Andhra HC (Pre-Telangana)
Syed Gulam Sarwar Biabani And Ors. vs Afzalunnisa Begum And Ors. on 22 April, 2004
Equivalent citations: AIR2004AP485, 2004(4)ALT648, AIR 2004 ANDHRA PRADESH 485, (2004) 4 ANDHLD 401 (2004) 4 ANDH LT 648, (2004) 4 ANDH LT 648
Author: Bilal Nazki
Bench: Bilal Nazki
JUDGMENT Bilal Nazki, J.
1. Original Suit No. 63 of 1977 was decided by Principal Subordinate Judge, Warangal against which, A.S. No. 1206 of 1987 has been filed. Cross-Objections have also been filed in this A.S. No. 1206 of 1987. O.S. No. 63 of 1977 had been decreed. Tr. A.S. No. 838 of 1989 was filed against the decree and judgment in O.S. No. 201 of 1981. Tr. A.S. No. 1659 of 1988 was filed against the decree and judgment in O.S. No. 202 of 1981 and Tr. A.S. No. 839 of 1989 is against O.S. No. 71 of 1982. These appeals raise common questions of facts and law. While referring to the facts, we will refer to O.S. No. 63 of 1977, which has given rise to A.S. No. 1206 of 1987.
2. O.S. No. 63 of 1977 had been decreed. This suit was filed by one Afzalunnisa Begum. She sought declaration that she was the Mutawalli and Sajjada of the suit shrine. She had become Mutawalli and Sajjada after the death of her father Abdul Kareem Biabani. She also sought possession and eviction of defendants No. 1 to 5. She also sought permanent injunction restraining defendants and their representatives from objecting to the drawal of cash grant payable by the Government to the Sajjada from the estate of late Sir Afsar-Ul-Mulk. Four suits i.e. O.S. NOs. 63 of 1977, 201 of 1981, 202 of 1981 and 71 of 1982 were decided by a common judgment by the Principal Subordinate Judge at Warangal. Against some of the judgments and decrees, appeals were taken before the District Judge and they were transferred to this Court. Accordingly these appeals and Cross-Appeal have arisen out of the common judgment referred to above.
3. Now coming to the facts of O.S. No. 63 of 1977 first, in this case the plaintiff claimed that she and defendants No. 1 to 6 were closely related and were common descendants of late Syed Shah Afzal Biabani, who was a learned Muslim who lived in the first half of the 19th Century in the village of Kazipet Jagir. He had many admirers and disciples. He died in the year 1857 A.D. He was survived by his only son Syed Shah Gulam Sarwar Biabani. He left behind landed property of Ac. 6-36 gts in Survey No. 246 and Ac. 3-12 gts in Survey No. 247 in Kazipet Jagir. Survey No. 247 was agricultural land and was adjacent on the Western side to Survey No. 246. The body of Syed Shah Afzal Biabani was buried in the Eastern portion of Survey No. 246. His admirers and disciples constructed a Dargah over his grave and dedicated it to his memory. The Dargah was completed few years after 1857. His son Syed Shah Gulam Sarwar Biabani who was also a pious and saintly person, was by common consent chosen and appointed as Mutawalli and Sajjada thereof. He was in possession of Survey NOs. 246 and 247 in his capacity as Mutawalli and was discharging his duties as Mutawalli and Sajjada of the Dargah. A two-storied building was constructed in the same area. The ground floor consisted of four rooms and on the first floor a hall known as 'Naubat Khana' was constructed. To the West of Dargah, a Mosque was also constructed by the admirers and devotees of Syed Shah Afzal Biabani. In the Western part of Survey No. 246 and to the North of the Mosque, 11 rooms designated as 'Khankha' were constructed. A Chabootra with a water storage tank and an agricultural well were also created. These constructions were completed by 1910 A.D. The whole area in Survey No. 246 became a big shrine and a place of pilgrimage in the District.
4. Sarwar Biabani had three wives. Through his first wife he had two sons Syed Gulam Afzal Biabani and Syed Shah Gulam Mohiuddin Biabani. He had also two daughters through his first wife. Through his second wife, he had two sons and a daughter; Syed Shah Gulam Afzal Biabani Alias Chote Pasha and Syed Shah Burhanuddin Biabani alias Haji Pasha Miyan. Through his third wife, he had three sons and three daughters; Syed Shah Abdul Karim Biabani, Syed Abu Mohammed Gulam Afzal Biabani and Syed Shah Gulam Ahmad Biabani. Three daughters were Ashrafunnisa Begum, Afzalunnisa Begum alias Gori-bi-amma and Amathur Rasool alias Bee Jan. Sarwar Biabani died in 1911. His two wives had pre-deceased him. Third wife and the children survived him. He also left many admirers and disciples. His dead body was also buried in the same area at a short distance to the North of the Dargah of his father in Survey No. 246. The admirers and disciples of Sarwar Biabani raised a Dargahh over his grave.
