Syed
Saulet Hussain Vs. Syed Ilmuddin & Ors [1987] INSC 245 (8 September 1987)
SHETTY,
K.J. (J) SHETTY, K.J. (J) REDDY, O. CHINNAPPA (J)
CITATION:
1987 AIR 2213 1988 SCR (1) 52 1987 SCC Supl. 285 JT 1987 (3) 509 1987 SCALE
(2)500
ACT:
Durgah
Khwaja Saheb Act, 1955: Sections 13 and 21-Succession to office of
Sajadanashin-Power of Durgah Committee-What is.
HEADNOTE:
In
the Durgah Khawaja Saheb, Ajmer, there were two important offices-Sajadanashin
and Mutwalli. Consequent upon the migration of the last office holder of the
office of Sajadanashin to Pakistan in 1947, the Chief Commissioner of Ajmer
appointed the appellant's father as Sajadanashin in April, 1948. This was
challenged by the respondent- plaintiff, in a suit, claiming that succession to
the office was governed by the rule of primogeniture, that he was the rightful
person to hold it and that the appellant's father had no such right or title.
The suit was dismissed by the trial court as not maintainable in view of the
bar imposed by s. 119 of the Ajmer Land Revenue Regulations.
On
appeal, the District Judge held that the suit was maintainable. In second
appeal by the defendant, the Judicial Commissioner upheld the view taken by the
trial court and dismissed the suit. The Supreme Court allowed the appeal of the
plaintiff-respondent, and remitted the case to the trial court for disposal on
merits.
Meanwhile,
the Government of India brought forward a legislation called the Durgah Khawaja
Saheb Act, 1955 and the Durgah Committee, as required under the Act, was
constituted for the administrative control and management of Durgah endowment.
The
aforesaid Committee, got itself impleaded as a party to the suit and resisted
it, contending that the suit had become infructuous as, under ss. 13 and 21 of
the DKS Act, the Committee was responsible to make interim or permanent
arrangement for the office of Sajadanashin and that the appellant had been
appointed as interim Sajadanashin. The trial court overruled the objection.
53
The suit was resisted by the appellant's father on the ground that the
plaintiff had no legitimate right to succeed to the office as he was not the
nearest male heir to the last holder of the office, that the right to appoint
Sajadanashin by established usage, custom and tradition vested exclusively in
the local representative of the Government, and that the Court had no power to
interfere with such appointment in any way whatsoever.
The
trial court non-suited the plaintiff on merits. The High Court, in appeal,
reversed the judgment and declared that the plaintiff was the nearest male heir
to the last office holder and, therefore, entitled to succeed as Sajadanashin.
It, however, observed that the plaintiff had failed to prove that he was
qualified to occupy the office and, therefore, left the question open for
determination by the Governor, who was the competent Authority under the DKS
Act to appoint the Sajadanashin. The judgment of the Single Judge was
challenged before the Division Bench under s. 18 of the Rajasthan High Court
Ordinance. Meanwhile, the Governor on being satisfied with the qualifications
of the plaintiff approved his appointment as Sajadanashin by a Government
Notification dated July 7,1975.
On
the death of the plaintiff on October 23, 1975 his son was brought on record,
and following the dismissal of the Special Appeal by the Division Bench of the
High Court on March 7,1980, he was recognised as Sajadanashin, by the
Government by a communication dated January 24,1981.
Against
the decision of the High Court an appeal was filed before this Court.
While
the special appeal was pending before the High Court, and on plaintiff's death
on October 23, 1975, his son approached the Durgah Committee for recognition as
Sajadanashin, but it did not accede to his request and decided to invite
applications from persons who wanted to be appointed as Sajadanashin. In
response to the public notice under sub-section (1) of section 13 of the DKS
Act, 11 applications were received by the Committee and none of these were
related to the plaintiff or the last office holder. The Committee forwarded the
applications to the Governor for making a reference to the High Court for
decision, but the Governor did not make a reference and took a firm decision
that plaintiff's son was alone entitled to succeed to the office, being the son
of the last office holder and that the other applicants had no right to the
said office. The Committee disagreed with the Governor 54 and referred all the
applications to the High Court for determination of rival claims of the
candidates. After the disposal of the special appeal by the Division Bench, the
High Court, accepting the view taken in the special appeal, rejected the
reference as not maintainable. The Committee and one of the applicants filed
two Special Leave Petitions before this Court.
