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2004 DIGILAW 951 (PNJ)

Bilqis Begum v. Punjab Wakf Board

2004-08-25

ASHUTOSH MOHUNTA

body2004
Judgment Ashutosh Mohunta, J. 1. The plaintiffs-appellants filed a suit for declaration that they are entitled to be appointed to the Office of Mutwalli of Mazar of Sheikh Jalaludin Mohman Kabirul Aauliya Usmani at Panipat and also for a decree for possession of the Mazar. Both the Courts below have dismissed the suit as well as the appeal filed by the plaintiffs/appellants. 2. In short the case set up by the appellants was that one Sheikh Jalaludin Mohammed Kabirul Aauliya Usmani was a Saint and residing at Panipat in Mohalla Peer Zadgan Ward No. 11, Panipat. On his death, his Mazar (Samadhi) was built in Mohlalla Peer Zadgan, Ward No. 11, Panipat and his son Khwaja Shibli became its (said Mazar) Sajjada Nashin and Mutwalli of the said property. Thereafter, i.e., after the death of Khwaja Shibli his son became Sajjada Nashin and Mutwalli of the said Mazar and so on. Thus, the office of the Sajjada Nashin and Mutwalli has been hereditary by custom. Sheikh Habibur Rehman was the last Sajjada Nashin and Mutwalli of the said Wakf property known as Mazar Sheikh Jalaludin Mohd. Kabirul Aaulia Usmani. Sheikh Habibur Rehman was the father of plaintiff No. 1 i.e. Bilqis Begum and maternal grandfather of the plaintiff Nos. 2 and 3 (sons of Bilqis Begum). Sheikh Habibur Rehman was the 12th descendant in the holy progeny of the great Saint Sheikh Jalaludin Mohd. Kabirul Aauliya Usmani. Habibur Rehman died in the year 1970 leaving behind plaintiff No. 1 as the sole heir who is entitled to be appointed as Sajjada Nashin and Mutwalli of the said Mazar. Hence, a decree for declaration was prayed for to the effect that the plaintiff or any of them are entitled to the appointment of Mutwalli of the Mazar and also for possession thereof. 3. The respondent i,e. Punjab Wakf Board (hereinafter referred to as the Board) in its defence pleaded that according to Muslim Law, ladies are not conferred with any right of Mutwalli, nor any person through them has any right to succeed. It was further maintained that after the passing of the Wakf Act, 1954, the Administration o f Dargah, Maszid, Imam Baras, grave-yards, etc. vest in the Board. Pursuant to the Wakf Act, 1954, the Board was constituted at Ambala and the same is managing the present property as well. It was further maintained that after the passing of the Wakf Act, 1954, the Administration o f Dargah, Maszid, Imam Baras, grave-yards, etc. vest in the Board. Pursuant to the Wakf Act, 1954, the Board was constituted at Ambala and the same is managing the present property as well. After the Board took possession of Dargah in question, the Board appointed Kari Moyhmad Umar as its Imam to recite the namaz etc. and to manage its petty affairs. The objection was also raised that the instant suit was not within time. On merits, the existence of the Dargah in the name of Hazrat Sheikh Kazan Zalaludin was admitted. However, it was maintained that Khawazah Shibli never became its Sajjada Nashin. Further there has been no person in the name of Shaikh Habirbur Rehman who managed the Sajjada nor the plaintiffs are related to Sheikh Habibur Rehman. 4. In the wake of the respective pleadings of the parties, the trial Court framed the issues which read as thus: "1. Whether any one of the plaintiffs is entitled to be appointed as Mutwalli of Mazar (Samadhi)? OPP 2. Whether the property in dispute vests in P.W.B. Ambala? OPD 3. Whether the suit is not maintainable in its present form? OPD 4. Whether the suit is within time? OPP 5. Whether the suit has not been properly valued for purpose of Court fee and jurisdiction? OPD 6. Relief." 5. The trial Court after due analysis of the pleadings of the parties, material and evidence on record, arrived at a conclusion that since no evidence was brought on record by the plaintiffs to show as to who created the Wakf and what were the conditions thereof, it could not be said that the office of Mutwalli of the property of Mazar was hereditary. The plaintiffs failed to prove the custom regarding hereditary nature of the succession to the office of Mutwalli. Further even Sheikh Habibur Rehman, who was pleaded to be the predecessor-in-interest of the plaintiff No. 1, was not proved to be the Mutwalli of the Dargah. Therefore, the question of appointment of his successor to the office of Mutwalli does not arise. The trial Court also held the present suit to be barred by time as Habibur Rehman was stated to have died in the year 1970 and the suit in question