ION Civil Appeal No 779 of 1980 etc From the Judgment and Order dated 731980 of the Rajasthan High Court in DB Civil Spl
Appln
No 131 of 1974
ST Desai TS Krishnamurthi Iyer FS Nariman Mr BP Beri SS Hussain MN Tandon Mrs M Qamaruddin BD Sharma Qamaruddin RS Yadav H section Parihar B Kanta Rao Ms Sarda Devi Shakeel Ahmed Syed Ali Ahmad Tanweer Ahmad Mrs Jayshree Ahmad and Mohan Pandey for the appearing parties
The Judgment of the Court was delivered by 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 Saheb
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 AD Eversince then his tomb has had been the centre of attraction for the people of all faiths
For Muslims in particular It is admitted to be one of the most famous if not the most famous Mohammedan Shrine in India
 There are two important offices in the Shrine i Sajadanashin 56 the spiritual head and ii Mutwalli the secular head
The hereditary descendants of the Saint often laid claim to these two offices
The disputes as to the latter was taken even upto the Privy Council
In Asrar Ahmed vs 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 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 Ilamuddin
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 Ilamuddin instituted Civil Suit No 2111948 for declaration of his right to succeed to the said office
The suit was instituted on May 18 1948
Civil Appeal No 779 of 1980 by certificate arises out of the above said suit
The suit had a chequered carreer
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 Section 119 of the Ajmer Land 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
Interrupting the narration we have to refer to some other 57 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 of the Government
Accepting the report the Government of India brought forward a legislation called the Durgah Khawaja Saheb Act 1955 Act No 36 of 1955 which we may term it as the DKS Act
As required under that Act the Durgah Committee was constituted for the administrative control and management of Durgah endowments
The said Committee filed an application in the aforesaid suit to be impleaded as a party thereto
On September 30 1964 the trial court allowed that application
The Durgah Committee was thus impleaded as party defendant in the suit
The Durgah Committee resisted the suit inter alia contending that the suit had become infructuous and should be dismissed as such
It would be the responsibility of the Durgah Committee to make interim or permanent arrangement for the office of Sajadanashin
That power is derived under Section 13 and 21 of the DKS Act
The Durgah Committee also said that after the death of Hakim Inayat Hussain his son Syed Saulet Hussain was appointed as interim Sajadanashin
The trial court overruled the objections raised by the Durgah Committee
Then followed the dispute as to valuation of the suit and the court fees paid thereon
That dispute was taken upto the High Court where by consent of parties the valuation was agreed upon
The plaintiff amended the plaint revising the valuation to Rs 11000
Consequently the suit was withdrawn from the Munsiff Court and brought before the Court of Civil Judge Ajmer
The suit was resisted by Hakim Inayat Hussain on the ground among others that the plaintiff has no legitimate right to succeed to the office of Sajadanashin
He was not the nearest male heir to Syed Rasool Ali Khan
The right to appoint Sajadanashin by established usage custom and tradition vests exclusively in the local representa 58 tive of the Government of the day
The Court of law has no power to interfere with such appointment in any way whatsoever
On December 14 1970 the trial court non suited the plaintiff on the merits of the matter
The plaintiff took up the matter before the High Court
The learned single judge of the High Court accepted the appeal and reversed the judgment of the trial court
He gave a declaration to the plaintiff that he was the nearest male heir to the last office holder and therefore entitled to succeed as Sajadanashin
He however observed that the plaintiff has failed to prove that he was qualified to occupy the office of Sajadanashin
He left the question of qualification for determination by the Governor of Rajasthan who is the competent authority under the DKS Act to appoint Sajadanashin
The judgment of learned single judge was rendered on August 9 1974
Challenging that judgment the defendant preferred Special Appeal before a Division Bench of the High Court under Section 18 of the Rajasthan High Court Ordinance
Pursuant to the observations in the judgment of learned single judge the Governor of Rajasthan examined the qualifications of the plaintiff
The Governor was apparently satisfied with his qualifications and approved his appointment as Sajadanashin
The Government notification dated July 7 1975 was issued recognising the plaintiff as such
On October 23 1975 the plaintiff died
His son Syed Zainul Abedin Ali Khan was brought on record in the pending Special Appeal before the Division Bench of the High Court
On March 7 1980 Division Bench dismissed the Special Appeal affirming the judgment of learned single judge
