no.1 are attached herewith.
I have the honour to be,
Your most obedient servant,
Shiva Shankar Lal,
Site map (Plan I)
Site map (Plan II)
16. On 17 December 1959, Nirmohi Akhara instituted a suit8 through its Mahant ("Suit 3") before the Civil Judge at Faizabad claiming that its "absolute right" of managing the affairs of the Janmasthan and the temple had been impacted by the Magistrate's order of attachment and by the appointment of a receiver under Section 145. A decree was sought to hand over the management and charge of the temple to the plaintiff in Suit 3.
17. On 18 December 1961, the Sunni Central Waqf Board and nine Muslim residents of Ayodhya filed a suit9 ("Suit 4") before the Civil Judge at Faizabad seeking a declaration that the entire disputed site of the Babri Masjid was a public mosque and for the delivery of possession upon removal of the idols.
18. On 6 January 1964, the trial of Suits 1, 3 and 4 was consolidated and Suit 4 was made the leading case.
19. On 25 January 1986, an application was filed by one Umesh Chandra before the Trial Court for breaking open the locks placed on the grill-brick wall and for allowing the public to perform darshan within the inner courtyard. On 1 February 1986, the District Judge issued directions to open the locks and to provide access to devotees for darshan inside the structure. In a Writ Petition10 filed before the High Court challenging the above order, an interim order was passed on 3 February 1986 directing that until further orders, the nature of the property as it existed shall not be altered.
20. On 1 July 1989, a Suit11 ("Suit 5") was brought before the Civil Judge, Faizabad by the deity ("Bhagwan Shri Ram Virajman") and the birth-place ("Asthan Shri Ram Janam Bhumi, Ayodhya"), through a next friend for a declaration of title to the disputed premises and to restrain the defendants from interfering with or raising any objection to the construction of a temple. Suit 5 was tried with the other suits.
21. On 10 July 1989, all suits were transferred to the High Court of Judicature at Allahabad. On 21 July 1989, a three judge Bench was constituted by the Chief Justice of the High Court for the trial of the suits. On an application by the State of Uttar Pradesh, the High Court passed an interim order on 14 August 1989, directing the parties to maintain status quo with respect to the property in dispute.
22. During the pendency of the proceedings, the State of Uttar Pradesh acquired an area of 2.77 acres comprising of the disputed premises and certain adjoining areas. This was effected by notifications dated 7 October 1991 and 10 October 1991 under Sections 4(1), 6 and 17(4) of the Land Acquisition Act 1894 ("Land Acquisition Act"). The acquisition was for 'development and providing amenities to pilgrims in Ayodhya'. A Writ Petition was filed before the High Court challenging the acquisition. By a judgment and order dated 11 December 1992, the acquisition was set aside.
23. A substantial change took place in the position at the site on 6 December 1992. A large crowd destroyed the mosque, boundary wall, and Ramchabutra. A makeshift structure of a temple was constructed at the place under the erstwhile central dome. The idols were placed there. Acquisition by the Central Government and Ismail Faruqui's case
24. The Central Government acquired an area of about 68 acres, including the premises in dispute, by a legislation called the Acquisition of Certain Area at Ayodhya Act 1993 ("Ayodhya Acquisition Act 1993"). Sections 3 and 4 envisaged the abatement of all suits which were pending before the High Court. Simultaneously, the President of India made a reference to this Court under Article 143 of the Constitution. The reference was on "(w)hether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janam Bhoomi and Babari Masjid (including the premises of the inner and outer courtyards on such structure) in the area on which the structure stands…".
25. Writ petitions were filed before the High Court of Allahabad and this Court challenging the validity of the Act of 1993. All the petitions and the reference by the President were heard together and decided by a judgment dated 24 October 1994. The decision of a Constitution Bench of this Court, titled Dr M Ismail Faruqui v Union of India12 held Section 4(3), which provided for the abatement of all pending suits as unconstitutional. The rest of the Act of 1993 was held to be valid. The Constitution Bench declined to answer the Presidential reference and, as a result, all pending suits and proceedings in relation to the disputed premises stood revived.
The Central Government was appointed as a statutory receiver for the maintenance of status quo and to hand over the disputed area in terms of the adjudication to be made in the suits. The conclusions arrived at by the Constitution Bench are extracted below: "96. ... (1)(a) Sub-section (3) of Section 4 of the Act abates all pending suits and legal proceedings without providing for an alternative dispute resolution mechanism for resolution of the disputes between the parties thereto. This is an extinction of the judicial remedy for resolution of the dispute amounting to negation of rule of law. Sub-section (3) of Section 4 of the Act is, therefore, unconstitutional and invalid. (1)(b) The remaining provisions of the Act do not suffer from any invalidity on the construction made thereof by us. Subsection (3) of Section 4 of the Act is severable from the remaining Act.
Accordingly, the challenge to the constitutional validity of the remaining Act, except for sub-section (3) of Sec. 4, is rejected.
(2) Irrespective of the status of a mosque under the Muslim law applicable in the Islamic countries, the status of a mosque under the Mahomedan Law applicable in secular India is the same and equal to that of any other place of worship of any religion; and it does not enjoy any greater immunity from acquisition in exercise of the sovereign or prerogative power of the State, than that of the places of worship of the other religions.
(3) The pending suits and other proceedings relating to the disputed area within which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi - Babri Masjid, stood, stand revived for adjudication of the dispute therein, together with the interim orders made, except to the extent the interim orders stand modified by the provisions of Section 7 of the Act.
(4) The vesting of the said disputed area in the Central Government by virtue of Section 3 of the Act is limited, as a statutory receiver with the duty for its management and administration according to Section 7 requiring maintenance of status quo therein under sub-section (2) of Section 7 of the Act. The duty of the Central Government as the statutory receiver is to handover the disputed area in accordance with Section 6 of the Act, in terms of the adjudication made in the suits for implementation of the final decision therein. This is the purpose for which the disputed area has been so acquired.
(5) The power of the courts in making further interim orders in the suits is limited to, and circumscribed by, the area outside the ambit of Section 7 of the Act.
(6) The vesting of the adjacent area, other than the disputed area, acquired by the Act in the Central Government by virtue of Section 3 of the Act is absolute with the power of management and administration thereof in accordance with sub-section (1) of Section 7 of the Act, till its further vesting in any authority or other body or trustees of any trust in accordance with Section 6 of the Act. The further vesting of the adjacent area, other than the disputed area, in accordance with Sec. 6 of the Act has to be made at the time and in the manner indicated, in view of the purpose of its acquisition.
(7) The meaning of the word "vest" in Section 3 and Section 6 of the Act has to be so understood in the different contexts.
(8) Section 8 of the Act is meant for payment of compensation to owners of the property vesting absolutely in the Central Government, the title to which is not in dispute being in excess of the disputed area which alone is the subject matter of the revived suits. It does not apply to the disputed area, title to which has to be adjudicated in the suits and in respect of which the Central Government is merely the statutory receiver as indicated, with the duty to restore it to the owner in terms of the adjudication made in the suits.
(9) The challenge to acquisition of any part of the adjacent area on the ground that it is unnecessary for achieving the professed objective of settling the long standing dispute cannot be examined at this stage. However, the area found to be superfluous on the exact area needed for the purpose being determined on adjudication of the dispute, must be restored to the undisputed owners.
(10) Rejection of the challenge by the undisputed owners to acquisition of some religious properties in the vicinity of the disputed area, at this stage is with the liberty granted to them to renew their challenge, if necessary at a later appropriate stage, in cases of continued retention by Central Government of their property in excess of the exact area determined to be needed on adjudication of the dispute.
(11) Consequently, the Special Reference No. 1 of 1993 made by the President of India under Art. 143(1) of the Constitution of India is superfluous and unnecessary and does not require to be answered. For this reason, we very respectfully decline to answer it and return the same.
(12) The questions relating to the constitutional validity of the said Act and maintainability of the Special Reference are decided in these terms."
The proceedings before the High Court
26. The recording of oral evidence before the High Court commenced on 24 July 1996. During the course of the hearings, the High Court issued directions on 23 October 2002 to the Archaeological Survey of India ("ASI") to carry out a scientific investigation and have the disputed site surveyed by Ground Penetrating Technology or Geo-Radiology ("GPR"). The GPR report dated 17 February 2003 indicated a variety of "anomalies" which could be associated with "ancient and contemporaneous structures" such as pillars, foundations, wall slabs and flooring extending over a large portion of the disputed site. In order to facilitate a further analysis, the High Court directed the ASI on 5 March 2003 to undertake the excavation of the disputed site. A fourteen-member team was constituted, and a site plan was prepared indicating the number of trenches to be laid out and excavated. On 22 August 2003, the ASI submitted its final report. The High Court heard objections to the report.
27. Evidence, both oral and documentary, was recorded before the High Court. As one of the judges, Justice Sudhir Agarwal noted, the High Court had before it 533 exhibits and depositions of 87 witnesses traversing 13,990 pages. Besides this, counsel relied on over a thousand reference books in Sanskrit, Hindi, Urdu, Persian, Turkish, French and English, ranging from subjects as diverse as history, culture, archaeology and religion. The High Court ensured that the innumerable archaeological artefacts were kept in the record room. It received dozens of CDs and other records which the three judges of the High Court have marshalled. The decision of the High Court 28. On 30 September 2010, the Full Bench of the High Court comprising of Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma delivered the judgment, which is in appeal. Justice S U Khan and Justice Sudhir Agarwal held "all the three sets of parties" – Muslims, Hindus and Nirmohi Akhara - as joint holders of the disputed premises and allotted a one third share to each of them in a preliminary decree. Justice S U Khan held thus: "Accordingly, all the three sets of parties, i.e. Muslims, Hindus and Nirmohi Akhara are declared joint title holders of the property/ premises in dispute as described by letters A B C D E F in the map Plan-I prepared by Sri Shiv Shanker Lal, Pleader/ Commissioner appointed by Court in Suit No.1 to the extent of one third share each for using and managing the same for worshipping.
A preliminary decree to this effect is passed. However, it is further declared that the portion below the central dome where at present the idol is kept in makeshift temple will be allotted to Hindus in final decree. It is further directed that Nirmohi Akhara will be allotted share including that part which is shown by the words Ram Chabutra and Sita Rasoi in the said map. It is further clarified that even though all the three parties are declared to have one third share each, however if while allotting exact portions some minor adjustment in the share is to be made then the same will be made and the adversely affected party may be compensated by allotting some portion of the adjoining land which has been acquired by the Central Government.
The parties are at liberty to file their suggestions for actual partition by metes and bounds within three months. List immediately after filing of any suggestion/ application for preparation of final decree after obtaining necessary instructions from Hon'ble the Chief Justice. Status quo as prevailing till date pursuant to Supreme Court judgment of Ismail Farooqui (1994(6) Sec 360) in all its minutest details shall be maintained for a period of three months unless this order is modified or vacated earlier." Justice Sudhir Agarwal partly decreed Suits 1 and 5. Suits 3 and 4 were dismissed as being barred by limitation. The learned judge concluded with the following directions: "4566…
(i) It is declared that the area covered by the central dome of the three domed structure, i.e., the disputed structure being the deity of Bhagwan Ram Janamsthan and place of birth of Lord Rama as per faith and belief of the Hindus, belong to plaintiffs (Suit-5) and shall not be obstructed or interfered in any manner by the defendants. This area is shown by letters AA BB CC DD in Appendix 7 to this judgment.
(ii) The area within the inner courtyard denoted by letters B C D L K J H G in Appendix 7 (excluding (i) above) belong to members of both the communities, i.e., Hindus (here plaintiffs, Suit-5) and Muslims since it was being used by both since decades and centuries. It is, however, made clear that for the purpose of share of plaintiffs, Suit-5 under this direction the area which is covered by (i) above shall also be included.
(iii) The area covered by the structures, namely, Ram Chabutra, (EE FF GG HH in Appendix 7) Sita Rasoi (MM NN OO PP in Appendix 7) and Bhandar (II JJ KK LL in Appendix 7) in the outer courtyard is declared in the share of Nirmohi Akhara (defendant no. 3) and they shall be entitled to possession thereof in the absence of any person with better title.
(iv) The open area within the outer courtyard (A G H J K L E F in Appendix 7) (except that covered by (iii) above) shall be shared by Nirmohi Akhara (defendant no. 3) and plaintiffs (Suit-5) since it has been generally used by the Hindu people for worship at both places. (iv-a) It is however made clear that the share of muslim parties shall not be less than one third (1/3) of the total area of the premises and if necessary it may be given some area of outer courtyard. It is also made clear that while making partition by metes and bounds, if some minor adjustments are to be made with respect to the share of different parties, the affected party may be compensated by allotting the requisite land from the area which is under acquisition of the Government of India.
(v) The land which is available with the Government of India acquired under Ayodhya Act 1993 for providing it to the parties who are successful in the suit for better enjoyment of the property shall be made available to the above concerned parties in such manner so that all the three parties may utilise the area to which they are entitled to, by having separate entry for egress and ingress of the people without disturbing each others rights. For this purpose the concerned parties may approach the Government of India who shall act in accordance with the above directions and also as contained in the judgement of Apex Court in Dr. Ismail Farooqi (Supra).
(vi) A decree, partly preliminary and partly final, to the effect as said above (i to v) is passed. Suit-5 is decreed in part to the above extent. The parties are at liberty to file their suggestions for actual partition of the property in dispute in the manner as directed above by metes and bounds by submitting an application to this effect to the Officer on Special Duty, Ayodhya Bench at Lucknow or the Registrar, Lucknow Bench, Lucknow, as the case may be.
(vii) For a period of three months or unless directed otherwise, whichever is earlier, the parties shall maintain status quo as on today in respect of property in dispute."Justice D V Sharma decreed Suit 5 in its entirety. Suits 3 and 4 were dismissed as being barred by limitation. Justice D V Sharma concluded: "Plaintiff's suit is decreed but with easy costs. It is hereby declared that the entire premises of Sri Ram Janm Bhumi at Ayodhya as described and delineated in annexure Nos. 1 and 2 of the plaint belong to the plaintiff Nos. 1 and 2, the deities. The defendants are permanently restrained from interfering with, or raising any objection to, or placing any obstruction in the construction of the temple at Ram Janm Bhumi Ayodhya at the site, referred to in the plaint." The parties preferred multiple Civil Appeals and Special Leave Petitions before this Court against the judgment of the High Court. Proceedings before this Court
29. On 9 May 2011, a two judge Bench of this Court admitted several appeals and stayed the operation of the judgment and decree of the Allahabad High Court. During the pendency of the appeals, parties were directed to maintain status quo with respect to the disputed premises in accordance with the directions issued in Ismail Faruqui. The Registry of this Court was directed to provide parties electronic copies of the digitised records.
30. On 10 September 2013, 24 February 2014, 31 October 2015 and 11 August 2017, this Court issued directions for summoning the digital record of the evidence and pleadings from the Allahabad High Court and for furnishing translated copies to the parties. On 10 August 2015, a three judge Bench of this Court allowed the Commissioner, Faizabad Division to replace the old and worn out tarpaulin sheets over the makeshift structure under which the idols were placed with new sheets of the same size and quality.
31. On 5 December 2017, a three judge Bench of this Court rejected the plea that the appeals against the impugned judgement be referred to a larger Bench in view of certain observations of the Constitution Bench in Ismail Faruqui. On 14 March 2018, a three judge Bench heard arguments on whether the judgment in Ismail Faruqui required reconsideration. On 27 September 2018, the three judge Bench of this Court by a majority of 2:1 declined to refer the judgment in Ismail Faruqui for reconsideration and listed the appeals against the impugned judgement for hearing.
32. By an administrative order dated 8 January 2019 made pursuant to the provisions of Order VI Rule 1 of the Supreme Court Rules, 2013, the Chief Justice of India constituted a five judge Bench to hear the appeals. On 10 January 2019, the Registry was directed to inspect the records and if required, engage official translators. On 26 February 2019, this Court referred the parties to a Court appointed and monitored mediation to explore the possibility of bringing about a permanent solution to the issues raised in the appeals. On 8 March 2019, a panel of mediators comprising of (i) Justice Fakkir Mohamed Ibrahim Kalifulla, a former Judge of this Court;
(ii) Sri Sri Ravi Shankar; and
(iii) Mr Sriram Panchu, Senior Advocate was constituted. Time granted to the mediators to complete the mediation proceedings was extended on 10 May 2019. Since no settlement had been reached, on 2 August 2019, the hearing of the appeals was directed to commence from 6 August 2019. During the course of hearing, a report was submitted by the panel of mediators that some of the parties desired to settle the dispute. This Court by its order dated 18 September 2019 observed that while the hearings will proceed, if any parties desired to settle the dispute, it was open for them to move the mediators and place a settlement, if it was arrived at, before this Court. Final arguments were concluded in the batch of appeals on 16 October 2019. On the same day, the mediation panel submitted a report titled "Final Report of the Committee"stating that a settlement had been arrived at by some of the parties to the present dispute.
The settlement was signed by Mr Zufar Ahmad Faruqi, Chairman of the Sunni Central Waqf Board. Though under the settlement, the Sunni Central Waqf Board agreed to relinquish all its rights, interests and claims over the disputed land, this was subject to the fulfilment of certain conditions stipulated. The settlement agreement received by this Court from the mediation panel has not been agreed to or signed by all the parties to the present dispute. Moreover, it is only conditional on certain stipulations being fulfilled. Hence, the settlement cannot be treated to be a binding or concluded agreement between the parties to the dispute.
We, however, record our appreciation of the earnest efforts made by the members of the mediation panel in embarking on the task entrusted by this Court. In bringing together the disputants on a common platform for a free and frank dialogue, the mediators have performed a function which needs to be commended. We also express our appreciation of the parties who earnestly made an effort to pursue the mediation proceedings.
B. An overview of the suits
33. Before examining the various contentions of the parties before this Court, we first record the procedural history, substantive claims and reliefs prayed for in the pleadings of the three Suits before this Court. Suit 1 - OOS No 1 of 1989 (Regular Suit 2 of 1950) 34. The suit was instituted on 13 January 1950 by Gopal Singh Visharad, a resident of Ayodhya in his capacity as a "follower of Sanatan Dharm" seeking:
(i) A declaration of his entitlement to worship and seek the darshan of Lord Ram, "according to religion and custom" at the Janmabhumi temple without hindrance; and
(ii) A permanent and perpetual injunction restraining defendant nos 1 to 10 from removing the idols of the deity and other idols from the place where they were installed; from closing the way leading to the idols; or interfering in worship and darshan. Defendant nos 1 to 5 are Muslim residents of Ayodhya; defendant no 6 is the State of Uttar Pradesh; defendant no 7 is the Deputy Commissioner of Faizabad; defendant no 8 is the Additional City Magistrate, Faizabad; defendant no 9 is the Superintendent of Police, Faizabad; defendant no 10 is the Sunni Central Waqf Board and defendant no 11 is the Nirmohi Akhara. The case of the plaintiff in Suit 1 is that, as a resident of Ayodhya, he was worshipping the idol of Lord Ram and Charan Paduka (foot impressions)
"in that place of Janambhumi". The boundaries of the 'disputed place' as described in the plaint are as follows:
"Disputed place: East: Store and Chabutra of Ram Janam Bhumi West: Parti North: Sita Rasoi South: Parti." The cause of action for Suit 1 is stated to have arisen on 14 January 1950, when the employees of the government are alleged to have unlawfully prevented the plaintiff
"from going inside the place" and exercising his right of worship. It was alleged that the
"State" adopted this action at the behest of the Muslim residents represented by defendant nos 1 to 5, as a result of which the Hindus were stated to been deprived of their
"legitimate right of worship". The plaintiff apprehended that the idols, including the idol of Lord Ram, would be removed. These actions were alleged to constitute a "direct attack on the right and title of the plaintiff" and were stated to be an "oppressive act", contrary to law.
35. Denying the allegations contained in the plaint, defendant nos 1 to 5 stated in their written statements that:
(i) The property in respect of which the case has been instituted is not Janmabhumi but a mosque constructed by Emperor Babur. The mosque was built in 1528 on the instructions of Emperor Babur by Mir Baqi, who was the Commander of Babur's forces, following the conquest of the subcontinent by the Mughal emperor;
(ii) The mosque was dedicated as a waqf for Muslims, who have a right to worship there. Emperor Babur laid out annual grants for the maintenance and expenditure of the mosque, which were continued and enhanced by the Nawab of Awadh and the British Government;
(iii) The Suit of 1885 was a suit for declaration of ownership by Mahant Raghubar Das only in respect of the Ramchabutra and hence the claim that the entire building represented the Janmasthan was baseless. As a consequence of the dismissal of the Suit on 24 December 1885, "the case respecting the Chabutra was not entertained";
(iv) The Chief Commissioner Waqf appointed under the U.P. Muslim Waqf Act 1936 had held the mosque to be a Sunni Waqf;
(v) Muslims have always been in possession of the mosque. This position began in 1528 and continued thereafter, and consequently, "Muslims are in possession of that property … by way of an adverse possession";
(vi) Namaz had been offered at Babri Masjid until 16 December 1949 at which point there were no idols under the central dome. If any person had placed any idol inside the mosque with a mala fide intent, "the degradation of the mosque is evident and the accused persons are liable to be prosecuted";
(vii) Any attempt of the plaintiff or any other person to enter the mosque to offer worship or for darshan would violate the law.
Proceedings under Section 145 of the CrPC 1898 had been initiated; and
(viii) The present suit claiming Babri Masjid as the place of the Janmasthan is without basis as there exists, for quite long, another temple with idols of Lord Ram and others, which is the actual place of the Janmasthan of Lord Ram. A written statement was filed by the defendant no 6, the State, submitting that:
(i) The property in suit known as Babri Masjid has been used as a mosque for the purpose of worship by Muslims for a long period and has not been used as a temple of Lord Ram;
(ii) On the night of 22 December 1949, the idols of Lord Ram were surreptitiously placed inside the mosque imperilling public peace and tranquillity. On 23 December 1949, the City Magistrate passed an order under Section 144 of CrPC 1898 which was followed by an order of the same date passed by the Additional City Magistrate under Section 145 attaching the disputed property. These orders were passed to maintain public peace; and
(iii) The City Magistrate appointed Shri Priya Datt Ram, Chairman, Municipal Board, Faizabad-cum-Ayodhya as a receiver of the property. Similar written statements were filed by defendant no 8, the Additional City Magistrate and defendant no 9, the Superintendent of Police. Defendant no 10, the Sunni Central Waqf Board filed its written statement stating:
(i) The building in dispute is not the Janmasthan of Lord Ram and no idols were ever installed in it;
(ii) The property in the suit was a mosque known as the Babri mosque constructed during the regime of Emperor Babur who had laid out annual grants for its maintenance and expenditure and they were continued and enhanced by the Nawab of Awadh and the British Government;
(iii) On the night of 22-23 December 1949, the idols were surreptitiously brought into the mosque;
(iv) The Muslims alone had remained in possession of the mosque from 1528 up to the date of the attachment of the mosque under Section 145 on 29 December 1949. They had regularly offered prayers up to 21 December 1949 and Friday prayers up to 16 December 1949;
(v) The mosque had the character of a waqf and its ownership vested in God;
(vi) The plaintiff was estopped from claiming the mosque as the Janmabhumi of Lord Ram as the claim in the Suit of 1885 instituted by Mahant Raghubar Das (described to be the plaintiff's predecessor) had been confined only to the Ramchabutra measuring seventeen by twenty-one feet outside the mosque; and
(vii) There already existed a Ram Janmasthan Mandir, a short distance away from Babri Masjid. In the plaintiff's replication to the written statement of defendant nos 1 to 5, it was averred that the disputed site has never been used as a mosque since 1934. It was further stated that it was "common knowledge" that Hindus have been in continuous possession by virtue of which the claim of the defendants has ceased.
Suit 3 - OOS no 3 of 1989 (Regular Suit no 26 of 1959)
36. The suit was instituted on 17 December 1959 by Nirmohi Akhara through Mahant Jagat Das seeking a decree for the removal of the receiver from the management and charge of the Janmabhumi temple and for delivering it to the plaintiff. Defendant no 1 in Suit 3 is the receiver; defendant no 2 is the State of Uttar Pradesh; defendant no 3 is the Deputy Commissioner, Faizabad; defendant no 4 is the City Magistrate, Faizabad; defendant no 5 is the Superintendent of Police, Faizabad; defendant nos 6 to 8 are Muslim residents of Ayodhya; defendant no 9 is the Sunni Central Waqf Board and defendant no 10 is Umesh Chandra Pandey. The cause of action is stated to have arisen on 5 January 1950 when the management and charge of the Janmabhumi temple was taken away by the City Magistrate and entrusted to the receiver. Nirmohi Akhara pleaded that:
(i) There exists in Ayodhya "since the days of yore" an ancient Math or Akhara of Ramanandi Bairagis called the Nirmohis. This is a religious establishment of a public character;
(ii) The Janmasthan, commonly known as Janmabhumi, is the birth-place of Lord Ram and belongs to and has always been managed by Nirmohi Akhara;
(iii) The Janmasthan is of ancient antiquity lying within the boundaries shown by the letters A B C D in the sketch map appended to the plaint within which stands the "temple building" marked by the letters E F G K P N M L E. The building denoted by the letters E F G H I J K L E is the main Janmabhumi temple, where the idols of Lord Ram with Lakshman, Hanuman and Saligram have been installed. The temple building has been in the possession of Nirmohi Akhara and only Hindus have been allowed to enter the temple and make offerings such as money, sweets, flowers and fruits. Nirmohi Akhara has been receiving these offerings through its pujaris;
(iv) Nirmohi Akhara is a Panchayati Math of the Ramanandi sect of Bairagis which is a religious denomination. The customs of Nirmohi Akhara have been reduced to writing by a registered deed dated 19 March 1949;
(v) Nirmohi Akhara owns and manages several temples;
(vi) No Mohammedan has been allowed to enter the temple building since 1934; and
(vii) Acting under the provisions of Section 145 of the CrPC 1898, the City Magistrate placed the main temple and all the articles in it under the charge of the first defendant as receiver on 5 January 1950. As a consequence, the plaintiffs have been wrongfully deprived of the management and charge of the temple. 37. In the written statement filed on behalf of defendant nos 6 to 8, Muslim residents of Ayodhya, it was stated that Babri Masjid was constructed by Emperor Babur in 1528 and has been constituted as a waqf, entitling Muslims to offer prayers.
Moreover, it was submitted that:
(i) The Suit of 1885 by Raghubar Mahant Das was confined to Ramchabutra and has been dismissed by the Sub-Judge, Faizabad;
(ii) The property of the mosque was constituted as a waqf under the U.P. Muslim Waqf Act 1936;
(iii) Muslims have been in continuous possession of the mosque since 1528 as a consequence of which all the rights of the plaintiffs have been extinguished; (iv) On the eastern and northern sides of the mosque, there are Muslim graves;
(v) Namaz was continuously offered in the property until 16 December 1949 and the character of the mosque will not stand altered if an idol has been installed surreptitiously; and (vi) There is another temple at Ayodhya which is known as the Janmasthan temple of Lord Ram which has been in existence for a long time.
The plaint was amended to incorporate the averment that on 6 December 1992 "the main temple was demolished by some miscreants who had no religion, caste or creed". In the replication filed by Nirmohi Akhara to the joint written statement of defendant nos 6 to 8, the existence of a separate Janmasthan temple was denied. It was stated that the Janmasthan temple is situated to the North of the Janmabhumi temple. A written statement was filed in the suit by Defendant no 9, the Sunni Central Waqf Board denying the allegations. In the written statement filed by defendant no 10, Umesh Chandra Pandey, it was submitted:
(i) The Janmasthan is a "holy place of worship" and belongs to the deity of Shri Ram Lalla Virajman for a long period of time. The temple is possessed and owned by the deity. Lord Ram is the principal deity of Ram Janmabhumi;
(ii) Nirmohi Akhara has never managed the Janmasthan;
(iii) In 1857, the British Government attempted to divide the building by creating an inner enclosure and describing the boundary within it as a mosque but no "true Muslim"could have offered prayers there;
(iv) The presence of Kasauti pillars and the carvings of Gods and Goddess on the pillars indicated that the place could not be used by a "true Muslim" for offering prayers;
(v) The place was virtually landlocked by a Hindu temple in which worship of the deity took place;
(vi) The Suit of the Nirmohi Akhara was barred by limitation having been instituted in 1959, though the cause of action arose on 5 January 1950; and
(vii) Nirmohi Akhara did not join the proceedings under Section 145 nor did they file a revision against the order passed by the Additional City Magistrate. In the replication filed by Nirmohi Akhara to the written statement of defendant no 10, there was a detailed account of the founding of the denomination.
Following the tradition of Shankaracharya since the seventh century CE, the practice of setting up Maths was followed by Ramanujacharya and later, by Ramanand. Ramanand founded a sect of Vaishnavs known as 'Ramats', who worship Lord Ram. The spiritual preceptors of the Ramanandi sect of Bairagis established three 'annis' namely, the
(ii) Digamber; and
(iii) Nirwani Akharas. These Akharas are Panchayati Maths. Nirmohi Akhara owns the Ram Janmasthan temple which is associated with the birth-place of Lord Ram. The outer enclosure was owned and managed by Nirmohi Akhara until the proceedings under Section 145 were instituted. Suit 4 - OOS 4 of 1989 (Regular Suit no 12 of 1961) 38. Suit 4 was instituted on 18 December 1961 by the Sunni Central Waqf Board and nine Muslim residents of Ayodhya. It has been averred that the suit has been instituted on behalf of the entire Muslim community together with an application under Order I Rule 8 of the CPC. As amended, the following reliefs have been sought in the plaint: "
(a) A declaration to the effect that the property indicated by letters A B C D in the sketch map attached to the plaint is public mosque commonly known as 'Babari Masjid' and that the land adjoining the mosque shown in the sketch map by letters E F G H is a public Muslim graveyard as specified in para 2 of the plaint may be decreed.
(b) That in case in the opinion of the Court delivery of possession is deemed to be the proper remedy, a decree for delivery of possession of the mosque and graveyard in suit by removal of the idols and other articles which the Hindus may have placed in the mosque as objects of their worship be passed in plaintiff's favour, against the defendants.
(bb) That the statutory Receiver be commanded to hand over the property in dispute described in Schedule 'A' of the Plaint by removing the unauthorized structures erected thereon." [Note : Prayer (bb) was inserted by an amendment to the plaint pursuant to the order of the High Court dated 25 May 1995]. Defendant no 1 in Suit 4 is Gopal Singh Visharad; defendant no 2 is Ram Chander Dass Param Hans; defendant no 3 is Nirmohi Akhara; defendant no 4 is Mahant Raghunath Das; defendant no 5 is the State of U.P.; defendant no 6 is the Collector, Faizabad; defendant no 7 is the City Magistrate, Faizabad; defendant no 8 is the Superintendent of Police of Faizabad; defendant no 9 is Priyadutt Ram; defendant no 10 is the President, Akhil Bharat Hindu Mahasabha; defendant no 13 is Dharam Das; defendant no 17 is Ramesh Chandra Tripathi; and defendant no 20 is Madan Mohan Gupta. The suit is based on the averment that in Ayodhya, there is an ancient historic mosque known commonly as Babri Masjid which was constructed by Babur more than 433 years ago following his conquest of India and the occupation of its territories.
It has been averred that the mosque was built for the use of the Muslims in general as a place of worship and for the performance of religious ceremonies. The main construction of the mosque is depicted by the letters A B C D on the plan annexed to the plaint. Adjoining the land is a graveyard. According to the plaintiffs, both the mosque and the graveyard vest in the Almighty and since the construction of the mosque, it has been used by the Muslims for offering prayers while the graveyard has been used for burial. The plaint alleged that outside the main building of the mosque, Hindu worship was being conducted at a Chabutra admeasuring 17x21 feet on which there was a small wooden structure in the form of a tent. The plaint contains a recital of the Suit of 1885 by Mahant Raghubhar Das for permission to construct a temple on the Chabutra which was dismissed.