for declaration was filed in the year 1980. Therefore, the question of appointment of his successor to the office of Mutwalli does not arise. The trial Court also held the present suit to be barred by time as Habibur Rehman was stated to have died in the year 1970 and the suit in question for declaration was filed in the year 1980. Therefore, the period of limitation under Article 58 of the Limitation Act to seek a declaration was/is three years and therefore, the suit filed by the plaintiffs was time barred. Still further the plaintiffs in the present suit sought a declaration as well as possession of the property of the wakf. A fixed court fee of Rs. 25/- was affixed vis-a-vis the relief of declaration. However, the plaintiffs did not pay the appropriate court fee vis-a-vis the relief of possession. The value of the property in suit for the purposes of Court fee and jurisdiction was not properly assessed. Even if the value of the Mazar was taken to be Rs. 200/-, yet the plaintiff failed to assess the value of the suit property for the purposes of court fee and jurisdiction. Accordingly the learned trial Court dismissed the suit vide judgment and decree dated 31.3.1982. 6. The appellants (plaintiffs) being aggrieved against the decree passed by the learned trial Court dated 31.3.1982, preferred an appeal. The learned Additional District Judge vide his judgment and decree dated 25.11.1983 affirmed the conclusions recorded by the trial Court and accordingly dismissed the appeal. Hence, the instant Regular Second Appeal by the plaintiffs. 7. An analysis of the case set up by the appellants irresistibly show that for them to succeed they had to plead and prove to the hilt, that Sheikh Jalaludin Mohd. Kabirul Aauliya Usmani was the founder and first incumbent to the office of Sajjada Nashin and Mutwalli of the institution in question, thereafter his son Khwaja Shibli succeeded to the office of Sajjada Nashin and Mutwalli and after him his son and then sons son occupied the office of Sajjada Nashin and Mutwalli. Therefore, the office of Sajjada Nashin and Mutwalli of the Institution in question was always occupied or held by way of hereditary succession from father to son. As per the custom prevalent in the institution and as indicated above it was always the son who succeeded his father after his death to the office in question. Therefore, the office of Sajjada Nashin and Mutwalli of the Institution in question was always occupied or held by way of hereditary succession from father to son. As per the custom prevalent in the institution and as indicated above it was always the son who succeeded his father after his death to the office in question. At no stage there was any deviation or departure from the aforesaid practice and custom. Sheikh Habibur Rehman was the 12th descendant in the holy progeny of great Saint Sheikh Jalaludin Mohammed Kabirul Aauliya Usmani. He was the last Sajjada Nashin and Mutwalli. Since plaintiff No. 1 i.e., Bilqis Begum was his only heir, therefore, as per the custom, she was entitled to succeed to the office after the death of her father to the exclusion of everyone else. 8. Before proceeding any further it may be useful to have a recourse to Section 206 of Mullas Principles of Mohammedan Law (Nineteenth Edition), which read as thus:- "206. Office of Mutwalli not hereditary: The Mohammedan law does not recognise any right of inheritance to the office of mutwalli. But the office may become hereditary by custom, in which case the custom should be followed." 9. In the wake of the afore indicated position, the onus extremely heavily lay upon the plaintiffs to plead and prove that the office of Mutwalli and Sajjada Nashin in the institution in question was always held by way of hereditary succession and at no stage there was any deviation from the said custom. 10. In view of the above, following substantial questions of law arise in this appeal:- (i) Whether a female Muslim can be appointed to the office of Mutwalli or to the office of Sajjada Nashin? (ii) Whether the office of Mutwalli and Sajjada Nashin in the institution in question was held by way of hereditary succession and whether the plaintiff had pleaded and proved the requisites of custom? 