In
the appeal before this Court, it was urged on behalf of the appellant that the
plaintiff could not be considered as the nearest male heir to the last holder
of the office and that there were two other persons, i.e. PW 2 and PW 3 who
were nearer to the last holder of the office than the plaintiff.
In
the Special Leave Petitions, on behalf of the Committee it was urged that the
decision of the High Court as to the succession to the office of Sajadanashin
was based on the concession made by the parties and was, therefore, not binding
on the Committee, that in view of sections 13 and 21 of the DKS Act, it had the
power to appoint a proper person as Sajadanashin, that it was not bound to
follow the customary rules of succession to the office and that the selection
of a suitable person need not be made only among the heirs of the last office
holder and could be made from the public as well, to better serve the devotees.
Dismissing
the appeal and Special Leave Petitions, this Court, ^
HELD:
1.1 The nature of the office of Sajadanashin and the rule of succession to it
always remained undisputed. It was occupied by a hereditary descendant of the
Saint. The Government of India had also recognised that Sajadanashin has always
been a descendant of the Saint and that position should not be disturbed.
[61C,E]
1.2
Section 21 of the Durgah Khawaja Saheb Act, 1955 was intended to provide
transitional arrangement to hold the office of Sajadanashin. It enables the
Sajadanashin who was holding the office immediately before the commencement of
the DKS Act to continue to hold that office. His right, however, was made
subject to other provisions of the Act and to the final decision of the suit
relating to that office.
The
suit referred to under section 21 must be the suit which was pending on the
date of coming into force of the DKS Act. [63E-F]
1.3
Section 13 of the Act does not confer unlimited or absolute power to the Durgah
Committee. The scope of section 13 is limited. The Durgah Committee is only
entitled to accord recognition as Sajadana- 55 shin to the person legitimately
entitled to succeed to the office. The Durgah Committee cannot enlarge the
scope of this power to invite applications from the public and select any
person for appointment as Sajadanashin. The power conferred under section 13 is
only to locate the legitimate heir to the office by the accepted rule of
succession and recognise him as Sajadanashin and not beyond that. [64C]
1.4
It cannot be said that the plaintiff is not the legitimate person to succeed as
Sajadanashin. P.W. 2 did not consider himself nearest to the last office holder
and P.W. 3 was illiterate and did not want to become Sajadanashin.
Moreover,
both of them have died during the pendency of the suit leaving behind none to
succeed. [64E-G] Asrar Ahmed v. Durgah Committee, Ajmer, AIR 1947 P.C. 1 and
The Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 779 of 1980 etc From the
Judgment and Order dated 7.3.1980 of the Rajasthan High Court in D.B. Civil
Spl. Appln. No. 131 of 1974.
S.T.
Desai, T.S. Krishnamurthi Iyer, F.S. Nariman, Mr B.P. Beri, S.S. Hussain, M.N.
Tandon, Mrs. M. Qamaruddin, B.D. Sharma, Qamaruddin R.S. Yadav, H. S. Parihar,
B. Kanta Rao, Ms. Sarda Devi, Shakeel Ahmed Syed, Ali Ahmad, Tanweer Ahmad,
Mrs. Jayshree Ahmad and Mohan Pandey for the appearing parties.
The
Judgment of the Court was delivered by JAGANNATHA SHETTY, J. The appeal and two
Special Leave Petitions concern the right to succeed to the office of
Sajadanashin to "Durgah Khawaja Saheb Ajmer". It is venerable Shrine
of universal recognition. It is also called the Durgah Moinuddin Chisti Saheb.
Moinuddin Chisti was a Persian born Saint who later migrated to India. He
settled down at Ajmer and died there at the age of 90 in the year 1233 A.D.
Eversince then, his tomb has had been the centre of attraction for the people
of all faiths. For Muslims in particular, "It is admitted to be one of the
most famous, if not the most famous, Mohammedan Shrine in India." There
are two important offices in the Shrine: (i) Sajadanashin- 56 the spiritual head
and (ii) Mutwalli-the secular head. The hereditary descendants of the Saint
often laid claim to these two offices. The disputes as to the latter was taken
even upto the Privy Council. In Asrar Ahmed v. Durgah Committee, A.I.R. 1947
P.C. 1 the Privy Council said that the office of Mutwalli was not hereditary.
We are not concerned with the office of Mutwalli. We are concerned with two
questions relating to the spiritual head of the Shrine.