The plaintiffs in Suit 4 contend that the Mahant sued on behalf of himself, the Janmasthan and all persons interested in it, and the decision operates as res judicata as the matter directly and substantially in issue was the existence of the Babri Masjid, and the rights of the Hindus to construct a temple on the land adjoining the mosque. According to the plaintiffs, assuming without admitting that there existed a Hindu temple as alleged by the defendants on the site of which the mosque was built 433 years ago by Emperor Babur, the Muslims by virtue of their long exclusive and continuous possession commencing from the construction of the mosque and ensuing until its desecration perfected their title by adverse possession. The plaint then proceeds to make a reference to the proceedings under Section 145 of CrPC 1898. As a result of the order of injunction in Suit 2 of 1950, Hindus have been permitted to perform puja of the idols placed within the mosque but Muslims have been prevented from entering.
According to the plaintiffs, the cause of action for the suit arose on 23 December 1949 when the Hindus are alleged to have wrongfully entered the mosque and desecrated it by placing idols inside the mosque. The injuries are claimed to be continuing in nature. As against the state, the cause of action is alleged to have arisen on 29 December 1949 when the property was attached by the City Magistrate who handed over possession to the receiver. The receiver assumed charge on 5 January 1950. The reliefs which have been claimed in the suit are based on the above averments. Essentially, the case of the plaintiffs proceeds on the plea that
(i) The mosque was constructed by Babur 433 years prior to the suit as a place of public worship and has been continuously used by Muslims for offering prayers; and
(ii) Even assuming that there was an underlying temple which was demolished to give way for the construction of the mosque, the Muslims have perfected their title by adverse possession. On this foundation, the plaintiffs claim a declaration of title and, in the event that such a prayer is required, a decree for possession.
39. In the written statement filed by Gopal Singh Visharad, the first defendant (who is also the plaintiff in Suit 1), it has been stated that if the Muslims were in possession of the mosque, it ceased in 1934.
The Hindus claim to be in possession after 1934 and their possession is stated to have ripened into adverse possession. According to the written statement, no prayers were offered in the mosque since 1934. Moreover, no individual Hindu or Mahant can be said to represent the entire Hindu community. Hindu puja is stated to be continuing inside the structure, which is described as a temple since 1934 and admittedly since January 1950, following the order of the City Magistrate. In an additional written statement, a plea has been taken that the UP Muslim Waqf Act 1936 is ultra vires.
It has been averred that any determination under the Act cannot operate to decide a question of title against non-Muslims. In a subsequent written statement, it has been stated that Hindus have worshipped the site of the Janmabhumi since time immemorial; the Muslims were never in possession of the Janmabhumi temple and, if they were in possession, it ceased in 1934. The suit is alleged to be barred by limitation. As regards the Suit of 1885, it has been submitted that the plaintiff was not suing in a representative capacity and was only pursuing his personal interest. The written statement of Nirmohi Akhara denies the existence of a mosque.
Nirmohi Akhara states that it was unaware of any suit filed by Mahant Raghubar Das. According to it, a mosque never existed at the site and hence there was no occasion for the Muslim community to offer prayers till 23 December 1949. It is urged that what the property described as Babri mosque is and has always been a temple of Janmabhumi with idols of Hindu Gods installed within. According to the written statement, the temple on Ramchabutra had been judicially recognised in the Suit of 1885. It was urged that the Janmabhumi temple was always in the possession of Nirmohi Akhara and none else but the Hindus were allowed to enter and offer worship. The offerings are stated to have been received by the representative of Nirmohi Akhara. After the attachment, only the pujaris of Nirmohi Akhara are claimed to have been offering puja to the idols in the temple.
The written statement contains a denial of Muslim worship in the structure at least since 1934 and it is urged that Suit 4 is barred by limitation. In the additional written statement, Nirmohi Akhara has denied that the findings in the Suit of 1885 operate as res judicata. There is a denial of the allegation that the Muslims have perfected their title by adverse possession. The State of Uttar Pradesh filed its written statement to the effect that the government is not interested in the property in dispute and does not propose to contest the suit.
In the written statement filed on behalf of the tenth defendant, Akhil Bhartiya Hindu Mahasabha, it has been averred that upon India regaining independence, there is a revival of the original Hindu law as a result of which the plaintiffs cannot claim any legal or constitutional right. In an additional written statement, the tenth defendant denies the incident of 22 December 1949 and claims that the idols were in existence at the place in question from time immemorial. According to the written statement, the site is the birth-place of Lord Ram and no mosque could have been constructed at the birth-place.
The written statement by Abhiram Das and by Dharam Das, who claims to be his chela, questions the validity of the construction of a mosque at the site of Ram Janmabhumi. According to the written statement, the site is landlocked and surrounded by places of Hindu worship and hence such a building cannot be a valid mosque in Muslim law. The written statement contains a denial of a valid waqf on the ground that a waqf cannot be based on adverse possession.
According to the written statement, at Ram Janmabhumi there was an ancient temple tracing back to the rule of Vikramaditya which was demolished by Mir Baqi. It has been averred that Ram Janmabhumi is indestructible as the deity is divine and immortal. In spite of the construction of the mosque, it has been submitted, the area has continued to be in the possession of the deities and no one could enter the three domed structure except after passing through Hindu places of worship. The written statements filed by the other Hindu defendants broadly follow similar lines. Replications were filed to the written statements of the Hindu parties. Suit 5 – OOS no 5 of 1989 (Regular Suit no 236 of 1989)
40. The suit was instituted on 1 July 1989 claiming the following reliefs: "
(A) A declaration that the entire premises of Sri Rama Janma Bhumi at Ayodhya, as described and delineated in Annexure I, II and III belongs to the plaintiff Deities.
(B) A perpetual injunction against the Defendants prohibiting them from interfering with, or raising any objection to, or placing any obstruction in the construction of the new Temple building at Sri Rama Janma Bhumi, Ayodhya, after demolishing and removing the existing buildings and structures etc., situate thereat, in so far as it may be necessary or expedient to do so for the said purpose.
" This suit has been instituted in the name of "Bhagwan Sri Ram Virajman at Sri Ram Janmabhumi, Ayodhya also called Bhagwan Sri Ram Lalla Virajman". The deity so described is the first plaintiff. The second plaintiff is described as "Asthan Sri Rama Janambhumi, Ayodhya". Both the plaintiffs were represented by Sri Deoki Nandan Agrawala, a former judge of the Allahabad High Court as next friend. The next friend of the first and second plaintiffs is impleaded as the third plaintiff. The defendants to the suit include:
(i) Nirmohi Akhara which is the Plaintiff in Suit 3;
(ii) Sunni Central Waqf Board, the Plaintiff in Suit 4;
(iii) Hindu and Muslim residents of Ayodhya; and
(iv) The State of Uttar Pradesh, the Collector and Senior Superintendent of Police. Several other Hindu entities including the All India Hindu Mahasabha and a Trust described as the Sri Ram Janmabhumi Trust, are parties to the Suit as is the Shia Central Board of Waqfs.
The principal averments in Suit 5 are that:
(i) The first and second plaintiffs are juridical persons: Lord Ram is the presiding deity of the place and the place is itself a symbol of worship;
(ii) The identification of Ram Janmabhumi, for the purpose of the plaint is based on the site plans of the building, premises and adjacent area prepared by Sri Shiv Shankar Lal, who was appointed as Commissioner by the Civil Judge at Faizabad in Suit 1 of 1950;
(iii) The plaint contains a reference to the earlier suits instituted before the Civil Court and that the religious ceremonies for attending to the deities have been looked after by the receiver appointed in the proceedings under Section 145. Although seva and puja of the deity have been conducted, darshan for the devotees is allowed only from behind a barrier;
(iv) Alleging that offerings to the deity have been misappropriated, it has been stated that the devotees desired to have a new temple constructed "after removing the old structure at Sri Ram Janmabhumi at Ayodhya". A Deed of Trust was constituted on 18 December 1985 for the purpose of managing the estate and affairs of the Janmabhumi;
(v) Though both the presiding deity of Lord Ram and Ram Janmabhumi are claimed to be juridical persons with a distinct personality, neither of them was impleaded as a party to the earlier suits. As a consequence, the decrees passed in those suits will not bind the deities;
(vi) Public records establish that Lord Ram was born and manifested himself in human form as an incarnation of Vishnu at the premises in dispute;
(vii) The place itself – Ram Janmasthan - is an object of worship since it personifies the divine spirit worshipped in the form of Lord Ram. Both the deity and the place of birth thus possess a juridical character. Hindus worship the spirit of the divine and not its material form in the shape of an idol. This spirit which is worshipped is indestructible. Representing this spirit, Ram Janmabhumi as a place is worshipped as a deity and is hence a juridical person; (viii) The actual and continuous performance of puja of "an immovable deity" by its devotees is not essential for its existence since the deity represented by the land is indestructible;
(ix) There was an ancient temple during the reign of Vikramaditya at Ram Janmabhumi. The temple was partly destroyed and an attempt was made to raise a mosque by Mir Baqi, a Commander of Emperor Babur. Most of the material utilised to construct the mosque was obtained from the temple including its Kasauti pillars with Hindu Gods and Goddesses carved on them;
(x) The 1928 edition of the Faizabad Gazetteer records that during the course of his conquest in 1528, Babur destroyed the ancient temple and on its site a mosque was built. In 1855, there was a dispute between Hindus and Muslims. The gazetteer records that after the dispute, an outer enclosure was placed in front of the mosque as a consequence of which access to the inner courtyard was prohibited to the Hindus. As a result, they made their offerings on a platform in the outer courtyard;
(xi) The place belongs to the deities and no valid waqf was ever created or could have been created;
(xii) The structure which was raised upon the destruction of the ancient temple, utilising the material of the temple does not constitute a mosque. Despite the construction of the mosque, Ram Janmabhumi did not cease to be in possession of the deity which has continued to be worshipped by devotees through various symbols;
(xiii) The building of the mosque could be accessed only by passing through the adjoining places of Hindu worship. Hence, at Ram Janmabhumi, the worship of the deities has continued through the ages;
(xiv) No prayers have been offered in the mosque after 1934. During the night intervening 22-23 December 1949, idols of Lord Ram were installed with due ceremony under the central dome. At that stage, acting on an FIR, proceedings were initiated by the Additional City Magistrate under Section 145 of the CrPC and a preliminary order was passed on 29 December 1949. A receiver was appointed, in spite of which the possession of the plaintiff deities was not disturbed;
(xv) The plaintiffs, were not a party to any prior litigation and are hence not bound by the outcome of the previous proceedings; and
(xvi) The Ram Janmabhumi at Ayodhya which contains, besides the presiding deity, other idols and deities along with its appertaining properties constitutes one integral complex with a single identity. The claim of the Muslims is confined to the area enclosed within the inner boundary wall, erected after the annexation of Oudh by the British. The plaint contains a description of the demolition of the structure of the mosque on 6 December 1992 and the developments which have taken place thereafter including the promulgation of an Ordinance and subsequently, a law enacted by the Parliament for acquisition of the land. 41. In the written statement filed by Nirmohi Akhara, it has been stated that:
(i) The idol of Lord Ram has been installed not at Ram Janmabhumi but in the Ram Janmabhumi temple. Nirmohi Akhara has instituted a suit seeking charge and management of Ram Janmabhumi temple;
(ii) While the birth-place of Lord Ram is not in dispute, it is the Ram Janmabhumi temple which is in dispute. The Muslims claim it to be a mosque while Nirmohi Akhara claims it to be a temple under its charge and management. Ram Janmabhumi temple is situated at "Asthan Ram Janmabhumi" (the birth-place of Lord Ram), Mohalla Ram Kot at Ayodhya;
(iii) Nirmohi Akhara is the Shebait of the idol of Lord Ram installed in the temple in dispute and has the exclusive right to repair and reconstruct the temple, if necessary; and
(iv) "Ram Janmabhumi Asthan" is not a juridical person. The plaintiffs of suit 5 have no real title to sue. The entire premises belong to Nirmohi Akhara, the answering defendant. Hence, according to the written statement the plaintiffs have no right to seek a declaration. According to the written statement of the Sunni Central Waqf Board:
(i) Neither the first nor the second plaintiffs are juridical persons;
(ii) There is no presiding deity of Lord Ram at the place in dispute;
(iii) The idols were surreptitiously placed inside the mosque on the night of 22- 23 December 1949. There is neither any presiding deity nor a Janmasthan;
(iv) The Suit of 1885 was instituted by Mahant Raghubar Das in his capacity as Mahant of the Janmasthan of Ayodhya seeking permission to establish a temple over a platform or Chabutra. The mosque was depicted in the site plan on the western side of the Chabutra. The suit was instituted on behalf of other Mahants and Hindus of Ayodhya and Faizabad. The suit was dismissed. The first and second appeals were also rejected. Since the claim in the earlier suit was confined only to the Chabutra admeasuring seventeen by twenty-one feet outside the mosque, the claim in the present suit is barred;
(v) There exists another temple known as the Janmasthan temple situated at a distance of less than one hundred yards from Babri Masjid;
(vi) The mosque was not constructed on the site of an existing temple or upon its destruction;
(vii) During the regime of Emperor Babur the land belonged to the State and the mosque was constructed on vacant land which did not belong to any person;
(viii) The structure has always been used as a mosque ever since its construction during the regime of Emperor Babur, who was a Sunni Muslim;
(ix) The possession of Muslims was uninterrupted and continuous since the construction of the mosque, until 22 December 1949. Therefore, any alleged right to the contrary is deemed to have been extinguished by adverse possession;
(x) Prayers were offered in the mosque five times every day, regularly until 22 December 1949 and Friday prayers were offered until 16 December 1949;
(xi) On 22-23 December 1949, some Bairagis forcibly entered into the mosque and placed an idol below the central dome. This came to the knowledge of Muslims who attended the mosque for prayers on 23 December 1949 after which proceedings were initiated under Section 145 of the CrPC 1898. The possession of the building has remained with the receiver from 5 January 1950;
(xii) The third plaintiff in Suit 5 could have got himself impleaded as a party to the suit instituted by the Sunni Central Waqf Board. Having failed to do so the third plaintiff cannot maintain Suit 5 as the next friend of the deities; (xiii) The third plaintiff has never been associated with the management and puja of the idols and cannot claim himself to be the next friend of Lord Ram;
(xiv) There is no presiding deity as represented by the first plaintiff and it is incorrect to say that the footsteps ("charan") and other structures constitute one integral complex with a single identity;
(xv) The concept of a mosque envisages that the entire area below as well as above the land remains dedicated to God. Hence, it is not merely the structure of the mosque alone but also the land on which it stands which is dedicated to the Almighty, Allah;
(xvi) The site in question has no connection with the place of birth of Lord Ram and has no significance to the alleged "Asthan" of Ram Janmabhumi;
(xvii) The cause of action for the suit is deemed to have accrued in December 1949 when the property was attached and when the Muslims categorically denied the claim of the Hindus to perform puja in the mosque. Hence, the suit is barred by limitation;
(xviii) The subject matter of the suit is property registered as a waqf which is maintained by the Sunni Central Waqf Board under Section 30 of the U P Muslim Waqf Act 1960, shown as such in the revenue records; and
(xix) Archaeological experts seem to indicate that there appears to be no sign of human habitation predating to 700 B.C. nor is there any evidence that a fort, palace or old temple existed at the site of Babri Masjid. In the written statement filed on behalf of defendant no 5 who is a Muslim resident of Ayodhya, it has been submitted that:
(i) The premises have always been a mosque since the construction in the sixteenth century and have been used only for the purposes of offering namaz;
(ii) The existence of Kasauti pillars is denied. No one else except the Muslims worshipped in Babri Masjid. Namaz was offered in the mosque since its construction until 22 December 1949;
(iii) Babri Masjid was not constructed on the site of a temple which was demolished at the behest of Emperor Babur;
(iii) The Ram Janmasthan Mandir which exists in Ayodhya is distinct and separate from the premises in question; and
(iv) The findings in the Suit of 1885 operate as res judicata. An additional written statement was filed on behalf of defendant nos 4 and 5 in order to deal with the amendments to the plaint consequent upon the demolition of the Babri Masjid on 6 December 1992. The written statement of defendant no 6, a Muslim resident of Ayodhya, adopts the written statement of defendant no 5. The written statement of defendant no 11, the President of the All India Hindu Mahasabha, has submitted to a decree in terms as sought in the plaint. The written statements filed by the Hindu and Muslim defendants follow broadly the same respective lines.
42. A written statement has been filed by defendant no 24, Prince Anjum Qader stating thus: "
(a) The spot being presently claimed by the plaintiff is being made known as Ram Janam Bhoomi only since 22.12.1949.
(b) The Ram Chabutra, in the court-yard outside the Babri Masjid structure, is being known as Ram Janam Bhoomi only since 1885.
(c) The Janamsthan site Rasoi Mandir, facing the Babri Masjid across the street, is traditionally known as Ramjanambhumi since time immemorial." According to defendant no 24:
(i) In 1855, a spot outside the structure of Babri Masjid in a corner of the courtyard was claimed as the Janmasthan. At that stage, an area admeasuring seventeen by twenty-one feet was partitioned by naming it as Ramchabutra;
(ii) On 22 December 1949, the Janmasthan claim was shifted from Ramchabutra to a place inside the mosque beneath the main dome of the Babri Masjid;
(iii) Prior to 1855, "the undisputed Ram Janmasthan was the old Janmasthan Sita Rasoi Mandir across the street on a mound facing the Babri Masjid";
(iv) According to defendant no 24, the following three sites are now believed to be probable places of the birth of Lord Ram, namely:
(a) Inside the Babri Masjid beneath the main dome since 1949;
(b) At Ramchabutra in the courtyard of the Babri Masjid since 1855; and
(c) At the old Ram Janmasthan Mandir where Sita Rasoi is also situated.
(v) While the 1928 edition of the Faizabad Gazetteer published by the British Government contains a narration of Emperor Babur halting at Ayodhya for a week, destroying the ancient temple and building the Babri Masjid with the materials of the destroyed temple, it is a fact of history that Babur never came to Ayodhya. The Babur-Nama, a memoir of Emperor Babur has made no mention of visiting Ayodhya, destroying the temple or of building a mosque.
Defendant no 24 states that: "However, after all said and done, it is most respectfully submitted that if only this claim is proved that a Mandir was demolished and Babri Masjid was built on the Mandir land, this defendant and all other Muslims will gladly demolish and shift the mosque, and return the land for building of the Mandir thereon."
(vi) Babri Masjid was built by Mir Baqi on vacant land and not on the ruins of a pre-existing temple. Since Mir Baqi was a Shia Muslim, the 'mutawalliship' devolved upon his descendants since inception in 1528 without a break. However, both Shias and Sunnis offered namaz in Babri Masjid. The Sunni Muslims were permitted by the Shia mutawalli to perform their own daily Jamaat in the Masjid since 1925, when the Shia population in Ayodhya dwindled. The Sunni Imam of Babri Masjid led the last namaz on 22 December 1949. The written statement of defendant no 25 states that:
(i) Babri Masjid has always been in use as a mosque in which the namaz was offered since its construction, until 22 December 1949; and
(ii) On the night between 22-23 December 1949, some persons illegally trespassed into the mosque as a result of which an FIR was lodged and proceedings under Section 145 were initiated. A receiver was appointed and the status quo was directed to be continued during the pendency of the civil suits before the Civil Court. Heads of issues in the Suits 43. Justice Sudhir Agarwal observed that the issues in the four suits can be broadly classified under the following heads : "
(A) Notice under Section 80 C.P.C.
(B) Religious denomination (C) Res judicata, waiver and estoppel
(D) Waqf Act 13 of 1936 etc.
(E) Miscellaneous issues like representative nature of suit, Trust, Section 91 C.P.C., non joinder of parties, valuation/ insufficient Court fee/under valuation and special costs.
(F) Person and period- who and when constructed the disputed building
(G) Deities, their status, rights etc.
(I) Possession/adverse possession
(J) Site as birthplace, existence of temple and demolition if any.
(K) Character of Mosque
(L) Identity of the property
(M) Bar of Specific Relief Act
(N) Others, if any."
C. Evidence: a bird's eye view
44. A wealth of material emerged before the court during the course of the trial. The judgment of Justice Sudhir Agarwal in the High Court copiously tabulates the documentary evidence13. The documentary exhibits of the parties during the course of trial comprised of 533 exhibits of which a brief categorisation is: 1
. Plaintiffs (Suit-1) - Exhibits No. 1 to 34 (Total 34)
2. Plaintiffs (Suit-3) - Exhibits No. 1 to 21 (Total 21)
3. Plaintiffs (Suit-4) - Exhibits No. 1 to 128 (Total 128)
4. Plaintiffs (Suit-5) - Exhibits No. 1 to 132 (Total 132)
5. Defendants (Suit-1) - Exhibits No. A1 to A72 (Total 73)
6. Defendants (Suit-4) -
(i) Exhibits No. A1 to A16 (Total 16)
(ii) Exhibits No. M1 to M7 (Total 7)
(iii) Exhibits No. B1 to B16 (Total 16)
(iv) Exhibits No. J1 to J31 (Total 32)
(v) Exhibits No. T1-T6 (Total 6)
(vi) Exhibit No. V1 (Total 1) (vii) Exhibits No. Q1 to Q6 (Total 6)
7. Defendants (Suit-5) -
(i) Exhibits No. C1 to C11 (Total 11)
(ii) Exhibits No. D1 to D38 (Total 38)
(iii) Exhibits No. E1 to E8 (Total 12) Grand Total - 533
These exhibits broadly comprise of :
(i) Religious texts;
(iv) Translations of inscriptions on pillars;
(v) Reports of Archaeological excavation;
(vi) Photographs prior to demolition; and
(vii) Details of artefacts found at the disputed site. The judgment of Justice Sudhir Agarwal in the High Court tabulates the oral evidence in the four suits under the following heads: "
(1) Oral Depositions: Parties to these suits produced 88 witnesses, who deposed on one or the other subject. Broadly, these witnesses are categorized as under:
(a) Witnesses produced in Suit-4 by Plaintiff :
(I) Witness of facts:
1. P.W 1 Sri Mohd. Hashim
2. PW 2 Hazi Mahboob Ahmed
3. PW 3 Farooq Ahmad
4. PW 4 Mohd. Yasin
5. PW 5 Sri Abdul Rehman
6. PW 6 Mohd. Yunus Siddiqui
7. PW 7 Sri Hashmat Ullah Ansari
8. PW 8 Sri Abdul Aziz
9. PW 9 Syeed Akhlak Ahmad
10. PW 10 Mohd. Idris 11. PW11 Mohd. Burhanuddin 12. PW 12 Ram Shanker Upadhyay 13. PW 13 Suresh Chandra Mishra 14. PW 14 Jalil Ahmad 15. PW 21 Dr. M. Hashim Qidwai 16. PW 23 Mohd Qasim Ansari 17. PW 25 Mohd. Sibte Naqvi (II) Expert Witnesses (Historians) 18. PW 15 Sushil Srivastava 19. PW 18 Prof. Suvira Jaiswal 20. PW 20 Prof. Shirin Musavi (III) Expert Witnesses (Archaeologists) 21. PW 16 Prof. Suraj Bhan 22. PW 24 Prof. D. Mandal 23. PW 27 Dr. Shereen F. Ratnagar 24. PW 28 Dr. Sita Ram Roy 25. PW 29 Dr. Jaya Menon 26. PW 30 Dr. R. C. Thakran 27. PW 31 Dr. Ashok Datta 28. PW 32 Dr. Supriya Verma (IV) Private Commissioner 29. PW 17 Zafar Ali Siddiqui (V) Expert Witnesses (Religious matters) 30. PW 19 Maulana Atiq Ahmad 31. PW 22 Mohd. Khalid Naqui 32. PW 26 Kalbe Jawed 276. (b) Witnesses produced in Suit-5 by Plaintiff : (I) Witness of facts : 1. OPW 1 Mahant Paramhans Ram Chandra Das 2. OPW 2 Sri D.N. Agarwal
3. OPW 4 Harihar Prasad Tewari 4. OPW 5 Ram Nath Mishra alias Banarsi Panda
5. OPW 6 Hausila Prasad Tripathit
6. OPW 7 Sri Ram Surat Tewari
7. OPW 8 Ashok Chandra Chatterjee
8. OPW 12 Kaushal Kishor Misra
9. OPW 13 Narad Saran (II) Expert Witnesses (Archaeologists)
10. OPW 3 Dr. S.P. Gupta 11. OPW 14 Dr. Rakesh Tewari
12. OPW 17 Dr. R. Nagaswami
13. OPW 18 Sri Arun Kumar Sharma
14. OPW 19 Sri Rakesh Dutta Trivedi (III) Expert Witness (Epigraphist and Historian)
15. OPW 9 Dr. T.P. Verma (IV) Expert Witnesses (Epigraphist)
16. OPW 10 Dr. Voluvyl Vyasarayasastri Ramesh
17. OPW 15 Dr. M.N. Katti (V) Expert Witnesses (Historians)
18. OPW 11 Dr. Satish Chandra Mittal (VI) Expert Witnesses (Religious matters)
19. OPW 16 Jagadguru Ramanandacharya Swami Ram Bhadracharya 277.
(c) Witnesses produced in Suit-1 by Plaintiff :
(I) Witness of facts :
1. DW 1/1 Sri Rajendra Singh
2. DW 1/2 Sri Krishna Chandra Singh
3. DW 1/3 Sri Sahdeo Prasad Dubey 278.
(d) Witnesses produced in Suit-3 of 1989 by Plaintiff:
(I) Witness of facts :
1. DW 3/1 Mahant Bhaskar Das
2. DW 3/2 Sri Raja Ram Pandey
3. DW 3/3 Sri Satya Narain Tripathi
4. DW 3/4 Mahant Shiv Saran Das
5. DW 3/5 Sri Raghunath Prasad Pandey
6. DW 3/6 Sri Sita Ram Yadav
7. DW 3/7 Mahant Ramji Das
8. DW 3/8 Pt. Shyam Sundar Mishra @ Barkau Mahraj
9. DW 3/9 Sri Ram Ashrey Yadav
10. DW 3/11 Sri Bhanu Pratap Singh
11. DW 3/12 Sri Ram Akshaibar Pandey
12. DW 3/13 Mahant Ram Subhag Shashtri
13. DW 3/15 Narendra Bahadur Singh
14. DW 3/16 Sri Shiv Bhikh Singh
15. DW 3/17 Sri Mata Badal Tewari
16. DW 3/18 Sri Acharya Mahant Bansidhar Das @ Uriya Baba
17. DW 3/19 Sri Ram Milan Singh
18. DW 3/20 Mahant Raja Ramchandr-acharya (II) Others :
19. DW 3/10 Sri Pateshwari Dutt Pandey
20. DW 3/14 Jagad Guru Ramanandacharya Swami Haryacharya 279.
(e) Witnesses produced by Defendant 2/1 in Suit-4 :
(I) Witness of facts :
1. DW 2/1-3 Mahant Ram Vilas Das Vedanti (II) Others :
2. DW 2/1-1 Sri Rajendra.
3. DW 2/1-2 Sri Ram Saran Srivastava 280.
(f) Witnesses produced by Defendant 13/1 in Suit-4 :
(I) Expert Witness (Historians) :
1. DW 13/1-3 Dr. Bishan Bahadur (II) Others :
2. DW 13/1-1 Mahant Dharam Das
3. DW 13/1-2 Mahant Awadh Bihari Das Pathak 281.
(g) Witnesses produced by Defendant 17 in Suit-4 :
(I) Witness of facts :
1. DW 17/1 Sri Ramesh Chandra Tripathi 282.
(h) Witnesses produced by Defendant 20 in Suit-4 :
(I) Witness of facts :
1. DW 20/1 Sri Shashi Kant Rungta
2. DW 20/4 Sri M.M. Gupta
(II) Expert Witnesses (Religious matters)
3. DW 20/2 Swami Avimukteshwaran and Saraswati
4. DW 20/3 Bramchari Ram Rakshanand
(III) Expert Witness (Archaeologist)
5. DW 20/5 Sri Jayanti Prasad Srivastava 283. (i) Witnesses produced by Defendant 6/1 in Suit-3 :
(I) Expert Witness (Archaeologist) :
1. DW 6/1-2 Sri Mohd. Abid (II) Others :
2. DW 6/1-1 Sri Haji Mahboob Ahmad." Statements under Order X Rule 2 CPC 45. During the course of the hearing of the suit, the Trial Court recorded the statements of parties and their pleaders under the provisions of Order X Rule 2 of the Code of Civil Procedure 190814 ("CPC"). On 8 August 1962, it was stated on behalf of the Sunni Central Waqf Board that:
"the property in suit is the property dedicated to Almighty God and is a mosque for the use of the entire Muslim community at large..." On 28 August 1963, it was stated by the Sunni Central Waqf Board that in the alternative even if the defendants had any right in the property, it stood extinguished by a lapse of time and the plaintiff (Sunni Central Waqf Board) had acquired title by adverse possession. On 11 January 1996, the statement of Mr Zafaryab Jilani, learned Senior Counsel appearing for the Sunni Central Waqf Board was recorded to the effect that:
"That the mosque was situate on a Nazul Plot No. 583 of the Khasra of 1931 of Mohalla Kot Ramchandra known as Ramkot at Ayodhya." On 22 April 2009, the following statement of Mr Zafaryab Jilani, learned Senior Counsel was recorded under Order X Rule 2 of the CPC:
"For the purpose of this case there is no dispute about the faith of Hindu devotees of Lord Rama regarding the birth of Lord Rama at Ayodhya as described in Balmiki Ramayana or as existing today. It is, however, disputed and denied that the site of Babri Masjid was the place of birth of Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple at the site of Babri Masjid at any time whatsoever. The existence of Nirmohi Akhara from the second half of Nineteenth Century onwards is also not disputed.
It is however, denied and disputed that Nirmohi Akhara was in existence and specially in Ayodhya in 16th Century A.D. or in 1528 A.D. and it is also denied that any idols were there in the building of the Babri Masjid up to 22nd December, 1949." Similar statements were made on behalf of other counsel representing the Muslim parties. There is, in other words, no dispute before this Court in regard to the faith and belief of the Hindus that the birth of Lord Ram is ascribed to have taken place at Ayodhya, as described in Valmiki's Ramayan. What is being disputed is whether the disputed site below the central dome of the Babri Masjid is the place of birth of Lord Ram. The Muslim parties have expressly denied the existence of a Ram Janmabhumi temple at the site of Babri Masjid. With this background, it becomes necessary to advert to the salient aspects of the documentary evidence which has emerged on the record.
D. The aftermath of 1856-7
D.1 Response to the wall
46. In 1856-7, a communal riot took place. Historical accounts indicate that the conflagration had its focus at Hanumangarhi and the Babri mosque. Some of those accounts indicate that prior to the incident, Muslims and Hindus alike had access to the area of the mosque for the purpose of worship. The incident was proximate in time with the transfer of power to the colonial government. The incident led to the setting up of a railing made of a grill-brick wall outside the mosque. The object of this would have been to maintain peace and due order at the site. The railing provided the genesis of the bifurcation of the inner courtyard (in which the structure of the mosque was situated) and the outer courtyard comprising the remaining area. The setting up of the railing was not a determination of proprietary rights over the inner and outer courtyards, the measure having been adopted to maintain peace between the two communities. This section of the judgment traces the documentary evidence on the aftermath of 1856-7 at the disputed site, the continuing skirmishes in the inner and outer courtyards, the proceedings between various disputants and the claim to worship by the Hindus in the inner courtyard. The evidence is as follows:
(i) On 28 November 1858 a report was submitted by Sheetal Dubey who was the Thanedar, Oudh15. The report spoke of an incident during which Hawan and Puja was organised inside the mosque by a Nihang Sikh who had erected a religious symbol. The report states:
"Today Mr. Nihang Singh Faqir Khalsa resident of Punjab, organized Hawan and Puja of Guru Gobind Singh and erected a symbol of Sri Bhagwan, within the premises of the Masjid. At the time of pitching the symbol, 25 sikhs were posted there for security. Deemed necessary so requested. May your regime progress.