5. Gulam Biabani was his eldest son and by common consent of all concerned, he was chosen and appointed as Mutawalli and Sajjada of the Dargah of his grandfather and father and also of the Mosque. In his capacity as Sajjada, he was in possession and management of the entire shrine and lands in Survey NOs. 246 and 247. After the death of his father, he thus became the second Mutawalli and Sajjada. He also was appointed a Qaji. He was also very learned and a pious person. During his period as Sajjada, valuable cash grants were endowed by devotee Muslims for the benefit of the Dargah. Sir Afzar-ul-Mulk, a prominent noble man of Hyderabad had issued a Sanad dated 22nd Azur 1321 Fasli granting a daily Nazrana of Rs. 5/- per day and an annual contribution of Rs. 420/- towards Rida-e-Mubarak for the Dargah Shareef of Hazrath Syed Shah Afzal Biabani.
6. This Sajjada died in 1944 A.D. He was survived by a son Syed Shah Ziauddin Biabani and a daughter Afzalunnisa Begum. His body was also buried near the body of his grand father and father and a Dargahh was also constructed over his grave by his disciples. His son Ziauddin became the third Mutawalli and Sajjada of Dargahh and Mosque and was in possession and management of the entire institution and was also receiving the cash grants. He was also functioning as Qazi. The estate of Sir Afzar-ul-mulk issued Muntaquab on 4th Azur 1354 in favour of Ziauddin as recipient of cash grant and after him from generation to generation. Ziauddin died on 27th Meher 1355 Fasli. He died issueless. He was survived by his only sister Afzalunnisa Begum and some of his paternal uncles. After his death, Afzalunnisa Begum his sister, became the Mutawalli and Sajjada, but according to the plaint, she could not perform the religious duties of Sajjada according to Muslim law therefore, she appointed her paternal uncle Mohiuddin Biabani to deputize for her as Sajjada and Qazi. Afzalunnisa Begum was also recognized by the estate of Sir Afsar-ul-Mulk as the heir of her brother and she was declared entitled to the cash grant which she continued to draw during her life time. In December 1955, the then Secretary of the Muslim Wakf Board inspected the Dargahs and directed the registration of Dargah, Mosque, Khankha Chabootra, Well and all other buildings and the graveyards in Survey NOs. 246 and 247 in the book of endowments as Wakfs.
7. Mohiuddin Biabani, who was according to the plaint appointed as a deputy by Afzalunnisa Begum, died in the year 1957. By that time, the male members in the family through the first wife and late Syed Gulam Sarwar Biabani had died. His sons through his second wife had also died. Only the three sons of Sarwar Biabani through his third wife were alive. After a discussion in the family after the death of Mohiuddin Biabani, Abdul Kareem Biabani was appointed as fifth Sajjada and Mutawalli of the shrine on behalf of Afzalunnisa Begum (Sr.). Therefore, Afzalunnisa Begum (Sr.) appointed Abdul Kareem Biabani her paternal uncle, as a deputy as Mutawalli and Sajjada. He was also appointed deputy Qazi. The plaintiff Afzalunnisa Begum (Jr.) is the daughter of said Abdul Kareem Biabani.
8. The 7th defendant Wakf Board by its letter dated 21.6.1987, recognized Abdul Kareem Biabani as Sajjada and Mutawalli of the shrine. Afzalunnisa Begum (Sr.) also died issueless in 1958 and Abdul Kareem Biabani as the senior most member, continued to function as the Mutawalli and Sajjada. He continued to receive cash grant from the estate of Sir Afzar-ul-Mulk, which had vested then in the State Government as a result of abolition of Jagirs. With the courtesy of Abdul Kareem Biabani, his younger brother Abu Mohammad Biabani was permitted to be Naib Qazi. The 6th defendant, who was the youngest brother of Abdul Karim Biabani, was also allowed to receive Rs. 102/- per year from the cash grant. A Munthaquab was also issued to this effect. This arrangement continued during the life time of Abdul Kareem Biabani, who died in 1965. He was survived by his widow Samdani Begum and the plaintiff, the only daughter. The surviving wife and daughter being Parda-nashin ladies, Abu Mohammad Biabani the father of defendants No. 1 to 4 became to assert himself as Mutawalli and claimed the office of Sajjada and Mutawalli in his own right. The 7th defendant by letter No. 1520, dated 20th December, 1966 declared that pending final decision regarding succession, Abu Mohammad Biabani may be appointed tentatively a Mutawalli of Dargah. Abu Mohammad Biabani initiated a proceeding against the plaintiff and her mother and some others before the District Revenue Officer, Warangal which was contested by the plaintiff. The District Revenue Officer in his order dated 06.01.1970, held that Abu Mohammad Biabani was entitled to be the Sajjada and Mutawalli of the suit Dargahs and the Mosque. He was also held entitled to receive cash grants. The plaintiff and her mother preferred an appeal NAL-162-72 to the Board of Revenue. The 6th defendant also preferred an appeal NAL-372-70 to the Board of Revenue. The Board of Revenue disposed of both the appeals together and upheld plaintiff's right to the office of Mutawalli and Sajjada and the cash grant. The order was sought to be reviewed, which was dismissed. It was contended in the plaint that as a result of this adjudication by a Tribunal, there has been a valid finding between the parties with regard to Mutawalliship and Sajjada Nashinini. The said decision was binding on the defendants and therefore they were not entitled to dispute the status of plaintiff. It was further contended in the plaint that even subsequent to this order, the plaintiff in order to put all controversies to rest, agreed to get the dispute decided through arbitration of Gulam Mohammed Omer Khan, who gave an award on 10-4-1975 and held that the plaintiff was entitled to be the Sajjada Nishin and Mutawalliship of the Dargah.
