Judgment

BOSE, J. : This is an appeal by the second plaintiff who is the adopted son of the first.

2. The suit is for a declaration that the second plaintiff is the guardian and vahivatdar of the Darga in suit known as Haji Malang and that he alone is entitled to look after the Darga and manage it and control direct and perform its rites and rituals; also for a declaration that the second plaintiff is entitled to take the offerings placed before the tomb of Haji Malang throughout the year, as also the cash and other offerings now lying in the Kalyan Treasury under the orders of the District Magistrate of that place. A perpetual injunction is also asked for restraining the defendant from disturbing the second plaintiff in the exercise of those rights.

3. The suit has certain curious features. The plaintiffs are Brahmins while the Darga which they have the right to manage is a Muslim Shrine, and beside the tomb of the Muslim saint is the tomb of a Hindu princess. Offerings are made at both tombs by persons of all faiths. The first plaintiff died during the pendency of the suit and the defendant died during the pendency of the appeal. He laid no claim to the Darga but only claimed to be its rightful manager and Mutawalli. As he claimed no hereditary rights that a portion of the dispute died with him.

The only dispute which remains outstanding against the defendant s legal representatives, and that only in an indirect way, relates to the past offerings which were deposited in the Kalyan Trusury and which had accumulated to a sizeable figure during the pendency of litigation, and to a house claimed by the defendant. And even that only arises indirectly for this reason. In view of the dispute between the parties, the authorities stepped in under Ss. 145 and 147, Criminal P. C. and attached the offerings and on 24-2-1946 the District Magistrate of Kalyan ordered them to be kept in the Kalyan Treasury and directed that they should be handed over to whichever party would be found to be entitled to them by a civil Court. That is one of the plaintiffs reasons for bringing this suit.

4. The shrine has a curious, and in some respects legendary, history. Its origin is lost in antiquity but the Gazetteer of the Bombay Presidency tells us that the tomb is that of Muslim saint who came to India as an Arab missionary in the thirteenth century. His fame was still at its height when the English made their appearance at Kalyan, near where the tomb is situated in the year 1780. As they only stayed for two years, their departure in the year 1782 was ascribed to the power of the dead saint.

5. The Peshwas were then in power in that region and as the departure of the English left them a clear field they sent a thank offering under the charge of one Kashinath Pant Ketkar, a Kalyan Brahmin who the plaintiffs say was one of their ancestors. The tomb was then in disrepair, so Kashinath started to repair it and according to the tradition, was miraculously assisted by the dead saint who, without human aid, quarried and dressed the large blocks of stone which now cover the tomb.

6. It seems however that Kashinath was not content to repair the tomb. He also wanted to manage it and this led to friction with the Kalyan Muslims who resented Brahmin Management of a Muslim Shrine. The situation gained piquancy by reason of the fact that there was already a Muslim in charge as the tomb s heareditary manager. His name was Hydad.

7. Matters came to a head in 1817 and the dispute came before the Collector who, with the wisdom of a Solomon, declared that the dead saint should settle the affair. He decided that the only way of ascertaining the saint s wishes was by casting lots. This was done and three times the lot fell on the representative of Kashinath; and so, in the clear headed and simple manner of the time, the matter ended and Kashinath s representative was proclaimed guardian of the tomb. The plaintiffs claim that their family have been in management ever since.

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