(ii) An application was submitted by Syed Mohammad Khateeb, Muazzim of the Masjid16. The subject of the application was the report of the Thanedar Oudh. The application stated that 'Mahant Nihang Singh Faqir' was creating a riot on "Janam Sthan Masjid situated in Oudh". The application stated: "Near Mehrab and Mimber, he has constructed, inside the case, an earth Chabutra measuring about four fingers by filling it with Kankars (concrete). Lighting arrangement has been made...and after raising the height of Chabutra about 11/4 yards a picture of idol has been placed and after digging a pit near it, the Munder wall has been made Pucca. Fire has been lit there for light and Puja and Hom is continuing there. In whole of this Masjid 'Ram Ram' has been written with coal. Kindly, do justice.
It is an open tyranny and high handedness of the Hindus on Muslims and not that of Hindus. Previously the symbol of Janamsthan had been there for hundreds of years and Hindus did Puja. Because of conspiracy of Shiv Ghulam Thandedar Oudh Government, the Bairagis constructed overnight a Chabutra up to height of one 'Balisht' until the orders of injunction were issued. At that time the Deputy Commissioner suspended the Thanedar and fine was imposed on Bairagis. Now the Chabootra has been raised to about 11/4 yards. Thus sheer high-handedness has been proved.
Therefore, it is requested that Murtaza Khan Kotwal City may be ordered that he himself visit the spot and inspect the new constructions and get them demolished (sic) and oust the Hindus from there; the symbol and the idol may be removed from there and writing on the walls be washed." The contents of the application indicate that by this time a platform had been constructed inside the mosque in which an idol had been placed. A fire had been lit and arrangements were made for puja. Evidently, the railing did not prevent access to the inner courtyard or to the precincts of the mosque.
(iii) A report was submitted by the Thanedar on 1 December 1858 "for summoning Nihang Singh Faqir who is residing within the Masjid Janam Sthan17. The report stated that he had taken a summons "to the said Faqir" and he was admonished, in spite of which he continued to insist that "every place belonged to Nirankar";
(iv) A report was submitted by the Thanedar on 6 December 1858 indicating service of the summons18; (v) There was an application dated 9 April 1860 of Mohammadi Shah, resident of Mohalla Ramkot seeking a postponement of the grant of a lease in respect of village Ramkot until a decision was taken on whether the land is Nazul land19;
(vi) On 5 November 1860, an application was made to the Deputy Commissioner for the removal of the Chabutra which had been constructed "within Babri Masjid Oudh"20. The grievance in the application and the relief sought is indicated in this extract: "Besides, when the Moazzin recites Azaan, the opposite party begins to blow conch (Shankh/Naqoos). This has never happened before. I would pray that your honour is the Judge for both the parties. The opposite party should be restrained from his unlawful act and after proper inquiry the newly constructed Chabootra which had never existed, may kindly be demolished and a bond be got executed from the opposite party to the effect that he will not unlawfully and illegally interfere in the Masjid property and will not blow conch (Shankh/Naqoos) at the time of Azaan."
(vii) The application would indicate that the namaz was at the stage being performed in the mosque. The Azaan of the Moazzin was met with the blowing of conch shells by the Hindus. A contentious situation was arising. Eventually, the Nihang Sikh was evicted from the site and a record was maintained; (viii) In or about 1877, another door to the outer courtyard was allowed to be opened by the administration on the northern site, in addition to the existing door on the east. The Deputy Commissioner declined to entertain a complaint against the opening made in the wall of the Janmasthan21. The order of the Deputy Commissioner records: "A doorway has recently been opened in the wall of the Janum-Asthan not at all in Baber's mosque, but in the wall which in front is divided from the mosque by a railing. This opening was necessary to give a separate route on fair days to visitors to the Janum-Asthan.
There was one opening only, so the crush (sic rush) was very great and life was endangered. I marked out the spot for the opening myself so there is no need to depute any Europe officer. This petition is merely an attempt to annoy the Hindu by making it dependent on the pleasure of the mosque people to open or close the 2nd door in which the Mohammedans can have no interest." (Emphasis supplied) This was accepted by the Commissioner while dismissing an appeal on 13 December 1877 holding: "As the door in question has opened by the Deputy Commissioner in the interests of the public safety, I decline to interfere. Appeal dismissed."
(ix) Justice Agarwal has alluded to the above documentary evidence including in particular, the application of the Moazzin dated 30 November 1858.22 The application complained of the construction of a Chabutra near the mihrab and mimbar on which a picture of an idol had been placed. The complaint refers to the worship which was being conducted by lighting a fire and conducting a puja. The letter notes that previously the symbol of the Janmasthan was in existence for hundreds of years and Hindus had performed puja. Justice Agarwal has noted that the genuineness of this document has not been disputed by the plaintiff in the suit or of it having been written by a person whose identity was not disputed. The learned Judge held that the document contains admissions which prove that Hindus had continuously offered prayers inside the disputed building including the inner courtyard and at Ramchabutra and Sita Rasoi in the outer courtyard. However, during the course of the proceedings Mr Mohd. Nizamuddin Pasha, learned counsel for the plaintiffs in Suit 4 has challenged the translation of the exhibit;
(x) Mohd Asghar instituted Suit 374/943 of 188223 against Raghubar Das, Mahant, Nirmohi Akhara claiming rent for use of the Chabutra and Takht near the door of Babri Masjid and for organizing the Kartik Mela on the occasion of Ram Navami in 1288 Fasli. The Sub-Judge, Faizabad dismissed the suit on 18 June 1883;
(xi) The construction of a railing in 1856-7 to provide a measure of separation between the inner and outer courtyards led to the construction of a platform by the Hindus in close proximity to the railing, in the outer courtyard. The platform, called Ramchabutra, became a place of worship for the Hindus;
(xii) On 29 January 1885, a suit was instituted in the court of the Munsif, Faizabad by Mahant Raghubar Das, describing himself as "Mahant Janmasthan at Ayodhya". The sole defendant was the Secretary of State for India in Council24. The relief which was sought in the suit was an injunction restraining the defendant from obstructing the construction of a temple over the Chabutra admeasuring 17x21 feet. The plaint stated that the Janmasthan at Ayodhya is a place of religious importance and the plaintiff is a Mahant of the place. Charan Paduka was affixed on the Chabutra and a small temple built next to it was worshipped. The plaintiff stated that in April 1883, the Deputy Commissioner, Faizabad acting on the objection of the Muslims, obstructed the construction of a temple.
A map was appended with the plaint showing the three domed structure described as "Masjid" within a boundary railing. The map appended to the plaint indicated two entrances to the outer courtyard on the Northern and Eastern sides. Mohd Asghar as Mutawalli of the mosque was impleaded as second defendant to the suit. He filed a written statement on 22 December 1885 stating that Babur had created a waqf by constructing a Masjid and above the door, the word 'Allah' was inscribed. Babur was also stated to have declared a grant for its maintenance. Mohd Asghar pleaded that no permission had been granted for the use of the land in the compound of the mosque. It was averred that there was no Chabutra from the date of the construction of the mosque until 1856 and it was only constructed in 1857. The prayer for the construction of a temple was opposed; and The above suit was dismissed by the Sub-Judge on 24 December 1885. The Trial Court held that:
(a) The Chabutra was in possession of the plaintiff, which had not been disputed by the second defendant;
(b) The area was divided by a railing wall separating the domed structure from the outer courtyard where the Chabutra existed to prevent any dispute between Hindus and Muslims;
(c) The erection of a railing was necessitated due to the riot in 1885 between Hindus and Muslims;
(d) The divide was made to so that Muslims could offer prayers inside and the Hindus outside;
(e) Since the area to visit the mosque and the temple was the same but the place where the Hindus offered worship was in their possession, there could be no dispute about their ownership; and
(f) Though the person who was the owner and in possession is entitled to make construction, grant of permission to construct a temple in such close proximity to a mosque may lead to a serious dispute between Hindus and Muslims and create a law and order problem. The suit was dismissed on this ground. Against the decree of the Trial Court, an appeal was filed by Mahant Raghubar Das while cross-objections were filed by Mohd Asghar. The District Judge by a judgment dated 18/26 March 1886 dismissed the appeal of the plaintiff.
The District Judge held that it was "most unfortunate" that the Masjid should have been built on the land especially held sacred by the Hindus but since the construction had been made 358 years earlier, it was too late in the day to reverse the process. The suit was dismissed on the ground that there was no injury which could give a right of action to the plaintiff. On the cross-objections of Mohd Asghar, the District Judge held that the finding of the Trial Court that the plaintiff was the owner of the land in dispute was redundant and should be expunged. The second appeal was dismissed by the Judicial Commissioner of Oudh on 1 November 1886 on the ground that
(i) there was nothing on record to show that the plaintiff was the proprietor of the land in question; and
(ii) it was inappropriate to allow the parties to disturb the status quo especially when a mosque had been in existence for nearly 350 years. The Judicial Commissioner held: "The matter is simply that the Hindus of Ajodhya want to create a new temple or marble baldacchino over the supposed holy spot in Ajodhya said to be the birthplace of Shri Ram Chandar. Now this spot is situated within the precinct of the grounds surrounding a mosque erected some 350 years ago owing to the bigotry and tyranny of the Emperor Babur, who purposely chose this holy spot according to Hindu legend as the site of his mosque. The Hindus seem to have got very limited rights of access to certain spots within the precincts adjoining the mosque and they have for a series of years been persistently trying to increase those rights and to erect buildings on two spots in the enclosure:
(a) Sita ki Rasoi (b) Ram Chandar ki Janam Bhumi. The Executive authorities have persistently refused these encroachments and absolutely forbid any alteration of the 'status quo'. I think this is a very wise and proper procedure on their part and I am further of opinion that the Civil Courts have properly dismissed the Plaintiff's claim." The issue as to whether the findings in the suit will operate as res judicata will be dealt with in a subsequent segment of the judgment. The conflagration which took place in 1855-56 resulted in a brick wall and railing being put up outside the mosque. This divided the courtyard into an inner portion which lay within the railing and the outer portion beyond it. Situated in the outer portion were places worshipped by the Hindus, among them being Ramchabutra and Sita Rasoi. Two entrance gates (on the north and east) provided access to the outer courtyard. Entry to the mosque was through the access points to the outer courtyard.
D.2 Period between 1934-1949
47. In 1934, there was another communal incident in the course of which damage was sustained to the mosque which was subsequently restored. The documentary evidence which has been brought on record shows that :
(i) The colonial administration sanctioned the work of repair and renovation of the damaged structure of the mosque;
(ii) A fine was imposed on the Hindus for the damage which was caused to the mosque;
(iii) The work of restoration was entrusted to a Muslim contractor with whom there was an exchange of correspondence over the payment of unpaid bills and for verification of work done;
(iv) This was a claim by the Pesh Imam of the mosque over the payment of the arrears of salary with the Mutawalli; and
(v) Upon the work of repair, the administration permitted arrangements to be made for commencement of namaz. (In Suit 4, Dr Rajeev Dhavan and Mr Zafaryab Jilani have relied upon this documentary evidence as indicative of the status of the mosque and of the performance of namaz).
48. A series of incidents took place between March and December 1949. On 19 March 1949, a deed was executed by the Panches of Nirmohi Akhara purportedly to reduce into writing the customs of the Akhara. This document25 included the following provision in regard to "the temple of Janmabhoomi" of which the management was claimed to vest in the Akhara: "Temple of Janam Bhoomi is situate in Mohalla Ram Ghat of City, Ayodhya which is under the Baithak of this Akhara and its whole management is trust upon to this Akhara. It stands in name of Mahant of Akhara as Mahant and Manager. This is the best well reputed, moorty of worship temple of Ayodhya. Being the birthplace of Lord Rama, it is the main temple of Ayodhya. The deity of Shri Ram Lalaji is installed there and there are other deities also."
49. During the course of his arguments, Dr Rajeev Dhavan, learned Senior Counsel for the plaintiffs in Suit 4 urged that the communications exchanged between the officials of the State of Uttar Pradesh demonstrate that they had prior information about a carefully planned course of action of placing idols inside the mosque which led to the desecration of the mosque. Despite this, it has been submitted, the administration took no steps to prevent such an incident from taking place. Hence, in this backdrop, it is necessary to set out the events that led to the incident which took place on 22-23 December 1949:
(i) On 12 November 1949, a police picket was posted in the area;
(ii) On 29 November 1949, Kripal Singh who was the Superintendent of Police at Faizabad addressed a letter to K K Nayar, the Deputy Commissioner and District Magistrate, Faizabad stating: "I visited the premises of Babri mosque and the Janm Asthan in Ajodhya this evening. I noticed that several "Hawan Kunds" have been constructed all around the mosque. Some of them have been built on old constructions already existing there." ... I found bricks and lime also lying near the Janm Asthan.
They have a proposal to construct a very big Havan Kund where Kirtan and Yagna on Puranmashi will be performed on a very large scale. Several thousand Hindus, Bairagis and Sadhus from outside will also participate. They also intend to continue the present Kirtan till Puranmashi. The plan appears to be to surround the mosque in such a way that entry for the Muslims will be very difficult and ultimately they might be forced to abandon the mosque. There is a strong rumour, that on puranmashi the Hindus will try to force entry into the mosque with the object of installing a deity."
(iii) On 10 December 1949, Mohd Ibrahim who was the Waqf Inspector submitted a report to the secretary of the Masjid stating that Muslims were being prevented from offering namaz Isha (the namaz at night) at the mosque, due to the fear of Hindus and Sikhs and there was an apprehension of danger to the mosque: "On investigation in Faizabad city it was revealed that because of the fear of Hindus and Sikhs no one goes into the Masjid to pray Namaz Isha. If by chance any passenger stays in the Masjid he is being threatened and teased by the Hindus ... (sic)..... There are number of Numberdars ... (sic)..... if any Muslim into the Masjid, he is harassed and abused. I made on the spot enquires which reveal that the said allegations are correct. Local people stated that the Masjid is in great danger because of Hindus ... (sic)..... Before they try to damage the wall of the Masjid, it seems proper the Deputy Commissioner Faizabad may be accordingly informed , so that no Muslim, going into the Masjid may be teased. The Masjid is a Shahi monument and it should be preserved."
(iv) On 16 December 1949, K K Nayyar addressed a communication to Govind Narayan who was Home Secretary to the Government of Uttar Pradesh, stating that there was a "magnificent temple" at the site which had been constructed by Vikramaditya, which was demolished by Babur for the construction of a mosque, known as Babri Masjid. The letter stated that building material of the temple was used in the construction of the mosque and that a long time had elapsed before Hindus were again restored to the possession of a site therein, at the corner of two walls. The letter recorded a reference to recent happenings and stated: "Some time this year probably in October or November some grave-mounds were partially destroyed apparently by Bairagis who very keenly resent Muslim associations with this shrine. On 12.11.49 a police picket was posted at this place.
The picket still continues in augmented strength. There were since other attempts to destroy grave-mounds. Four persons were caught and cases are proceeding against them but for quite some time now there have been no attempts. Muslims, mostly of Faizabad have been exaggerating these happenings and giving currency to the report that graves are being demolished systematically on a large scale. This is an entirely false canard inspired apparently by a desire to prevent Hindus from securing in this area possession or rights of a larger character than have so far been enjoyed. Muslim anxiety on this score was heightened by the recent Navami Ramayan Path, a devotional reading of Ramayan by thousands of Hindus for nine days at a stretch.
This period covered a Friday on which Muslims who went to say their prayers at the mosque were escorted to and from safely by the Police. As far as I have been able to understand the situation the Muslims of Ayodhya proper are far from agitated over this issue with the exception of one Anisur Rahman who frequently sends frantic messages giving the impression that the Babri Masjid and graves are in imminent danger of demolition." Nayyar saw no apprehension of danger to the mosque in spite of the letter of the Superintendent of Police which contained specific reference to the plans which were afoot to enter the mosque and install idols within its precincts;
(v) On the night between 22-23 December 1949, Hindu idols were surreptitiously placed inside Babri Masjid by a group of 50-60 persons. An FIR was lodged, complaining of the installation of idols inside the inner courtyard of the disputed site. The FIR, complaining of offences under Sections 147, 295, 448 of the Indian Penal Code was lodged at 7:00 pm on 23 December 1949 by Ram Deo Dubey, Sub-Inspector in charge. The FIR recorded that on information received from Mata Prasad, Constable No. 7, the complainant had arrived at the disputed site at 7:00 am and learned that a crowd of 50 or 60 persons had broken the locks placed on the compound of the mosque and had placed the idols inside, besides inscribing the names of Hindu deities on the walls.
Thereafter, 5000 people had gathered to perform Kirtan. It was alleged that Abhay Ram Das, Ram Shukul Das, Sheo Darshan Dass and about 50 or 60 persons had committed an act of trespass by entering the mosque and installing idols, thereby desecrating the mosque. The judgment of Justice S U Khan contains a reference to the report/diary of the District Magistrate stating that on 23 December 1949, the crowd was controlled by allowing two or three persons to offer bhog;
(vi) K K Nayyar opposed the direction of the state government to remove the idols, fearing a loss of life. On 25 December 1949, K K Nayar recorded that puja and bhog was offered as usual. In spite of the directions to remove the idols, K K Nayar declined to do so stating that "if Government still insisted that removal should be carried out in the face of these facts, I would request to replace me by another officer";
(vii) K K Nayar addressed two letters on 26 and 27 December 1949 to Bhagwan Sahai, Chief Secretary, Government of U.P. stating that the incident that took place on 23 December 1949 was "unpredictable and irreversible" on the basis of the above narration of incidents. On the basis of the above documentary material, Dr Dhavan, learned Senior Counsel submitted that:
(a) There was a mosque at the disputed site;
(b) The state authorities acknowledged the structure as a mosque and consistently referred to it as a mosque in their internal communications;
(c) From the report of the Waqf commissioner dated 10 December 1949, the following points emerge: "
(a) The temple of the Hindus was outside the courtyard Namaz was being read in the Babri Mosque as it refers to the Muslim worshippers being harassed by the members of the Hindu Community;"
(d) The state authorities acknowledged the threat posed by the members of the Hindu Community to the mosque and to the people going to pray;
(e) The state authorities could foresee the potential desecration / attack to the mosque and the worshippers, but took no steps to avert such an incident;
(f) From the internal communication of the officials of the state, it is clear that the desecration of the mosque was planned as the Superintendent of Police had informed the Deputy Commissioner of
(g) the plan of the Hindus to force entry into the mosque with the intention of installing an idol;
(h) The desecration of December 22-23, 1949 was a planned attack, the seeds for which were sown with the 'customs deed' dated March 19, 1949 when the temple of Ram Janmabhumi was for the first time mentioned; and
(i) Officials of the state refused to thereafter remove the surreptitiously installed idols despite orders from the State Government, further confirming their alliance with the miscreants who desecrated the mosque.
E. Proceedings under Section 145
50. On 29 December 1949, a preliminary order was issued under Section 145 of the CrPC 1898 by the Additional City Magistrate, Faizabad cum Ayodhya. Simultaneously, treating the situation as involving an emergency, an order of attachment was issued and the disputed site was directed to be entrusted to Sri Priya Datt Ram who was the Chairman of the Municipal Board. The order dated 29 December 1949 is extracted below:
"Whereas I, Markendeya Singh, Magistrate First Class and Additional City Magistrate, Faizabad-cum-Ayodhya, am fully satisfied from information received from Police sources and from other credible sources that a dispute between Hindus and Muslims in Ayodhya over the question of rights of proprietorship and worship in the building claimed variously as Babari Masjid and Janam Bhoomi Mandir, situate at Mohalla Ram Kot within the local limits of my jurisdiction, is likely to lead to a breach of the peace. I hereby direct the parties described below namely: (1) Muslims who are bona fide residents of Ayodhya or who claim rights of proprietorship or worship in the property in dispute;
(2) Hindus who are bona fide residents of Ahodhya or who claim rights of proprietorship or worship in the property in dispute; to appear before me on 17th day of January at 11 A.M. at Ayodhya Police Station in person or by pleader and put in written statements of their respective claims with regard to the fact of actual possession of the subject of dispute. And the case being one of the emergency I hereby attach the said buildings pending decision. The attachment shall be carried out immediately by Station Officer, Ayodhya Police Station, who shall then put the attached properties in the charge of Sri Priya Datt Ram, Chairman Municipal Board, Faizabad-cum-Ayodhya who shall thereafter be the receiver thereof and shall arrange for the care of the property in dispute. The receiver shall submit for approval a scheme for management of the property in dispute during attachment, and the cost of management shall be defrayed by the parties to this dispute in such proportions as may be fixed from time to time. This order shall, in the absence of information regarding the actual names and addresses of the parties to dispute to be served by publication in:
1. The English Daily, "The Leader" Allahabad,
2. The Urdu Weekly "Akhtar" Faizabad
3. The Hindi Weekly "Virakta" Ayodhya. Copies of this order shall also be affixed to the walls of the buildings in dispute and to the notice board at Ayodhya Police Station. Given under my hand and the seal of the court on this the twenty ninth day of December, 1949 at Ayodhya."
51. The receiver took charge on 5 January 1950 and made an inventory of the properties which had been attached. The last namaz which was offered in the mosque was on 16 December 1949. The receiver made an inventory of the following articles: "
1. Idols of Thakur Ji 1-
(a) Two idols of Sri Ram Lala Ji, one big and another small.
(b) Six idols of Sri Shaligram Ji.
2 . A two feet high silver throne.
3. One idol of Hanuman Ji.
(a) One glass of German Silver.
(b) One small glass of silver.
(c) One big glass of silver
5. One Garun bell.
6. One incensory.
7. One Arti vessel.
8. One lamp stand
9. "Husra" and one sandal.
10. Two big photographs of Ram Janki.
11. Four flower pots.
12. One (small) photograph of Badrinath Ji.
13. One small photograph of Ramchandra Ji.
14. Ornaments of Deity Two caps of Ramlala and one cap of Hanuman Ji. And eight robes of Deity.
15. Building- Three domed building with Courtyard and boundary wall, which is bounded as under. North-Premises comprising Chhathi Courtyard and Nirmohi Akhara. South-Vacant land and "Parikrama" (circumambulation path) East-'Chabutara' (platform) of Ram temple under possession of Nirmohi Akhara, and Courtyard of temple premises. West-Parikrama' (circumambulation path)
16. Small brass glass
17. One bowl of "Phool" (an alloy) for sandal.
18. "Panch Pas" and one brass plate.
19. One small brass plate.
20. One small wooden board." In the course of the proceedings of the civil suit before the Trial Court at Faizabad, the pleader, Shiv Shankar Lal, was appointed as a Commissioner to prepare a site plan of the locality and building. The Commissioner submitted a report on 25 May 1950, annexing two site plans which were numbered as Plan nos 1 and 2 which have been referred above in the earlier part of the judgment.
52. The salient features noticed in the Commissioner's report are:
(i) The existence of two entry gates to the disputed site, described as Hanumat Dwar and Singh Dwar;
(ii) The presence of two black Kasauti stone pillars at the entry point of Hanumat Dwar containing engraved images of 'Jai' and 'Vijai';
(iii) The images of a 'Garud' flanked by lions on either side above Singh Dwar;
(iv) An engraved stone image of a boar ('varah') on the outer wall, to the south of Hanumat Dwar;
(v) Ramchabutra admeasuring 17 X 21 feet containing a small temple with idols of Lord Ram and Janki;
(vi) On the south-eastern corner, a semi-circular platform attached to the neem-pipal tree containing idols of Panchmukhi Mahadev, Parvati, Ganesh and Nandi;
(vii) The platform called Sita Rasoi containing the foot prints of Lord Ram, Lakshman, Bharat and Shatrughan;
(viii) The railing separating the inner and outer courtyards;
(ix) The presence of twelve black Kasauti stone pillars supporting the three arches of the mosque which contained carvings of:
(a) Lotus flowers;
(b) Tandava nritya;
(c) Lord Hanuman; and
(d) Lord Krishna. (Carvings on the other pillars had been obliterated);
(x) The idol of infant Lord Ram placed on a platform with two steps in the central portion of the domed structure;
(xi) A parikrama around the disputed structure; and
(xii) The existence of structures surrounding the disputed site including huts of sadhus/bairagis and the wall called 'sita-koop'.
F. Points for determination
The following points for determination arise in these appeals:
(i) Whether Suits 3, 4 and 5 or any of them are barred by limitation
(ii) Whether the decision in Suit 81/280 of 1885 will operate as res judicata in Suits 1, 3 and 5;
(iii) (a) Whether a Hindu temple existed at the disputed site;
(b) Whether the temple was demolished by Babur or at his behest by his commander Mir Baqi in 1528 for the construction of the Babri Masjid;
(c) Whether the mosque was constructed on the remains of and by using the materials of the temple; and (d) What, if any are the legal consequences arising out of the determination on (a)(b) and (c) above;
(iv) Whether the suit property is according to the faith and belief of the Hindus since time immemorial the birth-place of Lord Ram;
(a) Whether the first and the second plaintiffs in Suit 5 are juristic persons;
(b) Whether the third plaintiff was entitled to represent the first and second plaintiffs as next friend;
(a) Whether Nirmohi Akhara has established its claim of being a shebait of the deity of Lord Ram in the disputed premises; (b) If (a) is in the affirmative, whether the objection of Nirmohi Akhara to the maintainability of Suit 5 is valid;
(vii) Whether during the intervening night of 22/23 December 1949, Hindu idols were installed under the Central dome of Babri Masjid as pleaded in the plaint in Suit 4;
(a) Whether it is open to the Court to determine if the three domed structure which existed at the disputed site prior to 6 December 1992 was a mosque in accordance with Islamic tenets;
(b) If the answer to
(a) is in the affirmative, whether the three domed structure at the disputed site was constructed in accordance with Islamic tenets;
(a) Whether there was a dedication of the three domed structure as a waqf at the time of its construction;
(b) In the alternative to
(a) above, whether there is a waqf by public user as claimed by the plaintiffs in Suit 4;
(x) Whether the plaintiffs in Suit 4 have established in the alternative their case of adverse possession;
(xi) Whether the Muslims and or the Hindus have established the claim of worship and a possessory title over the disputed property; (xii) Whether the plaintiffs in Suit 4 have established their title to the disputed property;
(xiii) Whether the plaintiff in Suit 5 have established their title to the disputed property;
(xiv) Whether the High Court was justified in passing a preliminary decree for a three way division of the disputed property in equal shares between the Nirmohi Akhara, the plaintiffs of Suit 4 and the plaintiffs of Suit 5;
(xv) Whether the plaintiff in Suit 1 is entitled to the reliefs as claimed in the suit; and
(xvi) What, if any, relief ought to be granted in Suits 1, 3, 4 and 5 These points will be analysed and dealt with in the course of this judgment. Before analysing the issues in the individual suits, it would be appropriate to discuss certain matters in dispute at the forefront, since they traverse the gamut of the entire case.
G. The three inscriptions
53. The case of the Sunni Central Waqf Board and other plaintiffs in Suit 4 is that in the town of Ayodhya "there exists an ancient historic mosque commonly known as Babri Masjid built by Emperor Babur more than 433 years ago, after his conquest of India and his occupation of the territories including the town of Ayodhya". The mosque, it has been pleaded, was for the use of Muslims in general as a place of worship and for the performance of religious ceremonies. The mosque and the adjoining graveyard are stated to vest "in the Almighty" and the mosque since the time of its inscription is stated to have been used by Muslims for offering prayers. Thus, the plaintiffs have come forth with a positive case in regard to the:
(i) Existence of a mosque;
(ii) Construction of the mosque by Babur 433 years prior to the institution of the Suit in 1961;
(iii) Construction of the mosque as a place of worship and for religious ceremonies; and
(iv) Use of the mosque since its construction for the purpose of offering prayers.
54. Justice Sudhir Agarwal recorded in his judgment that it is accepted by the counsel appearing on behalf of the Sunni Central Waqf Board that the sole basis for determining the date of the construction of the mosque and correlating it to Babur consists of the inscriptions stated to have been installed on the mosque as referred to in the gazetteers and other documents. In paragraph 1435, the learned Judge observed:
"Broadly, we find and in fact it is even admitted by Sri Jilani that the sole basis for determining the period of construction of the disputed building and to co-relate it with Emperor Babar is/are the inscription(s) said to be installed in the disputed building referred to in certain Gazetteers etc." Now both before the High Court and during the course of the present proceedings, there has been a debate on whether the texts of the alleged inscriptions on the mosque have been proved. Mr P N Mishra, learned Counsel appearing on behalf of the Akhil Bharatiya Shri Ram Janmabhumi Punrudhar Samiti has questioned the authenticity of the inscriptions. He sought to cast doubt on whether the mosque was constructed in 1528 A.D. by or at the behest of Babur.
55. The first document relied on is the text by Fuhrer titled "The Sharqi Architecture of Jaunpur with notes on Zafarabad, Sahet-Mahet and other places in the Northern-Western Provinces and Oudh26. The original edition of the book was printed in 1889 and there is a reprint in 1994 by the ASI. In Chapter X, there is a reference to three inscriptions bearing nos XL, XLI, and XLII. It is from these three inscriptions that Fuhrer formed an opinion that the Babri mosque was constructed at Ayodhya in 1523 A.D or A.H. 930. Inscription XL in Arabic is over the central mihrab and furnishes the Kalimah twice in the following words: "There is no god but Allah, Muhammad is His Prophet." Inscription XLI was found on the mimbar and was written in Persian. The inscription as translated in English reads thus: "
1. By order of Babar, the king of the world,
2. This firmament-like, lofty,
3. Strong building was erected.
4. By the auspicious noble Mir Khan.
5. May ever remain such a foundation,
6. And such a king of the world." Inscription XLII was found above the entrance door. Also, in Persian, the inscription has been translated thus: "
1. In the name of God, the merciful, the element.
2. In the name of him who ......; may God perpetually keep him in the world.
4. Such a sovereign who is famous in the world, and in person of delight for the world.
5. In his presence one of the grandees who is another king of Turkey and China.
6. Laid this religious foundation in the auspicious Hijra 930.
7. O God ! May always remain the crown, throne and life with the king.
8. May Babar always pour the flowers of happiness; may remain successful.
9. His counsellor and minister who is the founder of this fort masjid.
10. This poetry, giving the date and eulogy, was written by the lazy writer and poor servant Fath-allah-Ghorl, composer." After adverting to the inscriptions,
Fuhrer notes: "The old temple of Ramachandra at Janamasthanam must have been a very fine one, for many of its columns have been used by the Musalmans in the construction of Babar's masjid. These are of strong, close-grained, dark-coloured or black stone, called by the natives kasauti, "touch-stone slate," and carved with different devices. They are from seven to eight feet long, square at the base, centre and capital, and round or octagonal intermediately."
56. The second piece of documentary evidence in which these inscriptions are purportedly translated the "Babur-Nama". The translation by A S Beveridge was first published in 192127. Apart from the book, extracts of some of its pages were exhibited by the parties to the proceedings. Appendix (U) refers to two inscriptions; one inside and another outside the mosque. Photocopies of the pages of appendix (U) were marked as appendix T3 in Suit 4.
57. Beveridge obtained the text of the inscription through the Deputy Commissioner of Faizabad on a request made by her spouse. Beveridge notes that while reproducing the text she had made a few changes. The text of the inscription inside the mosque, as quoted by Beveridge is as follows: "
(1) By the command of the Emperor Babur whose justice is an edifice reaching up to the very height of the heavens.
(2) The good-hearted Mir Baqi built this alighting place of angels.
(3) It will remain an everlasting bounty, and (hence) the date of its erection became manifest from my words: It will remain an everlasting bounty." The text of the inscription outside the mosque is thus: "
1. In the name of One who is Great (and) Wise (and) who is Creator of the whole world and is free from the bondage of space.
2. After His praise, peace and blessings be on Prophet Muhammad, who is the head of all the Prophets in both the worlds.
3. In the world, it is widely talked about Qalandar Babur that he is a successful emperor." Beveridge stated that the second inscription outside the mosque was incomplete.