11. A bare reading of the case set out by the appellants in their plaint shows that they even failed to plead the requisites of custom allegedly prevalent in the institution in question. All what is pleaded by them in the plaint read as thus:- "1. That one Sheikh Jalaludin Mohammed Kabirul Aauliya was a saint and residing at Panipat in Mohalla Peer Zadgan Ward No. 11, Panipat. All what is pleaded by them in the plaint read as thus:- "1. That one Sheikh Jalaludin Mohammed Kabirul Aauliya was a saint and residing at Panipat in Mohalla Peer Zadgan Ward No. 11, Panipat. On his death, his Mazar (Samadhi) was built in Mohalla Peer Zadgan Ward No. 11, Panipat and his son Khwaja Shibli became its (said Mazar) Sajjada Nashin and Mutwalli of the said Mazar (Wakf Property). Thereafter, i.e. after the death of Khwaja Shibli his son became Sajjada Nashin and Mutwalli of the said Mazar and so on. Thus, the office of the Sajjada Nashin and Mutwalli has been hereditary by custom. 2. Sheikh Habibur Rehman was the last Sajjada Nashin and Mutwalli of the said Wakf property known as Mazar Sheikh Jalaludin Mohd. Kabirul Aaulia Usmani, Panipat. He was the father of Bilqis Begum plaintiff No. 1 and maternal grandfather of Mohd. Shah Usmani (plaintiff No. 2) and Quamar Shah Usmani (Plaintiff No. 3). 3. Sheikh Habibur Rehman was the 12th descendant in the holy progeny, of the great saint Sheikh Jalaludin Mohd. Kabirul Aauliya Usmani. He died in the year 1970 leaving behind plaintiff No. 1 Mst. Bilqis Begum as the sole heir who is entitled to Sajjada Nashin and Mutwalli of the said Mazar (Wakf property) according to the terms of the wakf as well as by The customs and usages. Thus, the Mutwalliship of the Wakf is to remain in the family of the holy saint Jalaludin Mohd. Kabirul Aauliya Usmani." 12. What needs to be noticed here is that after Sheikh Jalaludin Mohd. Kabirul Aauliya Usmani, his son namely Khwaja Shibli is staled to have succeeded to the office of Sajjada Nashin and Mutwalli. However, there is not even a remote reference to the Sajjada Nashin and Mutwailis, who occupied the office one after the other by way of hereditary succession. Their names, particulars and even approximate time/date of succession is conspicuously missing in the pleadings. Likewise the appellants failed to bring on record any cogent proof supporting the alleged custom/hereditary succession. No evidence has been brought on record to show as to who created the Wakf and if any Wakf deed was executed containing the terms and conditions of the Wakf and also envisaging the mode of succession. Likewise the appellants failed to bring on record any cogent proof supporting the alleged custom/hereditary succession. No evidence has been brought on record to show as to who created the Wakf and if any Wakf deed was executed containing the terms and conditions of the Wakf and also envisaging the mode of succession. There is hardly any evidence on record, least cogent which could substantiate that the office of Sajjada Nashin and Mutwalli in the institution in question was actually held by hereditary succession and was always occupied by the soil after the death of his father. In fact, as indicated above, as per the case set out by the appellants themselves after Khawaja Shibli there is no reference or even a remote indication as to who all occupied the said office till Sheikh Habibur Rehman who is alleged to be the 12th descendant in the holy progeny, succeeded to the said office. So much so. the appellants even failed to show that Sheikh Habibur Rehman was a direct descendant of Sheikh Jalaludin Mohd. Kabirul Aauliya Usmani. This being so, and in the wake of the fact that both the courts below concurrently resolved that the appellants failed to prove the alleged custom, under no conceivable situation the appellants could be afforded the declaration prayed for and thus, as per the provisions of Section 206 (supra) it will have to be recorded that since office of Mutwalli does not recognise any right of inheritance, therefore, the claim of the appellants is wholly misconceived. 13. Even otherwise, the claim of appellant No. 1, i.e. Bilqis Begum is self- destructive and in contrast to her own pleaded case. She has neither pleaded nor proved that the custom prevalent in the institution regarding succession also admit, envisage or takes within its fold succession even by the daughter/female. Once the case set up by the appellants in concrete is that as per the custom, it was always a son who succeeded to the office by hereditary succession, then for the appellant No. 1 to stake her claim to be appointed as Sajjada Nashin and Mutwalli despite being a female or a daughter of Sheikh Habibur Rehman, she had to plead and further prove that even such mode of succession was permissible as per the custom. 