JUDGMENT
1. There is a mosque known as the Shahjahani mosque situated in Saharanpur City. It was built, according to an inscription on the building, by Zulfiqar Khan in Hijri 1017 corresponding with 1636 A.D. According to Beala's Oriental Biographical Dictionary, Zulfiqar Khan was a nobleman of the reign of the emperor, Shahjahan. The plaintiffs are Shias and claim that he belonged to the Shia persuasion and that the mosque had been in the exclusive use and management of the Shia community from the time it was built. The defendants, on the other hand, contend that Zulfiqar Khan was a Sunni and that the mosque had been in the exclusive use and management of the Sunnis and that the Shias had no right to say prayers in the mosque or keep tazias in it.
2. On the 11th September 1920, thirteen persons, describing themselves as the representatives of the Shia community, entered into an agreement of reference to arbitration in regard to that mosque and appointed Mr. W.A. Silberrad, the then Collector of Saharanpur, as arbitrator to determine, after inspecting and examining the documentary evidence, which party was entitled to the mosque. The agreement of reference contemplated that the arbitrator was to award the mosque either to one party or to the other, and it distinctly stated that the mosque shall exclusively belong to the party to which it will be awarded by the arbitrator, and that the other party shall not have any right whatever in the mosque. As there was some ill-feeling and irritation due to this dispute among the members of the two communities Mr. Silberrad agreed to accept the reference and made an award on the 8th November 1920, wherein he discussed at length the history and origin of the foundation of the mosque and the evidence produced before him with regard to its user and found that Zulfiqar Khan, the founder of the mosque, belonged to the Sunni persuasion, that the mosque was originally built as a Sunni mosque, and that when a portion of the Ansari clan, to which Zulfiqar Khan belonged, became Shias they continued to use that mosque conjointly with those who remained Sunnis. He further found that the Sunni and Shia members of the Ansari clan continued to be on friendly terms and used the Shahjahani mosque for their respective prayers; but as time went on and the relations between the two communities became strained, the mosque remained practically in the use of the Sunnis subject to certain limited concessions granted to the Shias in regard to its use.
3. The present suit was filed by six members of the Shia community other than the persons who were parties to that arbitration under O.1, Rule 8 of the Civil P.C., claiming on behalf of the Shia community of Saharanpur that the mosque in question had been founded by a gentleman of the Shia persuasion, that It was a Shia mosque and that it had been under the management of the Shias. Two of the plaintiffs claimed to be the managers and mutawallis of the mosque. They further asserted that the defendants had made certain alterations after the award, which they had no right to do, and that the agreement of reference to arbitration was not binding on them or on the other members of the Shia community who were no parties to the reference, and that the award made by the arbitrator in pursuance of that reference was invalid and unenforceable.
4. The case was tried by the District Judge of Saharanpur before whom three preliminary points were argued. The first point was whether the persons who were parties to the reference as the representatives of the Shia community really held that character; secondly, who were the mutawallis of the mosque; and thirdly, who used to worship in it. There was at that time already on the record the evidence of Mr. Silberrad, the arbitrator, which had been recorded in anticipation of his departure on leave to England and that evidence has been used by the Court below and it has also been referred to in this Court in appeal. The learned District Judge decided to take no other evidence; and confining his attention to the question whether the persons who described them selves as the representatives of the Shia community could be held to have represented that community, he came to the conclusion that they did represent that community and that the award was binding on them and on the Shias generally and precluded the plaintiffs from re-opening that matter.
5. Section 11(6) of the Civil P.C., has clearly no application to the case, because the award was not made on a reference made through Court; and the arbitrator who derived his authority from a private reference made out of Court cannot be regarded as a tribunal competent to try the subsequent suit in which the question now at issue has arisen. Nor can the previous reference be regarded as a reference made by certain persons as representatives of the + community, because neither in the agreement of reference nor in the award there is any suggestion that there had been any formal meeting or referendum or election at the time by means of which the representatives were elected by the members of the Shia community interested in the matter. In fact no suggestion of any such election or referendum or other mode of authorization is made in the case.