58. The third set of texts in support of the inscriptions is published in "Epigraphia Indica-Arabic-Persian Supplement (In continuation of Epigraphia Indo-Moslemica) 1964 and 1965"28 (reprinted in 1987). This has been published by the Director General, ASI and contains a reference to the inscriptions of Babur. The text is attributed to Maulvi M Ashraf Husain and is edited by Z A Desai. The introductory note to the edition states:
"A rough draft of this article by the author, who was my predecessor, was found among sundry papers in my office. At the time of his retirement in 1953, he had left a note saying that it might be published after revision by his successor. Consequently, the same is published here after incorporation of fresh material and references and also, extensive revision and editing. The readings have been also checked, corrected and supplemented with the help of my colleague, Mr. S.A.Rahim, Epigraphical Assistant,-Editor." The text contains the following description in regard to the construction of Babri Masjid:
"The Baburi-Masjid, which commands a picturesque view from the riverside, was constructed according to A. Fuhrer in A.H. 930 (1523-24 A.D.) but his chronology, based upon incorrect readings of inscriptions supplied to him, is erroneous. Babur defeated Ibrahim Lodi only in A.H. 933 (1526 A.D.), and moreover, the year of construction, recorded in two of the three inscriptions studied below, is clearly A.H. 935 (1528-29 A.D.). Again, it was not built by Mir Khan as stated by him. The order for building the mosque seems to have been issued during Babur's stay at Ajodhya in A.H. 934 (1527-28 A.D.), but no mention of its completion is made in the Babur Nama. However, it may be remembered that his diary for the year A.H. 934 (1527-28 A.D.) breaks off abruptly, and throws the reader into the dark in regard to the account of Oudh." The text also provides an account of the manner in which the author obtained an inked rubbing of one of the inscriptions from Sayyid Badru'l Hasan of Faizabad:
"The mosque contains a number of inscriptions. On the eastern facade is a chhajja, below which appears a Quranic text and above, an inscription in Persian verse. On the central mihrab are carved religious texts such as the Kalima (First Creed), etc. On the southern face of the pulpit was previously fixed a stone slab bearing a Persian inscription in verse. There was also another inscription in Persian verse built up into the right hand side wall of the pulpit. Of these, the lastmentioned two epigraphs have disappeared. They were reportedly destroyed in the communal vandalism in 1934 A.D., but luckily, I managed to secure an inked rubbing of one of them from Sayyid Badru'l Hasan of Fyzabad.
The present inscription, restored by the Muslim community, is not only in inlaid Nasta'liq characters, but is also slightly different from the original, owing perhaps to the incompetence of the restorers in deciphering it properly. The readings and translations of the historical epigraphs mentioned above, except in the case of one, were published by Fuhrer and Mrs. Beveridge, but their readings are so incomplete, inaccurate and different from the text that their inclusion in this article is not only desirable but also imperative. The epigraph studied below was inscribed on a slab of stone measuring about 68 by 48 cm., which was built up into the southern side of the pulpit of the mosque, but is now lost, as stated above.
It is edited here from the estampage obtained from Sayyid Badru'l Hasan of Fyzabad. Its three-line text consists of six verses in Persian, inscribed in ordinary Naskh characters within floral borders. It records the construction of the mosque by Mir Baqi under orders from emperor Babur and gives the year A.H. 935 (1528-29 A.D.) in a chronogram." The author states that on the southern side of the pulpit of the mosque was an inscription fixed on a slab of stone measuring 68 X 48 cm but the original was lost. What is quoted is the version obtained from the inked rubbing noted above. The text of the first inscription was thus: "
(1) By the order of king Babur whose justice is an edifice, meeting the palace of the sky (i.e. as high as the sky).
(2) This descending place of the angels was built by the fortunate noble Mir Baqi.
(3) It will remain an everlasting bounty, and (hence) the date of its erection became manifest from my words: It will remain an everlasting bounty." As regards the second inscription, the judgment of Justice Sudhir Agarwal notes: "1449. Fuhrer's inscription no. XLI which he mentions that the same was found inside the mosque on the mimbar (right hand side of the disputed building) has been termed as second inscription by Maulvi F. Ashraf Hussain.
It consists of three couplets arranged in six lines. He (Hussain) clearly admits non existence of the said inscription by observing "the epigraphical Tablet" which was built up into right hand side wall of the pulpit, does not exist now, and, therefore, the text of the inscription is quoted here from Furher's work, for the same reason, its illustration could not be given." Husain/Desai however, did not agree to the reading of the inscription by Fuhrer and observed that Furher's reading does not appear free from mistakes." The text of the third inscription is as follows: "
(1) In the name of Allah, the Beneficent, the Merciful. And in Him is my trust.
(2) In the name of One who is Wise, Great (and) Creator of all the universe (and) is spaceless. After His praise, blessings be upon the Chosen one (i.e. the Prophet), who is the head of prophets and best in the world. The Qalandar-like (i.e. truthful) Babur has become celebrated (lit. a story) in the world, since (in his time) the world has achieved prosperity.
(3) (He is) such (an emperor) as has embraced (i.e. conquered) all the seven climes of the world in the manner of the sky. In his court, there was a magnificent noble, named Mir Baqi the second Asaf, councillor of his Government and administrator of his kingdom, who is the founder of this mosque and fort-wall. (4) O God, may he live for ever in this world, with fortune and life and crown and throne. The time of the building is this auspicious date, of which the indication is nine hundred (and) thirty five (A.H. 935=1528-29 A.D.).
Completed was this praise of God, of Prophet and of king. May Allah illumine his proof. Written by the weak writer and humble creature, Eathu'llah Muhammad Ghori." As regards the inscriptions noted by Fuhrer, certain significant aspects need to be noted. While the second inscription contains a reference to the order of Babur for the construction of the mosque, construction is attributed to Mir Khan (not Mir Baqi). The third inscription refers to the foundation of the construction of the mosque being laid in Hijri 930 which corresponds to 1523 A.D. This is prior to the invasion by Babur and the battle at Panipat which resulted in the defeat of Ibrahim Lodhi.
As regards the work of Beveridge, it is evident that she had neither seen the original text nor had she translated the text of the inscriptions herself. Beveridge obtained a purported text of the inscriptions through her spouse from the Deputy Commissioner, Faizabad. Beveridge claimed that she received a copy of the text through correspondence initiated by her spouse who was an ICS officer in the colonial government. She had neither read the original nor is there anything to indicate that she was in a position to translate it. Beveridge states that she made "a few slight changes in the term of expression". What changes were made by Beveridge has not been explained. According to her, the text of the two inscriptions was incomplete and was not legible. The text provided by Fuhrer shows that the construction of the mosque was not in 1528 A.D. Inscription XLI mentions the name of Mir Khan while inscription XLII refers to the construction of the mosque as Hijri 930.
59. Justice Sudhir Agarwal while adverting to the work of Ashraf Husain and Z A Desai took serious note of the "fallacy and complete misrepresentation" of the author in publishing a text under the authority of the ASI without regard for its accuracy, correctness and genuineness: "1463. We are extremely perturbed by the manner in which Ashraf Husain/Desai have tried to give an impeccable authority to the texts of the alleged inscriptions which they claim to have existed on the disputed building though repeatedly said that the original text has disappeared.
The fallacy and complete misrepresentation on the part of author in trying to give colour of truth to this text is writ large from a bare reading of the write up. We are really at pains to find that such blatant fallacious kind of material has been allowed to be published in a book published under the authority of ASI, Government of India, without caring about its accuracy, correctness and genuineness of the subject. ...Both these inscriptions i.e., the one claimed to be on the southern face of the pulpit and the other on the right hand side wall of the pulpit are said to be non-available by observing "of these the last mentioned two epigraphs have disappeared". The time of disappearance according to Maulvi Ashraf Husain was 1934 A.D. when a communal riot took place at Ayodhya. However, he claimed to have got an inked rubbing on one of the two inscriptions from Syed Badrul Hasan of Faizabad. The whereabouts of Syed Badrul Hasan, who he was, what was his status, in what way and manner he could get that ink rubbing of the said inscription and what is the authenticity to believe it to be correct when original text of the inscription are not known.
There is nothing to co-relate the text he got as the correct text of the inscription found in the disputed building claimed to have lost in 1934." The High Court observed that two inscriptions, those on the southern face of the pulpit and on the wall on the right of the pulpit were not available. According to Ashraf Husain, the epigraphs disappeared in 1934 at the time of the communal riot. However, reliance was sought to be placed on an alleged "inked rubbing" without explaining the identity or whereabouts of the person from whom it was obtained. The criticism of the High Court is not without basis. The identity of the individual from whom the inked rubbings were obtained was not explained. Nor was there any explanation about the manner in which he had in turn obtained it.
There was indeed nothing to co-relate the text which that individual had obtained with the translation in the text compiled by Ashraf Husain and Z A Desai. The High Court observed: "1464...When the original was already lost and there was nothing to verify the text of restored inscription with the original, neither the restored one can be relied upon nor is it understandable as to how he could have any occasion to compare the restored one with the alleged... original..." In this background, the High Court observed: "1466...The text, description and whatever had been set up by Ashraf Husain in respect of the above inscription is unbelievable and lacks trustworthiness.
We are constrained to observe at this stage that in the matter of historical events and that too, when it bears a religious importance and the matter has also seen serious disputes between two communities, the persons who are connected with history... must behave responsibly and before making any write up, should check up, cross check and verify very carefully what they are writing since the consequences of their write up may be dangerous and irreparable."
60. A fourth version of the inscriptions emerged pursuant to a direction of the Civil Judge dated 26 March 1946 in Shia Central Waqf Board v Sunni Central Board of Waqf29. In pursuance of those directions, a person by the name of Sr. A Akhtar Abbas is stated to have read an inscription and prepared his inspection note. The High Court, however, noted that the text as reproduced in the judgment dated 30 March 1946 states that in the first inscription, the words are "by the order of Shah Babar, Amir Mir Baki built the resting place of angels in 923 A.H. i.e. 1516-17
A.D". In respect of the second inscription, there is a reference to "Mir Baki of Isphahan in 935 A.H. i.e. 1528-29 AD". The High Court observed that it was not apprised of whether in the entire Babur-Nama, there was a reference to any Mir Baki Isphahani though, there was a reference to Baki Tashkendi. Besides one of the two tablets was new and had been replaced for the original tablet which had been demolished during the communal riots of 1934. On the above state of the evidence, the High Court doubted the genuineness and authenticity of the transcripts of the inscriptions which were relied upon before it.
61. At this stage, it is necessary to make a reference to the "Tuzuk-i-Babri"30. The Babur-Nama contains the daily diary of Babur commencing from 899 Hijri (1494 AD). Out of the life span of Babur, a description of eighteen years is available over different periods. Babur came to India in 1526 A.D. The description available until his death is for the following periods, (noted by Justice Sudhir Agarwal): "1487...
1. From 1 Safar 932 Hijri (17 November 1525 AD) till 12 Rajab 934 Hijri (2nd April 1528 AD)
3 Muharram 934 Hijri (18th September 1528 AD) till 3 Moharram 936 Hijri (7th September 1529 AD)."
The records for the period from 2 April 1528 till 17 September 1528 are missing. Out of this period, the period from 2 April 1528 to 15 September 1528 was of 934 Hijri while the period from 15 September 1528 to 17 September 1528 was of 935 Hijri. Justice Sudhir Agarwal noted in the High Court that the crucial year was 935 Hijri and the missing record was only of three days. Babur defeated Ibrahim Lodhi at Panipat on 20 April 1526. On 28 March 1528, Babur reached the junction of the rivers Ghaghara and Saryu. After a reference to the date 2 April 1528, there is a break until 15 September 1528.
62. Beveridge's translation of Babur-Nama refers to the employment of artisans in the construction of buildings at several places including at Agra and Gwalior: "1533... Another good thing in Hindustan is that it has unnumbered and endless workmen of every kind. There is a fixed caste (jam'i) for every sort of work and for everything, which has done that work or that thing from father to son till now. Mulla Sharaf, writing in the Zafar-nama about the building of Timur Beg's Stone Mosque, lays stress on the fact that on it 200 stone-cutters worked, from Azarbaijan, Fars, Hindustan and other countries. But 680 men worked daily on my buildings in Agra and of Agra stone-cutters only; while 1491 stone-cutters worked daily on my buildings in Agra, Sikri, Biana, Dulpur, Gualiar and Kuil.
In the same way there are numberless artisans and workmen of every sort in Hindustan." In this context, Justice Agarwal observed: "1534. There is mention of buildings in Babur-Nama at different places including temple of Gwalior, mosque at Delhi, Agra, Gwalior and other several places but it is true that neither there is mention of demolition of any religious place by Babar in Awadh area nor there is anything to show that he either entered Ayodhya or had occasion to issue any direction for construction of a building and in particular a Mosque at Ayodhya."
The High Court recorded the submission made before it by Mr Jilani, counsel for the Sunni Central Waqf Board, in paragraph 1577 of the judgment that since Babur did not enter Ayodhya himself, there was no question of a demolition of a temple by him and a construction of a mosque. The absence in Babur-Nama of a reference to the construction of a mosque has been relied upon as a factor to discredit the inscriptions which have been analysed earlier. This line of enquiry must be read with the caution which must be exercised while drawing negative inferences from a historical text.
63. Mr P N Mishra, learned Counsel adverted to the work of Niccolao Manucci titled "Indian Texts Series-Storia Do Mogor or Mogul India 1653-1708"31, translated in English by William Irvine. Manucci identifies "the chief temples destroyed" by Aurangzeb, among them being:
(i) Maisa (Mayapur);
(ii) Matura (Mathura);
(iii) Caxis (Kashi); and
(iv) Hajudia (Ajudhya). Manucci was a traveller who had visited India during the reign of Aurangzeb. Besides, the work of Manucci, there is the "Ain-e-Akbari"32 written by Abul Fazal Allami. Ain-e-Akbari deals with the province of Oudh and refers to Ayodhya and its association with Lord Ram. The text refers to "two considerable tombs of six and seven yards in length" near the city. The text identified several sacred places of pilgrimage. It specifically speaks of Ayodhya where during the month of Chaitra, a religious festival is held. Mr Mishra urged that there is no reference in the Ain-e-akbari to the construction of a mosque at Ayodhya. The text refers to certain cities as being dedicated to the divinities, among them being Kashi and Ayodhya. By its order dated 18 March 2010, the High Court permitted the above text to be relied on under the provisions of Section 57(13) of the Evidence Act 1872.
64. Rebutting the above submissions principally urged by Mr P N Mishra and Mr Mohd Nizamuddin Pasha, learned Counsel appeaing on behalf of the plaintiffs in Suit 4 urged that an unnecessary confusion was sought to be created over the identity of Mir Baqi. He submitted that in the Babur-Nama, he is known by the following titles / suffixes:
(j) Baqi Sharghwal - "high official of Central Asian sovereigns, who is supreme over all qazis and mullah". (See "Baburnama", translated by A.S. Beveridge, 1921, p. 463);
(ii) Baqi Mingbashi - Commander of a thousand men (See "Baburnama", translated by A.S. Beveridge, 1921, p. 590); and
(iii) Baqi Tashkinti - Hailing of Tashkent (See "Baburnama", translated by A.S. Beveridge, 1921, p. 601, 684). Mr Pasha urged that the inscriptions above the door of Babri Masjid read as Mir Baqi Asif Sani, which the District Judge, Faizabad misread as 'Isfahani' in his order of 1946 in the suit between the Shia Waqf Board and Sunni Waqf Board.
65. Having set out the material which was presented before the High Court in support of the plea that the mosque was constructed in 1528 by Mir Baki, on the instructions of Emperor Babur following the conquest of the sub-continent, it becomes necessary to analyse the conclusions which have been arrived at by the three judges of the High Court :
(i) Justice S U Khan Justice S U Khan held: "Muslims have not been able to prove that the land belonged to Babur under whose orders the mosque was constructed"Moreover, the learned judge held that the inscriptions on the mosque as translated by Fuhrer, Beveridge and Z A Desai were not authentic and hence, on the basis of these inscriptions alone, it could not be held either that the disputed building was constructed by or under the orders of Babur or that it was constructed in 1528. Justice S U Khan specifically observed that: "In this regard detailed reasons have been given by my learned brother S. Agarwal, J. with which I fully agree". However, in the course of his conclusions titled as "Gist of the Findings" Justice Khan held: "
1. The disputed structure was constructed as mosque by or under orders of Babar.
2. It is not proved by direct evidence that premises in dispute including constructed portion belonged to Babar or the person who constructed the mosque or under whose orders it was constructed." The conclusion in point 1 in the above extract of the conclusions is contrary to the earlier finding that it could not be held either that the mosque was constructed by or under the orders of Babur or that it was constructed in 1528.
The finding on point 1 is also contrary to the specific observation that Justice S U Khan was in agreement with the decision of Justice Sudhir Agarwal in regard to the lack of authenticity of the inscriptions.
(ii) Justice Sudhir Agarwal Justice Sudhir Agarwal held: "1679... it is difficult to record a finding that the building in dispute was constructed in 1528 AD by or at the command of Babar since no reliable material is available for coming to the said conclusion. On the contrary the preponderance of probability shows that the building in dispute was constructed at some later point of time and the inscriptions thereon were fixed further later but exact period of the two is difficult to ascertain... ... 1681.
In the absence of any concrete material to show the exact period and the reign of the concerned Mughal emperor or anyone else during which the above construction took place, we are refraining from recording any positive finding on this aspect except that the building in dispute, to our mind, may have been constructed much later than the reign of Emperor Babar and the inscriptions were fixed further thereafter and that is why there have occurred certain discrepancies about the name of the person concerned as also the period. The possibility of change, alteration or manipulation in the inscriptions cannot be ruled out." While answering the issues framed in the suits, Justice Agarwal held:
(A) Issue no.6 (Suit-1) and Issue No.5 (Suit-3) are answered in negative. The defendants have failed to prove that the property in dispute was constructed by... Emperor Babar in 1528 AD. Accordingly, the question as to whether Babar constructed the property in dispute as a 'mosque' does not arise and needs no answer.
(B) Issue No.1(a) (Suit-4) is answered in negative.
The plaintiffs have failed to prove that the building in dispute was built by Babar. Similarly defendant no.13 has also failed to prove that the same was built by Mir Baqi. The further question as to when it was built and by whom cannot be replied with certainty since neither there is any pleading nor any evidence has been led nor any material has been placed before us to arrive at a concrete finding on this aspect. However, applying the principle of informed guess, we are of the view that the building in dispute may have been constructed, probably, between 1659 to 1707 AD i.e. during the regime of Aurangzeb."
In the last part of the above findings, the Judge has recorded that it was not possible to enter a finding of fact with any certainty as to when the structure was constructed in the absence of pleading or evidence. The "informed guess" at the end of the above observation that the structure was probably constructed by Aurangzeb between 1659-1707 cannot be placed on the pedestal of a finding of fact.
(iii) Justice D V Sharma Justice DV Sharma in the course of his decision arrived at the finding that: "Thus, on the basis of the opinion of the experts, evidence on record, circumstantial evidence and historical accounts..., it transpires that the temple was demolished and the mosque was constructed at the site of the old Hindu temple by Mir Baqi at the command of Babur. Issue Nos. 1 and 1(a) are decided in favour of the defendants and against the plaintiffs."
66. The High Court entered into the controversy surrounding the authenticity of the inscriptions on the basis of the hypothesis that the inscriptions were the sole basis for asserting that the mosque had been constructed by Babur. Justice Agarwal came to the conclusion that the inscriptions were not authentic and hence a finding that the mosque was constructed by or at the behest of Babur in 1528 A.D. could not be arrived at. Justice S U Khan's reasoning in the text of the judgment was in accord with the view of Justice Agarwal but then, as we have noted, his ultimate conclusion that the disputed structure was constructed as a mosque by or under the orders of Babur is not consistent with the earlier part of the reasons. Justice Sharma held that the mosque was constructed by Mir Baqi at the command of Babur.
67. The basic issue, however, is whether it was necessary for the High Court to enter into this thicket on the basis of the pleadings of the parties. In the suit instituted by the Sunni Central Waqf Board (Suit 4), the case is that the mosque was constructed by Babur after his conquest and occupation of the territories, including the town of Ayodhya. Significantly, Suit 5 which has been instituted on behalf of Lord Ram and Ram Janmabhumi through a next friend also proceeds on the basis that the mosque was constructed by Mir Baqi who was the commander of Babur's forces. The pleading in the plaint in Suit 5 reads thus: "
23. That the books of history and public records of unimpeachable authenticity, establish indisputably that there was an ancient Temple of Maharaja Vikramaditya's time at Sri Rama Janma Bhumi, Ayodhya. That Temple was destroyed partly and an attempt was made to raise a mosque thereat, by the force of arms, by Mir Baqi, a commander of Babar's hordes. The material used was almost all of it taken from the Temple including its pillars which were wrought out of Kasauti or touch-stone, with figures of Hindu gods and goddesses carved on them. There was great resistance by the Hindus and many battles were fought from time to time by them to prevent the completion of the mosque. To this day it has no minarets, and no place for storage ov f water for Vazoo. Many lives were lost in these battles. The last such battle occurred in 1855. Sri Rama Janma Bhumi, including the building raised during the Babar's time by Mir Baqi, was in the possession and control of Hindus at that time."
Immediately following the text of the pleading in the above extract, is a reference to the 1928 edition of the Faizabad Gazetteer. The text of the gazetteer is incorporated in the plaint and reads thus: "
23...In 1528 Babar came to Ayodhya and halted here for a week. He destroyed the ancient temple and on its site built a mosque, still known as Babar's mosque. The materials of the old structure were largely employed, and many of the columns are in good preservation, they are of close-grained black stone, called by the natives kasauti and carved with various device." 68. The pleading in Suit 5 demonstrates that even according to the plaintiffs, the mosque was built by Mir Baqi, a commander of Babur's forces, during the time of Babur. Hence, both in the pleading in Suit 4 and in Suit 5, there was essentially no dispute about the fact that the mosque was raised in 1528 A.D. by or at the behest of Babur. The case in Suit 5 is that the Hindus retained possession and control over the mosque.
This is a separate matter altogether which has to be adjudicated upon. But, from the pleadings both in Suit 4 and in Suit 5, there appears to be no dispute about the origin or the date of construction of the mosque. Nirmohi Akhara in Suit 3 did not accept that the structure is a mosque at all for, according to it, the structure has always been a Hindu temple which has been managed by the Nirmohis at all material times. The Nirmohis' disputed the very existence of a mosque, claiming it to be a temple. The case of the Nirmohis will be considered separately while assessing the pleadings, evidence and issues which arise in Suit 3. But, on the basis of the pleadings in Suit 4 and Suit 5, the controversy in regard to the authenticity of the inscriptions will not have any practical relevance.
There is another reason for adopting this line of approach. In the ultimate analysis, whether the mosque was built in 1528 (as both sets of plaintiffs in suit 4 and suit 5 have pleaded) or thereafter would essentially make no difference to the submissions of the rival sides. The plaintiffs in Suit 4 have stated before this Court that the records on which they place reliance in regard to their claim of worship, use and possession commence around 1860. This being the position, the precise date of the construction of the mosque is a matter which has no practical relevance to the outcome of the controversy having regard to the pleadings in Suits 4 and 5 and the positions adopted by the contesting Hindu and Muslim parties before this Court.
H. Judicial review and characteristics of a mosque in Islamic law
69. Mr P N Mishra, learned Counsel appearing on behalf of defendant no 20 in Suit 5 (Akhil Bharatiya Shri Ram JanmBhumi Punrudhar Samiti) has made an earnest effort to demonstrate that the Babri Masjid lacked the essential features of a valid mosque under Islamic jurisprudence. The submissions, essentially deal with two facets:
(i) Features bearing on the location, construction and design of a mosque; and
(ii) The requirements for a valid dedication. In this segment, the first limb of the submissions is addressed. Whether there was a valid dedication will be addressed in a separate segment in Suit 4. Mr Mishra urged that Babri Masjid cannot be treated to be a valid mosque since it lacked essential features in relation to location, design and construction.
70. Before the High Court, the following issues were framed in Suit 4: Issue no 1 in Suit 4 - Whether the building in question described as a mosque in the sketch map attached to the plaint was a mosque as claimed by the plaintiffs; If the answer is in the affirmative:
(a) When was it built and by whom-whether by Babur as alleged by the plaintiffs or by Mir Baqi as alleged by defendant no. 13; and
(b) Whether the building had been constructed on the site of an alleged Hindu temple after demolishing the same as alleged by defendant no. 13. If so, its effect. Issue No 19(d) - Whether the building in question could not be a mosque under Islamic Law in view of the admitted position that it did not have minarets. Issue No 19(e) - Whether the building in question could not legally be a mosque as on plaintiffs' own showing it was surrounded by a graveyard on three sides. Issue No 19(f) - Whether the pillars inside and outside the building in question contain images of Hindu Gods and Goddesses. If the finding is in the affirmative, whether on that account the building in question cannot have the character of mosque under the tenets of Islam.
71. The written statement of defendant no 20 provides the basis for the assertion that Babri Masjid did not fulfil or abide by the features required for a mosque in Islamic jurisprudence: "...
(1) The tomb of this disputed Masjid if it is to be looked from behind would show that it is not in the style developed by Turkis during fifteenth century, nor the Mehrab of the Masjid in that style is to be found. Thus there is no tomb in the disputed Masjid as is to be found in other mosques generally.
(2) On the north door in the front facing each other there are two tigers. They are in the style of taking leaps and their tails are just in the same style when a tiger takes the leap. Between these two tigers there is a peacock. This is not a characteristic of a mosque.
(3) The various Hindu idols are painted or their scriptions are to be found in the disputed mosque.
(4) In the disputed mosque there is no provision for reciting Namaz. To this day it has no minerettes, no place for storage of water for Vazoo.
(5) The Muslim Faith as adumbrated in Holy Koran does not permit the construction of a mosque on the site of temple after demolishing the temple.
(6) Babur never dedicated the property of disputed mosque to ALLAH. Even supposing without admitting that Babur constructed the disputed mosque, yet as it has been done by committing trespass, demolishing the Temple, the abode of God, either by Babur or at his instance by Mir Baqi, the Governor of Oudh, the dedication is wholly invalid and void. The material of the old temple was largely employed in building the mosque and a few of the original columns are still in good preservation. They are of closed grained black stone (Kasauti) bearing various Hindi Bas-reliefs. The outer beam of the main structure being of sandal wood, the height of the columns is 7 to 8 ft., the shape of the base, the middle Section and the capital is square, the rest being round or octagonal . . . . . Subsequently, Aurangjeb also desecrated the shrines of Ayodhya which led to prolonged bitterness between Hindus and Musalmans. Latter also occupied Janmasthan by force and also made an assault on Hanumangarhi. Attacks and counter attacks continued under the leadership of Maulvi Amir Ali (See page 352 of Faizabad Gazetteer 1960).
(7) A mosque must be built in a place of peace and quiet and near a place where there is a sizeable and large number of Muslim population. According to the Tenets of Islam, a mosque cannot be built at place which is surrounded on all sides by temples where the sound of music, of Conch shells or Ghanta Ghariyalis must always disturb the peace and quiet of the place.
(8) A mosque must have minerette for calling the Ajan. According to Baille "When an assembly of worshippers pray in Masjid with permission, i.e. delivery. But it is a condition that prayers be with Ajan or the regular call and be public and not private, for though there should be an assembly yet if it is without Izah and the prayers are private instead of public, the place is no Masjid according to the true disciples." Indeed there has been no mosque without a minerette after the first half century fight. (See P.R. Ganapati Iyer's law relating to Hindu and Muhammadan Endowments 2nd Edition 1918 Chapter XVII, page 388).
(9) According to the claim laid by the Muslims in the present suit, the building is surrounded on sides by a graveyard known as Ganj Shahidan. There is a mention in the Faizabad Gazetteer also of the burial of seventy-five Muslims at the gate of Janmasthan and the place being known as Ganj Shahidan after the battle of 1855. Although there are no graves anywhere near the building at Sri Rama Janma Bhumi or in its precincts or the area appurtenant thereto for the last more than 50 years and if the building was surrounded by a graveyard during the British times soon after the annexation of Audh by them the building could not be mosque and could not be used as a mosque for offering of prayers except the funeral prayers."
72. The above challenge is sought to be buttressed by placing reliance on the evidence of some of the Muslim witnesses. Relevant parts of the depositions of these witnesses have been adverted to during the course of the hearing and are reproduced below:
(i) Mohammad Idris (PW-10) According to the witness: "A building built on somebody's land by force will not be a mosque. So, there is no question of its being legitimate or illegitimate. Demolishing any place of worship is forbidden in Islam. So, there is no question of breaking the same and building a mosque instead. If the debris of any fallen temple is sold by its owner, then there is no prohibition on building a mosque by purchasing such materials. It is another thing that they cannot build a mosque by forcibly grabbing this debris." On the depiction of the images of human beings, animals, birds or idols, the witness stated:
"If an Imam has the knowledge that pictures of animals and birds, or idols, or statues of human beings, or straight or crooked images or representations of any women are engraved in any structure , he will try to remove such engraving before the recital of namaz. But if he does not do so even then the namaz will get offered. I have already spoken about the status and efficacy of such namaz. It will be Makrooh in some circumstances and it will not be so in some circumstances. If the Imam does not try to remove this types of pictures and shapes, it will be a crime on his part. Similarly it is mentioned in the 'Shariyat' that if picture or idol of any living being exists over the walls or pillars of mosque, then the namaz offered there would be 'Makruh' (undesirable) under certain situations. It is so mentioned in the 'Hidaya' of 'Fiqh'." (ii) Mohd Burhanuddin (PW-11)
"It is true that there is a restriction on forcefully building a mosque over someone else's land. If the ownership of someone is proved over a land, then a mosque would not be built over there in absence of the consent of owner. . . .If any property belongs to a non-Muslim or even a Muslim, then a mosque cannot be forcibly built over there under any circumstance by demolishing the same. If it is so proved, then the mosque would not be considered legal/proper." The witness spoke of arrangements for Vazoo or ablution: "Namaz can be offered even by performing 'Taimum' (substitute for Vazoo), if 'Vazoo' has not been performed and there is no arrangement in the mosque for performing 'Vazoo' and water is not 'Dastyab' (available) even at distant places . . . I have also seen such mosques, where there was no arrangement for performing 'Vazoo'."
On human and other images, the witness stated: "When any Muslim would build a mosque afresh, then he would not get the picture of any living being be it animal-bird or male-female or God-Goddess, depicted inside it and if he does so, he would be an offender. However, it would still be called a mosque if other 'Sharayat' are observed." On whether a mosque can be constructed on the demolition of a building, the witness stated: "It is true that according to 'Ehkam' (sanction) of the prophet, if any building is demolished and mosque is built from its debris, then the same is 'Makruh' (not desirable)."
(iii) Mohd Khalid Nadvi (PW-22) The witness stated: "It is true that a mosque will not be constructed by forcibly demolishing a place of worship belonging to any religion. Similarly it cannot be constructed by forcibly capturing a place of worship belonging to any other religion." According to the witness, if a place of worship belonging to a particular religion is demolished, it would remain a place of worship for that faith and if it was proved that a temple on a disputed site was forcibly demolished for the construction of a mosque, the temple would continue to be treated as a temple:
"It is correct to say that if a place of worship belonging to a particular faith is demolished, it will remain to be a place of worship belonging to that very faith. It is correct to say that a temple will not lose its character and will remain to be a temple even if it is demolished to build a mosque. If any mosque is demolished and a temple is constructed in its place, the mosque will remain to be a mosque. If it is proved that there was a temple on the disputed site forcibly demolishing which a mosque was constructed, then such a temple will continue to be treated as a temple."
(iv) Sibte Mohd. Naqvi of the Shia sect (PW-25) According to the witness: "
vii. At one place, two separate buildings of worship or two religions cannot exist. xv. Images, portraits, pictures, idols etc. as also designed garments having pictures are prohibited in a mosque. xvii. Musical instrument i.e. bell etc. is not permissible in the mosque or in the vicinity thereof. xviii. Where bells are ringing or conch shells are blown, prayer would not be offered."
