TMI Blog2008 (5) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... ol Sahib belonged to Sunni Sect of Islam. Imamuddin Sahib of his spiritual attainments, 7 bighas of land at Moti Katla, Jaipur was given to him by the then Ruler of the State of Jaipur for the purpose of maintenance of a garden. He, however, acquired lands out of his own funds. It comprised of Khasra Nos. 497 to 503 admeasuring 8 bighas 2 biswas. Indisputably, on the said land, there are prayer rooms, Dargah, Mosque, garden, graveyard, shops, houses, lodge, etc. On the demise of Hajrat Ziauddin Sahib, which took place in the year 1810 his Mazar(tomb) was treated as a sacred place. It attained the status of a Dargah. One Gulam Rasul Sahib was the first Sajjadanashin and Mutawalli of the Dargah. He was son of his sister. In the year 1860, Sayed Immauddin Sahib succeeded to the said office followed by Syed Mohiuddin Sahib. A matmi proceeding was initiated for 12 bighas and 12 biswas of land. It was found that late Ziauddin Sahib was not in possession of 7 bighas of land. The land upon which Dargah, Kabristan, etc. were situated were not the subject matter of the State grant and, therefore, not subject to matmi. 5. Syed Mohiuddin Sahib was convicted by a criminal court. The `Sajj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1954, was dismissed on 20.11.1958. The said proceeding attained finality. 10. Allegedly, on the death of Syed Saidduddin Sahib, who became Sajjadanashin on the demise of Aminuddin, Faqruddin became Sajjadanashin according to custom. He continued to hold the office of Mutawalli also. A notification was issued under Section 5 of the Wakf Act, 1954 on 9.12.1965 declaring the properties to be Wakf Properties. 11. Another suit was filed by Tajuddin on 3.12.1966 against the State Government claiming himself to be the Sajjadanashin. He also claimed some amount on account of expenses for `Chirag Bati' and also the value of 42 Gold Mohars. Faqruddin was impleaded as a party. The said suit was withdrawn by Tajuddin. 12. Another round of litigation started in the year 1974. A `matmi' proceeding was initiated in terms of the provisions of the Jaipur Matmi Rules (for short Matmi Rules ). Plaintiff's name was directed to be mutated by the Board of Revenue by an order dated 1.02.1974. The Board of Revenue, however, observed: ...The only son of Aminuddin named Tajuddin is alive and he has some how (sic) been deprived of the office of Sajjadanashin so far, but as indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: After Kamaluddin, Fakhru Miyan, defendant No. 1 became the Mutwalli. My father never objected on Fakhrumiya's working as Mutawalli. My father expired in 1944, Fakhrumiya is Mutawalli till date After the death of Kamaluddin, Fakhrumiya is performing the work of Mutawalli since 1938 but with the written permission of Matmidar. Tehrir has been made by Miya Kamaluddin Matmidar. Kamaluddin sahib had executed the Will, which is available in the file. In this manner, plaintiff himself has admitted in his cross-examination that on the basis of Will of Late Kamluddin, defendant No. 1 had become the Mutawalli. Issue No. 1 was determined as under: As per above discussion, I reach on the conclusion that defendant No. 1 (one) has successfully proved that he is the Mutawalli of Dargah Hajrat Maulana Jiauddin since 1938 and Sajjadanashin since 1958. therefore, this issue is decided in favour of defendant No. 1. The issue of res judicata was also determined against the plaintiff. The suit was held to be not maintainable. 15. It is stated that pending appeal another suit was filed by Tajuddin. However, we are not concerned therewith. 16. A First Appeal was prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for in the suit could be granted. (iv) By the judgment and decree dated 7.09.1953, the civil Suit No. 7 of 1946 having been dismissed, Tajuddin could not have started another round of litigation on the plea that he had become Sajjadanashin, which was barred under the principle of res judicata. (v) Any observation made by the Board of Revenue would not confer a jurisdiction upon the civil Court, if the same was otherwise barred. (vi) By reason of the order passed by the Board of Revenue conferring the status of matmidar on the respondent, he did not derive any title as a `matmidar' cannot become a Sajjadanashin or Mutawalli, the office being not heritable ones. (vii) As a State grant, in any event, is inheritable, the purported rule of primogeniture contemplated in terms of the Matmi Rules has no application, particularly, in view of the fact that under the Mohammedan Law, the rule of primogeniture cannot regulate succession and the office of Sajjadanashin involves personal qualification. 