9. Abu Mohammed Biabani died on 04.07.1976 survived by defendants No. 1 to 5 as his nearest heirs. The defendants filed a suit in O.S. No. 805 of 1976 before the District Munsiff Court, Warangal against the plaintiff and against defendants No. 6 and 7. In the suit, they sought a declaration that the cash grants were payable only to the Dargah of Syed Gulam Afzal Biabani and the persons performing the service. They challenged the Revenue Board's order dated 13-8-1974 as illegal and void. They filed an application in I.A. No. 3055 of 1976 and obtained an interim order of injunction against the plaintiff and others. The order was however vacated on 09.02.1977. The 1st defendant thereafter filed another suit being O.S. No. 36 of 1977 before the District Munsiff Court at Warangal against the plaintiff, seeking a declaration that he was the Sajjada and Mutawalli of the Dargah. He also sought an injunction restraining the plaintiff from interfering in the management of the Dargah. He was able to obtain an interim exparte order which was vacated after the plaintiff contested it. The plaintiff applied to 7th defendant on 17-07-1976, representing to 7th defendant that she should be recognized as Mutawalli and Sajjada of the Dargah and the Masjid and associated buildings. But the 7th defendant was taking an unaccountably partisan attitude by siding with the defendants No. 1 to 5. A Notice under Section 56 of the Wakfs Act, 29 of 1954 was given to the 7th defendant.
10. In the background of these facts, the plaintiff's case was that Late Abdul Kareem Biabani was a recognized Mutawalli and Sajjada of the Dargah and she being the only daughter, was entitled to Sajjada Nashin and Mutawalliship. She further stated that she was prepared to make arrangements for the performance of religious functions of Sajjada through a deputy of her choice therefore, she sought the decree.
11. The 1st defendant filed the written statement which was also adopted by defendants No. 2 to 5. The relationship between the parties is not disputed. The existence of Dargahs is also not disputed. However, in order to reply assertions made in para 4 of the plaint, it was stated that the first Sajjada was not appointed with the consent of all concerned, but he was trained by his father and nominated by him to be the successor Sajjada. It was also stated that Hazrath Gulam Afzal Biabani had nominated his only son to be succeeded in Sajjada and Mutawalli. It was also specifically denied that on the death of Hazrath Syed Ziauddin Biabani, his sister Afzalunnisa Begum (Sr.) became the Mutawalli and Sajjada. It is contended that no females in the line ever became Mutawalli or Sajjada. The duties of Mutawalli and Sajjada are such that they cannot be performed by females. Hazrath Syed Shah Mohiuddin Pasha Biabani became Mutawalli by virtue of his nomination by late Sajjada. Since the cash grant was specifically for the Dargah of Hazrath Gulam Afzal Biabani, it was continued by the estate of Afsar-ul-Mulk to Afzal Sahiba with a specific direction that it should be continued in future in favour of the male line of Hazrath Syed Shah Sarwar Biabani. So far as the post of Kazi was concerned, there was a dispute between Afzalunnisa Sahiba and Hazrath Syed Mohiuddin Pasha Biabani and the Government appointed Afzalunnisa Begum Sahiba as Sadar Kazia and Hazrath Syed Mohiuddin Pasha Biabani as Naib Kazi. It was denied that Afzalunnisa Begum Sahiba appointed Syed Mohiuddin Pasha Biabani to deputize her for Sajjadaship and Mutawalliship. Syed Mohiuddin Pasha Biabani was Sajjada as well as Mutawalli and he continued to do so even during the lifetime of Afzalunnisa Begum. Syed Mohiuddin Pasha Biabani died in 1957. He was survived by his daughter Afzalunnisa Begum. He had during his life time, nominated his younger brother Abdul Kareem Biabani the father of plaintiff, to be his successor Sajjada and Mutawalli, as females were not competent to hold the office. He thus became the Sajjada and Mutawalli of the shrine. His appointment was not waived by Afzalunnisa Begum. Abdul Kareem Biabani expressly nominated his younger brother Abu Mohammad Syed Gulam Afzal Biabani to be the Sajjada and Mutawalli. Afzalunnisa Begum never appointed Abdul Kareem Biabani to be the Sajjada, as she herself did not held the office. She further appointed Hazrath Abu Mohammad Syed Gulam Afzal Biabani as the Niab Kazi.