73. Mr Mishra, while placing reliance on the texts of the Hadees sought to urge that there was a breach of the following cardinal principles of Islamic law:
(i) Azaan must be called at least twice a day;
(ii) A mosque must have a Vazoo or place for ablution;
(iii) A mosque should not contain visual images of idols, floral designs or the human form;
(iv) No ringing of bells is permissible within the precincts of or in the area surrounding the mosque;
(v) On one plot of land, two religious places are impermissible;
(vi) No preparation of food in a kitchen is permissible in or in closeproximity to a mosque;
(vii) Land should not be usurped for the construction of a mosque; and
(viii) No graves should be situated in close-proximity to a mosque. These submissions have been controverted by Mr Mohd Nizamuddin Pasha, learned Counsel appearing on behalf of plaintiffs in Suit 4, both in the course of his oral arguments and in written submissions. Mr Pasha urged:
(i) On whether Vazoo is necessary in a mosque: (a) Babri Masjid had a specific place ear-marked for ablution;
(b) In any event according to the Hadees, it is preferable to perform ablution at home before coming to the mosque;
(c) The Hadees which have been cited state that bathing on Friday is a must or indicate how Vazoo is to be performed;
(ii) On whether pictures or depictions detract from the character of a mosque:
(a) The purpose of the prohibition is to ensure that a worshipper is not detracted from prayer;
(b) While a Muslim may claim that a picture is interfering with prayer, an outsider cannot claim that a prayer is makruh because of the presence of images in the mosque; and
(c) Pictures of lifeless things are not specifically disapproved.
(iii) As regards minarets:
(a) The first mosque of Islam neither had domes nor minarets; and
(b) A large number of mosques including of the same period, do not have minarets.
(iv) On the presence of pillars /columns, there is no absolute injunction;
(v) There cannot be two qiblas in one land. This is a misinterpretation of a Hadees which means that a state cannot have two religions;
(vi) On the claim that there should not be any bells nearby:
(a) In practical terms in a populated city, such an injunction is incapable of being observed;
(b) Mosques in the vicinity of temples and ringing of bells was not unusual in India; and
(c) The Sufi idea of Islam is more accommodative of other faiths.
(vii) As regards the presence of graves, the map annexed to the plaint of 1885 shows that there are no graves in front of the western face of the mosque. The Hadees indicates that one should not offer namaz facing a grave; and
(viii) In any case what is or is not permissible in relation to graves is heavily disputed with sufis and wahabis being on extreme ends of the spectrum. Finally, Mr Pasha argued that the concept of 'Makruh' means something which is undesirable but not prohibited; this is a purely spiritual idea about what makes worship dearer to Almighty Allah. Mr Pasha, while controverting the interpretation placed by Mr Mishra has indicated that Mr Mishra has selectively relied upon certain aspects of the Hadees without reading the religious texts in their context and as a whole.
74. Justice Sudhir Agarwal observed that Babur, as the Emperor, had absolute power as an independent sovereign: "3389...The position of Babar, in our view, was that of independent sovereign, Sole Monarch, having paramount power. It was supreme, uncontrollable and absolute, not answerable to anyone. Whether invader or anything else, the fact remains that he had been the supreme authority in the territory which he conquered. Nobody could have questioned him."
The judge observed that "Whether the building in dispute is a mosque, treated to be a mosque, believed to be a mosque and practiced as a mosque" have to be decided not in terms of the tenets of the Shariat but according to how people believed and conducted themselves over a length of time. The High Court held that whether Muslims had used the mosque for offering worship immediately after its construction had not been proved either way but there was evidence to indicate that Muslims had visited the mosque in order to offer namaz after the partition wall was set up in 1856-57.
Whether namaz was offered was not proved but it had been established that since 1857 until the last namaz was offered in the inner courtyard on 16 December 1949, Muslims had visited the mosque for worship. Hence, whether the building could be a mosque in accordance with the tenets of the Shariat was of no significance since the conduct of those who believed and worshipped would be the determinative factor for determining the nature and use of the property in question. The authority of Babur or Aurangzeb (whoever constructed the mosque) was absolute and the court could not examine whether the mosque had been constructed in accordance with or contrary to the tenets of the Shariat: "3404...Whether Babar or Aurangzeb or anybody else, they were supreme authority.
Whether their action was consistent with the tenets of Islam or not, in our view, is unchallengeable after so many centuries particularly when those supreme authorities were not subordinate to any system of justice. Even otherwise, we cannot examine as to whether they rightly or wrongly constructed a place terming it as mosque particularly when at least the local people believe from the representation, whatever it is, that the construction which has been made, is that of a mosque." In the view of Justice Sudhir Agarwal: "3405. Something which took place more than 200 and odd years, we are clearly of the view, cannot be a subject matter of judicial scrutiny of this Court which is the creation of statute that came into force in a system which itself was born after more than hundred and odd years when the building in dispute might have been constructed. All the expert religious witnesses have admitted that if a mosque is constructed, the picture or images of living beings like human images or animal images shall not be allowed to remain thereat. The creator of the building in dispute thought otherwise, yet the followers of Islam did not hesitate in using the premises for the purpose of Namaz.
Whether the belief of such persons, who visited the premises for such worship, is superior or inferior, whether such offering of Namaz was regular or frequent or occasional and intermittent would be of no consequence. Suffice, if there had been Namaz by the Muslim. The offering of worship by Hindus knowing the building in dispute that it is a mosque is something else but on that basis the manner in which the building in dispute has been known for the last more than 250 years and odd cannot be changed." The offering of prayer by Muslims though intermittently from 1860 uptill 16 December 1949 was in the view of the High Court a matter of significance.
75. Assailing the above view, it has been urged by Mr Mishra that the observations of the High Court are per incuriam and that in terms of Section 3 of the Oudh Laws Act 1876, decisions on matters of religious use or institutions have to be decided according to Islamic law or, as the case may be, according to Hindu law.
76. Essentially, the submissions which have been urged before this Court require it to embark upon a journey into theological doctrine and to apply the doctrine to deduce whether every one of the features prescribed by the Hadees for the location or construction of a mosque have been fulfilled.
77. During the course of the submissions, it has emerged that the extreme and even absolute view of Islam sought to be portrayed by Mr P N Mishra does not emerge as the only available interpretation of Islamic law on a matter of theology. Hence, in the given set of facts and circumstances, it is inappropriate for this Court to enter upon an area of theology and to assume the role of an interpreter of the Hadees. The true test is whether those who believe and worship have faith in the religious efficacy of the place where they pray. The belief and faith of the worshipper in offering namaz at a place which is for the worshipper a mosque cannot be challenged. It would be preposterous for this Court to question it on the ground that a true Muslim would not offer prayer in a place which does not meet an extreme interpretation of doctrine selectively advanced by Mr Mishra.
This Court, as a secular institution, set up under a constitutional regime must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper. Above all, the practice of religion, Islam being no exception, varies according to the culture and social context. That indeed is the strength of our plural society. Cultural assimilation is a significant factor which shapes the manner in which religion is practiced. In the plural diversity of religious beliefs as they are practiced in India, cultural assimilation cannot be construed as a feature destructive of religious doctrine.
On the contrary, this process strengthens and reinforces the true character of a country which has been able to preserve its unity by accommodating, tolerating and respecting a diversity of religious faiths and ideas. There can be no hesitation in rejecting the submission made by Mr Mishra. Our Court is founded on and owes its existence to a constitutional order. We must firmly reject any attempt to lead the court to interpret religious doctrine in an absolute and extreme form and question the faith of worshippers. Nothing would be as destructive of the values underlying Article 25 of the Constitution.
I. Places of Worship Act
78. Parliament enacted the Places of Worship (Special Provisions) Act 199133. Sections 3, 6 and 8 of the legislation came into force at once on the date of enactment (18 September 1991) while the other provisions are deemed to have come into force on 11 July 1991.
The long title evinces the intent of Parliament in enacting the law, for it is: "An Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947, and for matters connected therewith or incidental thereto." The law has been enacted to fulfil two purposes. First, it prohibits the conversion of any place of worship. In doing so, it speaks to the future by mandating that the character of a place of public worship shall not be altered. Second, the law seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed on 15 August 1947 when India achieved independence from colonial rule.
79. The expression 'place of worship' is defined in Section 2(c) thus : "2(c) "place of worship" means a temple, mosque, gurudwara, church, monastery or any other place of public religious worship of any religious denomination or any section thereof, by whatever name called." In Section 2(a), the Places of Worship Act provides that the "commencement of this Act" means the commencement on 11 July 1991. Section 3 enacts a bar on the conversion of a place of worship of any religious denomination or a section of it into a place of worship of a different religious denomination or of a different segment of the same religious denomination: "
3. Bar of conversion of places of worship."No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof." Section 4 preserves the religious character of a place of worship as it existed on 15 August 1947: "
4. Declaration as to the religious character of certain places of worship and bar of jurisdiction of courts, etc."(1) It is hereby declared that the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day.
(2) If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority: Provided that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August, 1947, is pending on the commencement of this Act, such suit, appeal or other proceeding shall not so abate and every such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub-section (1).
(3) Nothing contained in sub-section (1) and sub-section (2) shall apply to,"
(a) any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) or any other law for the time being in force;
(b) any suit, appeal or other proceeding, with respect to any matter referred to in sub-section (2), finally decided, settled or disposed of by a court, tribunal or other authority before the commencement of this Act;
(c) any dispute with respect to any such matter settled by the parties amongst themselves before such commencement;
(d) any conversion of any such place effected before such commencement by acquiescence;
(e) any conversion of any such place effected before such commencement which is not liable to be challenged in any court, tribunal or other authority being barred by limitation under any law for the time being in force."
The Places of Worship Act however contains an exemption from the application of its provisions to the place of worship "commonly known as Ram Janam Bhumi –Babri Masjid" and to any suit, appeal or proceeding relating to it. Section 5 stipulates: "
5. Act not to apply to Ram Janma Bhumi-Babri Masjid." Nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceeding relating to the said place or place of worship." Section 6 provides for a punishment of three years' imprisonment and a fine for contravening the provisions of Section 3 and for an attempt or act of abetment: "
6. Punishment for contravention of section
3."(1) Whoever contravenes the provisions of section 3 shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.
(2) Whoever attempts to commit any offence punishable under sub-section (1) or to cause such offence to be committed and in such attempt does any act towards the commission of the offence shall be punishable with the punishment provided for the offence.
(3) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under sub-section (1) shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence." Section 7 confers upon the Places of Worship Act overriding force and effect: "
7. Act to override other enactments."The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act."
80. The law imposes two unwavering and mandatory norms:
(i) A bar is imposed by Section 3 on the conversion of a place of worship of any religious denomination or a section of a denomination into a place of worship either of a different section of the same religious denomination or of a distinct religious denomination. The expression 'place of worship' is defined in the broadest possible terms to cover places of public religious worship of all religions and denominations; and
(ii) The law preserves the religious character of every place of worship as it existed on 15 August 1947. Towards achieving this purpose, it provides for the abatement of suits and legal proceedings with respect to the conversion of the religious character of any place of worship existing on 15 August 1947. Coupled with this, the Places of Worship Act imposes a bar on the institution of fresh suits or legal proceedings.
The only exception is in the case of suits, appeals or proceedings pending at the commencement of the law on the ground that conversion of a place of worship had taken place after 15 August 1947. The proviso to sub-section (2) of Section 4 saves those suits, appeals and legal proceedings which are pending on the date of the commencement of the Act if they pertain to the conversion of the religious character of a place of worship after the off date. Sub-Section (3) of Section 4 however stipulates that the previous two sub-sections will not apply to:
(a) Ancient and historical monuments or archaeological sites or remains governed by Act 24 of 1958 or any other law;
(b) A suit or legal proceeding which has been finally decided settled or disposed of;
(c) Any dispute which has been settled by the parties before the commencement of the Act;
(d) A conversion of a place of worship effected before the commencement of the Act by acquiescence; and
(e) Any conversion of a place of worship before the commencement of the Act in respect of which the cause of action would be barred by limitation. Section 5 stipulates that the Act shall not apply to Ram Janmabhumi – Babri Masjid and to any suit, appeal or any proceeding relating to it. Consequently, there is a specific exception which has been carved out by the provisions of the Places of Worship Act in respect of the present dispute.
The intention of Parliament
81. The purpose of enacting the law was explained by the Union Minister of Home Affairs on the floor of the Lok Sabha on 10 September 199134: "We see this Bill as a measure to provide and develop our glorious traditions of love, peace and harmony. These traditions are part of a cultural heritage of which every Indian is justifiably proud. Tolerance for all faiths has characterized our great civilization since time immemorial. These traditions of amity, harmony and mutual respect came under severe strain during the pre-independence period when the colonial power sought to actively create and encourage communal divide in the country.
After independence we have set about healing the wounds of the past and endeavoured to restore our traditions of communal amity and goodwill to their past glory. By and large we have succeeded, although there have been, it must be admitted, some unfortunate setbacks. Rather than being discouraged by such setbacks, it is our duty and commitment to taken lesson from them for the future."
The Union Minister of Home Affairs indicated that the law which sought to prohibit the forcible conversion of places of worship was not "to create new disputes and to rake up old controversies which had long been forgotten by the people...but facilitate the object sought to be achieved"35. Speaking in support of the cut-off date of 15 August 1947, one of the Members (Shrimati Malini Bhattacharya) explained36: "But I think this August 15, 1947 is crucial because on that date we are supposed to have emerged as a modern, democratic and sovereign State thrusting back such barbarity into the past once and for all. From that date, we also distinguished ourselves...as State which has no official religion and which gives equal rights to all the different religious denominations. So, whatever may have happened before that, we all expected that from that date there should be no such retrogression into the past."
82. The Places of Worship Act which was enacted in 1991 by Parliament protects and secures the fundamental values of the Constitution. The Preamble underlines the need to protect the liberty of thought, expression, belief, faith and worship. It emphasises human dignity and fraternity. Tolerance, respect for and acceptance of the equality of all religious faiths is a fundamental precept of fraternity. This was specifically adverted to by the Union Minister of Home Affairs in the course of his address before the Rajya Sabha37 on 12 September 1991 by stating: "I believe that India is known for its civilization and the greatest contribution of India to the world civilization is the kind of tolerance, understanding, the kind of assimilative spirit and the cosmopolitan outlook that it shows... The Advaita philosophy...clearly says that there is no difference between God and ourselves.
We have to realize that God is not in the mosque or in the temple only, but God is in the heart of a person... Let everybody understand that he owes his allegiance to the Constitution, allegiance to the unity of the country: the rest of the things are immaterial." In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered. The law addresses itself to the State as much as to every citizen of the nation. Its norms bind those who govern the affairs of the nation at every level.
Those norms implement the Fundamental Duties under Article 51A and are hence positive mandates to every citizen as well. The State, has by enacting the law, enforced a constitutional commitment and operationalized its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution. The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values. Secularism as a constitutional value
83. In a nine judge Bench decision of this Court in S R Bommai v Union of India38, Justice B P Jeevan Reddy held: "304...How are the constitutional promises of social justice, liberty of belief, faith or worship and equality of status and of opportunity to be attained unless the State eschews the religion, faith or belief of a person from its consideration altogether while dealing with him, his rights, his duties and his entitlements? Secularism is thus more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality.
This may be a concept evolved by western liberal thought or it may be, as some say, an abiding faith with the Indian people at all points of time. That is not material. What is material is that it is a constitutional goal and a basic feature of the Constitution as affirmed in Kesavananda Bharati [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : 1973 Supp SCR 1] and Indira N. Gandhi v. Raj Narain [1975 Supp SCC 1 : (1976) 2 SCR 347] . Any step inconsistent with this constitutional policy is, in plain words, unconstitutional." The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution.
There is a purpose underlying the enactment of the Places of Worship Act. The law speaks to our history and to the future of the nation. Cognizant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.
84. The observations made on the Places of Worship Act by Justice D V Sharma are contrary to the scheme of the law as they are to the framework of constitutional values. Justice D V Sharma observed as follows: "1 (c). Section 9 is very wide. In absence of any ecclesiastical Courts any religious dispute is cognizable, except in very rare cases where the declaration sought may be what constitutes religious rite. Places of Worship (Special Provisions) Act, 1991 does not debar those cases where declaration is sought for a period prior to the Act came into force or for enforcement of right which was recognized before coming into force of the Act." The above conclusion of Justice D V Sharma is directly contrary to the provisions of Section 4(2). Justice D V Sharma postulates in the above observations that the Places of Worship Act will not debar cases of the following nature being entertained namely:
(i) Where a declaration is sought for a period prior to the enforcement of the Places of Worship Act; or (ii) Where enforcement is sought of a right which was recognised before the enforcement of the Places of Worship Act. 85. Section 4(1) clearly stipulates that the religious character of a place of worship as it existed on 15 August 1947 shall be maintained as it existed on that day. Section 4(2) specifically contemplates that all suits, appeals and legal proceedings existing on the day of the commencement of the Places of Worship Act, with respect to the conversion of the religious character of a place of worship, existing on 15 August 1947, pending before any court, tribunal or authority shall abate, and no suit, appeal or proceeding with respect to such matter shall lie after the commencement of the Act.
The only exception in the proviso to sub-section (2) is where a suit, appeal or proceeding is instituted on the ground that the conversion of the religious character of a place of worship had taken place after 15 August 1947 and such an action was pending at the commencement of the Places of Worship Act. Clearly, in the face of the statutory mandate, the exception which has been carved out by Justice D V Sharma runs contrary to the terms of the legislation and is therefore erroneous.
J. Juristic Personality
J.1 Development of the law
86. At the heart of the legal dispute in the present batch of appeals is the question whether the first and second plaintiff in Suit 5 - "Bhagwan Sri Ram Virajman" and "Asthan Sri Ram Janam Bhumi, Ayodhya", possess distinct legal personalities or, in other words, are "juristic persons". Courts in India have held that Hindu idols are legal persons.
The meaning and significance of this doctrine will be examined over the course of this judgement. At this juncture it is necessary to note that the legal personality of the first plaintiff in Suit 5 ('Bhagwan Sri Ram Virajman') as represented by the physical idols of Lord Ram at the disputed site is not contested by any of the parties. Whether the second plaintiff ('Asthan Sri Ram Janam Bhumi') is a juristic person has however been the subject of controversy in the oral proceedings before us. 87. The present case requires us to answer two important questions: First, what are the exact contours of the legal personality ascribed to a Hindu idol? In other words, to what extent is the artificial legal personality ascribed by courts to a Hindu idol akin to the legal personality of a natural person?
Second, can property of a corporeal nature (in this case land) be ascribed a distinct legal personality? To answer these questions, it is necessary to understand both the true purpose underlying the legal innovation of recognising or conferring legal personality and why courts have conferred legal personality on Hindu idols. The legal subject: recognising rights, entitlements, duties and liabilities
88. The foundational principle of a legal system is that it must recognise the subjects it seeks to govern. This is done by the law recognising distinct legal units or 'legal persons'. To be a legal person is to be recognised by the law as a subject which embodies rights, entitlements, liabilities and duties. The law may directly regulate the behaviour of legal persons and their behaviour in relation to each other. Therefore, to be a legal person is to possess certain rights and duties under the law and to be capable of engaging in legally enforceable relationships with other legal persons. Who or what is a legal person is a function of the legal system. The ability to create or recognise legal persons has always varied depending upon historic circumstances. The power of legal systems to recognise and hence also to deny legal personality has been used over history to wreak fundamental breaches of human rights. Roscoe Pound alludes to this in the following passage in "Jurisprudence": "
In civilised lands even in the modern world it has happened that all human beings were not legal persons. In Roman law down to the constitution of Antonius Pius the slave was not a person. He enjoyed neither rights of family nor rights of patrimony. He was a thing, and as such like animals, could be the object of rights of property. ...
In French colonies, before slavery was there abolished, slaves were put in the class of legal persons by the statute of April 23, 1833 and obtained a 'somewhat extended juridical capacity' by a statute of 1845. In the United States down to the Civil War, the free Negroes in many of the States were free human beings with no legal rights."39 Pound's observations were extracted by this Court in Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass40 where a two judge Bench of this Court had to determine whether the "Guru Granth Sahib" possessed a legal personality. While discussing 'who is a legal person' Justice A P Misra observed: "11. ...If we trace the history of a "person" in the various countries we find surprisingly it has projected differently at different times. ...
13. With the development of society, where an individual's interaction fell short, ... cooperation of a larger circle of individuals was necessitated. Thus, institutions like corporations and companies were created, to help the society in achieving the desired result. The very constitution of a State, municipal corporation, company etc. are all creations of the law and these "juristic persons" arose out of necessities in the human development. In other words, they were dressed in a cloak to be recognised in law to be a legal unit." 89. Legal systems across the world evolved from periods of darkness where legal personality was denied to natural persons to the present day where in constitutional democracies almost all natural persons are also legal persons in the eyes of the law.
Legal systems have also extended the concept of legal personality beyond natural persons. This has taken place through the creation of the 'artificial legal person' or 'juristic person', where an object or thing which is not a natural person is nonetheless recognised as a legal person in the law. Two examples of this paradigm are, where a collection of natural persons is collectively conferred a distinct legal personality (in the case of a cooperative society or corporation) and where legal personality is conferred on an inanimate object (in the case of a ship). The conferral of legal personality on things other than natural persons is a legal development which is so well recognised that it receives little exposition by courts today.
The legal development is nonetheless well documented. Salmond in his work titled "Jurisprudence" notes: "Conversely there are, in the law, persons who are not men. A joint-stock company or a municipal corporation is a person in legal contemplation. It is true that it is only a fictitious, not a real person; but it is not a fictitious man. It is personality, not human nature, that is fictitiously attributed by the law to bodies corporate. So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man.
Persons are the substance of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition. But we may go one step further than this in the analysis. No being is capable of rights, unless also capable of interests which may be affected by the acts of others. For every right involves an underlying interest of this nature. Similarly no being is capable of duties, unless also capable of acts by which the interests of others may be affected. To attribute rights and duties, therefore, is to attribute interests and acts as their necessary bases. A person, then, may be defined for the purposes of the law, as any being to whom the law attributes a capability of interests and therefore of rights, of acts and therefore of duties."
90. A legal person possesses a capability to bear interests, rights and duties. Salmond makes a crucial distinction between legal personality and the physical corpus on which legal personality is conferred: "The law, in creating persons, always does so by personifying some real thing. Such a person has to this extent a real existence, and it is his personality alone that is fictitious. There is, indeed, no theoretical necessity for this, since the law might, if it so pleased, attribute the quality of personality to a purely imaginary being, and yet attain the ends for which this fictitious extension of personality is devised. Personification, however, conduces so greatly to simplicity of thought and speech, that its aid is invariably accepted.
The thing personified may be termed the corpus of the legal person so created; it is the body into which the law infuses the animus of a fictitious personality. ... Legal persons, being the arbitrary creations of the law, may be as of as many kinds as the law pleases. Those which are actually recognised by our own system, however, all fall within a single class, namely corporations or bodies corporate. A corporation is a group or series of persons which by a legal fiction is regarded and treated as itself a person. If, however, we take account of other systems of our own, we find that the conception of legal personality is not so limited in its application..."
Legal personality is not human nature. Legal personality constitutes recognition by the law of an object or corpus as an embodiment of certain rights and duties. Rights and duties which are ordinarily conferred on natural persons are in select situations, conferred on inanimate objects or collectives, leading to the creation of an artificial legal person. An artificial legal person is a legal person to the extent the law recognises the rights and duties ascribed to them, whether by statute or by judicial interpretation. Salmond presciently notes that the rights and duties conferred on artificial legal persons ultimately represent the interests and benefits of natural persons. In fact, it is precisely because of the substantial benefits derived by natural persons from such objects or collectives that legislators and courts are called upon to consider conferring legal personality on such objects or collectives.
91. At a purely theoretical level, there is no restriction on what legal personality may be conferred. What is of significance is the purpose sought to be achieved by conferring legal personality. To the extent that this purpose is achieved, legal personality may even be conferred on an abstract idea. However, Salmond notes that legal personality is usually conferred on objects which are already the subject of personification or anthropomorphisms in layman's language out of "simplicity for thought and speech". The question whether legal personality is conferred on a ship, idol, or tree is a matter of what is legally expedient and the object chosen does not determine the character of the legal personality conferred. The character of the legal personality conferred is determined by the purpose sought to be achieved by conferring legal personality. There is thus a distinction between legal personality and the physical corpus which then comes to represent the legal personality. By the act of conferring legal personality, the corpus is animated in law as embodying a distinct legal person possessing certain rights and duties.
92. By conferring legal personality, legal systems have expanded the definition of a 'legal person' beyond natural persons. Juristic persons so created do not possess human nature. But their legal personality consists of the rights and duties ascribed to them by statute or by the courts to achieve the purpose sought to be achieved by the conferral of such personality. It is important to understand the circumstances in which legal personality has been conferred and consequently the rights and duties ascribed to the inanimate objects on which this conferment takes place.
93. The most widely recognised artificial legal person is the corporation in Company law. However, for the purposes of understanding the circumstances under which courts have conferred legal personality, the example of the corporation is of limited use. The idea of treating a collective of individuals as a single unit for the purposes of identification in law is as old as human civilisation itself. There exists a plethora of examples of such recognition scattered across human history with the advent of guilds, partnerships and early unincorporated businesses. As Phillip Blumberg notes in his book titled "The Multinational Challenge to Corporation Law":
"When the Crown finally began to charter craft guilds and trading companies - the first business corporations - in the fifteenth century, an understanding of the legal nature of the corporation was already substantially in place. ... With this history before them, Sir Edward Code, writing in the beginning of the seventeenth century; ... and Blackstone and Kyd, writing in the late eighteenth century, could confidently assert what the corporation was, how it was created, and what legal attributes flowed from its organization. While they had primarily ecclesiastical and municipal corporations in mind, their commentary fully applied to business corporations as well."43 (Emphasis supplied) The jurisprudential concept of treating a collective of entrepreneurs as a single unit for the purposes of legal recognition was already well established by the time the first business corporations came into existence and did not warrant examination by the courts.
The author further states: "Until well into the nineteenth century, recognition of a corporation for business purposes, both in England and in the United States, required a specific governmental decision to grant corporate status. In England, this took the form of a character from the Crown or an act of Parliament. In the United States it required a legislative act. ... With the universal triumph of general incorporation statutes more than a century ago, corporations could be formed simply by filing certain forms and paying certain fees and taxes. The state's role has shrunken dramatically to a general specification of procedures and a ministerial administrative acknowledgement of the incorporators' compliance with statutory formalities."
The independent legal personality of a corporation has never been dependent on recognition by courts. The legal personality of the corporation was originally granted by a positive act of the government. In later years, as incorporation became the preferred method of doing business, corporate personality was conferred by general statutes of incorporation which permitted any person to incorporate a company subject to the satisfaction of certain statutory conditions. These historical developments outline the departure from a positive act of the government as the basis of corporate personality, to the creation of statutory frameworks within which it was conferred.
It does not, however, outline the reasons underlining the conferral of legal personality and is of little assistance in the present situation.
94. A more pertinent example for the present purposes is the conferment of legal personality on a ship. The concepts of a maritime lien and of actions in rem are established precepts of maritime law. A maritime lien may arise in the case of a wrongdoing or damage caused by a ship which gives the claimant a charge on the 'res' of the ship. The charge is crystallised by an 'action in rem' under which the ship is directly proceeded against, as a legal person. In 1881, Sir George Jessel MR explained this in The City of Mecca45, where he observed: "You may in England and in most countries proceed against the ship. The writ may be issued against the owner of such a ship, and the owner may never appear, and you get your judgement against the ship without a single person being named from beginning to end.
That is an action in rem, and it is perfectly well understood that the judgement is against the ship." D R Thomas in his book titled "Maritime Liens"46 traces the history of the judicial conferment of legal personality on ships. He speaks of two theories- the 'personification theory' and the 'procedural theory' in explaining the evolution of the concept: "The first [theory], commonly coined as the personification theory, traces the historical origin and development of maritime liens to the juristic technique, which has obtained since medieval times, of ascribing personality to a ship. Under this theory a ship is personified and regarded as a distinct juristic entity with a capacity to contract and commit torts. The ship is both the source and limit of liability. ... The second theory, known as the procedural theory, is based on the premise that maritime liens evolved out of the process of arrest of a vessel in order to compel the appearance of the res owner and to obtain a security. ... Although the point is not free of uncertainty it is probably the case that a maritime lien is a substantive right whereas a statutory right of action in rem is in essence a procedural remedy.
The object behind the availability of a statutory right of action in rem is to enable a claimant to found a jurisdiction and to provide the res as security for the claim."
95. There is a direct nexus between the conferral of a limited legal personality and the adjudicative utility achieved by the conferral. Courts treat the physical property of the ship as a legal person against which certain actions may be taken. Conferring legal personality on the ship allows for actions to be taken independent of the availability or presence of the ship's owners, who in a great many cases may be in other parts of the world. As a ship may only be in port for a brief period, an action in rem allows the claimant to ensure pre-judgement security. Thus, even absent an express personification, actions against the ship as a legal person ensure the effective adjudication of admiralty disputes. 96. In M V Elisabeth v Harwan Investment and Trading Pvt Ltd.48, this Court noticed the underlying basis of this principle of Admiralty law. Justice Thommen, speaking for a two judge Bench traced the exercise of admiralty jurisdiction by English courts: "
44. ...The vital significance and the distinguishing feature of an admiralty action in rem is that this jurisdiction can be assumed by the coastal authorities in respect of any maritime claim by arrest of the ship, irrespective of the nationality of the ship or that of its owners, or the place of business or domicile or residence of its owners or the place where the cause of action arose wholly or in part." "...In admiralty the vessel has a juridical personality, an almost corporate capacity, having not only rights but liabilities (sometimes distinct from those of the owner) which may be enforced by process and the decree against the vessel, binding upon all interested in her and conclusive upon the world, for admiralty in appropriate cases administers remedies in rem, i.e., against the property, as well as remedies in personam, i.e., against the party personally..." (Benedict, The Law of American Admiralty, 6th ed., Vol. I p. 3.)
45. Admiralty Law confers upon the claimant a right in rem to proceed against the ship or cargo as distinguished from a right in personam to proceed against the owner. The arrest of the ship is regarded as a mere procedure to obtain security to satisfy judgement...."
In this view, the conferral of legal personality on a ship sub-served the purpose of business certainty and expediency. The decree against the ship binds all interested in her, and despite her nomadic nature, satisfies the requirement of ensuring pre-judgment security. Besides the UK and India, the attribution of legal personality to ships has been used extensively across jurisdictions. Illustrating the approach of American courts, Professor Douglas Lind traces the evolution of the concept: "As the United States entered its first century, the greater part of the nation's trade and commerce, as well as much of the general transportation of persons, occurred on the high seas or along the country's abundant inland navigable waterways.
The constitution had extended the federal judicial power to all cases of admiralty and maritime jurisdiction. ... [The Brig James Wells v United States] case raised what was quickly becoming a common issue: whether an American registered vessel should be condemned for violating a federal law. The Court held the Brig's condemnation inevitable. Noteworthy is the fact that while the case was styled in the name of the vessel, neither the term 'maritime lien' nor 'in rem, appears, and there is no suggestion that the ship itself, rather than those in charge of it, was the offender ... The practice of naming an action against a vessel did not, however, attest to the idea of vessel personification.
The Court treated actions styled against a vessel as including everyone with an interest in her as "a party to the suit." ... Numerous cases had troubled the federal courts regarding enforcement of liens when the principals (owners, masters) with interests in a ship had no active role or prior knowledge of the wrongdoing alleged. Traditional law of agency, with the ship as agent, worked against a coherent rule of responsibility and recovery ... Given the peculiar vitalism of the ship in lore, literature, and poetry, it took only a slight conceptual shift in the legal mind for the federal courts to assume the "mental mode" of adaptation to [the] reality of the vitalism of the ship.