Who
is entitled to succeed to the office of Sajadanashin? And what is the right of
Durgah Committee in the matter? The dispute relating to the office of
Sajadanashin started in 1947, when the last office holder-Syed Ali Rasool Khan
migrated to Pakistan. Consequently, the need to appoint a new Sajadanashin
arose. On April 5, 1948, the Chief Commissioner of Ajmer appointed Hakim Inayat
Hussain as Sajadanashin. That appointment was challenged by a person called
Syed Ilamuddin. He claimed that the succession to the office of Sajadanashin is
governed by the rule of primogeniture. He was the rightful person entitled to
hold the office. Hakim Inayat Hussain had no such right or title.
With
these and other allegations, Syed Ilamuddin instituted Civil Suit No. 211/1948
for declaration of his right to succeed to the said office. The suit was instituted
on May 18, 1948.
Civil
Appeal No. 779 of 1980 by certificate arises out of the above said suit. The
suit had a chequered carreer. It was first instituted in the Court of Sub-Judge
First Class, Ajmer. Since then, it went up and down from Court to Court.
In
fact it is coming for the second time before this Court.
The
trial court dismissed the Suit on the preliminary ground that it was not
maintainable. The bar of Section 119 of the Ajmer Land Revenue Regulations was
the reason given. The plaintiff appealed to the District Judge who by judgment
dated August 20, 1952 held that the suit was maintainable.
The
defendant challenged that decision in second appeal before the Judicial
Commissioner, Ajmer. The Judicial Commissioner took a different view. By
judgment dated November 17, 1953 he upheld the view taken by the trial court
and dismissed the suit. It was then the turn of plaintiff to appeal. He
appealed to the Supreme Court. On March 7, 1961 the Supreme Court allowed the
appeal and remitted the case to the trial court for disposal on the merits.
Meanwhile, the Court of Sub-Judge had been abolished and the Munsiff, Ajmer
City acquired the territorial jurisdiction to try the suit.
Interrupting
the narration, we have to refer to some other 57 intervening facts. There were
allegations of mismanagement of the affairs of the Durgah and its endowments.
There was a clamour from devotees all over for appointment of a Committee to
review the administration of the Durgah. On January 14, 1949 the Government of
India found the need to appoint a High Power Committee for the purpose. The
Committee was appointed with Justice Gulam Hussain, Judge of the Allahabad High
Court as Chairman. The Committee was authorised to inquire into and report
about the administration of Durgah. The Committee was also authorised to
recommend such measures as may be necessary to protect the interests of
devotees. The Committee after a detailed enquiry submitted a report of the
Government. Accepting the report, the Government of India brought forward a
legislation called the Durgah Khawaja Saheb Act, 1955 (Act No. 36 of 1955)
which we may term it as the DKS Act. As required under that Act the Durgah
Committee was constituted for the administrative control and management of
Durgah endowments. The said Committee filed an application in the aforesaid
suit to be impleaded as a party thereto. On September 30, 1964, the trial court
allowed that application. The Durgah Committee was thus impleaded as party
defendant in the suit.
The
Durgah Committee resisted the suit, inter-alia, contending that the suit had
become infructuous and should be dismissed as such. It would be the
responsibility of the Durgah Committee to make interim or permanent arrangement
for the office of Sajadanashin. That power is derived under Section 13 and 21
of the DKS Act. The Durgah Committee also said that after the death of Hakim
Inayat Hussain, his son Syed Saulet Hussain was appointed as interim
Sajadanashin.
The
trial court, overruled the objections raised by the Durgah Committee. Then
followed the dispute as to valuation of the suit and the court fees paid
thereon. That dispute was taken upto the High Court where by consent of parties
the valuation was agreed upon. The plaintiff amended the plaint revising the
valuation to Rs. 11,000. Consequently, the suit was withdrawn from the Munsiff
Court and brought before the Court of Civil Judge, Ajmer.
The
suit was resisted by Hakim Inayat Hussain on the ground among others that the
plaintiff has no legitimate right to succeed to the office of Sajadanashin. He
was not the nearest male heir to Syed Rasool Ali Khan. The right to appoint
Sajadanashin by established usage, custom and tradition vests exclusively in
the local representative of the Government of the day. The Court of law has no
power to interfere with such appointment in any way whatsoever.