12. The Wakf Board recognized the Touliat of Hazrath Abdul Kareem Biabani. He was not the deputy of Afzalunnisa Begum. The death of Afzalunnisa Begum was of no consequence as far as the offices of Sajjada and Touliat. Abdul Kareem Biabani died in 1965. He had nominated his younger brother Abu Mohammad Syed Gulam Afzal Biabani to be the Sajjada and he became Sajjada and Mutawalli of the Dargah. The Board of Revenue as an Atiyat appellate Court, has no jurisdiction to decide the question of Touliat and Sajjadagiri. The proceedings before the Board of Revenue were limited as to who was entitled to the grant. The Hyderabad Wakf Regulations under which the Atiyat Courts could appoint Mutawalli, had been repealed by the Wakf Act, 1954. As a consequence of repealing of this law, in case of disputes with regard to the office of Touliat and Sajjadagiri, only the Civil Courts had the jurisdiction. The defendants had filed O.S. No. 805 of 1976 on the file of District Munsiff Court, Warangal, for a declaration that the decision of the Board of Revenue was illegal. It is also stated that Hazrath Syed Shah Sarwar Biabani was the Mureed of his father and he was also given Khilafath. Similarly, Hazrath Syed Gulam Afzal Biabani was given Khilafath by his father. Hazrath Syed Gulam Afzal Biabani gave Khilafath to his son as well as Hazrath Abdul Kareem Biabani and Hazrath Abdul Kareem Biabani gave Khilafath to Hazrath Abu Mohammad Syed Gulam Afzal Biabani, who gave Khilafath to defendant No. 1.
13. In this suit, the following issues were framed:
"1. Whether there is a custom in the family limiting the succession to the suit Dargahs by nomination and in the male line only ?
2. Whether the plaintiff was nominated by his father as Sajjada & Mutawalli of the suit Dargah and if so whether the plaintiff's father was entitled to do so ?
3. Whether the suit is barred by resjudicata ?
4. Whether the plaintiff is entitled to the declaration and permanent injunction prayed for ?
5. Whether the suit is bad for non-joinder of necessary parties ?
6. To what relief ?"
14. We have given the facts some what in detail in O.S. No. 63 of 1977 because on same factual situation, other suits had been filed, but they need a brief mention.
15. O.S. No. 202 of 1981 was filed for declaration that the cash grant payable to Dargah Hazrat Syed Gulam Afzal Biabani, was payable to the person performing the services. In this suit, the order of the Board of Revenue dated 13.8.1974 was also challenged as illegal, null and void. The issues framed in this suit are, "1. Whether the cash grant referred in the plaint is payable to the Darga Hazarath Syed Gulam Afzal Biabani and the person performing the Service ?
2. What are the matter covered by the order dated 13.8.74 of the Board of Revenue and if so whether it is illegal, null and void ?
3. Whether the plaintiff is entitled to the declaration as prayed for ?
4. Whether the suit is bad for want of valid nataib under section 80 C.P.C. and under section 56 of Wakf Act ?
5. Whether the suit concerns only to the Darga of Hazarath Syed Shah Gulam Afazal Biabani and whether the suit is maintainable ?
6. Whether the suit is not properly valued ?
7. Whether this court has no pecuniary jurisdiction to try the suit ?
8. To what relief ?"
16. O.S. No. 71 of 1987 was also filed for the same reliefs which were claimed in O.S. No. 202 of 1981.
17. O.S. No. 201 of 1981 was filed by the plaintiff to declare him as the Sajjada and Mutawalli.
18. O.S. No. 63 of 1977 was decreed in the following terms: That the plaintiff is the Mutawalli and Sajjada of the suit shrine described in the suit schedule and she can depute her own deputy for performing spiritual functions and she is entitled to the possession of the suit shrine. She was also entitled to the cash grants payable by the Government from the estate of Sir Afzar-ul-Mulk. She was also entitled to the costs. O.S. NOs. 201 of 1981 and 202 of 1981 were dismissed.
