The main legal point established in the judgment is the interpretation of Muhammadan law and the custom of succession by lineal primogeniture in determining the entitlement to succeed to the office of Khatib.

Mockett, J.

1. The plaintiff is the appellant. He sues for a declaration that he is entitled to succeed to the office and profits of the position of Khatib in the Jumma Masjid Nellore Mosque. As I am generally in agreement with a great deal of the judgment of the lower Court, it will be possible to deal with this appeal briefly.

2. Ex. A is a certified extract from the Inam Register of Nellore Village and is dated the 19th December, 1860. The inam was registered as being for performing the services of reading prayers in the Jumma Mosque and it is stated that the services had been performed. In column 10, it is shown that the tenure is hereditary and to be so long as the service is performed. It was grunted by the Nabob in 1799 and the original grantee was Abdul Huq. There is printed in the record the pedigree of the line of Khatibs which was filed by the tenth defendant who is the respondent in this appeal. All the persons who are of importance are shown. The position at the time of the suit was that Khader Muhi-ud-din the Khatib had died in 1931 and he had been succeeded by his elder sister Sakina Bi. At that time apart from Sakina Bi, there was alive the plaintiff; the son of a deceased sister of Khader Muhi-ud-din. Another sister Bimajan is alive with her children, three sons, of whom the tenth defendant in this suit Abdul Huq is the youngest. The plaintiff Chan Basha challenges the right of Sakina Bi to succeed her brother Khader Muhi-ud-din stating that the Khatibship should go to him by descent.

3. Before the written statement was filed Sakina Bi died. But Abdul Huq the tenth defendant pleads that Sakina Bi rightly inherited and that he is entitled to be the Khatib having been nominated by Sakina Bi to that position. At the time of argument it was generally accepted that the office of Khatib is accurately described in paragraph 4 of the tenth defendants written statement namely that it is an office held by a person who is to lead the congregations and preach in the Jumma Mosque on every Friday and on Ramzan and Bakr-id days.

The particular form of worship is known as the Jumma Namaz.

4. In the lower Court there were two main controversies. (1) It was contended by the plaintiff that Sakina Bi by reason of her sex was disqualified from holding the sacred office of Khatib. (2) That assuming her to be qualified, the custom in the family showed that the succession to the office was governed by lineal male primogeniture and that therefore the plaintiff was entitled to succeed. The tenth defendant contended that Sakina Bi as a woman was not disqualified from holding the office and that the office descended by custom according to lineal primogeniture whether male or female--in other words, as the eldest descendant she was entitled to succeed after the death of her brother. The tenth defendant also contended, as he was bound to do, that the Khatib for the time being was entitled to nominate his or her successor and that he rightly held the office under such nomination.

5. The question whether Muhammadan women are disqualified from holding sacred offices has been the subject of decision in several cases. In Shahoo Banoo v. Aga Mahomed Jaffer Bindaneem (1906) 17 M.L.J. 52 : L.R. 34 IndAp 46 : I.L.R. Cal. 118, the Judicial Committee dealt with the position whether a woman can succeed to a muttawalliship which involved the performance of religious duties. At page 126, Sir Arthur Wilson discussing the proceedings in the lower Court made the following observations:

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.

In Munnavaru Begam Sahibu v. Mir Mahapalli Sahib I.L.R. (1918) Mad. 1033, Abdur Rahim and Seshagiri Aiyar, JJ., held that, as decide