The doctrine gave the courts the "control of the environment" over maritime law that they had been lacking ... with the doctrine of the personality of the ship, the Supreme Court inverted the relationship of agency, making the ship the principal rather than the agent. In this way, the "desirable consequences" of a coherent, workable admiralty jurisdiction seemed possible. The doctrine of the personality of the ship, that is, became a central hallmark of nineteenth century American admiralty law because it appeared to the Supreme Court "to be good in the way of belief" ... The idea originated in the practical efforts of the Supreme Court, especially Justices Marshall and Story, to meet critical social and political needs of the new American republic."49
97. The experience of American courts was that owners of offending ships regularly avoided the jurisdiction of courts. The existing law of the day was inadequate to address the situation. The judges of the American Supreme Court therefore utilised the existing non-legal practice of anthropomorphising the ship and gave it legal significance by conferring legal personality on vessels within their jurisdiction. Significantly, the existing law of agency was ill equipped to deal with the unique features of Admiralty Law. Allowing actions against ships then created a vehicle through which the obligations of those with an interest in the ships and her actions, though outside the jurisdiction of courts, would be fulfilled by the recognition by the law of the personality of the maritime vessel.
Perhaps even more so than in the case of English admiralty courts, the American experience demonstrates that the conferral of legal personality on ships was a result of historical circumstances, shortcomings in the existing law and the need of courts to practically and effectively adjudicate upon maritime claims. Over the course of several cases, the American Supreme Court solved the practical difficulties of attribution and agency by making the ship a distinct legal person for the purposes of adjudicating maritime claims.
History, necessity and convenience
98. These observations are true even beyond the realm of admiralty law. Bryant Smith in a seminal article titled -Legal Personality" published in 1928 in the Yale Law Journal50 states that ordinarily, the subjects of rights and duties are natural persons. However, he goes on to note that: -... for some reason or other, it becomes necessary or convenient to deal with an inanimate object such as a ship, or with a human being in a multiple capacity, as a trustee or a guardian, or with an association of human beings in a single capacity, as a partnership or a corporation. A merchant, for example, who has furnished supplies for a voyage, or a boss stevedore who has renovated the ship, cannot reach the owner of the vessel, who is outside the jurisdiction.
The obvious solution is to get at the ship itself and, through it, satisfy the owner's obligations. But to devise a new system of jurisprudence for the purpose, to work out new forms and theories and processes, would too severely tax the ingenuity of the profession. The alternative is for the judges to shut their eyes to the irrelevant differences between a ship and a man and to treat the ship as if it were a man for the purpose of defending a libel. ... It is true, of course, that the benefits and burdens of legal personality in other than human subjects, on ultimate analysis, result to human beings, which, we have no doubt, is what the writers above cited mean. But the very utility of the concept, particularly in the case of corporate personality, lies in the fact that it avoids the necessity for this ultimate analysis. ...
But, though the function of legal personality, as the quotation suggests, is to regulate behaviour, it is not alone to regulate the conduct of the subject on which it is conferred; it is to regulate also the conduct of human beings toward the subject or toward each other. It suits the purposes of society to make a ship a legal person, not because the ship's conduct will be any different, of course, but because its personality is an effective instrument to control in certain particulars the conduct of its owner or of other human beings." (Emphasis supplied) The above extract affirms Salmond's observations that the choice of corpus (i.e. the object) on which legal personality is conferred is not based on strict legal principle but is an outcome of historical circumstances, legal necessity and convenience.
Historical circumstances require courts to adjudicate upon unique factual situations. In American admiralty law, the increase in maritime expeditions coupled with the conferral of admiralty jurisdiction on the United States Supreme Court led to an influx of cases involving maritime claims. The existing law of the day did not allow the court to effectively adjudicate upon these new claims, leading to inequitable, absurd or perverse outcomes. Hence, legal innovation was resorted to by courts. Both Lind and Smith highlighted several problems arising from the uniqueness of the ship itself - a vessel travelling across multiple jurisdictions, whose owners may reside in jurisdictions other than those where they are sought to be acted against and have little knowledge of, or control, over the operation of the ship. The conferral of legal personality on the ship did not change the behaviour of the ship. It however created a legal framework within which the interactions between natural persons and the ship could be regulated to achieve outcomes at a societal level which are satisfactory and legally sound.
99. Both authors note that the existing personification of the ship required courts to make but a small conceptual leap of faith, which resulted in significant legal benefits for courts. This point is of greater historical than legal significance for it cannot be stated that where there is no personification of an object, a court is barred from conferring legal personality. Arguably, the independent legal personality conferred on a corporation by acts of the state involved a far greater conceptual leap. Yet it was deemed necessary and has since crystallised into a foundational principle in the law of corporations.
100. There exists another reason to confer legal personality. Objects represent certain interests and confer certain benefits. In the case of some objects, the benefits will be material. The benefit may extend beyond that which is purely material. An artificial legal person, whether a ship or a company cannot in fact enjoy these benefits. The ultimate beneficiaries of such benefits are natural persons. However, requiring a court, in every case, to make the distinction between the artificial legal person and the natural persons deriving benefit from such artificial person is inordinately taxing, particularly when coupled with the increasing use of corporations and ships. This leads us to the third rationale for conferring legal personality - convenience. The conferral of legal personality on objects has historically been a powerful tool of policy to ensure the practical adjudication of claims.
By creating a legal framework, it equipped the court with the tools necessary to adjudicate upon an emerging class of disputes. It saved considerable judicial effort and time by allowing judges to obviate the distinction between artificial and natural persons where it was not relevant. The conferral of legal personality was thus a tool of legal necessity and convenience. Legal personality does not denote human nature or human attributes. Legal personality is a recognition of certain rights and duties in law. An object, even after the conferral of legal personality, cannot express any will but it represents certain interests, rights, or benefits accruing to natural persons. Courts confer legal personality to overcome shortcomings perceived in the law and to facilitate practical adjudication. By ascribing rights and duties to artificial legal persons (imbued with a legal personality), the law tackles and fulfils both necessity and convenience. By extension, courts ascribe legal personality to effectively adjudicate upon the claims of natural persons deriving benefits from or affected by the corpus upon which legal personality is conferred. The corollary of this principle is that the rights ascribed by courts to the corpus are limited to those necessary to address the existing shortcomings in the law and efficiently adjudicate claims.
101. This principle is concisely articulated by Phillip Blumberg: -Distinguished by their particular legal rights and responsibilities, each class of legal unit is unique. They include legal subjects as disparate as individuals, maritime vessels, physical objects, partnerships, associations, special accounts, funds, economic interest groupings, and governmental agencies, as well as the corporation and the corporate group. In each case, the attribution of rights and responsibilities demarcating the perimeters of legal recognition of the unit reflects all the factors that underlie societal lawmaking: the historical development of the law, changing values and interests, socio-economic and political forces, and conceptual currents. There are certain fundamental points. First, neither legal rights nor legal units exist -in the air". Legal rights must pertain to a legal unit that can exercise them. Further, there can be no comprehensive list of legal rights and responsibilities that automatically springs into existence upon recognition of a particular subject as a legal unit.
Quite the contrary. It is the recognition of particular rights and responsibilities (principally rights) - one by one - that shapes the juridical contours of the legal unit for which they have been created. When the law recognises a particular right or imposes a particular responsibility on a presumptive legal unit, this constitutes recognition as a legal unit to the extent of the attribution. Other rights and responsibilities may or may not exist, depending on whether such recognition of the unit in the view of the lawmaker - whether legislator, administrator, or judge - will fulfil the underlying policies and objectives of the law of the time in the area. Further, as society changes, the concept of legal identity and the legal consequences attributed to them inevitably change as well."51 (Emphasis supplied) All legal units are not alike. The conferral of legal personality sub-serves specific requirements that justify its recognition. The conferral of juristic personality does not automatically grant an ensemble of legal rights.
The contours of juristic personality i.e. the rights and liabilities that attach upon the object conferred with juristic personality, must be determined keeping in mind the specific reasons for which such legal personality was conferred. The limits or boundaries of the rights ascribed to the new legal person must be guided by the reasons for conferring legal personality. The parameters of judicial innovation are set by the purpose for which the judge innovates. An example of this is when courts lift the veil of corporate personality where the conferral of an independent legal personality no longer serves the above goals. The application of the doctrine is defined by its ability to serve the object underlying its creation.
The legal innovation will become unruly if courts were to confer legal personality on an object and subsequently enlarge the object's rights to the point where the original goal of intelligible and practical adjudication is defeated. With this understanding, it is necessary to now turn to the application of these principles with respect to Hindu idols.
The Hindu idol and divinity
102. At the outset, it is important to understand that the conferral of legal personality on a Hindu idol is not the conferral of legal personality on divinity itself, which in Hinduism is often understood as the "Supreme Being'. The Supreme Being defies form and shape, yet its presence is universal. In the law of Hindu endowments and in the present proceedings, it has often been stated that legal personality is conferred on the "purpose behind the idol'. The present judgment shall advert to the exact legal significance of this statement. For the present, it is sufficient to note that legal personality is not conferred on the "Supreme Being' itself. As observed by this Court in Ram Jankijee Deities v State of Bihar52: -
19. God is omnipotent and omniscient and its presence is felt not by reason of a particular form or image but by reason of a particular form or image but by reason of the presence of the omnipotent. It is formless, it is shapeless and it is for the benefit of the worshippers that there is a manifestation in the images of the supreme being. The supreme being has no attribute, which consists of pure spirit and which is without a second being i.e. God is the only being existing in reality, there is no other being in real existence excepting Him."
103. In 1991, the English Court of Appeal in Bumper Development Corporation Ltd v Commissioner of Police of the Metropolis53 was called to decide the question whether a Hindu temple and a Hindu idol could sue in a court of law. In 1976, an Indian labourer discovered a "Siva Natraja' in Pathur, Tamil Nadu which the labourer subsequently sold to a dealer in religious artefacts. Other artefacts were subsequently found, including a "Sivalingam', and were reinstated in the Pathur temple. In 1982, Bumper Development Corporation purchased the "Siva Natraja' in good faith from a dealer in London who produced a false provenance of the Natraja for the purposes of the sale. The Natraja was subsequently seized by the Metropolitan Police. At trial, the Government of India and the state government of Tamil Nadu intervened, along with the Pathur Temple and the Sivalingam as -juristic persons".
The Court of Appeal engaged in a lengthy discussion on foreign law in English Courts. However, in evaluating the maintainability of the claim by the Pathur temple as a legal entity, the English court made the following observations: -
(1) Neither God nor any supernatural being can be a person in law. A practical illustration of the truth of this statement is that if the endowments were to vest in God as a supernatural being litigation between different temples over their respective rights would be impossible. In any event the same -person" would be both plaintiff and defendant since, as Dr. Mukherjea points out, all Hindus always worship the one Supreme Being. That there is much litigation between temples in India is clear beyond a peradventure. ... (4) Any juristic person must be capable of identification. This necessitates that "person' having a name or description. Since every Hindu idol is a manifestation of one Supreme Being, one must look elsewhere than to the name of God for an identification. The Pathur Temple bears the name of its founder in its title; and that appears to be the custom in Tamil Nadu. So any idol must in practice be referred to by association with the name of the temple in which it is."
104. Hinduism understands the Supreme Being as existing in every aspect of the universe. The Supreme Being is omnipresent. The idea of a legal person is premised on the need to "identify the subjects' of the legal system. An omnipresent being is incapable of being identified or delineated in any manner meaningful to the law and no identifiable legal subject would emerge. This understanding is reflected in the decisions of this Court as well. In Yogendra Nath Naskar v Commissioner of Income Tax, Calcutta54, a three judge Bench of this Court was called upon to determine whether a Hindu idol (or "deity') falls within the definition of an -individual" under Section 3 of the Income Tax Act 1922. Justice V Ramaswami speaking for a three judge Bench of this Court held: -Sankara, the great philosopher, refers to the one Reality, who, owing to the diversity of intellects (Matibheda) is conventionally spoken of (Parikalpya) in various ways as Brahma, Visnu and Mahesvara.
It is, however, possible that the founder of the endowment or the worshipper may not conceive of this highest spiritual plane but hold that the idol is the very embodiment of a personal God, but that is not a matter with which the law is concerned. Neither God nor any supernatural being could be a person in law. But so far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person. The true legal view is that in that capacity alone the dedicated property vests in it. There is no principle why a deity as such a legal person should not be taxed if such a legal person is allowed in law to own property even though in the ideal sense and to sue for the property, to realise rent and to defend such property in a court of law again in the ideal sense. Our conclusion is that the Hindu idol is a juristic entity capable of holding property and of being taxed through its Shebaits who are entrusted with the possession and management of its property."
Legal personality is not conferred on the Supreme Being. The Supreme Being has no physical presence for it is understood to be omnipresent - the very ground of being itself. The court does not confer legal personality on divinity. Divinity in Hindu philosophy is seamless, universal and infinite. Divinity pervades every aspect of the universe. The attributes of divinity defy description and furnish the fundamental basis for not defining it with reference to boundaries - physical or legal. For the reason that it is omnipresent it would be impossible to distinguish where one legal entity ends and the next begins. The narrow confines of the law are ill suited to engage in such an exercise and it is for this reason, that the law has steered clear from adopting this approach. In Hinduism, physical manifestations of the Supreme Being exist in the form of idols to allow worshippers to experience a shapeless being. The idol is a representation of the Supreme Being. The idol, by possessing a physical form is identifiable.
105. An exploration of the method adopted for the conferral of legal personality on Hindu idols and the reason for the conferment is necessary. Chief Justice B K Mukherjea's, -The Hindu Law of Religious and Charitable Trusts" demonstrates a timeless quality and has significance in understanding the evolution of our law on the subject. Justice Mukherjea notes that even prior to courts regulating the Hindu practice of religious endowments, the clear public interest in regulating properties dedicated for religious purposes, resulted in the practice being regulated by the rulers of the day. He states: -1.36 ... It appears however that from very early times religious and charitable institutions in this country came under the special protection of the ruling authority.
In the celebrated Rameswar Pagoda case, it was pointed out by the Judicial Committee that the former rulers of this country always asserted the right to visit endowments of this kind to prevent and redress the abuses in their management. -There can be little doubt", thus observed Their Lordships, -that the superintending authority was exercised by the older rulers." Mr. Nelson in his Madura Manual says: -... The Dharma Kartas held but little communication one with another and recognised no earthly superior except the king himself. Each was independent of all control and acted altogether as he pleased. This freedom led naturally to gross abuses and the king was compelled occasionally to interfere in the management of some of the churches."55
106. In an article which was published in 2010 in the Economic and Political Weekly, Gautam Patel traces the historical evolution of endowments. He noted the reason for the conferment of personality in law on idols: -Emperors and rulers routinely donated property and cash for the establishment, maintenance and upkeep of Hindu shrines. When land was made over to a temple, it was in the form of a sanad, or grant, or firman, by edict. The Shrinathji temple at Nathdwara, for instance, was said to have received a firman from the emperor Akbar. Given the colonial obsession with orderliness and documentation, this situation presented a problem - large areas of land were owned, managed and cultivated by shebaits and mohunts who were clearly not the owners. Temples were, by their nature, malleable and apt to grow and change. The entity with some permanence was the idol and it is presumably for that reason that the legal concept of the Hindu idol as a juristic entity owning land evolved.
The reason may have been purely fiscal - these lands had to be surveyed, their ownership ascertained, and then assessed for (or exempted from) land revenue and other taxes. But the ownership of land almost always depended on the establishment of a positive act of giving - by firman, sanad or any other instrument that unequivocally shows a dedication of the land to the idol."56
The reasons for the recognition of the idol as an entity in law are intrinsically tied to the historical circumstances in which recognition took place. The setting up of religious endowments by individuals, merchants and rulers is an age-old practice in India. However, the colonial administration in India and English law of the time lacked the legal framework within which to record, tax and ultimately adjudicate upon claims with respect to Hindu religious endowments. Disputes arose with the increase in the value of the properties dedicated. The establishment of courts across the country led to their increasingly having to adjudicate upon claims concerning endowments, idols, and debutter properties.
J.2 Idols and juristic personality
107. English and Indian judges in India were called upon to determine the legal characteristics of Hindu idols and the properties associated with them. In Manohar Ganesh Tambekar v Lakhmiram Govindram57, the plaintiffs were persons interested in the religious foundation of the temple of Dakor and the defendants were recipients of the temple's offerings. The plaintiff's prayer was that the court appoint a receiver for the accountable disposal of the offerings made at the temple. On the other hand, the defendants submitted that the temple offerings were their own absolute and secular property. A Division Bench of the Bombay High Court analysed the circumstances in which the case took place and considered the need to confer legal personality on the Hindu idol.
The Court, speaking through Justice R West observed: -For a period extending over several centuries the revenues of the temple seem to have but slightly, if at all, exceeded the outlay required to maintain its services, but recently these revenues have very largely increased. The law which protects the foundations against external violence guards it also internally against mal-administration, and regulates, conformable to the central principle of the institution, the use of its augmented funds."
108. The Hindu practice of dedicating properties to temples and idols had to be adjudicated upon by courts for the first time in the late nineteenth century. The doctrine that Hindu idols possess a distinct legal personality was adopted by English judges in India faced with the task of applying Hindu law to religious endowments. Property disputes arose and fuelled questions about the ownership of the properties. Two clear interests were recognised as subjects of legal protection. First, there existed the real possibility of maladministration by the shebaits (i.e. managers) where land endowed for a particular pious purpose, ordinarily to the worship of an idol, was poorly administered or even alienated. Second, where the land was dedicated to public worship, there existed the threat that access or other religious benefits would be denied to the public, in particular to the devotees.
Where the original founder of the endowment was not alive and the shebait was not the owner of the lands, how were the courts (and through them the State) to give effect to the original dedication? To provide courts with a conceptual framework within which they could analyse and practically adjudicate upon disputes involving competing claims over endowed properties, courts recognised the legal personality of the Hindu idol. It was a legal innovation necessitated by historical circumstances, the gap in the existing law and by considerations of convenience. It had the added advantage of conferring legal personality on an object that within Hinduism had long been subject to personification. The exact contours of the legal personality so conferred are of relevance to the present case to which this judgement now adverts.
109. In conferring legal personality on the Hindu idol, courts drew inspiration from what they saw as factual parallels in Roman law. Justice B K Mukherjea summarises the position: -...from the fifth century onwards - foundations created by individuals came to be recognised as foundations in the true legal sense, but only if they took the form of Pia Causa, i.e., were devoted to "pious uses' only, in short, if they were charitable institutions. Whenever a person dedicated property whether by gift inter vivos or by will - in favour of the poor or the sick, or prisoners or orphans, or aged people, he thereby created ipso facto a new subject of legal rights - the poor house, the hospital and so forth and the dedicated property became the sole property of the new subject - it became the property of the new juristic person whom the founder had called into being. ... 1...A private person might make over property by way of legacy or gift to a corporation already in existence and might, at the same time, prescribe the particular purpose for which the property was to be employed, e.g., feeding the poor, or giving relief to the sick or distressed.
The receiving corporation would be in the position of a trustee and would be legally bound to spend the funds for the particular purpose. The other alternative was for the donor himself to create an institution or foundation. This would be a new juristic person, which depended on its origin on nothing else but the will of the founder, provided it was directed a charitable purpose. The foundation would be the owner of the dedicated property, and the administrators would be the trustees bound to carry out the object of the foundation."58 (Emphasis supplied) In Roman law, where property was dedicated to a particular religious or charitable purpose and not to an identified donee, the religious/charitable purpose itself was elevated to the status of a legal foundation. The foundation was a separate legal entity and came to own the dedicated property. Hindu law does not make a distinction between religious and charitable purposes. However, a clear parallel exists in the case of Hindu endowments.
110. In Manohar Ganesh Tambekar, the Division Bench of the Bombay High Court set out the rationale for and the process by which legal personality is conferred on a Hindu idol. Justice West observes: -The Hindu law, like the Roman law and those derived from it, recognizes, not only corporate bodies with rights of property vested in the corporation apart from its individual members, but also juridical persons or subjects called foundations. A Hindu, who wishes to establish a religious or charitable institution, may, according to his law, express his purpose and endow it, and the ruler will give effect to the bounty ... A trust is not required for this purpose: the necessity of a trust in such a case is indeed a peculiarity and a modern peculiarity of the English law.
In early times a gift placed, as it was expressed, -on the altar of God sufficed to convey to the church the lands thus dedicated. ... Such a practical realism is not confined to the sphere of law; it is made use of even by merchants in their accounts, and by furnishing an ideal centre for an institution to which the necessary human attributes are ascribed. ... But if there is a juridical person, the ideal embodiment of a pious or benevolent idea as the centre of the foundation, this artificial subject of rights is as capable of taking offerings of cash and jewels as of land. Those who take physical possession of the one as of the other kind of property incur thereby a responsibility for its due application to the purposes of the foundation. ... The law which protects the foundations against external violence guards it also internally against mal-administration, and regulates, conformable to the central principle of the institution, the use of its augmented funds. It is only as subject to this control in the general interest of the community that the State through the law courts recognizes a merely artificial person. It guards property and rights as devoted, and thus belonging, so to speak, to a particular allowed purpose only on a condition of varying the application when either the purpose has become impracticable, useless or pernicious, or the funds have augmented in an extraordinary measure."
111. The decision in Manohar Ganesh Tambekar indicates that the expression of a religious or charitable purpose and the creation of an endowment to effectuate it was adequate. The creation of a trust, as in English law was not necessary. The creation of an endowment resulted in the creation of an artificial legal person. The artificial or juridical person represents or embodies a pious or benevolent purpose underlying its creation. Legal personality is conferred on the pious purpose of the individual making the endowment. Where the endowment is made to an idol, the idol forms the material representation of the legal person. This juridical person (i.e. the pious purpose represented by the idol) can in law accept offerings of movable and immovable property which will vest in it. The legal personality of the idol, and the rights of the idol over the property endowed and the offerings of devotees, are guarded by the law to protect the endowment against maladministration by the human agencies entrusted with the day to day management of the idol.
112. Shortly after the decision in Manohar Ganesh Tambekar, the Madras High Court was called upon to decide a dispute pertaining to the appointment of the head of a Mutt. In Vidyapurna Tirtha Swami v Vidyanidhi Tirtha Swami59, a Division Bench examined the legal character of idols, temples and mutts in some detail. Justice B Ayyangar went to on to observe: -As already stated, the worshippers are beneficiaries only in a spiritual sense, and the endowments themselves are primarily intended for spiritual purposes, through indirectly and incidentally a good number of people derive material or pecuniary benefit therefrom as office-holders, servants or objects of charity...The question has not been suggested or considered, whether the community itself for whose spiritual benefit the institution was founded and endowed may not be more appropriately be regarded as a corporate body forming the juristic person in whom the properties of the institution are vested and who act through one or more of the natural persons forming the corporate body, these latter being the dharmakartas or panchayats, & c., charged with the execution of the trusts of the institution and possessing strictly limited powers of alienation of the endowments, as defined in the cases cited above. Though a fluctuating and uncertain body of men cannot claim a profit a prendre in alieeno solo, nor be the grantee of any kind of real property (see Goodman v Mayor of Saltash, yet there is high authority for treating such community as a corporation or juristic person in relation to religious foundations and endowments. ... For all practical purposes however it is immaterial whether the presiding idol or the community of worshippers is regarded as the corporation or juristic person in which the properties are vested, though from a juristic point of view there may be a difference of opinion as to which theory is more scientific. In the words of a recent writer on Jurisprudence (Salmond's "Jurisprudence' (1902), 346) -the choice of the corpus into which the law shall breathe the breath of a fictious personality is a matter of form rather than of substance, of lucid and compendious expression, rather than of legal principle," ..."
The conferral of juristic personality by courts is to overcome existing shortfalls in the law and ensure societally satisfactory and legally sound outcomes. Justice Ayyangar observes that a key societal interest sought to be protected by the conferral of juristic personality on the idol was the protection of the devotees' interests. Justice Ayyangar notes that such protection could also be achieved by conferring juristic personality on the devotees as a collective. However, given the widespread personification of the idol, he holds that juristic personality should vest in the idol on considerations of practicality and convenience.
113. In Bhupati Nath Smrititirtha v Ram Lal Maitra60, a five judge Bench of the Calcutta High Court was constituted to answer the question whether bequests by a testator to trustees for the establishment of an idol of the Goddess Kali and the worship of the idol after the testator's death were invalid due to the Hindu law principle which stated that gifts could only be made to sentient beings. The testator in that case had dedicated certain properties to an idol. While the testator died in 1890, the idol was not consecrated until 1894. A question arose as to whether the non-existence of the idol at the time of the testator's death invalidated the provisions of the will dedicated the property.
In an erudite opinion holding that such bequests were valid, Chief Justice Lawrence Jenkins held: -... but the testator directed all his property to be placed in the hands of persons named by him and subject to certain payments these persons were directed to spend the surplus income which might be left in the sheba and worship of Kali after establishing the image of the Kali after the name of his mother. Now this manifestly was a disposition for religious purposes and such dispositions are favoured by Hindu Law. ...In England it has been held that gifts -for the worship of God" or -to be employed in the service of the Lord and Master" are good. Then does it invalidate the disposition that the discretion is for the spending of the surplus income on the sheba and worship of Kali -after establishing the image of the Kali after the name of my mother." I think not: the pious purpose is still the legatee, the establishment of the image is merely the mode in which the pious purpose is to be effected."
In his separate opinion, Justice Stephen noted: -But though a dedication to a deity does not constitute a gift, it has legal effect. The intention of the donor is that the subject-matter of the gift shall be used for doing honour to the deity by worship, and for conferring benefit on the worshippers and the ministers of the deity who conduct it. This worship is properly and I understand necessarily carried out by having recourse to an image or outer physical object, but the image is nothing till inspired by the deity. It is the duty of the sovereign to see that the purposes of the dedication are carried out."
In holding that the non-existence of the idol at the time of the testator's death did not matter, the opinion of Chief Justice Jenkins clearly demonstrates that the endowed property vests in the purpose itself. As he notes, -the pious purpose is still the legatee." It is on this purpose that juristic personality is conferred. In recognising the pious purpose as a juristic person, the state gives effect to, and protects the endowment. The idol is the material embodiment of the testator's gift. As the gift is one to ensure the continued worship of the deity, the idol is a physical manifestation of the testator's pious purpose. Where courts recognise the legal personality of the idol they are in effect recognising and protecting the testator's desire that the deity be worshipped.
114. The understanding espoused by the decisions referred to above is concisely summarised by Chief Justice B K Mukherjea in the following terms: -1.48A.- Principle as to personality of institutions.- Apart from natural persons and corporations, which are recognised by English law, the position under Hindu law is that if an endowments is made for a religious or charitable institution, without the instrumentality of a trust, and the object of the endowment is one which is recognised as pious, being either religious or charitable under the accepted notions of Hindu law, the institution will be treated as a juristic person capable of holding property. ... 1.48B. Idols.-
The position as to idols is of a special nature. In the Hindu Debutter, it seems, the position is slightly different, and not the whole endowment, but the idol which as an embodiment of a pious or benevolent idea, constitutes the centre of the foundation and is looked upon as the juristic being in which the Debutter property vests. After all, juristic personality is a mere creation of law and has its origins in a desire for doing justice by providing, as it were, centres for jural relations. As Salmond says: -It may be of as many kinds as the law considers proper," and the choice of the corpus into which the law shall breathe the breath of fictious personality is a matter of form than of substance."61
115. A Hindu may make an endowment for a religious purpose. There is a public interest in protecting the properties endowed and ensuring that the original pious purpose of the dedicator is fulfilled. The law confers legal personality on this pious purpose. However, as Chief Justice B K Mukherjea notes, it is the idol, as the material manifestation of the juristic person which is -looked upon" as the centre in which the property vests. The idol as an embodiment of a pious or benevolent purpose is recognised by the law as a juristic entity. The state will therefore protect property which stands vested in the idol even absent the establishment of a specific or express trust.
The pious purpose, or "benevolent idea' is elevated to the status of a juristic person and the idol forms the material expression of the pious purpose through which legal relations are affected. It is the pious purpose at the heart of the dedication which is the basis of conferring legal personality on the idol and which is the subject of rights and duties. The need to confer juristic personality arises out of the need for legal certainty as to who owns the dedicated property, as well as the need to protect the original intention of the dedicator and the future interests of the devotees. It was open for courts to even confer the personality on the community of devotees in certain situations, but the idol is chosen as a centre for legal relations as the physical manifestation of the pious purpose.
116. The reason for this is outlined in the decision of the Calcutta High Court in Mohatap Bahadur v Kali Pada Chatterjee62. In the distant past, the Maharaja of Burdwan dedicated certain lands for the worship of an idol (the "Trilokeswar Shiva') and tasked the predecessor of the respondent as shebaits for the management of the worship. Subsequent to the dedication, the idol was washed away by the flooding of a river nearby. The Maharaja later built a new idol in the same village. However, the respondents refused to perform worship at the site of the new idol on the ground that the original idol had been washed away. The appellant's sought a direction compelling the respondents to perform necessary religious rites at the site of the freshly constructed idol. The Bench consisting of Chief Justice Jenkins and Justice Mookerjee held: -
4. ...It is clear that the property must have been made out by the Maharajah to the predecessor of the defendant in order that the income might be applied for the worship of the image [of] Trilokeswar Shiva. The question arises whether this trust came to an end when the temple was washed away and the image was broken....
5. ...Were the contention of the respondent to prevail the endowment would come to an end, if, as has happened in this case, the land upon which the temple stood was washed away by the action of the river. This view is not supported by any text or any principle of the Hindu law which has been brought to our notice.
6. It is, on the other hand, clearly opposed to the principle recognized by a Full Bench of this court in the case of Bhupati Nath Smrititirtho v. Ramlal Maitra. If then the endowment was not destroyed when the land upon which the temple stood was washed away and the image was broken, what has happened since then to alter the position of the parties? The defendant is in the same position as if he held a service tenure. The land was given to him for definite purpose, namely, that he might apply the income thereof for the purpose of the service of the image established by the Maharaja...."
The idol constitutes the embodiment or expression of the pious purpose upon which legal personality is conferred. The destruction of the idol does not result in the termination of the pious purpose and consequently the endowment. Even where the idol is destroyed, or the presence of the idol itself is intermittent or entirely absent, the legal personality created by the endowment continues to subsist. In our country, idols are routinely submerged in water as a matter of religious practice. It cannot be said that the pious purpose is also extinguished due to such submersion. The establishment of the image of the idol is the manner in which the pious purpose is fulfilled. A conferral of legal personality on the idol is, in effect, a recognition of the pious purpose itself and not the method through which that pious purpose is usually personified. The pious purpose may also be fulfilled where the presence of the idol is intermittent or there exists a temple absent an idol depending on the deed of dedication. In all such cases the pious purpose on which legal personality is conferred continues to subsist.
117. After independence, the principles applicable to the Hindu law of endowments were affirmed by a four judge bench of this Court in Deoki Nandan v Murlidhar63. In 1919, a Hindu testator executed a will bequeathing his lands to the idol (or "Thakur') of Shri Radhakrishnaji. A dispute arose between the direct descendant of the testator and his distant agnates on the management of the Thakur. It was contended that the Thakur was being mismanaged and the public was denied worship. A declaration that the Thakurdwara was a public temple was sought.
The issue facing this Court was how to construct the scope of the dedication in the testator's will. Justice Venkatarama Ayyar, speaking for this Court, held: -
6. ...The true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship. In Bhupati Nath Smrititirtha v Ram Lal Maitra it was held on a consideration of these and other texts that a gift to an idol was not to be judged by the rules applicable to a transfer to a "sentient being', and that the dedication of properties to an idol consisted in the abandonment of the owner of his dominion over them for the purpose of their being appropriated for the purposes which he intends. Thus, it was observed by Sir Lawrence Jenkins C.J at p. 138 that -the pious purpose is still the legatee, the establishment of the image is merely the mode in which the pious purpose is to be effected" and that -the dedication to a deity" may be -a compendious expression of the pious purpose for which the dedication is designed".