19. Mr. R.N. Mathur, learned Counsel appearing on behalf of the respondent No. 1, on the other hand, would submit: (a) 7 bighas of land being the subject matter of State gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955, (Raj. Act 18 of 1955) and any other law relating to jagirs or jagirdars. 21. The said Rules, however, have a prospective effect. It merely declares the Rules to have always the force of law. The effect thereof, however, must be considered having regard to the other laws in force. We, would, therefore, proceed on the basis that the Matmi Rules had the force of law. It, however, applies only to `State grant'. `State grant' has been defined in Sub-rule (1) of Rule 4 to mean a grant of an interest in land made or recognized by the Ruler of the Jaipur State and includes a jagir, muamla, suba, istimrar, chakoti, badh, bhom, inam, tankha, udak, milak, aloofa, khangi, bhog or other charitable or religious grant, a site granted free of premium for a residence or a garden, or other grant of a similar nature . The term Matmi has been defined in Sub-rule (3) thereof to mean mutation of the name of the successor to a State grant on the death of the last holder . Sub-rule (4) of Rule 5, however, makes an exception in regard to the applicability of the Matmi Rules in respect of land free of premium as `waqf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25th October, 1943, the remainder of the grant shall be resumed. Example : (1) A, a tankhadar, in whose name matmi of a tan of Rs.2,000/- on six months qarar was sanctioned prior to the 25th October, 1943, dies in January, 1943 leaving three sons, B, C and D. B being the eldest son, matmi will be sanctioned in B's favour in respect of a tan of Rs. 1,000/- on six months qarar and the remaining tan of Rs. 1,000/- be resumed. (2) X, a tankhadar, in whose name matmi of a tan of Rs. 1,000/- on six months' qarar was sanctioned prior to the 25th October, 1943, dies in March, 1943, leaving Y and Z sons of his only son Q, who predeceased X. Matmi will be sanctioned in Y's name in respect of a tan of Rs. 250/- only and the remaining tan of Rs. 750/- will be resumed. 14. (1) Subject to the provisions of Rule 13, succession in the absence of a direct male lineal descendant of the last holder shall be restricted to the lineal male descendants of the original grantee, preference being given to the senior member of the senior line: Provided, firstly, that in the case of a grant for the maintenance of a temple, mosque or other religious place, other than a Jain temple, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was allowed by this Court vide order dated 20.2.1998. The order dated 1.2.1974 passed by the Revenue Board is a statutory order by the statutory authority under the statute and this was the separate and fresh cause of action for filing the present suit.... 25. The High Court, on the premise that there exists a codified law for declaration of succession for the last holder, opined: ...Even if there is any custom for appointment on the post of Sajjadanashin then the same cannot be contrary to prevailing statute and codified law will prevail over the custom. The gifted property by the ruler has to be managed by successor according to law. There cannot be two different persons, one as successor and another as Sajjadanashin. Otherwise property in dispute cannot be managed properly. Any person who is declared as successor and in whose favour Matmi is sanctioned by competent authority under the statute is entitled to hold the posts of Sajjadanashin as well as Mutawalli also. 26. The law of inheritance amongst the Mohammedans is governed by their personal laws. If the properties are wakf properties, the offices of Sajjadanashin and Mutawalli are to be filled up in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the effect of the said Rules. 