19. We are taking O.S. No. 63 of 1977 as the main suit because the fate of other suits will depend upon the outcome of the suit in O.S. No. 63 of 1977.
20. The plaintiff examined herself as PW-1 and two witnesses. She filed Exs. A-1 to A-16. The defendants examined 12 witnesses and filed Exs. B-1 to B-38. They also marked Exs. X-1 to X-9. The first issue in O.S. No. 63 of 1977 was, "Whether the plaintiff is entitled to be the Sajjada and Mutawalli of the suit Dargahs?"
21. This issue had been decided in favour of plaintiff by the trial Court.
22. The defendants' case is that the functions and duties of Mutawalli and Sajjada cannot be performed by a female and therefore there was no question of appointing or even nominating a female as Sajjada and Mutawalli, whereas the case of plaintiff was that though a female can be appointed as Sajjada and Mutawalli there being no restriction on her appointment, but she can discharge her functions of religious nature through a deputy, as was done by Afzalunnisa Begum (Sr.).
23. Without going at present to the question whether Afzalunnisa Begum (Sr.) was a Mutawalli and Sajjada and had she appointed a deputy as it is contested by the defendants, we would like to examine the position legally, because if legally the plaintiff was not eligible to be appointed as Mutawalli and Sajjada, then it becomes immaterial whether Afzalunnisa Begum (Sr.) was a Mutawalli and Sajjada at any point of time or not. On the other hand if legally it appears to be permissible that a lady can be a Mutawalli and Sajjada, then those matters will be of some importance. In view of this approach, we also need not discuss any evidence to decide this question because it is a legal question which will have to be gone into in the light of the decisions which have been relied upon at the bar.
24. The learned Counsel for appellants submits that Sajjadanashini and Mutawalliship of the shrine was neither a crown nor a Jagir therefore it cannot be examined as to whether it was hereditary or not. The Dargah and shrine came into existence when a Dargah was constructed over the grave of saint Syed Shah Afzal Biabani by his admirers and disciples. He contends that after this Dargah was built, Syed Shah Afzal Biabani's son Syed Shah Gulam Sarwar Biabani who was a learned person and a pious man, in his own right, functioned as Sajjada and Mutawalli of the Dargah and he was recognized and accepted as Sajjada and Mutawalli by admirers and disciples of his father. We have already discussed hereinabove as to how the Mutawallis were appointed one after the other. On the death of Syed Shah Gulam Sarwar Biabani, his eldest son Syed Shah Gulam Afzal Biabani was appointed as Sajjada and Mutawalli of the shrine. But the learned Counsel for appellants would submit that these persons were not appointed as Mutawallis and Sajjada because they were the sons of earlier Mutawallis and hereditary was not a factor in their appointment, but they were appointed because of faith in them by the disciples and the admirers. He contends that nobody has even asserted that Sajjadanashini and Mutawalliship was hereditary so the question of heirship with regard to the Sajjada and Mutawalli, does not arise. As regards the question which we are now addressing as to whether a woman could be a Sajjada and Mutawalli, he contends that Afzalunnisa Begum (Jr.) was not competent to discharge the functions of Sajjada.
25. According to Mr. Mohd. Ali, Counsel for appellants, the difference between Sajjadanashini and Mutawalliship had been explained as early as in 1938 by Privy Council. In this connection he refers to Sain Maule Shah Vs. Ghane Shah and others. The Privy Council in this case was dealing with a case relating to a Takia and the Takia was taken to be a place where a Fakir or dervish resides. The Privy Council was of the view that at this place, the Fakir or dervish lives his pious life and teaches people and attracts public notice and when people start getting attracted towards the Fakir, devotees constructed a place for their lodgment. Sajjadanashini (literally meaning a person who sits on the sajjada or prayer mat) is the spiritual preceptor of a religious institution. The religious and spiritual functions associated with Dargah Takia or a tomb are performed by Sajjada, who also imparts spiritual knowledge to his disciples. While a Mutawalli is in charge of temporal affairs of such an institution, Mutawalli and Sajjada have distinct functions to perform. Practically one is associated with the spiritual and religious functions of the institution of Dargah, whereas the other is associated with the temporal affairs including the maintenance of the Dargah. In some cases however, both jobs are done by the same person. The Privy Council was also of the view that succession to the office of Sajjada depends upon the rules if any, made by the founder. In this connection, reference is placed on a portion of para 1 of the judgement, which reads;
"A takia is a place where a fakir or dervish (a person who abjures the world and becomes an humble servitor of God) resides before his pious life and teachings attract public notice, and before disciples gather round him, and a place is constructed for their lodgement. A takia is recognized by law as a religious institution, and a grant or endowment to it is a valid wakf or public trust for a religious purpose. The Sajjadanashin (literally meaning a person who sits on the sajjada or prayer mat) is the spiritual preceptor of a religious institution. He has the privilege of imparting to his disciples spiritual knowledge. He has charge of the spiritual affairs of a religious institution, while the mutwalli has charge of its temporal affairs. In some cases the office of Sajjadanashin and the office of the mutwalli are combined in one and the same person. The succession to the office of the Sajjadanashin depends on the rules, if any, made by the founder."