Following that judgment the Government again issued a communication dated January 24 1981 recognising Syed Zainul Abedin Khan as Sajadanashin
The litigation has thus descended on the second generation
The sons of the original parties to the suit continued the litigation
Syed Saulat Hussain challenging the judgment of Division Bench of the High Court preferred Civil Appeal No 779 of 1980 with which we are now concerned
SLP 879480 and SLP 2921980 These two petitions arise out of the order of the High Court in Civil Reference No 2 of 1978
It was a reference made by the Durgah 59 Committee under Sub Section 3 of Section 13 of the DKS Act
The events leading to the reference are these We have earlier noticed that the plaintiff Syed Illamuddin died on October 23 1975
Thereafter his son Syed Zainul Abedin Ali Khan appears to have approached the Durgah Committee for recongnition as Sajadanashin
Durgah Committee did not accede to his request
It decided to invite applications from persons who want to be appointed as Sajadanashin
A public notice was accordingly issued under Sub Section 1 of Section 13 of the DKS Act
In response to the said notice as many as eleven applications were received by the Durgah Committee
Those applicants were not related to the plaintiff or to the last office holder
The Durgah Committee however forwarded those applications to the Governor for making a reference to the High Court for decision
But the Governor did not make a reference to the High Court
He took a firm decision that Syed Zainul Abedin Ali Khan being the son of the last office holder that is the plaintiff was alone entitled to succeed to the office of Sajadanashin and other applicants had no right to the said office
So stating the Governor conveyed his decision to Durgah Committee
The Durgah Committee after much deliberations over the matter preferred to disagree with the Governor
It referred all the applications to the High Court for determination of rival claims of the candidates
The High Court took up the reference for disposal after the dismissal of the aforesaid special appeal
The task of the High Court then became easier since there was little choice in the matter
Accepting the view taken in the Special Appeal the High Court rejected the reference as not maintainable
The High Court made that order on July 4 1980
The Durgah Committee and one of the applicants for the office have preferred the said two Special Leave Petitions for appeal to this Court
We may first consider the contention urged by Mr Krishnamurthy Iyer learned counsel for Durgah Committee
He urged that the decision of the High Court as to succession to the office of Sajadanashin was based on the concession made by parties and is therefore not binding on the Durgah Committee
Counsel next contended that in view of Sections 13 and 21 of the DKS Act the Durgah Committee has power to appoint a proper person as Sajadanashin
It is not bound to follow the customary rules of succession to the office
The selection of a suitable person need not be made only among the heirs of the last office holder
The selection could be made from the public as well to better serve the devotees
60 We do not think that we could accept these contentions
The Durgah Committee was a party to the suit
There the plaintiff and defendant in the first place admitted that the office of Sajadanashin is a hereditary office
Secondly they proceeded with a common contention that the succession to the office is governed by the rule of primogeniture
The counsel for the Durgah Committee did not dispute this aspect either in the trial court or before the High Court
Nor suggested any other mode of succession to the office
This is what the learned Single Judge of the High Court observed The counsel for the legal representatives of Hakim Inayat Hussain admitted that the office of the Sajadanashin attached to the Durgah is a hereditary office
The learned counsel for the Durgah Committee did not argue on this point
Issue No 1 was therefore decided in favour of the plaintiff
Issue No 3 was not pressed by the parties
Dealing with issue Nos 2 and 3 the learned Civil Judge observed that it was admitted that succession to the office of the Sajadanashin was governed by the Rule of primogeniture xxx xxx xxx xxx xxx xxx I now turn to the merits of the case
It may be mentioned at the outset that it is not disputed before me that the office of Sajadanashin or Dewan attached to the Durgah is a here ditary office and successor to that office is governed by the rule of primogeniture
It is further not in dispute that the last Sajadanashin Syed Aley Rasool Ali Khan was in the line of Syed Abdul Fateh and the plaintiff is in the line of Syed Abdul Fateh s brother Hisammuddin Apart from that it was never in dispute in the long history of the shrine about the nature of the office and the rule of succession
Lord Simonds while tracing the history of the shrine in Asrar Ahmed case supra said It is not disputed that for many years from 1567 onwards that is from the Farman of Akbar the Great with certain intervals the hereditary descendant of the Saint variously called the Sajadanashin or later Dewan combined in his own person the two leading offices of the Shrine that of Sajadanashin or spiritual head and Mutwalli or secular 61 head and manager