On
December 14, 1970 the trial court non-suited the plaintiff on the merits of the
matter. The plaintiff took up the matter before the High Court. The learned
single judge of the High Court accepted the appeal and reversed the judgment of
the trial court. He gave a declaration to the plaintiff that he was the nearest
male heir to the last office holder, and, therefore, entitled to succeed as
Sajadanashin. He, however, observed that the plaintiff has failed to prove that
he was qualified to occupy the office of Sajadanashin. He left the question of
qualification for determination by the Governor of Rajasthan who is the
competent authority under the DKS Act, to appoint Sajadanashin. The judgment of
learned single judge was rendered on August 9, 1974. Challenging that judgment,
the defendant preferred Special Appeal before a Division Bench of the High
Court under Section 18 of the Rajasthan High Court Ordinance.
Pursuant
to the observations in the judgment of learned single judge, the Governor of
Rajasthan examined the qualifications of the plaintiff. The Governor was
apparently satisfied with his qualifications and approved his appointment as
Sajadanashin. The Government notification dated July 7, 1975 was issued
recognising the plaintiff as such.
On
October 23, 1975, the plaintiff died. His son Syed Zainul Abedin Ali Khan was
brought on record in the pending Special Appeal before the Division Bench of
the High Court.
On
March 7, 1980 Division Bench dismissed the Special Appeal affirming the
judgment of learned single judge. Following that judgment, the Government again
issued a communication dated January 24, 1981 recognising Syed Zainul Abedin
Khan as Sajadanashin.
The
litigation has thus descended on the second generation. The sons of the
original parties to the suit continued the litigation. Syed Saulat Hussain
challenging the judgment of Division Bench of the High Court preferred Civil
Appeal No. 779 of 1980 with which we are now concerned.
SLP
8794/80 and SLP 292/1980:
These
two petitions arise out of the order of the High Court in Civil Reference No. 2
of 1978. It was a reference made by the Durgah 59 Committee under Sub-Section
(3) of Section 13 of the DKS Act. The events leading to the reference are
these: We have earlier noticed that the plaintiff, Syed Illamuddin died on
October 23, 1975. Thereafter his son, Syed Zainul Abedin Ali Khan appears to
have approached the Durgah Committee for recongnition as Sajadanashin. Durgah Committee
did not accede to his request. It decided to invite applications from persons
who want to be appointed as Sajadanashin. A public notice was accordingly
issued under Sub-Section (1) of Section 13 of the DKS Act. In response to the
said notice, as many as eleven applications were received by the Durgah
Committee. Those applicants were not related to the plaintiff, or to the last
office holder. The Durgah Committee, however, forwarded those applications to
the Governor for making a reference to the High Court for decision. But the
Governor did not make a reference to the High Court. He took a firm decision
that Syed Zainul Abedin Ali Khan, being the son of the last office holder (that
is the plaintiff), was alone entitled to succeed to the office of Sajadanashin
and other applicants had no right to the said office. So stating, the Governor
conveyed his decision to Durgah Committee. The Durgah Committee, after much
deliberations over the matter, preferred to disagree with the Governor. It
referred all the applications to the High Court for determination of rival
claims of the candidates.
The
High Court took up the reference for disposal after the dismissal of the
aforesaid special appeal. The task of the High Court then became easier since
there was little choice in the matter. Accepting the view taken in the Special
Appeal, the High Court rejected the reference as not maintainable. The High
Court made that order on July 4, 1980. The Durgah Committee and one of the
applicants for the office have preferred the said two Special Leave Petitions
for appeal to this Court.
We
may first consider the contention urged by Mr. Krishnamurthy Iyer, learned
counsel for Durgah Committee. He urged that the decision of the High Court as
to succession to the office of Sajadanashin was based on the concession made by
parties and is therefore not binding on the Durgah Committee. Counsel next
contended that in view of Sections 13 and 21 of the DKS Act, the Durgah
Committee has power to appoint a proper person as Sajadanashin. It is not bound
to follow the customary rules of succession to the office. The selection of a
suitable person need not be made only among the heirs of the last office
holder. The selection could be made from the public as well, to better serve
the devotees.
60
We do not think that we could accept these contentions.
The
Durgah Committee was a party to the suit. There the plaintiff and defendant in
the first place, admitted that the office of Sajadanashin is a hereditary
office. Secondly, they proceeded with a common contention that the succession
to the office is governed by the rule of primogeniture. The counsel for the
Durgah Committee did not dispute this aspect either in the trial court or
before the High Court. Nor suggested any other mode of succession to the
office. This is what the learned Single Judge of the High Court observed:
"The
counsel for the legal representatives of Hakim Inayat Hussain admitted that the
office of the Sajadanashin attached to the Durgah is a hereditary office. The
learned counsel for the Durgah Committee did not argue on this point.
