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1987 Supreme(SC) 714
O. CHINNAPPA REDDY AND K. JAGANNATHA SHETTY, JJ.
Civil Appeal No. 779 of 1980 (with SLP (C) Nos. 8794 of 1980 and 292 of 1982), D/- 8-9-1987.
Syed Saulat Hussain, Appellant
Versus
Syed Illamuddin and others, Respondents.
Ali Ahmad, B.D.SHARMA, B.Kanta Rao, B.P.BERI, F.S.NARIMAN, H.S.PARIHAR, JAYASHRI AHMED, M.N.TANDON, M.Qamaruddin, Mohan Pandey, R.S.Yadav, S.S.HUSSAIN, S.T.DESAI, SHAKEEL AHMAD SYED, Sharda Devi, T.S.KRISHNAMURTHY IYER, TANVIR AHMAD
Headnote:
Durgah Khawaja Saheb Act, 1955 - Section 13 and 21, 13(3) - Shrine – Sajadanashin - Dispute Related To Office Of Sajadanashin - There are two important offices in Shrine: (i) Sajadanashin - spiritual head and (ii) Mutwalli - secular head - Hereditary descendants of Saint often laid claim to these two offices - Dispute relating to office of Sajadanashin started, when last office holder Syed Ali Rasool Khan, migrated - Consequently, need to appoint a new Sajadanashin arose - Chief Commissioner of Ajmer appointed Hakim Inayat Hussain as Sajadanashin - That appointment was challenged by a person called Syed Illamuddin - He claimed that succession to office of Sajadanashin is governed by rule of primogeniture - He was rightful person entitled to hold office - Hakim Inayat Hussain had no such right or title – Who is entitled to succeed to office of Sajadanashin - And what is right of Durgah Committee in matter - Question of qualification for determination by the Governor of Rajasthan who is the competent authority under the DKS Act, to appoint Sajadanashin - Held, Section 21 was intended to provide transitional arrangement to hold office of Sajadanashin - It enables Sajadanashin who was holding office immediately before commencement of DKS Act to continue to hold that office - His right, however, was made subject to other provisions of Act and to final decision of suit relating to that office - Suit referred to under S. 21 must be suit out of which present appeal arises - It was pending on date of coming into force of DKS Act - Hakim Inayat Hussain who was then acting as Sajadanashin was defendant in suit - His continuance or otherwise was expressly made subject to decision in suit - Durgah Committee is only entitled to accord recognition as Sajadanashin to person legitimately entitled to succeed to office - Durgah Committee cannot enlarge scope of this power to invite applications from public and select any person for appointment as Sajadanashin - Power conferred under S. 13 is only to locate legitimate heir to office by accepted rule of succession and recognise him as Sajadanashin and not beyond that - So far as Abdul Aziz is concerned, position is no better he was illiterate and did not want to become Sajadanashin - He appears to have relinquished his right in favour of plaintiff - It is said that he also died during pendency of suit leaving behind none to succeed - In circumstances, it cannot be said that plaintiff is not legitimate person to succeed as Sajadanashin – Petition Dismissed.
Judgement
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 Sahab. 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. Ever since then, his tomb has been the centre of attraction for the people of all faith. For Muslims in particular, "it is admitted to be one of the most famous, if not the most famous, Mohammedan Shrine in India."
2. There are two important offices in the Shrine: (i) Sajadanashin - the spiritual head and (ii) Mutwalli - the secular head. The hereditary descendants of the Saint often laid claim to these two offices. The dispute as to the latter was taken even up to the Privy Council. In Asrar Ahmed v. Durgah Committee, AIR 1947 PC 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?
3. 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 Illamuddin. 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 Illamuddin 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.
4. Civil Appeal No. 779 of 1980 by certificate, arises out of the above said suit, The suit had a chequered career. 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 S. 119, Ajmer Land and 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.
5. Interrupting the narration. we have to refer to some other 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 to the Government.