26. The Counsel for appellants also relies on a decision reported in Gahne Shah Vs. Maula Shah & others in which it is held, "The sajjada is the head of the institution, the supervision of the endowment, the teacher of the religious doctrines and rules of life and the manager of the institution and the administrator of its character. He is not only a Mutawalli but also a spiritual preceptor and curator of the shrine, where his ancestor is buried. The Mutawalli has change of the secular affairs of the endowment, a mere manager and superintendent appointed to administer the affairs of the endowment and only a procurator having no beneficial interest."
27. Similarly he relies on a decision reported in Muhammad Mahamood Hussain Faroki Alias Chan Basha Vs. Syed Abdul Huq alias Sabju Saheb, wherein the question was whether a woman by reason of her sex, was disqualified from holding the office of Khatib. Before going to the law laid down by their Lordships, it will be profitable to note that the office of Khatib is altogether different from the office of Mutawalli and Sajjadanashin. Khatib is basically an orator or a speaker who speaks generally on religious affairs on different occasions and particularly who is required to give a Sermon on all Fridays before offering the Friday prayers. He is also required to give a Sermon on two occasions of Id. After the Id, prayers are offered. Some times a Khatib and Imam is one person. Imam is one who leads Muslims in Namaaz and some times the office of Khatib and office of Imam is held by two persons and there is no doubt that under Muslim law, Imamat cannot be performed by a woman. This background has to be kept in mind in order to appreciate the law laid down by the Madras High Court. The Madras High Court referred to an earlier judgment of Judicial Committee in Shahoo Banoo Vs. Aga Mahomed Jaffer Bindaneem and then referred to the observations made in that judgment by Sir Arthur Wilson. The observations are, "Those learned Judges agreed with Chitty, J., in thinking that there is no legal prohibition against a woman holding a muttwalliship, when the trust by its nature, involves no spiritual duties such as a woman could not properly discharge in person or by deputy. And it appears to their Lordships that there is ample authority for that proposition."
28. They also referred to the judgment reported in Munnavaru Begam Sahibu Vs. Mir Mahapalli Sahib. In this case, Justice Abdur Rahim and Justice Seshagiri Aiyar held, "There is no general rule of Muhammadan law prohibiting a woman from holding a religious office and that such a religious office can be held by a woman under the Muhammadan law unless there are duties of a religious nature attached to the office which she cannot perform in person or by deputy."
29. It referred to various other judgments and finally considering all the earlier judgments, held, "It is difficult to think of any religious office which a woman cannot hold if she is permitted to hold it by a deputy. Neither of the learned counsel was able to give an example of any religious office which could not be performed through the medium of a deputy. As a matter of convenience there is nothing to be said against the notion once it is accepted that a religious office descends, because it is obvious that the possibility that the deputy specially nominated by a woman may satisfactorily perform the office is at least equal to the possibility that the person to whom the office descends may be equally qualified. It will therefore appear to be the law that unless it can be shown by custom or usage that a special office depending upon the personality of an individual which cannot be deputized cannot be held by a woman there is no other prohibition upon her. So far as this Court is concerned, the matter is concluded by authority."
30. With due respect, we are not in agreement with the judgment of the Madras High Court as far as Khatib is concerned. The High Court was considering the question whether a Khatib could be a woman, but it relied on authorities which had discussed as to whether a woman could be a Sajjadanashini or Mutawalli. Khatib is a different specie altogether, but we are leaving the matter at it as it is, because in this case, we are not required to decide whether an office of Khatib and Imam can be held by a woman as in the present case we are only concerned with Mutawalliship and Sajjadanashini. As far as those two offices are concerned, there cannot be any quarrel with even this judgment of the Madras High Court.
31. Similarly the Counsel for appellants relied on a judgment reported in Kaniz Zohra Vs. Syed Muztaba Husain and another, in which it was held that a woman is not qualified to become a Sajjada where the office involves the performance of religious and spiritual duties. It was also held in this judgment that where the succession is not by inheritance but by appointment or selection, a minor could not be appointed as Mutawalli.