Issue
No. 1 was therefore decided in favour of the plaintiff. Issue No. 3 was not
pressed by the parties. Dealing with issue Nos. 2 and 3, the learned Civil
Judge observed that it was admitted that succession to the office of the
Sajadanashin was governed by the Rule of primogeniture." xxx xxx xxx xxx
xxx xxx I now turn to the merits of the case. It may be mentioned at the outset
that it is not disputed before me that the office of Sajadanashin or Dewan
attached to the Durgah is a here ditary office and successor to that office is
governed by the rule of primogeniture. It is further not in dispute that the
last Sajadanashin Syed Aley Rasool Ali Khan was in the line of Syed Abdul Fateh
and the plaintiff is in the line of Syed Abdul Fateh's brother
Hisammuddin." Apart from that, it was never in dispute in the long history
of the shrine about the nature of the office and the rule of succession. Lord
Simonds while tracing the history of the shrine in Asrar Ahmed, case (supra)
said:
"It
is not disputed that for many years from 1567 onwards (that is from the Farman
of Akbar the Great) with certain intervals the hereditary descendant of the
Saint, variously called the Sajadanashin or later Dewan, combined in his own
person the two leading offices of the Shrine, that of Sajadanashin or spiritual
head and Mutwalli or secular 61 head and manager. These alternative expressions
are used to convey as nearly as possible the meaning of the original words. Nor
is it disputed that in the reign of the Emperor Shah Jehan (1627- 1658) the
post of Mutwalli was separated from that of Sajadanashin and had become a
Government appointment whereas the Sajadanashin remained and continued to be a
hereditary descendant of the Saint." These observations have been approved
by the Supreme Court in The Durgah Committee, Ajmer & Anr. v. Syed Hussain
Ali & Ors., [1962] 1 SCR 383.
It
is clear, therefore, that the nature of the office and the rule of succession
to it always remained undisputed.
It
was occupied by a hereditary descendant of the Saint.
That
was perhaps the reason, for not asking the High Power Committee constituted by
the Government of India in 1948 to inquire into it. The said Committee was
constituted only to enquire into the mal-administration of the Durgah and
suggest remedies in the interests of devotees. The question of succession to
the office of Sajadanashin was expressly kept outside its purview. It would be
evident if one peruses the terms of reference made to the High Power Committee.
The
Government of India had also recognised that Sajadanashin has always been a
descendant of the Saint and that position should not be disturbed. This has
been reflected from the speech of the Home Minister in the Parliament while
piloting the Khawaja Saheb Bill which later became the DKS Act. This is what
the Home Minister stated:
Lok
Sabha Debate Pt. II Vol. V 25th July-13 Aug, 1985, p. 9391.
"So
far as Sajadanashin is concerned he is a religious office. He is the descendant
of the Khawaja Sahib and therefore his position should be kept as it is and
that position is not affected at all. Because he deals with the rituals he
deals with the spiritual side of management and so far as that is concerned, it
is entirely left to him" Against this background, it was not illogical or
improper for parties to the suit to proceed on the basis that the hereditary
office of Sajadanashin is entitled to be claimed by descendants of the Saint by
the rule of primogeniture. They have stated the obvious which appears to have
been recognised over the generations. If there was no such rule 62 or
principle, the Durgah Committee ought to have stated so. Or it could have
stated that it was not bound to follow the customary rule of succession. It
could have asserted its right to make a choice of its own. It did not state
anything of the kind in the Courts below. It maintained a golden rule of
silence. It is, therefore, now not open to the Durgah Committee to contend
before us that it is not bound by the decision of the Courts. The Durgah
Committee is as much a party to the suit as others. It is as much bound by the
decision as others. It is immaterial for our purpose whether the decision has
been reached by concession of parties or by determination of the dispute.
This
takes us to the second contention urged by Shri Krishnamurthy Iyer. He urged
that Sections 13 and 21 of the DKS Act confer power on the Durgah Committee to
appoint a suitable person as Sajadanashin. We do not think that that there is
anything in the said sections to support the contention urged by the learned
counsel. Section 13 provides:
"Succession
to the office of Sajadanashin 13(1) As soon as the office of the Sajadanashin
falls vacant, the Committee shall, with the previous approval of the Chief
Commissioner, make such interim arrangements for the performance of the functions
of the Sajadanashin as it may think fit, and immediately thereafter publish a
notice in such form and manner as may be determined by the Committee, inviting
applications within one month of such publication from persons claiming to
succeed to that office.