6. The statement of Mr. Silberrad was that he had sent for the representatives of the parties concerned who were disputing the matter, that he had a talk with them over the subject, and that to the best of his recollection he had asked the Tahsildar and several of the gentlemen who came to see him, and with whom he had discussed the matter as to who were the representatives. He further stated that the final list of representatives was given to him by the Tahsildar after a long discussion between the members of both the parties, who were present at his house, and that he had expressed his readiness to discuss the matters with their chief leaders. How these chief leaders or representatives were selected is not apparent. He admits that he did not specially enquire whether those persons, who had signed the agreement, were such representatives, but he states that throughout the proceedings which lasted for several days, neither party suggested in any way that either their own side or the opposite side was not fully represented, and that no objection was ever raised before him by any member of the Shia or Sunni community to the representative capacity of the persons who had signed the agreement of reference or who were appearing before him at the hearings.
7. There were about a thousand Shias residing in Saharanpur. Mr. Silberrad says that he had conversed with certainty not less than twenty, but at the same time he confesses that he really did not know whether several Mahomedan gentlemen with whom he had conversed were really Sunnis or Shias. He thinks, however, that from the fact that a certain number followed closely the Shia representatives and a certain number followed the Sunni representatives both the communities were fairly represented. It was open, however, to the persons who were not parties to the reference to say that they had given no authority to the persons who had signed the agreement of reference to enter into arbitration in regard to a matter which affected their individual religious rights.
8. Where parties have a common interest it is not sufficient that certain persons should go and seek to refer the dispute pending between them and the other party to arbitration, without taking steps to consult the other persons who had such common interest and get their authority to represent them on their behalf. If one or more interested parties, says Russell, submit a dispute to arbitration they cannot bind the other interested parties without express authority, but still bind themselves none the less effectually for that, and if they undertake that such other parties shall perform the award the fact that those parties are not bound will form no excuse for the breach of that undertaking: (Russell on Arbitration, 10th Edition, page 24.) He gives reference to a case decided long ago where a person and certain of his parishioners purported to submit a dispute on behalf of themselves and the rest of the parishioners and entered into a bond whereby the parishioners undertook to perform the award. It was there held that as no authority was proved from the rest of the parishioners only the signatories were liable, for breaches by the other parishioners; Mudy v. Osam [1628] Litt 30.
9. Order 1, Rule 8, of the Civil P.C., has no bearing on a private award which is made on a reference made by certain persons who were signatories to the reference, though they might have described themselves as representatives of a larger body. The fact that they were such representatives has to be proved by evidence of some form of reference, referendum or other mode of authorization, of which no suggestion is to be found anywhere in the pleadings or in the arbitration proceedings which resulted in the award. In the eyes of the Tahsildar, who eventually made the selection of the representatives, the representatives might have been the leading men who were suitable to represent the community concerned, but in the eyes of the law representation must be based on some authority legally expressed and the persons who pose to act as such representatives must be capable in law of representing the persons or the community whom they profess to bind. If there is such an authority a question of estoppel might arise but the principle of res judicata would not apply to such a case, as the reference was made out of Court and no award was filed in Court nor a decree obtained in accordance with it.
10. It is unnecessary to go at length into the question raised on behalf of the plaintiffs-appellants whether there could have been a valid reference to arbitration in regard to a matter relating to public waqf. Certain decisions have been referred to on the point which seem to be hardly applicable, because the award in the present case does not purport to deal with the question of tauliat or management of the mosque, It only determines which party is entitled to the use of the mosque and it lays down that the Sunnis are entitled to that right subject to certain limited concessions which the Shias are entitled to enjoy. An award of that character does not seem open to objection to which the learned Counsel for the plaintiffs-appellants has referred. As the other matters raised in the case have not been tried and no evidence has been taken with regard to them we allow the appeal, set aside the decree of the Court below, and remand the case to that Court with a direction to re-admit the suit to its original number and to proceed to dispose of it after determining the other points involved therein in the manner prescribed by law. Costs here and hitherto will abide the result including fees in this Court on the higher scale.