31. Matmi , however, in terms of the Matmi Rules, as noticed hereinbefore, would mean mutation of the name of the successor to a State grant on the death of the last holder. The question is as to whether Tajuddin (since deceased) and his predecessor and successor-in-interest had in fact been appointed as Sajjadanashin or Mutawalli. We may, however, notice a decision of the Patna High Court in Shah Najihuddin Ahmad v. Amir Hasan Khan and Ors. AIR 1934 Patna 443, (which makes an interesting reading) wherein it was held: The learned advocate points out that succession to the office has not been strictly hereditary in the past and that Mahomedan law is strongly against attaching any right of inheritance to a public endowment or office. The office of a Sajjadanashin however stands on a special footing: He is not only a Muttawali but also a spiritual preceptor, and in him is supposed to continue the spiritual line (silsilal). This supposed continuity of the spiritual tradition must obviously be taken into account and, speaking generally, is much more likely to be secured by the selection of a properly qualified descendant of the fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sufi; but he does regard them as serving to lead to realities and considers Islam as among those which are more advantageous for this purpose than others (see Hughes' Dictionary of Islam, 1885, sub nominee Sufi). The institution with which we are dealing is moreover in the main a Sunni institution, and there is no reason why the Sajjadanashin of such an institution should be at liberty to give offence to the Sunni community by attending nauch parties (and worse) of flouting prayers and refraining from spiritual exercises as the late Sajjadanashin is found to have done. 32. It is also of some significance to notice that in a book titled `Muslim Law as administered in India Pakistan' by Shri K.P. Saksena, it is stated as under: ...A sajjadanashin maintains unbroken the spiritual line from the original preceptor, by virtue of his directions or by a valid custom. When the previous sajjadanashins were usually eldest sons, the law of primogeniture cannot be presumed to govern the succession from this circumstance, as it is contrary to Muslim Law, and specially as this office involves personal qualifications. The mere fact of owning an ancestral tomb and earning one's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was barred under the principles of res judicata, Section 12 of the Code of civil Procedure bars filing of another suit. [See Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and Anr. civil Appeal No. 3495 of 2008, decided on 12.05.2008] 36. The High Court might have been correct had the plaintiff - respondent would have obtained title by reason of a separate transaction. The entry of the revenue records did not give rise to a fresh cause of action so as to take away the effect of principles of res judicata. [See Anwar Khan Mehboob Co. v. State of Madhya Pradesh and Ors. [1966] 2 SCR 40]. If the order of the Board of Revenue is taken to its logical conclusion, as has been contended by Mr. Mathur, the same would be rendered wholly illegal and without jurisdiction. It would be a nullity. 37. Submission of Mr. Mathur that the respondents are estopped and precluded from questioning the jurisdiction of the Board of Revenue is equally without any merit. If the Board of Revenue had no jurisdiction to decide the question of title, its decision being without jurisdiction would be a nullity. [See Chief Justice of Andhra Pradesh and Anr. v. L.V.A. Dikshitulu and Ors. [1979] 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot Wakf lands but `Wakf Aulad'. Indisputably, however, both Wakf land as also the land in question are under the management of Mutawalli. He, apart from the Wakf land, holds the land in suit on behalf of the beneficiaries. The present appellants are also beneficiaries of the Wakf. If the right to recover possession must vest in a Mutawalli and if by reason of his status of `Matmi', Tajuddin did not become a Mutawalli, which declaration in his favour must be held to have been legally made by the High Court, the respondents relying on or on the basis of the purported Wills executed in their favour cannot claim independent right to recover possession. 41. In K.P. Saksena's Muslim Law as administered in India Pakistan, at page 572, it is stated: A worshipper can enforce his individual right in connection with a mosque, but he cannot sue for the recovery of an unauthorized alienation of waqf property; the Mutawalli alone can have the right to institute a suit for its recovery. A mutawalli can maintain a suit for recovery of possession of the waqf property against a trespasser, although it does not vest in him. A representative suit by two worshippers to set aside an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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