32. The Counsel for appellants also relied on a judgment reported in Biyamma Kashimsaheb Vs. Ahmadsaheb Mohaddinsaheb. Although the judgment is short, it needs a reference in detail. The question before the Court was, "Whether a female was entitled to inherit what are called Mullanki or Mullagiri lands, that is lands assigned for the remuneration of a village Mulla ?"
33. The appellant before the Court was sister of the last holder of the land. The trial Court had allowed her claim to succeed to Mullagiri lands. The trial Court had also granted rights of succession to another sister of the plaintiff. The case of appellant before the Court was that she was entitled to succeed to the lands and to get the duties of Mullah performed by a proxy. The Court held, "The duties of a Mulla are, it is hardly necessary to state, of a religious and not a secular nature. Part of his duties is the performance of ceremonies in the mosque. Plaintiff does not deny that she is not capable of performing the duties. As a woman she cannot even enter the mosque."
34. Therefore the Bombay High Court was of the view that a female is not entitled to inherit the property to which religious duties are attached.
35. Going by these judgments, we have no doubt in our mind that the office of Mutawalliship and Sajjadanashini can be held by a woman. She can perform the functions which are secular in character as a Mutawalli on her own, whereas for Sajjadanashini where purely religious and spiritual functions were to be performed, can be performed by her through a deputy or by a proxy. Therefore, this issue can be settled as against the appellants.
36. Now the other questions which remains to be answered are, whether Afzalunnisa Begum senior was appointed as Sajjada, whether in the present case Afzalunnisa Begum Junior could be appointed as Sajjadanashini and Mutawalli and the last question would be whether a person who is appointed a Mutawalli and Sajjada, but is a lady, could she appoint a deputy from outside the family.
37. Coming to the second question now, the case of Afzalunnisa Begum (Jr.) was that the posts of Mutawalli and Sajjadanashini have always been hereditary. On the other hand, the other side contended that these offices were filled up by nomination, by Mureeds. These contentions have to be seen in the light of the evidence that was produced. The family tree as submitted by the parties, which is part of the written arguments, would show that the offices of Sajjada and Mutawalli had never gone out of the family. Therefore if it was taken that a Mutawalli and Sajjada was appointed by nomination by the Mureeds and followers of the dead Mutawalli, then a pattern would not be followed right from 1934 till date that a decedent in the family would occupy the offices. The plaintiff who is PW-1 in O.S.63 of 1977, stated that Gulam Afzal Biabani was Sajjada and Mutawalli till 1944 when he died. He had a son by name Ziauddin and daughter by name Afzalunnisa Begum. On his death, his son Ziauddin Biabani became the Sajjada and Mutawalli of Dargah. He died after two years. He was blind and had not married. After his death, his sister Afzalunnisa Begum became Sajjada and Mutawalli of the Dargah. She continued as such during her life time till she died in 1958. During the life time of Afzalunnisa Begum, her two paternal uncles were alive.
38. DW-1 is Hameedunnissa Begum daughter of Late Nawab Hamial Jung. She stated, "I was present at the installation ceremonies of all the Sajjadas. Fardanisham Nashm lady I was not present there at the installation ceremonies but I was present in the house and at the time of installation of Sajjada, Fakeers used to announce (nara) the name of Sajjada. Afzalunnisa Begum the sister of Ziauddin Bia Bani was too known as Azeez Pasha she was never the Sajjada. In the family no lady has become Sajjada. I am the Mureed (disciple) of Syed Burhanooddeen Bia Bani alias Hajimia Pasha. He was the step brother of Syed Gulam Afzal Bia Bani. The grant from our estate was to the Darga Hazarat Syed Gulam Afzal Bia Bani. There was no grant from our state to the Darga of Syed Afzal Bia Bani."
39. She also stated that her paternal grandfather was Commander-in-Chief of Nizam's Army and was Jagirdar of Annaram Jagir of Medak Taluq. He was paying daily allowances of Rs.5/- to Hazarath Syed Gulam Afzal Biabani. He was also paying Rs.420/- towards his clothes per year. The witnesses exhibited Ex.A-1. She stated that the portion marked as Ex.A-1/1 was not correct. Gulam Afzal Biabani died in the year 1944. Thereafter his son Ziauddin Biabani became the Sajjada. Ziauddin Biabani requested that the grant may be continued in the name of his father's Dargah since he was issueless and had two sisters, who were also issueless. His grandfather died in 1930. Her father died in 1938. Her brother Mirza Masood Ali Baig became Jagirdar. Mirza Masood Ali Baig was in Indian Army. He was there looking after the affairs of Jagir. After the death of her brother, she continued to look after the Jagir. She was holding G.P.A. from her brother. After Ziauddin Biabani became Sajjada, she continued the grant in favour of Dargah of Hazarat Syed Afzal Biabani. Ziauddin Biabani was receiving the grant and was spending on Dargah. Ziauddin Biabani died in 1947. He granted succession in favour of his sister out of respect. She had made it clear in the Succession statement that after the death of Hazarath Afzalunnissa Begum, the amounts shall be paid to the Sajjada for being spent on the prayer of Hazarath Syed Gulam Afzal Biabani. Ex.B-7 was her signature. Jagirs were abolished in 1949. She had handed over original documents to the office of Jagir Administration.
