TMI Blog1946 (7) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. The background of historical fact can be conveniently taken from the careful judgment of the Judicial Commissioner. From this it appears that the Durgah Khawaja Sahib Ajmer, sometimes called the Durgah Moinuddin Chisti, is universally admitted to be one of the most famous, if not the most famous Mohammedan shrine in India. The foundation is not only very ancient, but the shrine is also of considerable historical interest owing to its close association with several of the famous Moghul Emperors. The Saint Moinuddin Chisti died in the year 1233 A. D. He was born in Persia in 1143 and migrated later with his father to Nisharpur near Meshad where Omar Khayyam is buried. He went to Ajmer about the end of the 12th century and died there at the ago of 90. His family remained in Ajmer, with a short interval during which they were driven out, until in 1567 the tomb was rebuilt and re-endowed by the Emperor Akbar the Great who reigned from 1556-1605. The first Farman of Akbar in connection with the shrine is dated 1567 and throughout their history the Moghuls were closely connected with it, the Emperor Jehangir (1605-1627) once spending three consecutive years at Ajmer. The endowment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice of Mutawalli had become hereditary in his family or indeed that any of his ancestors had held that office. But he claims that thereafter in course of time by virtue of certain Farmans and Sanads, if not also by custom, the office became hereditary in his family. Their Lordships have failed to find any justification for the suggestion that the office can have become hereditary by custom. It is upon the Farmans and Sanads that the appellant must rely. 4. It is necessary by way of preface to an examination of these documents to remember that for more than 150 years the question which their Lordships have now to decide has been the subject of dispute in India. The first of the documents relied on by the appellant purports to be a Farman of the Emperor Mohammad Shah who reigned from 1719 to 1748 A.D. The Far-man appears to have been issued on a date corresponding to 1759 in the Christian era, a fact suspicious in itself, and by it the office of Mutawalli of the two tombs of Hazrat, situated in Ajmer, was entrusted to one, Sayed Mohammed Umar, who was therein-after referred to as the permanent Mutawalli. Sayed Mohammed Umar is claimed by the appellant to be the elder brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard any information so obtained and must examine the question upon the basis of the facts which were properly proved or admitted. Upon this basis they see no valid reason for rejecting the Sanad of 1813 to which they now refer. So much importance was attached to it by counsel for the appellant that certain parts of it may be set Out. It opens thus: Mir Aziz Ali son of Mir Azimullah greetings from Daulat Rao Sindhia. Be it known in 1214 A.H. Sc. 1813 A.D.] that to the Mutwalliship of the Durgah Hazrat Khwaja Sahib in Ajmer Mir Azimullah and his ancestors, have been , appointed, therefore in view of this the office of the Mutwalli is now given to you, i.e., Mir Aziz Ali son of Mir Azimullah and after prescribing his duties, ends thus: The office of the Mutwalli which has been held by your ancestors in the past will not be held by you from father to son, generation to generation. 7. This Sanad was granted by the ruling House of Sindia to Aziz Ali. If that House had remained the sovereign power in Ajmer, if Aziz Ali was in fact the Mutawalli in 1813 and if he so remained until his death and the office then descended to his son, the appellant's case would be a powerful o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment and removal vests in the Hakim (Government Officer) . Whether this is regarded as a judicial or executive act, it is wholly inconsistent with the recognition of hereditary right. But Azimullah was for the time being allowed to remain in office though his position in relation to his son Aziz Ali, to whom the grant of 1813 had been made, remains uncertain. 9. In 1827 a second event Hook place which has a direct bearing on the fundamental point of recognition. In that year the Emperor Akbar Shah II issued a Shugga or royal letter, in which he recited that the appointment and dismissal of the Manager had been done by us , that the management had been bad and that Aziz Ali Mutwalli who was appointed to that office by us had misappropriated most of the money. He then directed the removal of Aziz Ali and the appointment of Mirza Mohammed Timur Shah (the Emperor's grandson) as Mutawalli with Diwan Mehdi Ali Khan as his Naib or Deputy. Upon receipt of this Shugga, the British Superintendent at Ajmer, Mr. Henry Middle-ton, issued an order in which he stated that in matters of the Durgah like these Government servants have not been authorised or appointed to interfere an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... British Government. From 1834 to 1838 there was no regular Mutawalli, the administration of the Durgah being carried on by the Government, a task burdensome to itself and at variance with its consistent policy. In 1838 therefore the Government appointed Najaf Hussain to be Mutawalli at a salary of Rs. 150 per month. Mean-while Azimullah who had survived his son did not remain inactive and eventually in 1842 the then Commissioner, Colonel Sutherland, directed that he should be reinstated. This purely executive act was done by him in pursuance of a notification from the Governor of the N.W. Province that he considered that he (the Commissioner) had full powers to provide for the future management of the Durgah at Ajmer in any way he considered best consistent with the views of the Honourable Court contained in a certain dispatch. This referred to the reiterated declaration of policy to withdraw from interference with the religious ceremonies of the natives of India and to relinquish the revenue derived from their temples and other places of religious resort. 