14. So far as the claim of appellant Nos. 14. So far as the claim of appellant Nos. 2 and 3 is concerned, concededly they are alleged to be the maternal grandsons of Sheikh Habibur Rehman. Hence they were the direct lineal descendants of the alleged last holder of the office i.e. Sheikh Habibur Rehman-sons of his daughter., Therefore, though needless to assert, their claim is contradictory to the alleged custom pleaded by none other than the appellants themselves. 15. There is yet another aspect which completely vitiates the claim of the appellants. It is not disputed and in fact alleged by the appellants themselves that the Board has undertaken the management of the institution in question. Under the Wakf Act, 1954 the possession, management and control of all the Wakf properties rests with the Board, Concededly the Board has the power to appoint a Mutwalli considering his eligibility, suitability and ability. Once this is so, then there does not arise any indefeasible right of appointment in the appellant as Sajjada Nashin and Mutwalli. 16. Although the claim of the appellants is founded in a custom, which they had remained unsuccessful to plead and prove, yet there is another aspect which would disentitle the appellant No. 1 Bilqis Begum to stake her claim for appointment to the Office of Sajjada Nashin and Mutwalli. Section 203 of Mullas Principles of Mohammedan Law (Nineteenth Edition) warrants a reference at this stage, which read as thus:- "203. who may be appointed mutwalli:- (1) Subject to the provisions of Sub-section (2), the founder of a Wakf may appoint himself (j), or his children and descendants (m) or any other person, even a female (n), or a non-mohammedan (o), to be mutwalli of Wakf property. But where the mutwalli has to perform religious duties or spiritual functions which cannot be performed by a female, e.g. the duties of a Sajjada nashin (spiritual superior) (p) [Section 220] or khatib (one who reads sermons) or mujavar of a dargah (q), or an imam in a mosque (whose function it is to lead the congregation) (r), a female is not competent to hold the office of mutwalli, and cannot be appointed as such(s). Similarly remarks apply to non-Mohammedans. Similarly remarks apply to non-Mohammedans. The duties of a manager of a graveyard are secular and can be performed by a female (t)." 17 A bare reading of the afore-reproduced provisions suggests in no uncertain terms that even a female can be appointed to be Mutwalli of Wakf property. However, where the Mutwalli has to perform religious duties or spiritual functions, which cannot be performed by a female, for example, the duties of a Sajjada-nashin or khatib or mujavar or a dargah, or Imam in a mosque, a female is not competent to hold the office of Mutwalli and cannot be appointed as such. 18. In sequence to what has been narrated above, it may be equally pertinent to refer to the provisions of Section 220 of Mullas Principles of Mohammedan Law (Nineteenth Edition) which deals with the expression "sajjada nashin", the same read as thus:- "220. Sajjada-nashin; Khankhah.- A Sajjadanashin is a head of a Khankhah, a Mohammedan institution analogous in many respects to a math where Hindu religious instruction is given. He is the teacher of the religious doctrine and rules of life, and the manager of the institution and the administrator of its charities, and has, ordinarily speaking, a larger right in the surplus income than a mutwalli (r). But this does not mean that in every case the whole income from a Khankhah is at the disposal of the sajjadanashin. At certain shrines the members of the founders family other than the sajjadanashin are entitled to share in the surplus offerings which remain after payment of expenses(s)." 19. The work Sajjadanashin (spiritual superior) is derived from sajjada, that is, the carpet used by Mohammedans for prayer and nashin, that is sitting. The sajjadanashin takes precedence on the carpet during prayers. The office of sajjadanashin is a spiritual office, and he has certain spiritual functions to perform. A sajjadanashin, is parent (as is apparent) from the provisions of Section 220 enjoys the unique position of being a spiritual preceptor and a mutwalli. A sajjadanashin can be mutwalli as well but the converse may not be true as the office of Mutwalli is a secular office. All in all Sajjadanashin is the head of a Mohammedan institution which is analogous in many respects to a Math where Hindu religious instructions is given. He is the Editor of a religious doctrine and rules of life. 20. All in all Sajjadanashin is the head of a Mohammedan institution which is analogous in many respects to a Math where Hindu religious instructions is given. He is the Editor of a religious doctrine and rules of life. 20. An analysis of the above leads the matter to an