(2)
Where only one person claims to succeed to the office of the Sajadanashin and
the Committee is satisfied as to his right to succeed, it shall, with the
previous approval of the Chief Commissioner, pass an order in writing according
recognition as Sajadanashin to such person.
(3)
Where more persons than one claim to succeed to the office of the Sajadanashin
the Committee shall, after consultation with the Chief Commissioner, refer the
dispute to the Judicial Commissioner of Ajmer for a decision regarding the
claim to succeed to that office, and the Judicial Commissioner after taking
such evidence as he considers necessary and after giving an opportunity to the
claimants to be heard in respect of their claims, shall communicate his
decision to the Committee.
63
(4) The Committee, on the receipt of the decision, shall, with the previous
approval of the Chief Commissioner, pass an order in writing in accordance with
such decision declaring the person found entitled to succeed to the office of
the Sajadanashin and according recognition as Sajadanashin to such person.
(5)
An order passed by the Committee under sub- section (2) or Sub-Section (4)
shall be final and shall not be questioned in any Court." Section 21
reads:
"Transitional
provisions
21.
The person holding the office of Sajadanashin immediately before the
commencement of his act shall, on and from such commencement, continue to hold
that office subject to other provisions of this Act and to the final decision
in the suit relating to that office which is pending on such commencement and
to which the said person is a party." Section 21 was intended to provide
transitional arrangement to hold the office of Sajadanashin. It enables the
Sajadanashin who was holding the office immediately before the commencement of
the DKS Act to continue to hold that office. His right, however, was made
subject to other provisions of the Act and to the final decision of the suit
relating to that office. The suit referred to under Section 21 must be the suit
out of which the present appeal arises.
It
was pending on the date of coming into force of the DKS Act. Hakim Inayat
Hussain who was then acting as Sajadanashin was the defendant in the suit. His
continuance or otherwise was expressly made subject to the decision in the
suit. Durgah Committee being also a party is no less bound by the decision
therein. Section 13 of the DKS Act does not confer unlimited or absolute power
to Durgah Committee. Sub-Section (1) of Section 13 comes into operation when
the office of Sajadanashin falls vacant. It enables the Durgah Committee to
make interim arrangement for the performance of functions of Sajadanashin,
pending recognising the legitimate successor to the office. It must, therefore,
invite applications from persons claiming to succeed to that office. If there
is only one person to succeed to the office, the Committee shall with the
previous approval of the Governor recognise him as Sajadanashin. That is the
mandate of Sub-Section (2) of Section 13. If there are more persons than one
claiming to succeed to the office, the Durgah Committee shall follow the
procedure provided under Sub-Section (3) of Section 13. The Committee after
consultation with the Governor must refer the applications to the High Court
for decision. On receipt of the decision of the High Court and with the
previous approval of the Governor, the Durgah Committee under Sub-Section (4)
shall accord recognition as Sajadanashin to the person found entitled to
succeed to the office.
The
scope of provisions of Section 13 appears to be limited. The Durgah Committee
is only entitled to accord recognition as Sajadanashin to the person
legitimately entitled to succeed to the office. The Durgah Committee cannot
enlarge the scope of this power to invite applications from the public and
select any person for appointment as Sajadanashin. The power conferred under
Section 13 is only to locate the legitimate heir to the office by the accepted
rule of succession and recognise him as Sajadanashin and not beyond that.
This
takes us to the contention urged by Shir S.T. Desai, learned counsel for the
appellant in C.A. No. 779 of 1980. He urged that plaintiff cannot be considered
as the nearest male heir to the last holder of the office.
According
to the counsel, there are two other persons Bashiruddin (P.W. 2) and Abdul Aziz
(P.W. 3) who were nearer to the last holder of the office than the plaintiff.
Suffice it to state that it has not escaped the attention of the High Court.
The claim of these two persons were also examined. The High Court has observed
that Bashiruddin has himself stated that he did not consider himself nearest to
the last office holder. It was further stated that he died issueless during the
pendency of the suit.
So
far as Abdul Aziz is concerned, the position is no better. He was illiterate
and did not want to become Sajadanashin. He appears to have relinquished his
right in favour of the plaintiff. It is said that he also died during the
pendency of the suit leaving behind none to succeed. In the circumstances, it
cannot be said that the plaintiff is not the legitimate person to succeed as
Sajadanashin.
In
the result, the appeal and Special Leave Petitions fail and are dismissed with
costs.
N.P.V.
Appeal and Petitions dismissed.
Back