7. When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof."
Upon making an endowment, the donor relinquishes all claims to the endowed property. The property now vests in the pious purpose at the heart of the endowment which is recognised as a legal person. The idol forms the material manifestation of the pious purpose and the consequent centre of jural relations. The beneficiaries of the endowment are worshippers and the proper maintenance of worship to the idol is to enable the worshippers to achieve the spiritual benefit of being in communion with the divine. 118. In Yogendra Nath Naskar v Commissioner of Income Tax, Calcutta64, in deciding that a Hindu idol (or "deity') fell within the definition of -individual" under Section 3 of the Income Tax Act 1922, Justice Ramaswami speaking for a three-judge Bench of this Court held: -
6. ...It should however be remembered that the juristic person in the idol is not the material image, and it is an exploded theory that the image itself develops into a legal person as soon as it is consecrated and vivified by the Pran Pratishta ceremony. It is not also correct that the Supreme Being of which the idol is a symbol or image is the recipient and owner of the dedicated property. ... The correct legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated property vests.
As observed by Mr. [J]ustice B.K. Mukherjea: -With regard to the debutter... It is not only a compendious expression but a material embodiment of the pious purpose and though there is difficulty in holding that property can reside in the aim or purpose itself, it would be quite consistent with sound principles of Jurisprudence to say that a material object which represents or symbolises a particular purpose can be given the status of a legal person, and regarded as owner of the property which is dedicated to it." ... The legal position is comparable in many respects to the development in Roman Law."
The purpose behind the dedication
119. Similar to the conceptual grounding of juristic personality in the case of a ship in admiralty law to personify actions in rem, the material object (i.e. idol), seen as an embodiment of the purpose behind the dedication, was chosen as the site of legal relations. The creation by judicial interpretation of an entity in law sub-served an important function. For it obviated a situation that would arise if, despite a dedication by a Hindu for a pious purpose, there existed no legally recognised entity which could receive the dedication. Such a situation was obviated by the judicially recognised principle that where an endowment is made for a religious or charitable institution and the object is pious, the institution will be treated as a juristic person even in the absence of a trust. Similarly, where the dedication is for an idol to be worshipped, the interests of present and future devotees would be at risk in the absence of a legal framework which ensured the regulation of the dedication made. The conferment of legal personality on the pious purpose ensured that there existed an entity in which the property would vest in an ideal sense, to receive the dedication and through whom the interests of the devotees could be protected. This was for the purpose of fulfilling the object of the dedication and through the performance of worship in accordance with religious texts, ensuring that the devotees realised peace through prayer.
120. The recognition of juristic personality was hence devised by the courts to give legal effect to the Hindu practice of dedicating property for a religious or "pious' purposes. The founder or testator may choose to dedicate property for the use of a pious purpose. In many of the above cases, this pious purpose took the form of continued maintenance and worship of an idol. There was a clear state interest in giving effect to the will of the founder or testator who has so dedicated property, as well as for ensuring that the property is at all times used for the purpose of the dedication. A legal fiction was created by which legal personality was conferred on the religious or charitable purpose for which the endowment was made. In the case of a dedication for an idol, the juristic personality finds "compendious expression' in the idol itself.
By conferring legal personality, the court gave legal effect to the dedication by creating an entity to receive the properties so dedicated. By stating that the artificial person created is in fact the owner of the dedicated properties, the court guarded against maladministration by the shebait. Even though the artificial legal person cannot sue without the assistance of a natural person, a legal framework was brought into existence by which claims for and against the dedicated property could be pursued.
121. Though conceptually courts attributed legal personality to the intention of the founder, a convenient physical site of legal relations was found in the physical idol. This understanding is reiterated by this Court's observations in Deoki Nandan that the idol is a -compendious expression" of the testator's pious purpose. The idol, as a representation or a -compendious expression" of the pious purpose (now the artificial legal person) is a site of legal relations. This is also in consonance with the understanding that even where an idol is destroyed, the endowment does not come to an end. Being the physical manifestation of the pious purpose, even where the idol is submerged, not in existence temporarily, or destroyed by forces of nature, the pious purpose recognised to be a legal person continues to exist.
122. The extent to which the doctrine arose out of legal necessity and convenience is exemplified by Justice Ayyangar in Vidyapurna Tirtha Swami v Vidyanidhi Tirtha Swami65 when the learned judge noted that it was even possible, by legal fiction, to recognise the community or collective of devotees as a single legal person. As he noted, this would have equally served the court's goals of creating an adequate legal framework for protecting the dedicated properties and the interests of the devotees. However, the court notes that, as there was no -practical" difference, the legal fiction was applied to the idol and not to the devotees for the sake of simplicity. This course of precedent denotes how the continued personification of the idol in religious practice laid the foundations for the court to choose the idol as the site of legal relations.
123. The recognition of the Hindu idol as a legal or -juristic" person is therefore based on two premises employed by courts. The first is to recognise the pious purpose of the testator as a legal entity capable of holding property in an ideal sense absent the creation of a trust. The second is the merging of the pious purpose itself and the idol which embodies the pious purpose to ensure the fulfilment of the pious purpose. So conceived, the Hindu idol is a legal person. The property endowed to the pious purpose is owned by the idol as a legal person in an ideal sense. The reason why the court created such legal fictions was to provide a comprehensible legal framework to protect the properties dedicated to the pious purpose from external threats as well as internal maladministration. Where the pious purpose necessitated a public trust for the benefit of all devotees, conferring legal personality allowed courts to protect the pious purpose for the benefit of the devotees.
124. Having set out the history and the underlying basis of the legal innovation surrounding the conferral of juristic personality on Hindu idols, it becomes necessary to advert to the principle question before us. The present case turns, in a significant measure, on the answer to the contention urged on behalf of the plaintiffs in Suit 5 that the first and second plaintiffs - Bhagwan Sri Ram Virajman and Asthan Shri Ram Janam Bhumi are juristic persons. If this contention is accepted, this Court will then be required to adjudicate upon the legal consequences of the second plaintiff being declared a juristic person.
J.3 Juristic personality of the first plaintiff
125. For the devotees of Lord Ram, the first plaintiff in Suit 5, -Bhagwan Sri Ram Virajman" is the embodiment of Lord Ram and constitutes the resident deity of Ram Janmabhumi. The faith and belief of the Hindu devotees is a matter personal to their conscience and it is not for this Court to scrutinise the strength of their convictions or the rationality of their beliefs beyond a prima facie examination to ascertain whether such beliefs are held in good faith.
126. The oral and documentary evidence shows that the Hindu devotees of Lord Ram hold a genuine, long standing and profound belief in the religious merit attained by offering prayer to Lord Ram at the site they believe to be his birthplace. Evidence has been led by the plaintiffs in Suit 5 to show a long practice of Hindu worship to Lord Ram at the disputed site. The travel logs of Joseph Tieffenthaler in the eighteenth century and Robert Montgomery Martin in the early nineteenth century record the prevalence of Hindu worship at the disputed site. They also reference special occasions such as Ram Navmi during which Hindu devotees converged upon the Janmasthan from distant areas motivated by the desire to offer prayer to Lord Ram.
The continued faith and belief of the Hindu devotees in the existence of the Janmasthan below the three domed structure is evidenced by the activities of the Nirmohis, individual devotees such as Nihang Singh and the endless stream of Hindu devotees over the years who visited the disputed site. This is testament to the long-held belief in the sanctity of the disputed site as a place of worship for the Hindu religion. It is not necessary to the determination of the legal personality of the first plaintiff in Suit 5 to establish whether the devotees believed that the exact spot under the central dome was the birth-place of Lord Ram or whether the faith and belief of the devotees itself can confer title. These questions are addressed at a later part of this judgement. For the present purposes, it is sufficient to note that the factum of Hindu belief in the sanctity of the disputed site is established by evidence.
127. For the purposes of recognising a legal person, the relevant inquiry is the purpose to be achieved by such recognition. To the extent such purpose is achieved, the form or corpus of the object upon which legal personality is conferred is not a matter of substance but merely a question of form. As observed by Salmond, so long as the conferral of legal personality serves the purpose sought to be achieved, legal personality may even be conferred on an abstract idea. In the case of Hindu idols, legal personality is not conferred on the idol simpliciter but on the underlying pious purpose of the continued worship of the deity as incarnated in the idol. Where the legal personality is conferred on the purpose of a deity's continued worship, moving or destroying the idol does not affect its legal personality. The legal personality vests in the purpose of continued worship of the idol as recognised by the court. It is for the protection of the continued worship that the law recognises this purpose and seeks to protect it by the conferral of juristic personality.
128. In addition to the continued worship of the deity, legal personality is conferred on Hindu idols to provide courts with a conceptual framework within which to practically adjudicate disputes involving competing claims over disputed property endowed to or appurtenant to Hindu idols. In order to adjudicate disputes, the court locates a site of jural relations to determine proprietary claims, maladministration by shebaits and protect the interests of devotees. The law thus protects the properties of the idol even absent the establishment of a specific or express trust. In the proceedings before us, the legal rights and properties of the first plaintiff in Suit 5 were in dispute. However, no submissions were made challenging the legal personality of the first plaintiff. Significantly, Dr Rajeev Dhavan, learned Senior Counsel appearing for the plaintiffs in Suit 4 admitted the juristic personality of the first plaintiff. The question of the legal personality of the first plaintiff is distinct from the properties that appertain to the first plaintiff. The determination of the properties that vest in the deity is discussed in light of the competing claims to the property later in this judgement.
129. In the present case, the first plaintiff has been the object of worship for several hundred years and the underlying purpose of continued worship is apparent even absent any express dedication or trust. The existence of the idol is merely a question of form, or corpus, and the legal personality of the first plaintiff is not dependent on the continued existence of the idol. At the heart of the present dispute are questions pertaining to the rightful manager of the deity and the access of the devotees of Lord Ram to the idols. To ensure the legal protection of the underlying purpose and practically adjudicate upon the dispute, the legal personality of the first plaintiff is recognised.
J.4 Juristic personality of the second plaintiff Submissions
130. Mr K Parasaran, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 5 urged that the second plaintiff is a juristic person. He submitted that in Hindu Law the concept of a juridical person is not limited to idols. According to Mr Parasaran, the relevant question is whether prayer is offered to the deity and not the form in which the deity appears. It was contended that "Asthan Sri Ram Janam Bhoomi" is an object of worship and personifies the spirit of the divine. The faith of the devotees regards the land as a deity and prayer is offered to it. Hence, it was on this basis that the plaintiffs in Suit 5 submit that this court must confer juristic personality on the land represented as Ram Janmasthan. To support this contention, it was urged that God is shapeless and formless and there is no requirement that the object of worship be an idol.
It was urged that the performance of the parikrama (circumambulation) around the disputed spot with the faith and belief that it is the birth-place of Lord Ram delineates the boundaries of the property on which the status of a juristic entity must be conferred. To support this contention, Mr Parasaran relied on the following decisions, which shall be adverted to in the course of the judgment: Manohar Ganesh Tambekar v Lakhmiram Govindram66, Bhupati Nath Smrititirtha v Ram Lal Maitra67, Rampat v Durga Bharthi68, Ram Brahma v Kedar Nath69 , Madura, Tirupparankundram v Alikhan Sahib70,
The Board of Commissioners for Hindu Religious Endowments, Madras v Pidugu Narasimhan71, TRK Ramaswami Servai v The Board of Commissioners for the Hindu Religious Endowments, Madras72, The Poohari Fakhir Sadavarthy of Bondipiputram v The Commissioner, Hindu Religious and Charitable Endowments,73 Venkataramana Murthi v Sri Rama Mandhiram74, Sastri Yagnapurushad Ji v Muldas Bhudardas Vaishya75, Yogendra Nath Naskar v CIT, Calcutta76, Kamaraju Venkata Krishna Rao v Sub Collector, Ongole77, Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass78; and Thayarammal v Kanakammal79.
131. Mr C S Vaidyanathan, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 5 adopted the submissions of Mr Parasaran that the second plaintiff in Suit 5 is a juristic person. He urged that there is a distinction between: (i) the land being a deity;
(ii) the land being the abode of a deity; and
(iii) the land being the property of a deity. It was urged that in the present case, the land constituting the disputed site, is an object of worship and is itself the deity. Mr Vaidyanathan urged that the determination of the second plaintiff as a juristic person renders infructuous questions of possession, joint-possession or adverse possession as the land itself is a legal person and no other person can possess a legal personality. It was urged that the mere fact that a mosque existed at the disputed site cannot evidence a claim of either title or joint possession on behalf of the Sunni Waqf Board.
By an extension of the same argument, once it is held that the disputed site is a juristic person, no partition of the land can be affected as a deity, recognised as a legal person is impartible and cannot be divided. Any division of the property will amount to a destruction of the deity. It is on this basis that the impugned judgment of the High Court directing a three-way division of the property was challenged. Reliance was placed in this regard on the decisions in Pramatha Nath Mullick v Pradyumna Kumar Mullick80, Idol of Thakurji Shri Govind Deoji Maharaj, Jaipur v Board of Revenue, Rajasthan81, and Profulla Chorone Requitte v Satya Chorone Requitte82.
132. Mr Vaidyanathan submitted that the disputed property, being a legal person, is res nullius. Since the disputed property is a juristic person, it is not alienable. It was contended that land which is res nullius or res extra commercium cannot be acquired by adverse possession. It was urged that even if the image of the idol is broken, a deity is immortal and thus, the construction of the mosque on the land did not take away from its character as a deity. Reliance was placed on the decisions in Mahant Ram Saroop Dasji v SP Sahi, Special Officer-in-Charge of the Hindu Religious Trusts83, Ram Jankijee Deities v State of Bihar84, Amrendra Pratap Singh v Tej Bahadur Prajapati85, Thayarammal v Kanakammal86 and Rajasthan Housing Board v New Pink City Nirman Sahkari Samiti Limited87.
133. On the other hand, Dr Rajeev Dhavan, learned Senior Counsel appearing for the Sunni Central Waqf Board, the plaintiffs in Suit 4, urged that the 'Asthan Ram Janma Bhumi' (the second plaintiff in Suit 5) is not a juristic person. He submitted that the contention that the disputed land is a juristic person was raised for the first time only in 1989. Dr Dhavan urged that there are two separate and distinct issues that have arisen before this Court. One concerns the faith and belief that Lord Ram was born in Ayodhya and the evidence adduced to this effect. The other is the set of legal consequences that flow from the disputed property being elevated to the status of a juristic person. Dr Dhavan submitted that while the faith and belief of a sect that religious significance attaches to the birth-place of Lord Ram cannot be questioned, the precise site which constitutes the place of birth is in dispute. Moreover, the property cannot be elevated to the status of a juristic person only on the basis of faith and belief that it is the birthplace of Lord Ram. To this end, it was submitted that the subjective belief of a certain section of devotees cannot lead to the objective consequence of a proprietary claim in law. It was urged that in the Vedic period, the worship of physical objects of nature was practiced in ancient India. Underlying the worship of the object was the purpose it served. Dr Dhavan contended that the status of juristic personality does not attach to every object of religious significance, and that a positive act of sanctification or recognition is required.
134. Dr Dhavan further submitted that the conferment of legal personality on immoveable property is not supported by the existing law on the legal personality of Hindu idols and that conferring legal personality on land would be an innovation leading to the insulation of land from any form of adjudication. Legal impregnability would be conferred merely on the basis of the faith and belief of devotees. It was urged that the conferral of juristic personality on the second plaintiff would create two legal regimes - one applicable to idols and the other to land - both with distinct rights, power, duties and interests. Dr Dhavan drew a distinction between the applicable regime governing the idol and the regime governing land (as emerging from the submissions of the plaintiffs in Suit 5) in the following terms:
(i) The legal regime applicable to the first plaintiff as a recognised Hindu idol - properties of the idol vest in it in an ideal sense; any claim to title is actionable only at the behest of the shebait (unless the shebait has acted contrary to the interests of the idol); and the law of adverse possession and limitation would apply to claims involving property owned by the idol; and
(ii) The legal regime applicable to the second plaintiff - juristic recognition would be premised on the subjective belief of the devotees that the area is a deity; the conferral of juristic personality renders infructuous any competing proprietary claims; and the law of limitation and adverse possession are inapplicable to the property in question.
135. Dr Dhavan argues against accepting any consequence as it emerges based on the above distinction. Dr Dhavan contended that the conferral of juridical personality on the second plaintiff would carve out a sphere of legal impregnability. He submitted that while recognising the idol as a legal person is legally defensible and consistent with the jurisprudence of this Court, conferring legal personality on land itself is a legal innovation conferring rights that are not available to the first plaintiff. It was finally urged that no distinction must be drawn between Indic religions and other religions and no plea for constitutional protection could be taken by the plaintiffs in Suit 5 in what is essentially a civil matter. This would result in the faith and belief of one religion influencing the outcome of a civil adjudication on private rights between two religious communities. These rival submissions will now be analysed.
Distinguishing religious significance and juristic personality
136. Recognition of the religious significance of a place as a place of public worship is conceptually distinct from recognising the place as a juristic person. Ram Janmabhumi is undoubtedly of religious significance to the Hindus based on the faith and belief that it is the birth-place of Lord Ram. A determination by this Court of whether or not the disputed site is a juridical person will not in any manner detract from the significance of the faith and belief of the Hindu community.
137. To support their contention that the second plaintiff is a juristic person, learned Senior Counsel appearing for the plaintiffs in Suit 5 relied on a wealth of precedent. A close reading of those decisions indicates that the counsel have selectively relied on extracts to support the contention that the disputed site is a juridical person. To determine the extent to which they support the contentions urged by the plaintiffs in Suit 5, it would be necessary now to analyse the cases relied upon and examine the context in which they were adjudicated.
138. In Manohar Ganesh Tambekar v Lakhmiram Govindram88, the plaintiff instituted a suit as a party interested in the maintenance of the religious foundation of the temple dedicated to a deity. The plaintiff sought to make the defendants, who were the recipients of the offerings at the temple, accountable as trustees proper. The defendants claimed that they were the absolute owners and held all offerings as private property. A Division Bench of the Bombay High Court held that while private guilds may exist, under English law an association consisting of a fluctuating or undefined class of individuals, whether or not it exists for charitable purposes, cannot be vested with property without incorporation. The defendants however put themselves forward as a body of proprietors with revenue arising from the accumulated offerings of articles of value laid at the feet of the idol.
The Court, speaking through Justice R West observed: "9. The evidence recorded in the case, including that of many donors to the idol Shri Ranchhod Raiji, shows that having discharged a religious duty or gained religious merit by a gift to the deity, the votary is but little interested in what afterwards becomes of the offering .... Still he must needs be and is concerned in the maintenance of a decent and orderly worship. ...He desires a regular and continuous or at least a periodical round of sacred ceremonies, which might fail if the offerings of past years were all squandered, while those of any given year fell short. The sevaks seem to have received the offerings, both of immovables and of moveables, with a consciousness, though but a hazy consciousness, that they were bound, out of the funds thus coming to them, to provide for the worship of the idol and the convenience of the pilgrims who resort to the temple."
The sevaks (defendants) admitted to their responsibility to take care of the temple. Articles of value were to be consigned to the bhandari. It is in this context that the Court held: "
11. ... Mr. Macpherson admitted for the defendants in this case that they could not sell the lands bestowed on the idol Shri Ranchhod Raiji. This restriction is like the one by which the Emperor forbade the alienation of dedicated lands under any circumstances Vyav. May., Chap. IV, S. VII, p. 23; Nov. 120, cap., 10. It is consistent with the grants having been made to the juridical person symbolized or personified in the idol at Dakor. It is not consistent with this juridical person's being conceived as a mere slave or property of the sevaks whose very title implies not ownership, but service of the god. It is indeed a strange, if not wilful, confusion of thought by which the defendants set up the Shri Ranchhod Raiji as a deity for the purpose of inviting gifts and vouchsafing blessings, but, as a mere block of stone, their property for the purpose of their appropriating every gift laid at its feet.. But if there is a juridical person, the ideal embodiment of a pious or benevolent idea as the centre of the foundation, this artificial subject of rights is as capable of taking offerings of cash and jewels as of land."
The decision clarifies that an idol as a juridical person is the "ideal embodiment" of a pious or benevolent idea.
The status of a juristic person was conferred on the idol as an entity which encompasses the purpose itself in which capacity the properties and offerings vest. The observations in this case affirm the position that juridical personality was conferred on the pious purpose and the property endowed or accumulated did not itself become a juristic entity. It is not the property endowed which is a juridical person - it is the idol which as an embodiment of a pious purpose which is recognised as a juristic person, in whom the property stands vested.
139. In Rampat v Durga Bharthi89, the respondent claimed, as Mahant of the 'Asthan' as well as under the deed of settlement, that he was entitled to recover properties which appertain to the 'Asthan' of Parela. One Mr Ghattari constructed a monastery ('Asthan') at Parela and consecrated its building towards the service of his ascetic brotherhood and purchased the suit villages for the maintenance of the institution. Justice Nazir Hasan speaking for the Oudh Judicial Commissioner's Court on the nature of the 'Asthan' held: "In my opinion, the Asthan at Parela, as founded, was completely in accordance with the type of monasteries of the old days. The several legal concepts which emerge out of the foregoing narrative may be stated to be as follows:
(1) It is a congregation of Sannyasis, celibates and ascetics, who has entirely cut themselves off from worldly ties.
(2) The properties appertaining to the Asthan are held in trust for the purposes of the Asthan.
(3) The purposes of the Asthan are maintenance of the devotees and propagation of charities.
(4) The head of the Asthan is the trustee of the institution and of the properties attached to it....An Asthan therefore is essentially an institution of Sannyasis, celibates and ascetics - having no wordly connection either of wealth or of family."
In this view, the 'Asthan' was not a building but a seat of religious learning. The nature of the 'Asthan' abundantly clarifies that is was not treated as corporeal property, but a charitable institution of learning which was considered to be the juridical person. The physical property that was the monastery was not treated as a juristic person. The court concluded that it was the charitable institution as a juristic person in which the suit villages vested.
140. In Rambrahma Chatterjee v Kedar Nath Banerjee90, the respondents instituted a suit for a declaration that they were entitled to participate in the bhog offered to three idols which were consecrated by the common ancestors of the respondents and the appellant. A temple was constructed, and properties were dedicated to the idols. The respondents, as descendants of the founders through their daughters claimed a practice of participating in the bhog and the courts below found that the descendants in the male line had consistently been shebaits.
The question which arose for determination was whether it was competent for the founder to direct that the shebaitship should be vested in the descendants through the son and that the descendants through the daughters have a right to participate in the bhog offering. The High Court of Calcutta, held as follows: "...a charitable corporation, in so far as it is charitable, is the creature of the founder...There is no reason why the founder, who is competent to provide for the government and administration of the trust, should not be able to give a direction for its management, which is not inconsistent with its character as a religious and charitable trust...The test in each case is, whether the direction given by the founder is inconsistent with the nature of the endowment as a religious and charitable trust and is a colourable device for the evasion of the law of perpetuities." The court noted that for over two centuries, shebaitship rights had vested in the descendants through the sons and that the descendants through the daughters exercised a right to participate in the bhog offering.
In this context, the court held that it would be slow to interfere with the exercise of these rights over a long duration of time without question and a reasonable presumption will be drawn in favour of such a right. The plaintiffs in Suit 5 relied on the observation in this case that a deity is conceived as a real living being. In this regard, the court noted: "...There is a fundamental distinction between a gift to a sentient being and an offering or dedication to a deity. Subject to special usages to the contrary, the offerings do not become the property of the officiating priest, but contribute to the maintenance of the shrine with all its rights, ceremonies and charities... It is sufficient to state that the deity is, in short, conceived as a living being and is treated in the same way as the master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accuracy; the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest.
The dedicated food, known as bhog, is, after completion of the worship, distributed in charity amongst members of the family as also among guests invited and uninvited; for in the oldest Brahminical writings hospitality is regarded as the discharge of a common debt to humanity and the guest is honoured as a divinity. In our opinion, a direction that the descendants of the daughters of the founder should participate in such a distribution of consecrated food, is in no way inconsistent with the purpose of the endowment."
The method of worshipping an established deity as a real person is separate and distinct from the conferral of juristic personality in law. Human personality is distinct from legal personality. The court made a reference to the methods of worship performed for an established deity, which is in accordance with the faith and belief of the worshippers. No question of a juristic person arose in this case.
141. The plaintiffs in Suit 5 have then placed reliance on the decision of the Privy Council in Madura, Tirupparankundram v Alikhan Sahib91. It was urged that in this case an entire hill, as a place of public worship, was recognised as a juristic person on the basis of the circumambulation performed around it. Consequently, in the present case, the performance of the parikrama around the disputed site should (it has been urged) have the effect of the land being elevated to the status of a juristic person.
142. The Privy Council in Madura Tirupparankundram was concerned with the ownership of a barren hill in the Madura District of Madras. There was a mosque at the highest point of the hill. The Tirupparankundram Temple, represented by its manager, instituted a suit claiming the whole hill as temple property (with the exception of certain cultivated and assessed lands and the site of the mosque). The Mohammedan defendants asserted ownership over the mosque and a portion of the hill known as Nellitope.
The Secretary of State claimed to be the owner of all unoccupied portions of the hill. The Subordinate judge of Madura decreed in favour of the Plaintiffs (with the exception of the Nellitope, the mosque itself and the flights of stairs leading to it). The Mohammedan defendants filed an appeal and the Secretary of State was directed to be a party to the appeal. Despite a finding that the Hindus and Mohammedans had rights over the hill, and without specifying what these rights were, the High Court held that the Government was the owner of the hill. Around the base of the hill, worshippers performed the Pradakshinan by a circumambulation of the hill. This path was also used for processions with the temple car and was known as Ghiri Veedhi.
While the judgment of the High Court noted evidence on record that the hill as a whole was worshipped by the Hindu community as a Linga, the question at the heart of the dispute concerned the question of ownership over the unoccupied portions of the hill within the Ghiri Veedhi. Under Lord Clive's treaty with Azim-ul-Dowlah in 1801, Madura came under the control of the East India Company. The High Court took the view that, post 1801 the entire hill, being part of the village, became Government property. 143. The Privy Council held that acts of ownership had been exercised consistently by the temple for the greater part of a century over all unoccupied portions of the land.
Expenses were also incurred for the upkeep of smaller shrines situated within the Ghiri Veedhi. The temple was held to have been in possession of the unoccupied portion of the hill from time immemorial which had been treated by the temple as temple property. The Privy Council held that, save and except the mosque, there was "no evidence of expropriation from the remainder" of the hill. Sir George Lowndes held: "The only rights which the temple can assert against the respondent are rights which the East India Company granted to them or allowed them to retain...and their Lordships think the evidence shows that the temple was left after 1801 in undisturbed possession of all that it now claims...Their Lordships do not doubt that there is a general presumption that waste lands are the property of the Crown, but they think that it is not applicable to the facts of the present case where the alleged waste is, at all events physically, within a temple enclosure...On the whole their Lordships are of opinion that the appellant has shown that the unoccupied portion of the hill has been in the possession of the temple from time immemorial and has been treated by the temple authorities as their property."
A close reading of the judgment makes it evident that the Privy Council was only concerned with (i) the unoccupied portions of the land and the protection of other proprietary rights in the hill; and (ii) the ownership of the property by the temple. The Privy Council was not concerned with the elevation of the hill itself to the status of a juristic person. There is a distinction between the ownership of the property by the temple, and the conferral of legal personality on land. Where land is owned by a person, it cannot be a juristic person, for no person can own a deity as a juristic person. This case does not further the argument advanced by the plaintiffs in Suit 5 that the disputed property is itself a juristic person. Temples governed by statutes
144. In The Board of Commissioners for Hindu Religious Endowments, Madras v Pidugu Narasimhan92, the Board framed a scheme on the ground that the institution in question was a temple within the meaning of the Madras Hindu Religious Endowments Act 1863. The respondent instituted a suit challenging the declaration of the institution as a temple under the Act. A Division Bench of the Madras High Court observed that the institution had been in existence for several centuries and had over time become a place of worship. The court observed that the worship must be of sufficient significance to attract public endowments.
On an assessment of the events carried on within the institution, the court concluded that there was, within the institution, public religious worship. The High Court held that the Board was thus authorized to frame a scheme under the Act. Justice Varadachariar observed: "The test is not whether it conforms to any particular school of Agama Sastra; we think that the question must be decided with reference to the view of the class of people who take part in the worship. If they believe in its religious efficacy, in the sense that by such worship, they are making themselves the object of the bounty of some superhuman power, it must be regarded as "religious worship."
145. Mr Parasaran, appearing on behalf of the plaintiffs in Suit 5 argued, on the basis of this extract, that by performing the parikrama around the disputed site with the faith and belief that the disputed site is the birth-place of Lord Ram, the devotees believe that the receive the spiritual benefits of religious worship. This, it was urged, is adequate for this Court to hold that the land constituting the second plaintiff is a juristic person.
The observations of the Madras High Court in Pidugu Narasimhan were in the context of assessing whether the performance of the ceremonies amounted to "public religious worship" in order to determine whether the institution in question was a temple under the Act. No question arose of the temple being a juristic person. At best, this case supports the proposition put forth by the plaintiffs in Suit 5 that the nature of worship performed at the disputed site is of a religious nature.
146. Mr Parasaran placed reliance on a decision of the Madras High Court in TRK Ramaswami Servai v The Board of Commissioners for the Hindu Religious Endowments, Madras93 to contend that the presence of an idol is a dispensable requirement with respect to religious worship and that the faith and belief of the worshippers along with the performance of the parikrama around the disputed land is sufficient for a court to confer on the disputed site legal personality. In TRK Ramaswami Servai, a deed of gift was executed declaring that certain land had been endowed to a temple Devasthanam and that a temple was under construction. Besides the donor, two trustees were appointed.
In 1937, the Hindu Religious Endowments Board demanded a contribution from the trustees on the assumption that the construction of the temple was complete. This was resisted by the appellants on the ground that the temple was not constructed and that no idol had been installed. The temple was nonetheless declared a temple within the ambit of the Madras Hindu Religious Endowments Act, 1926. Subsequently, a scheme of management was sought to be framed for the temple.
147. Among the various issues addressed by the court, one concerned the existence of a valid temple for the purposes of the Act. The two judges on the Division Bench differed and the case was then referred to a third Judge. Agreeing that there existed a temple for the purposes of the Act, Justice Viswanatha Sastri held: "...The Hindu law recognizes the validity of dedications for the establishment of a deity and the maintenance of its worship. It is immaterial that the image of the deity has not been established before a gift or bequest is made for it...The test is not whether the installation of an idol and the mode of its worship conform to any particular school of Agama Sastras. If the public or that section of the public who go for worship consider that there is a Divine presence in a particular place and by offering worship at that place, they are likely to be the recipients of the county or blessings of God then, you have got the essential features of a temple as defined in section 9, clause 12, of the Act.
The presence of an idol, though an invariable feature of Hindu temples, is not a legal requisite under the definition of a temple in section 9, clause 12, of the Act."(Emphasis supplied) The observations of the court were made in the context of assessing whether the presence of an idol was required for the institution to be defined as a temple under Section 9 of the Madras Hindu Religious Endowments Act, 1926. It was in this context that the court held that the belief of the devotees that they will be the recipients of God's blessings was sufficient for the institution to be held a temple under the Act. At best, these observations of the court establish that the belief of devotees that there is a divine presence is constitutive of a place of public worship. This however, is distinct from the conferral of juristic personality. An adjudication that an institution is a temple for the purposes of a statutory enactment is distinct from the issue as to whether the institution possesses juristic personality. The observations in this case were made in the specific context of a statutory definition and cannot be applied to a place a religious worship for which no statutory enactment exists.
148. A similar question was adjudicated upon by the High Court of Andhra Pradesh in Venkataramana Murthi v Sri Rama Mandhiram94, upon which reliance was placed. In this case, the court was required to assess whether an idol was a pre-requisite for a place of worship to be a temple within the purview of the Hindu Religious and Charitable Endowments Act 1951. The court affirmed that the existence of public religious worship and a dedication is adequate for the institution to be declared as a temple under the Act, even absent an idol. This case does not support the case of the plaintiffs in Suit 5.