12. Thus Azimullah was restored to his office and it was fatally easy for him to assume contrary to the fact, that his resto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intment of committees who should exercise the powers therein mentioned. 13. It became necessary then to have an authoritative report upon the Durgah and the Sudder Board of Revenue was required to investigate and report. In March, 1866, that Board reported. They set out the history of the matter at some length and at paragraph 20 said: It appears to the Board that the case of the Durgah of Moinuddin Chisti is precisely one of those to which this section [Sc. S. 3] applies, for even admitting that the office of Diwan or religious head is hereditary there seems no doubt that of Mutawalli or secular manager is not so and moreover that while the nomination to this office did formerly always appertain to the ruling power there is no private person who is now competent or entitled to make sufficient provision for the succession to the management, and therefore under S. 3 of the Act XX of 1863 it now becomes incumbent on the Local Government to supply this defect and to pro-vide for the future succession to this important post. 14. Acting on this report the Local Government on 1-6-1867, issued a Notification under S. 7 of the Act appointing the first Durgah Committee. It might we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, framed two issues of which the first was Is the office of Mutawalli of a hereditary nature or not? and decided that issue by saying that the appointment is a hereditary one, the notification under S. 3 of the Act XX of 1863 notwithstanding. Having done so, he nevertheless, considering Amir Ali not a fit person to remain in charge of the office, directed his removal therefrom, but, since he considered that his position, as Mutawalli was hereditary and that he could by care, study and application render himself fit for the discharge of his duties, he further directed that if at any time he satisfied the civil Court of his fitness for the office he might be reinstated in his ancestral position, and in the mean-time he directed the appointment of a Naib Mutawalli. 16. From the judgment of Mr. Lasalle both parties appealed to the Commissioner, who, while upholding the view that the Lower Court has cited sufficient evidence to warrant the finding that this office is (subject to the fitness of the incumbent) hereditary varied the decision by postponing the time for appointing a Naib Mutawalli for two years from that date, and directing that if within that time certain arrears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion granted against Nisar Ahmed. They claimed to be the only competent authority under the Act of 1863 to nominate or appoint a Mutawalli, This suit abated under circumstances which need not be examined, and in 1921 the then Commissioner, Colonel Patterson, wrote to the President of the Committee saying that Nisar Ahmed was entitled to be recognised as Mutawalli and requesting him to make over the management to him. With this request the President complied. 18. On 1-12-1940, Nisar Ahmed died. He had acted as Mutawalli since 1921. In the meantime, on 19-4-1937, an Act came into force, NO. XXIII of 1936, of which the purpose was to make better provision for the administration of the Durgah. Certain amendments wore made by an Act, No. XII of 1938, and the Act as amended provided (by s. 4) that the administration and control of the Durgah Endowment should be vested in a Committee constituted in the manner thereinafter provided and that the Committee should by the name of. The Durgah Committee Ajmer be a body corporate and should have perpetual-succession and a common seal and should by the said name sue and be sued through its President, (by S. 5) that the Committee should consist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an hereditary or any other grant made before the cession of 1818. Upon their plea of res judicata it is still necessary to say something. 20. Their Lordships would first say that in their opinion this plea cannot be rejected on the ground that the judgments of Mr. Lasalle in the 1880 suit or of the Commissioner on appeal in that suit were obtained by fraud or on the ground that Mr. Lasalle was not competent to try that suit. Upon the latter point the presumption that since he might have been given jurisdiction, he was in fact given it is overwhelming and on the former point the evidence falls far short of what is requisite. But it appears to their Lordships that on two other grounds the plea must be rejected. In the first place, as has already been pointed out, in that suit the issue raised by the plaintiffs was as to the competence of the defendant to remain in office, an issue to which it was irrelevant whether he had a hereditary right. For, whether he had or not, he could be removed. It is true that at his instance the question of (hereditary right was brought into issue, land was indeed decided in his favour, but [it was incidental to and not the substance of the suit, and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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