irresistible and inescapable conclusion that the office of Sajjadanashin by its very nomenclature is religious and spiritual in nature and character. Likewise if the office of Mutwalli involves functions, duties and activities which are religious and spiritual in nature then, in view of the provisions of Section 203 (supra) a female would not be competent to be appointed to the said office. The concept of succession to the office of Mutwalli-Sajjadanashin by a female was considered by a Division Bench of Patna High Court in a case reported as Bibi Kaniz Zohra v. Saiyed Mujtaba Hussain and Anr. and the c onclusion d educed b y the Hon ble Court in the aforesaid decision read as thus:- "Under the Mohammedan Law a woman is disqualified by reason of her sex from the right to act as mutwalli of endowed property where the office involves the performance of the duties of a sajjadanashin as well, unless there is some local usage or custom to the contrary. In Mohammedan endowments the sajjadanashin and the mutwalliship are different offices. The former is a priestly, office involving the performance of spiritual and religious duties, the latter a purely secular one involving the management of the trust property. A woman is incompetent to be a sajjadanashin according to the Muhammadan Law but is not disqualified from performing the duties of a mutwalli as such. The origin of the rule that a woman is not qualified to perform the functions of a sajjadanashin is based upon the consideration that it is unseemly for a Muhammadan lady to perform duties which bring her in close and intimate association with the general public of the opposite sex. The disqualification is not confined only to those cases in which the office requires that spiritual instruction should be given by the sajjadanashin to his disciples. No woman is qualified to become a sajjadanashin whose office involves the performance of religious and spiritual duties, not only those of piri-muridi (preceptor and disciple) but those of leading the fateha and offering prayers and incense in a place of public worship. No woman is qualified to become a sajjadanashin whose office involves the performance of religious and spiritual duties, not only those of piri-muridi (preceptor and disciple) but those of leading the fateha and offering prayers and incense in a place of public worship. According to the Muhammadan Law the duties of Mutwalli who has not to perform religious duties or spiritual functions may be discharged by a proxy. But the office of sajjadanashin requires peculiar personal qualifications and the duties of this office cannot be discharged by proxy." 21. It may be material at this stage to refer to the case set up by the appellants themselves. As per the assertions set out in the plaint, Sheikh Habibur Rehman was the last Sajjadanashin and Mutwalli of the Institution in the question. He is stated to be the 12th descendant in the holy progeny of the great saint Sheikh Jalaludin Mohd. Kabirul Aauliya Usmani. Appellant No. 1 being the sole heir of Habibur Rehman claims to be entitled to be appointed as Sajjadanashin and Mutwalli of the institution in question. Even as per the written statement filed by the board one Kari Mohd. Ummar was appointed as Imam to recite the namaz etc. and to manage its petty affairs. A view of the above shows that the office of sajjadanashin and mutwalli was always held and rest in one individual and further both the offices are intricately embodied with each other. Thus the dominant feature, activities, duties and functions of the office in question being religious and spiritual, the appellant No. 1 was ineligible to stake her claim for appointment to the said office and thus no declaration as prayed for, could at all be afforded to her. 22. This needs to be asserted here that the above narration and conclusion is without prejudice to the findings as well as the conclusion recorded by both the courts that the appellants failed to prove the alleged custom on the basis whereof they sought a declaration that they were entitled to be appointed as Mutwalli and Sajjadanashin of the institution in question. 