40. So it is clear that even the Jagir acknowledged Mutawalliship and Sajjadanashin of Afzalunnisa Begum after the death of her brother. In her further Chief-examination, she stated, "The Sajjada and Mutawalli of main suit Darga is also the Sajjada and Mutawalli for the remaining Dargas. The functions and duties of Sajjada and Mutawalli are teaching and training religious matters, address on the gatherings, to take persons and disciples or followers, trains and nominates his Khaleef.."
41. She also stated, "There must be one person to hold the office of Sajjada and Mutawalli. It is true that Sajjada and Mutawalli alone are competent to administer and incur expenditure in respect of the Darga. It is true that the cash grant that was issued in favour of Afzalunnisa Begum was in the following amounts:
Rs.360/- towards annual ursu expenses.
Rs.60/- towards monthly codo gulf.
Rs.15/- towards Jarrof Khasi (sweeping charges) Rs.15/- towards Nawbhat Khana (drum beating) Rs.30/- towards Management of the Mosque."
42. This evidence overwhelmingly shows that Afzalunnisa Begum was appointed, acknowledged and accepted as Sajjada and Mutawalli.
43. The next question is whether Afzalunnisa Begum (Jr.) can be appointed a Sajjada and Mutawalli ?
44. The only objection taken besides she being a woman is that she was not nominated. There is no evidence to show that nomination was necessary for the purpose of becoming a Sajjada or Mutawalli. Afzalunnisa Begum (Sr.) died issueless in 1958. Thereafter Abdul Kareem Biabani as the senior most member of the family, continued to function as Mutawalli and Sajadda. He continued to receive the cash grant from the estate of Sir Afzar-ul-Mulk, which was vested in State Government after abolition of Jagirs. Abdul Karim Biabani died in 1965. He was survived by his widow and Afzalunnisa Begum (Jr.). There was a dispute thereafter and a decision was given by Board of Revenue, which upheld the contention of Afzalunnisa Begum (Jr.) that she was entitled to hold the offices of Mutawalli and Sajjada and cash grant . The decision was upheld even in review. Therefore, there being evidence that the offices were hereditary and there being no evidence to prove that at any time these offices were filled up by nomination and consent of Mureeds, and also in view of the judgment of Board of Revenue sanctioning the Virasath of Syed Shah Abdul Kareem Biabani in favour of Afzalunnisa Begum (Jr.), we have no doubt in our mind that she was entitled to be appointed as Sajjada and Mutawalli. Therefore, this question is answered accordingly.
45. The last question which was raised by Sri Mahamood Ali learned Counsel for appellants is that if a lady is a Mutawalli and Sajjada, could she appoint a deputy from outside the family ? The learned Counsel submits that even if a lady is appointed a Mutawalli and Sajjada and is permitted to appoint a deputy as Sajjada, such deputy cannot be a person from outside the family. In this connection, he relied on a judgment of Calcutta High Court reported in Mt. Aziza Khatun & others Vs. State of West Bengal & others. This was a case which was concerning the family of a Wakif and the Court held, "As member of the family of the Wakif was available, a stranger to the office of the Mutawalli of the said Wakif estate should not be appointed as Mutawalli." But once it is conceded and accepted that a lady can be appointed as Mutawalli as well as Sajjada, there can be no restriction on her as to who should be appointed a Mutawalli, except the restrictions which are inherent (a) that he should be a muslim, and (b) he should be competent enough to discharge functions as Sajjada. We do not find any logic in accepting the argument that there should be restriction on a lady Sajjada only to appoint a member of her family as her deputy. Therefore, this argument also does not survive.
46. In the light of our discussions hereinabove, we dismiss all the appeals and the cross-objections and uphold the judgment and decrees of the trial Court. However, in the peculiar circumstances of the case, no order as to costs.
47. At this stage the learned counsel for the appellant sought leave to file an appeal before the Supreme Court. We do not feel that any substantial questions of law of general importance are involved. Leave to appeal is rejected. However, in the interest of justice, we stay the operation of this judgment for three weeks to enable the appellant to approach the Supreme Court.