These alternative expressions are used to convey as nearly as possible the meaning of the original words
Nor is it disputed that in the reign of the Emperor Shah Jehan 1627 1658 the post of Mutwalli was separated from that of Sajadanashin and had become a Government appointment whereas the Sajadanashin remained and continued to be a hereditary descendant of the Saint
 These observations have been approved by the Supreme Court in The Durgah Committee Ajmer  Anr
vs Syed Hussain Ali  Ors  It is clear therefore that the nature of the office and the rule of succession to it always remained undisputed
It was occupied by a hereditary descendant of the Saint
That was perhaps the reason for not asking the High Power Committee constituted by the Government of India in 1948 to inquire into it
The said Committee was constituted only to enquire into the mal administration of the Durgah and suggest remedies in the interests of devotees
The question of succession to the office of Sajadanashin was expressly kept outside its purview
It would be evident if one peruses the terms of reference made to the High Power Committee
The Government of India had also recognised that Sajadanashin has always been a descendant of the Saint and that position should not be disturbed
This has been reflected from the speech of the Home Minister in the Parliament while piloting the Khawaja Saheb Bill which later became the DKS Act
This is what the Home Minister stated Lok Sabha Debate Pt
II Vol
V 25th July 13 Aug 1985 p 9391
So far as Sajadanashin is concerned he is a religious office
He is the descendant of the Khawaja Sahib and therefore his position should be kept as it is and that position is not affected at all
Because he deals with the rituals he deals with the spiritual side of management and so far as that is concerned it is entirely left to him Against this background it was not illogical or improper for parties to the suit to proceed on the basis that the hereditary office of Sajadanashin is entitled to be claimed by descendants of the Saint by the rule of primogeniture
They have stated the obvious which appears to have been recognised over the generations
If there was no such rule 62 or principle the Durgah Committee ought to have stated so
Or it could have stated that it was not bound to follow the customary rule of succession
It could have asserted its right to make a choice of its own
It did not state anything of the kind in the Courts below
It maintained a golden rule of silence
It is therefore now not open to the Durgah Committee to contend before us that it is not bound by the decision of the Courts
The Durgah Committee is as much a party to the suit as others
It is as much bound by the decision as others
It is immaterial for our purpose whether the decision has been reached by concession of parties or by determination of the dispute
This takes us to the second contention urged by Shri Krishnamurthy Iyer
He urged that Sections 13 and 21 of the DKS Act confer power on the Durgah Committee to appoint a suitable person as Sajadanashin
We do not think that that there is anything in the said sections to support the contention urged by the learned counsel
Section 13 provides Succession to the office of Sajadanashin 131 As soon as the office of the Sajadanashin falls vacant the Committee shall with the previous approval of the Chief Commissioner make such interim arrangements for the performance of the functions of the Sajadanashin as it may think fit and immediately thereafter publish a notice in such form and manner as may be determined by the Committee inviting applications within one month of such publication from persons claiming to succeed to that office
2 Where only one person claims to succeed to the office of the Sajadanashin and the Committee is satisfied as to his right to succeed it shall with the previous approval of the Chief Commissioner pass an order in writing according recognition as Sajadanashin to such person
3 Where more persons than one claim to succeed to the office of the Sajadanashin the Committee shall after consultation with the Chief Commissioner refer the dispute to the Judicial Commissioner of Ajmer for a decision regarding the claim to succeed to that office and the Judicial Commissioner after taking such evidence as he considers necessary and after giving an opportunity to the claimants to be heard in respect of their claims shall communicate his decision to the Committee
63 4 The Committee on the receipt of the decision shall with the previous approval of the Chief Commissioner pass an order in writing in accordance with such decision declaring the person found entitled to succeed to the office of the Sajadanashin and according recognition as Sajadanashin to such person
5 An order passed by the Committee under sub section 2 or Sub Section 4 shall be final and shall not be questioned in any Court
 Section 21 reads Transitional provisions 21
The person holding the office of Sajadanashin immediately before the commencement of his act shall on and from such commencement continue to hold that office subject to other provisions of this Act and to the final decision in the suit relating to that office which is pending on such commencement and to which the said person is a party