149. In the decision of this Court in Kamaraju Venkata Krishna Rao v Sub Collector, Ongole95, upon which significant reliance has been placed, the question before a three judge Bench was whether a tank can be considered a charitable institution within the meaning of the Andhra Inams (Abolition and Conversion into Ryotwari Act) 1956. Who granted the Inam in question was not known. The appellant sought a declaration that the property comprised in the Inam be registered in his name. This contention was rejected by the authorities under the Act on the ground that under the records, the Inam was granted to the tank itself and the ancestor of the appellant was merely the manager of the charitable institution, the tank. It was contended by the appellant that even if the Inam was granted for a charitable purpose, the object of the charity was a tank which could not be considered a charitable institution. The three judge Bench of this Court, speaking through Justice KS Hegde held: "
9. From the above discussion, it is seen that under Hindu Law a tank can be an object of charity and when a dedication is made in favour of a tank, the same is considered as a charitable institution. It is not necessary for our present purpose to decide whether that institution can also be considered as a juristic person. Once we come to the conclusion that the inam with which we are concerned in this case was an Inam in favour of the "uracheruvu" (tank) that tank must be considered as a charitable institution under the Act." (Emphasis supplied) This Court was only required to assess whether a tank can be considered a "charitable institution" within the meaning of the Andhra Inams (Abolition and Conversion into Ryotwari Act) 1956. Hence, it was categorically clarified that there was no need to advert to whether or not a tank is a juristic person.
This case does not further the arguments urged by the plaintiffs in Suit
5. Shiromani Gurdwara Prabandhak Committee
150. At this stage, it is necessary to advert to the decision of this Court in Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass96. In this case, a two judge Bench held the Guru Granth Sahib to be a juristic person. Mr Parasaran, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 5 placed considerable reliance on this decision to contend that this Court has held physical property simpliciter to be a juristic person. Hence, he submitted that there is a legal basis in the jurisprudence of this Court to confer legal personality upon the disputed property. To analyse this contention, it is necessary to consider the case in some detail.
151. In Shiromani Gurdwara, 56 persons moved a petition under Section 7(1) of the Sikh Gurdwaras Act 1925 for a declaration that certain disputed property was a Sikh Gurdwara. Upon the issuance of a notification to this effect, objections were raised that the disputed property was a dharamshala and dera. The Tribunal under the Act dismissed this objection on the ground that the petitioners therein lacked locus. In the meantime, the Shiromani Gurdwara Parbandhak Committee97 claimed that the disputed property was a Sikh Gurdwara and that the "Guru Granth Sahib" was the "only object of worship and it was the sole owner of the gurdwara property." The Sikh Gurdwara Tribunal decreed in favour of the SGPC and held that the disputed property "belonged to SGPC".
152. On the basis of a farman-e-shahi issued in 1921, the Revenue Officer had ordered mutation in the name of the "Guru Granth Sahib Barajman Dharamshala Deh". Thus, the ownership column of the land continued in this name till objections were filed to the declaration of the land as a Sikh Gurdwara. In the appeals before the High Court from the findings of the Tribunal, a contention was raised that the entry in the revenue records in the name of the Guru Granth Sahib was void as it is not a juristic person. The High Court held that the Guru Granth Sahib is not a juristic person and consequently, the mutation in the name of the Guru Granth Sahib was liable to be set aside. It was in this context that this Court was called to adjudicate whether the Guru Granth Sahib is a juristic person, capable of owning the disputed property in its own name.
153. Tracing the evolution of the concept of juristic person, Justice AP Misra noted that recognition in law of a juristic person is to sub-serve the needs of the law and society.
The Court held: "19...When the donor endows for an idol or for a mosque or for any institution, it necessitates the creation of a juristic person. 21...There may be an endowment for a pious or religious purpose. It may be for an idol, mosque, church, etc. Such endowed property has to be used for that purpose. The installation and adoration of an idol or any image by a Hindu denoting any god is merely a mode through which his faith and belief is satisfied. This has led to the recognition of an idol as a juristic person.
27. The aforesaid conspectus visualizes how "juristic persons" was coined to subserve to the needs of the society...Different religions of the world have different nuclei and different institutionalized places for adoration, with varying conceptual beliefs and faith but all with the same end." (Emphasis supplied) Justice Misra further noted: "
29...it is not necessary for "Guru Granth Sahib" to be declared as a juristic person that it should be equated with an idol. When belief and faith of two different religions are different, there is no question of equating one with the other. If "Guru Granth Sahib" by itself could stand the test of its being declared as such, it can be declared to be so." "
31. Now returning to the question, whether Guru Granth Sahib could be a 'juristic person' or not, or whether it could be placed on the same pedestal, we may fist have a glance as the Sikh religion...In the Sikh religion, the Guru is revered as the highest reverential person...
33. The last living Guru, Guru Gobind Singh, expressed in no uncertain terms that henceforth there would not be any living Guru. The Guru Granth Sahib would be the vibrating Guru. He declared that "henceforth it would be your Guru from which you will get all your guidance and answer". It is with this faith that it is worshipped like a living Guru. It is with this faith and conviction, when it is installed in any gurdwara it becomes a sacred place of worship. Sacredness of the gurdwara is only because of placement of Guru Granth Sahib in it. This reverential recognition of Guru Granth Sahib also opens the hearts of its followers to pour their money and wealth for it. It is not that it needs it, but when it is installed, it grows for its followers, who through their obeisance to it, sanctify themselves and also for running the langer which is an inherent part of the gurdwara.
34. ... It cannot be equated with an "idol" as idol worship is contrary to Sikhism. As a concept or a visionary for obeisance, the two religions are different. Yes, for its legal recognition as a juristic person, the followers of both the religions give them respectively the same reverential value.... 42...for all the reason, we do not find any strength in the reasoning of the High Court in recording a finding that the "Guru Granth Sahib" is not a "juristic person". The said finding is not sustainable both on fact and law."The view of the learned judge was that the creation of a juristic person was to ensure the legal protection of the religious beliefs of the faith: "
28. Faith and belief cannot be judged through any judicial scrutiny. It is a fact accomplished and accepted by its followers. This faith necessitated the creation of a unit to be recognised as a "juristic person". All this shows that a "juristic person" is not roped in any defined circle. With the changing thought, changing needs of the society, fresh juristic personalities were created from time to time." (Emphasis supplied) 154. What emerges from a nuanced reading of the case is this: First, the case did not relate to the conferment of juristic personality on immoveable property. The relevance of this will be considered in the course of this judgement; Second, as a matter of religion, the tenets of Sikhism are opposed to idol worship. Where juridical personality was conferred on the idol in Hindu Law as the physical site of jural relations, the same physical corpus was absent in Sikhism. This Court was thus required to locate a corpus upon which juridical personality may be recognised for it was only consequent to this determination that the court could decide whether the disputed property vested in the Guru Granth Sahib as a juridical person. As stated above, necessity is often the basis of conferring juridical personality. In this case, as it is in the case of the idol in Hindu law, it was legally expedient to recognise the legal personality of the Guru Granth Sahib as the corpus upon which juridical personality would be conferred in order to determine whether the property could vest in the Guru Granth Sahib.
155. The judgment in Shiromani Gurdwara affirms that there is an underlying purpose which is at the heart of conferring legal personality on objects. Different religions are assessed in accordance with their own faith and belief. The absence of idol worship in Sikhism necessitated the conferral of juristic personality on the Guru Granth Sahib which is, according to the tenets of Sikhism, the Guru. Accordingly, it was then held that the disputed property vested in the Guru Granth Sahib.
156. Lastly, in Thayarammal v Kanakammal98, by way of writings on a stone inscription, the suit properties were dedicated for use by the public as a Dharmachatram (choultry) where travellers and pilgrims could take shelter and be provided with refreshments. The property was "dedicated to the general public as a resting place." No trustee was mentioned and the witness to the dedication was Lord Thyagaraja himself. The plaintiff claimed to be in occupation of a part of the dedicated property (Schedule A) and alleged that a portion of the Schedule B property was encroached upon by the defendants who were liable to be evicted. The defendants contested the suit on the ground that they had acquired title to the portion of the property by way of a purchase made in a court sale conducted in the course of executing a compromise decree. The High Court concluded that the compromise decree was collusive and that the plaintiff also had no right as an assumed trustee. Accordingly, the Administrator General under the Official Trustees Act 1913 was directed to take over the management of the Trust. The principle question before this Court was whether a trust or charitable endowment had been created.
157. The Court analysed the stone inscription and held that the suit property was dedicated for charitable purposes, and it could not be claimed by the plaintiff as a trustee or the defendant as an owner. However, in the course of the judgment, Justice DM Dharmadhikari speaking for the Court held: "16. A religious endowment does not create title in respect of the property dedicated in anybody's favour. A property dedicated for religious or charitable purpose for which the owner of the property or the donor has indicated no administrator or manager becomes res nullius which the learned author in the book (supra) explains as property belonging to nobody. Such a property dedicated for general public use is itself raised to the category of a juristic person.
Learned author at p. 35 of his commentary explains how such a property vests in the person itself as a juristic person....The idea is the same, namely, when property is dedicated for a particular purpose, the property itself upon which the purpose is impressed, is raised to the category of a juristic person so that the property which is dedicated would vest in the person so created." A close reading of the decision shows that the principle contention urged in the case was that the property described as a Dharmachatram is covered under Section 6(5) of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 as a "charitable endowment".
This Court held that the dedication of property for a Dharmachatram, is in the strict legal sense, neither a gift nor a trust. This Court held that the property which was dedicated for a charitable purpose could not be claimed by the plaintiff as a trustee or the defendant as owner. With this finding, the Court was of the view that it was the Tamil Nadu Hindu and Charitable Endowments Act 1959 which governs the matter and accordingly the suit property shall be taken in control for administration, management and maintenance by the State Government and the Commissioner under the 1959 Act.
158. In assessing the position of the religious charitable institution, this Court made certain observations in para 16 upon which reliance has been placed. The Court proceeded on the premise that the suit property had been dedicated for a specific purpose and could not be owned by the defendant. This was to ensure the protection of the purpose with which the suit property was dedicated. Significantly, the deed of dedication did not identify a manager for the endowed property and the court sought to protect the property by conferring legal personality on the intention behind the endowment. Though the Court assessed the position of law on the basis of the theoretical framework analysed above, the observations extracted above seem to suggest that property itself was elevated to the status of a juristic person. On an overall reading of the case as well as the theoretical exposition which has been adverted to, the observations made have to be read in the light of protecting the purpose behind the endowment and not to suggest that the property itself was conferred legal personality.
Dedication of properties
159. The cases referred to Mr C S Vaidyanathan pertained to the consequence of conferring legal personality by this Court on the disputed land. Far from assisting the contention urged on behalf of the plaintiffs in Suit 5, that the second plaintiff is a juristic person, the cases adverted to above affirm that the practice of conferring legal personality on Hindu idols was evolved by courts to ensure that the law adequately protected the properties endowed to religious purposes. As a large number of endowments were made to specific idols, courts located the idol as a nucleus in which the rights, powers, privileges and immunities of the endowment would vest. Legal personality was conferred to serve the very specific public interest of protecting properties so endowed and creating a centre of jural relations.
Necessity mandated the creation and recognition of an entity in law, allowing courts to regulate the legal relations between natural persons and the idol and consequently the properties vested in the idol. These cases will be adverted to in the event the court determines that the second plaintiff is a juristic person. Faith and belief
160. The decisions and their observations which have been adverted to are premised on the existence of a positive act of dedication or donation.
It is pertinent to note that plaintiffs' claim for the conferment of juristic personality on the land that is the disputed site is not based on an express dedication. It was urged that the spot under the central dome where the idols are placed is the birthplace of Lord Ram. The faith and belief of the worshippers is of paramount importance. Hindus perform the parikrama around the disputed site with the faith and belief that it marks the birth-place of Lord Ram. It has thus been argued that 'Asthan Shri Ram Janam Bhumi', as a place of religious worship must consequently be elevated to the status of a juristic person by virtue of the faith and belief of the worshippers. It was contended that the presence of an idol is dispensable in Hinduism, this contemplates a situation such as in the case before us, where the land is itself worshipped as a deity. Devotees pray to the land as the birth-place of Lord Ram, and consequently, the second plaintiff should, it is urged, be recognised as a juristic person.
161. The argument which has been urged on behalf of the plaintiff in Suit 5 is materially different from the case for conferment legal personality on a Hindu endowment. In the case of an endowment, courts have recognised the charitable or religious purpose situated in the institution as a basis for conferring juristic personality on the institution. In doing so, the court recognises the pious purpose of the founder or testator to protect the properties so endowed. However, it is not the case of the plaintiffs in Suit 5 that the property styled as the second plaintiff is debutter property. Rather, by invoking the argument of a "juristic person", the plaintiffs have urged this Court to create an additional ground for the conferral of legal personality - the faith and belief of the devotees. Amongst the ensemble of arguments advanced before this Court, this innovative legal claim is at the heart of the present dispute.
162. The first difficulty that arises in accepting the contention urged by the plaintiffs in Suit 5 stems from the very practical question of how such immovable property is to be delineated. Unlike the case of endowed properties that are delineated in the instrument or deed of endowment itself, where legal personality is sought to be conferred on the basis of faith and belief of the devotees, the devotees themselves may not agree on the exact contours of this property. The question of delineation weighed on the mind of Justice Sudhir Agarwal who stated: "1887. What would be the meaning of word "place" and what should be its extent? Whether it would be a small place which normally is required for birth of a human being or whether it will cover an area of the entire room, house, locality, city or sometimes one can say even more that that. We know that Hindus worship rivers and lakes like Ganga, Yamuna, Narmada, Mansarovar etc.
They are very sacred and pious. At several places a number of temples etc. on the bank or near the said rivers have been constructed. The very origin of such sacred rivers is also a place of worship for Hindus like Gangotri, Yamunotri (state of Uttaranchal) and Amarkantak (for river Narmada). Can it be said that the entire length these rivers cover would constitute and satisfy the requirement of a "juristic personality". It is not out of place that at several places, the temple of Ganga, Narmada, Yamuna, etc. have been constructed and they are religious endowments in their own rights, enjoy all such legal rights and obligations, etc as are available to such endowments. Similarly certain hills or mountain or hilly terrains as such are treated to be places of worship like, Kailash, Gobardhan, Kamathgiri etc." (Emphasis supplied) Parikrama
163. Despite these difficulties, the learned judge concluded that 'Asthan Sri Ram Janam Bhumi' was a juristic person. It was urged before us that it is not the entirety of Ayodhya that is the juristic person, but only the disputed property. When a question was raised by the Bench as to the physical boundaries of the alleged juristic person, it was urged that the performance of the parikrama (circumambulation) around the disputed property delineated the property which was worshipped as the Janmasthan and it is this property, being divine, upon which the status of a juristic person must be conferred. In this view, the parikrama served to mark the boundaries of the juristic person. On the other hand, Dr Dhavan urged that the parikrama is merely a form of worship and not a method of delineating the boundaries of a property.
164. The parikrama may be performed around a small idol, shrine, temple or land in which the temple is situated. However, its principle purpose is to offer worship to the divine and it is performed with the belief that the parikrama would result in the performer being the recipient of some spiritual benefit. The parikrama is not performed in order to mark the exact boundaries of the property to which juristic personality is conferred. The performance of the parikrama, which is a form of worship conducted as a matter of faith and belief cannot be claimed as the basis of an entitlement in law to a proprietary claim over property. Ram Jankijee Deities
165. The counsel for the plaintiffs in Suit 5 relied on the observations by this Court in Ram Jankijee Deities v State of Bihar99 to contend that the manner of consecrating a deity is subjective and based on the determination of the devotees. It was submitted that any method of consecration chosen by the devotees is adequate for the conferral of legal personality on the deity. In that case, the question before the court concerned whether the consecration of a deity with a visible image by the performance of appropriate ceremonies led to the establishment of a valid deity upon which juridical personality could be conferred "for the purpose of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961".
Two deeds of dedication were executed - one to the deity, Ram Jankijee and the other to the deity, Thakur Raja. Both deities, recognised as distinct entities, were given separate properties and put in possession through the shebaits. Both deities were located in separate temples within the dedicated property. 166. The Deputy Collector, for the purposes of the fixation of ceiling area, allowed two land units to the deities on the ground that there are separate deities to which the land was gifted. The Collector disagreed and allowed a single unit on the ground that the entire property held by both deities was to be managed by a committee formed under the Religious Trust Board and there was no evidence on the property donated to the deities being treated differently.
This Court sought to answer whether the two deities were separate and distinct legal entities. It is pertinent to note that the Single Judge of the High Court held that the image of the deity styled as Thakur Raja (or Raja Rani) was not known to Hindu scriptures and hence, there is no second deity to which a separate dedication could be made. It is in this context that this Court observed, speaking through Justice Umesh Banerjee: "
14. Images according to Hindu authorities are of two kinds: the first is known as swayambhu or self-existent or selfrevealed, while the other is pratisthita or established. The Padma Purana says: "The image of Hari (God) prepared of stone, earth, wood, metal or the like and established according to the rites laid down in the Vedas, Smritis and Tantras is called the established images ... where the selfpossessed Vishnu has placed himself on earth in stone or wood for the benefit of mankind, that is styled the selfrevealed." (B.K. Mukherjea - Hindu Law of Religious and Charitable Trusts, 5th Edn.) A swayambhu or self-revealed image is a product of nature and it is anadi or without any beginning and the worshippers simply discover its existence and such images do not require consecration or pratistha but a man-made image requires consecration.
This man-made image may be painted on a wall or canvas. The Salgram Shila depicts Narayana being the Lord of the Lords and represents Vishnu Bhagwan. It is a shila - the shalagram form partaking the form of Lord of the Lords, Narayana and Vishnu." The Court then surveyed precedent to hold that while an idol is usually consecrated in a temple, it does not appear to be an essential condition. The Court held: "16...If the people believe in the temples' religious efficacy no other requirement exists as regards other areas and the learned Judge it seems has completely overlooked this aspect of the Hindu Shastras - in any event, Hindus have in the Shastras "Agni" Devta, "Vayu" Devta - these deities are shapeless and formless but for every ritual Hindus offer their oblations before the deity. The ahuti to the deity is the ultimate - the learned Single Judge however was pleased not to put any reliance thereon. It is not a particular image which is a juridical person but it is a particular bent of mind which consecrates the image."
167. All the cases relied on by the Court pertain to the requisites of a temple under various statutes or what constitutes a place of religious worship. The observations of the Court form the basis of locating the centre of worship, which according to it does not need to have a fixed image and is based on the faith and belief of the worshippers. The observations of the Court were in the context of determining whether a valid deity existed to whom a dedication could be made. The question whether the second deity was a distinct legal person arose due to the need to determine the validity of the deed of dedication in favour of the second deity constituting a separate unit for the purposes of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961.
It is only consequent to the establishment of a valid deity that the dedicated property would vest in the established deity in the ideal sense. 168. It cannot be said that the observations of the court in respect of the consecration or establishment of a valid deity apply with equal force to the conferral of juristic personality on property on the basis of the faith and belief of the devotees. The rationale underlying the approach adopted by this Court is clarified in the following observations: "1
7. One cardinal principle underlying idol worship ought to be borne in mind "that whichever God the devotee might choose for purposes of worship and whatever image he might set up and consecrate with that object, the image represents the Supreme God and none else. There is no superiority or inferiority amongst the different Gods. Siva, Vishnu, Ganapati or Surya is extolled, each in its turn as the creator, preserver and supreme lord of the universe. The image simply gives a name and form to the formless God and the orthodox Hindu idea is that conception of form is only for the benefit of the worshipper and nothing else". (B.K. Mukherjea - Hindu Law of Religious and Charitable Trusts, 5th Edn.)"
The observations in Ram Jankijee Deities were made in the specific context of consecrating an image based on the faith and belief of devotees for the establishment of a deity to which valid dedications may be made. The observations in this case establish that the existence of a valid deity was not to be tested against Hindu Shastras but on the basis of the faith and belief of the devotees. Once the faith and belief of the devotees had been established, it was an express deed of dedication that resulted in the conferral of juridical personality on the idol. The observations in this case cannot be equated to the elevation of property itself as a juristic person.
169. The court in that case was concerned with whether a specific image of a deity must be tested against Hindu scriptures and it is in this context that the court held that divinity is "formless, shapeless but it is the human concept of a particular divine existence which gives it the shape, the size and the colour." There is no express deed of dedication in the present case. The case of Ram Jankijee Deities is not an authority for the proposition that the mere faith and belief of the devotees is sufficient for the conferral of juristic personality. While it was adequate for the existence of a place of religious worship, it was on the basis of a deed of dedication that juristic personality was conferred.
The sacred hill
170. In Sir Seth Hukum Chand v Maharaj Bahadur Singh100, the dispute concerned two sects of the Jain community with regard to the rights of worship of a hill of 25 square miles to which religious significance was attached. According to the Digambaras, the sacred nature of the hill demanded that the moment they set foot on the hill, they must abstain from any offence against nature, even spitting. Though this is observed by the Swetambaris as well, the Digambaras adopted a position that any course of action which is inconsistent with their worship, such as the regular and continuous employment of human beings on the hill involves a desecration of the hill.
171. In 1918, the Swetambaris acquired, by purchase, the proprietary rights to the hill from the Raja of Palgunj. Thereafter, sentries and night watchmen were posted on the hill which was accompanied by the construction of dwelling units for them and for other pujaris. The Digambaris contended that the proposed construction of a gate at the foot of the hill was intended to obstruct their access to the hill. A suit was instituted contending that the hill was an object of worship for both sects and on account of its special status, no construction would take place on it. The trial judge held that the plaintiff Digambaris were entitled to ensure that the hill, as endowed property of the deities, is kept in an immaculate condition in accordance with their faith. The High Court reversed this judgment and held that the hill was not debutter property but the property of the Raja of Palgunj, whose title was transferred. Further, the proposed construction of the gate was held not to obstruct the right of worship of the Digambaris.
172. In appeal, the Privy Council examined the evidence on record to conclude that legal title had vested validly in the Raja. The result of previous litigation between the Raja and the Swetambaris had concluded title in favour of the Raja. A suit by the Digambaris in 1903 also admitted the title of the Raja subject to their right to worship. The Privy Council then examined the range of activities that were carried out on the hill without a disruption of the right to worship, and held that it was not proved that any of the acts complained of, barring the placing of the Charans in the three shrines, in the plaint abridged the right to worship.
173. The trial judge concluded that the hill was debutter property of the deities entirely on the belief of its sanctity. Taking exception to these observations, the Privy Council held: "The Subordinate Judge has based his finding that the whole hill is the debutter property of the jain deities on the belief in its sanctity now entertained by both sects. As observed by Ross, J., that evidence undoubtedly establishes beyond a doubt that in the belief of the Jain community a spiritual quality in some way attaches to the hill, but this is a matter of faith and cannot in itself determine the physical ownership of the hill."
The Privy Council explicitly rejected the contention urged by the Digambaris of a proprietary claim which was based on the faith and belief of the sect. The consequence of absolute title
174. In the present case, the recognition of 'Asthan Sri Ram Janam Bhumi' as a juristic person would result in the extinguishment of all competing proprietary claims to the land in question. This conferral of 'absolute title' (resulting from the conferral of legal personality on land) would in truth render the very concept of title meaningless. Moreover, the extinguishing of competing claims would arise not by virtue of settled legal principles, but purely on the basis of the faith and belief of the devotees. This cannot be countenanced in law. The conferral of legal personality by courts is an innovation arising out of necessity and convenience.
The conferral of legal personality on Hindu idols arose due to the fundamental question of who the property was dedicated to and in whom the dedicated land vested. The two clear interests that the law necessitated protection of were the interests of the devotees and the protection of the properties from mismanagement. In the present case, there exists no act of dedication and therefore the question of whom the property was dedicated to does not arise and consequently the need to recognise the pious purpose behind the dedication itself as a legal person also does not arise. The Swayambhu argument
175. It is pertinent to note that in reply, Mr Parasaran advanced a slightly different argument. The initial argument advanced on behalf of the plaintiffs in Suit 5 was that the performance of worship at the disputed site with the faith and belief that the place is the birth-place of Lord Ram is sufficient for this Court to confer on the disputed site juristic personality.
The argument advanced in reply was that the land is a Swayambhu deity (i.e. self-manifested deity). Mr Parasaran contended that an idol is not necessary in Hinduism for the performance of worship. It was contended that the idol is sacred as a symbol of the divinity, however all worship is done to the one indivisible Supreme Being. The multitude of idols and deities merely constitute different facets of the Supreme Being. Hence, the law must recognize whatever form in which God manifests. It was contended that the second plaintiff was a deity that 'manifested itself in the land' and therefore the juristic personality of Ram Janmabhumi vested in the immovable property of the disputed site. In Mr Parasaran's submission, worship at the disputed site was not offered only to Lord Ram but the very land on which Lord Ram is said to have been born. Reliance in this regard was placed on the existence of several temples where worship was performed despite the absence an idol - most notably at the Chidambaram temple in Tamil Nadu.
176. To establish the legal personality of the second plaintiff, Mr Parasaran urged that as the Ram Janmabhumi is a 'Swayambhu' deity, no dedication or consecration is required for the court to recognise its juristic personality. It was contended that the deity, by its very nature necessitated the performance of a parikrama around it, which also delineated the boundaries of the property upon which juristic personality must be conferred. Mr Parasaran contended that the conferral of juristic personality sub-served the need to protect the land itself from being encroached on or alienated. The land is believed to be the birth-place and is treated reverentially by Hindus who have sought to offer worship there. As a consequence, legal personality must be conferred on the land for its protection.
To support these submissions, Mr Parasaran relied on the following authorities: Sri Adi Visheshwara of Kashi Vishwanath Temple v State of UP101, Ram Jankijee Deities v State of Bihar102, Yogendra Nath Naskar v CIT, Calcutta103, Bhupati Nath104, Manohar Ganesh Tambekar v Lakhmiram Govindram105, Guruvayur Devaswom Managing Committee v C K Rajan106, Sri Sabhanayagar Temple, Chidambaram v State of Tamil Nadu107, Pinchai v Commissioner, Hindu Religious and Charitable Endowments Board108, Saraswathi Ammal v Rajagopal Ammal109; Kamaraju Venkata Krishna Rao v Sub Collector110, Thayarammal v Kanakammal111, Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass112 and Sapneshwar Pujapanda v Ratnakar Mahapatra113.
177. Dr Dhavan briefly interjected to contend that though Hinduism may recognise a Swayambhu deity, all such instances are characterised by the existence of a physical manifestation. Except the faith and belief of the devotees, no physical manifestation has been forthcoming to separate the disputed site from any other land simpliciter.
178. In Mr Parasaran's view, even absent any distinguishing feature on the disputed site to evidence the manifestation of divinity, the faith and belief of the devotees is sufficient to recognise that the disputed site is a Swayambhu deity. At the heart of the revised argument raised by Mr Parasaran is that the faith and belief of the devotees alone is sufficient for this Court to recognise the disputed site as a Swayambhu deity and consequently confer upon it legal personality. To this extent, the contention urged by Mr Parasaran in his reply converges with the earlier argument on faith and belief as the sole basis on which juristic personality must be conferred. In both submissions advanced by the plaintiffs in Suit 5, the faith and belief of the devotees is claimed to be the sole basis for the conferral of juristic personality. The contentions on faith and belief have already been analysed above. However, the argument urged that the disputed land is a Swayambhu deity raises additional issues outside the realm of the Hindu Law of endowments. It is to these issues that it is necessary now to turn.
179. Given the range of arguments advanced by the plaintiffs in Suit 5, it is necessary to first advert to the cases relied on in reply. The observations relied on have been selectively extracted and once the context in which the observations were made are fully understood, they do not advance the argument set out by Mr Parasaran.
180. Reliance was placed on Guruvayoor Devaswom Managing Committee v C K Rajan114 to contend that a temple itself is a juristic entity. The dispute concerned the mismanagement of temple affairs by the Devaswom Committee. A three judge Bench of this Court held that devotees could approach a High Court or the Supreme Court by way of public interest litigation where their fundamental rights under Article 25 and 26 of the Constitution were violated by action or inaction on behalf of the state authorities. The only reference to a temple being a juristic person is recorded at paragraph 40 of the judgement. Justice S B Sinha noted: "
40. ... A proceeding initiated as a public interest litigation would lie before the High Court or this Court, according to Mr Subba Rao, where it was found that despite existence of statutory provisions the State or the other statutory functionaries were not taking recourse to the provisions thereof for remedying the grievances of the devotees. In any event, as a Hindu temple is a juristic person the very fact that Section 92 of the Code of Civil Procedure seeks to protect the same for the same purpose Article 226 and 32 could also be taken recourse to. Our attention in this behalf has been drawn to Yogendra Nath v. CIT and Manohar Ganesh Tambekar v. Lakhmiram Govindram."
The observation that a temple is a juristic person formed a part of the submissions made by the counsel and was merely preserved by the court as a matter of record. There is no evidence that this Court accepted the contention that the temple is a juristic person. No reliance can be placed on this decision or the observation in paragraph 40 to contend that a temple is a juristic person.
181. Mr Parasaran next relied on Sri Sabhanayagar Temple, Chidambaram v State of Tamil Nadu115 to demonstrate the recorded existence of a temple without any resident idol. The decision records a brief history of the Chidambaram Temple in Tamil Nadu. Justice T Raja, speaking for a Division Bench of the Madras High Court notes: -...The Chidambaram Temple contains an altar which has no idol. In fact, no Lingam exists but a curtain is hung before a wall, when people go to worship, the curtain is withdrawn to see the 'Lingam'. But the ardent devotee will feel the divinely wonder that Lord Siva is formless i.e., space which is known as -Akasa Lingam". Offerings are made before the curtain.
This form of worshipping space is called the -Chidambara rahasyam", i.e. the secret of Chidambaram." The decision supports Mr Parasaran's argument that there can exist a temple without an idol. An idol is one manifestation of the divine and it cannot be said that absent an idol, there exists no divinity to which prayer may be offered. However, the question before the Madras High Court was whether the appellant and his predecessors were the founders of the temple and whether it was a denominational temple for the purposes of state regulation of the temple's secular affairs.
The High Court did not consider whether a temple could be a juristic person and the decision does not support Mr Parasaran's contention that the mere worship of empty land or 'space', absent a physical manifestation could confer juristic personality. Moreover, the facts of the case are materially different from the present case as the Chidambaram Temple is a physical structure built around a specific spot that is considered holy. Despite the absence of an idol, the temple serves as the physical manifestation of the deity and demonstrates the institutional nature of the worship. This is in contrast to the present case. Worship is offered to the idol of Lord Ram. The disputed site is a site of religious significance, but that itself is not sufficient to confer juridical personality on the land.
182. Reliance was also placed on Pichal alias Chockalingam Pillai v The Commissioner for Hindu Religions and Charitable Endowments (Administrations Department) Madras116 to contend that a temple continues to be recognised as a site of public religious worship even absent the presence of an idol. The case concerned the Kalyansundareswarar temple in Avaniyapuram. In the early twentieth century, one Chockalingam Pillai executed a deed of dedication for the construction, installation and continued upkeep for four idols, including Sri Kalyansundareswar. Chockalingam Pillai died in 1926 and by virtue of a compromise deed in 1954 the appellants before the Madras High Court came to be the managing trustees.
The appellants were accused of failing in their upkeep and service of the idol and the Commissioner of Hindu Religions and Charitable Endowments framed a scheme to take over management of the temple. The appellants challenged the competence of the Commissioner on the ground that the temple was not a temple under Section 6(20) of the Madras Hindu Religious and Charitable Endowments Act 1959. The primary contention of the appellants was that the idols in the Kalyansundareswarar temple had not been duly installed and consecrated. Justice K Reddy speaking for the Division Bench of the Madras High Court held that the existence of an idol was not necessary for a place of public worship to be a -temple" under Section 6(20) of the said Act.
He further observed: -... It does not appear that the aforesaid idols in the said temples have been installed and consecrated according to the rituals and ceremonies enjoined by Agama Sastras. They have become places of public religious worship by long use of the place as such by the Hindu community. We are, therefore, of the view that the installation and consecration of idols with ceremonies like Prana pratishta etc, prescribed by Hindu Sastras is not the sine qua non for public religious worship. In any event, it is not a legal requisite under the definition of a 'temple' in the Act..." Two points must be noted: First, the observations of the Court are made in the context of satisfying a pre-existing statutory definition of a 'temple'.
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