23. The reliance placed by the counsel for the appellants upon a decision reported as A.I.R. 1951 Madhya Bharat page 92, is wholly misplaced and the same does not have any bearing on the present case in the wake of the facts and circumstances involved in the present lis. 23. The reliance placed by the counsel for the appellants upon a decision reported as A.I.R. 1951 Madhya Bharat page 92, is wholly misplaced and the same does not have any bearing on the present case in the wake of the facts and circumstances involved in the present lis. In the said case the Hon ble Court was considering as to whether the female can hold office of a manager of grave-yard. Since the whole emphasis in the said decision was upon a fact that as the activity and decision involved in the said office were of a secular and sacred nature, therefore, the same could be performed even by a female in person or by proxy. A reference to paragraph 8 of the said decision cull out the ratio thereof and the same read as thus- "8. though the ground in which human remains are interred and regarded forever as sacred, the manager of a grave-yard is, however, concerned only with the temporal duties of diggings the graves, of preserving the tombs, and of arranging customary rites to be performed by the family of the deceased, if they so desire. These duties appear to be more on a level with the secular duties of Mutwalli than with the religious duties of Sajjadanasheen. In such a case there is no legal obstacle to the female sharing in the earning from the burial ground and getting their duties performed by proxy. Though there is no general rule of Mohammedan Law prohibiting a woman from managing graveyards, yet prohibition can arise by local usage or custom. The statement that such usage or custom is against the principle of Mohammedan Law appears to involve some confusion of thought. The two principal sources of Islamic Law are the Koran as containing the words of God, and the Sunna or traditions being the inspired utterances of the prophet of Arabia and precedents derived from his acts. Next in authority are Ijma, or consensus of opinion among the learned; & Oiyus, or analogical deductions from the above three. A custom or usage must not be opposed to a clear text of the Koran or the Sunna, but it can override any rule of laws based on analogical deductions. The custom or usage of excluding females in certain localities or families is not opposed to any text of the Koran or the Sunna and can be allowed. A custom or usage must not be opposed to a clear text of the Koran or the Sunna, but it can override any rule of laws based on analogical deductions. The custom or usage of excluding females in certain localities or families is not opposed to any text of the Koran or the Sunna and can be allowed. By special family customs, females have actually been excluded from inheritance, Lakhamal v. Mulah, 21 P.R. 1875 and amongst Mohammedans in the Punjab succession is held generally to run in the male line Meeran Buksh v. Peeroo, 29 P.R. 1868. I am quite clear in my mind that the learned Dist. Judge was wrong in holding that exclusion of females from the management and the earning of the burial ground was against the principles of Mohammedan Law. Of course, in all such cases where exclusion of females is recognised as a custom some caution is to be observed by the Cts." 24. The net result of the above discussions is that a female Muslim can be appointed to a Mutwalli of Wakf property. However, where the Mutwalli has to perform religious duties or spiritual functions then the female is not competent to hold the office of Mutwalli and cannot be appointed as such. It is further held that as per Mohammadan Law a female Muslim is not qualified to perform the functions of a Sajjada Nashin as her duties would bring her in close association with the members of the opposite sex. Moreover, this office is a priestly office involving the performance of spiritual and religious duties. 25. Another aspect which gains considerable significance vis-a-vis the claim of appellant No. 1 is that at the time when she appeared as a witness (PW-2) in support of her own case in 1982, her age was stated to be 70 years. Needless to assert that she would be 92 years today. Not only this, concededly the appellants, as evident from the array of parties itself, are resident of Hakim Illyass Mian, Raj Dwara, Rampur (Uttar Pradesh). It is also emerged in the cross-examination of Bilqis Begum that she is currently residing in Rampur in Uttar Pradesh. She has also deposed that it was in the year 1947 she had shifted to Rampur. It is also emerged in the cross-examination of Bilqis Begum that she is currently residing in Rampur in Uttar Pradesh. She has also deposed that it was in the year 1947 she had shifted to Rampur. This needs to be pointed out here that the institution in question i.e. Sheikh Jalaludin Mohanmad Kabirul Aauliya Usmani is situated at Panipat (Haryana). In these circumstances the claim of appellant No. 1 even otherwise pales into insignificance. In view of the above, the appeal is dismissed.