 Section 21 was intended to provide transitional arrangement to hold the office of Sajadanashin
It enables the Sajadanashin who was holding the office immediately before the commencement of the DKS Act to continue to hold that office
His right however was made subject to other provisions of the Act and to the final decision of the suit relating to that office
The suit referred to under Section 21 must be the suit out of which the present appeal arises
It was pending on the date of coming into force of the DKS Act
Hakim Inayat Hussain who was then acting as Sajadanashin was the defendant in the suit
His continuance or otherwise was expressly made subject to the decision in the suit
Durgah Committee being also a party is no less bound by the decision therein
Section 13 of the DKS Act does not confer unlimited or absolute power to Durgah Committee
Sub Section 1 of Section 13 comes into operation when the office of Sajadanashin falls vacant
It enables the Durgah Committee to make interim arrangement for the performance of functions of Sajadanashin pending recognising the legitimate successor to the office
It must therefore invite applications from persons claiming to succeed to that office
If there is only one person to succeed to the office the Committee shall with the previous approval of the Governor recognise him as Sajadanashin
That is the mandate of Sub Section 2 of Section 13
If there are more persons than one claiming to succeed to the office the Durgah Com 64 mittee shall follow the procedure provided under Sub Section 3 of Section 13
The Committee after consultation with the Governor must refer the applications to the High Court for decision
On receipt of the decision of the High Court and with the previous approval of the Governor the Durgah Committee under Sub Section 4 shall accord recognition as Sajadanashin to the person found entitled to succeed to the office
The scope of provisions of Section 13 appears to be limited
The Durgah Committee is only entitled to accord recognition as Sajadanashin to the person legitimately entitled to succeed to the office
The Durgah Committee cannot enlarge the scope of this power to invite applications from the public and select any person for appointment as Sajadanashin
The power conferred under Section 13 is only to locate the legitimate heir to the office by the accepted rule of succession and recognise him as Sajadanashin and not beyond that
This takes us to the contention urged by Shir ST Desai learned counsel for the appellant in CA No 779 of 1980
He urged that plaintiff cannot be considered as the nearest male heir to the last holder of the office
According to the counsel there are two other persons Bashiruddin PW 2 and Abdul Aziz PW 3 who were nearer to the last holder of the office than the plaintiff
Suffice it to state that it has not escaped the attention of the High Court
The claim of these two persons were also examined
The High Court has observed that Bashiruddin has himself stated that he did not consider himself nearest to the last office holder
It was further stated that he died issueless during the pendency of the suit
So far as Abdul Aziz is concerned the position is no better
He was illiterate and did not want to become Sajadanashin
He appears to have relinquished his right in favour of the plaintiff
It is said that he also died during the pendency of the suit leaving behind none to succeed
In the circumstances it cannot be said that the plaintiff is not the legitimate person to succeed as Sajadanashin
In the result the appeal and Special Leave Petitions fail and are dismissed with costs
NPV Appeal and Petitions dismissed


Summary:
In the Durgah Khawaja Saheb Ajmer there were two important offices Sajadanashin and Mutwalli
Consequent upon the migration of the last office holder of the office of Sajadanashin to Pakistan in 1947 the Chief Commissioner of Ajmer appointed the appellant s father as Sajadanashin in April 1948
This was challenged by the respondent plaintiff in a suit claiming that succession to the office was governed by the rule of primogeniture that he was the rightful person to hold it and that the appellant s father had no such right or title
The suit was dismissed by the trial court as not maintainable in view of the bar imposed by section 119 of the Ajmer Land Revenue Regulations
On appeal the District Judge held that the suit was maintainable
In second appeal by the defendant the Judicial Commissioner upheld the view taken by the trial court and dismissed the suit
The Supreme Court allowed the appeal of the plaintiff respondent and remitted the case to the trial court for disposal on merits
Meanwhile the Government of India brought forward a legislation called the Durgah Khawaja Saheb Act 1955 and the Durgah Committee as required under the Act was constituted for the administrative control and management of Durgah endowment
The aforesaid Committee got itself impleaded as a party to the suit and resisted it contending that the suit had become infructuous as under sections 13 and 21 of the DKS Act the Committee was responsible to make interim or permanent arrangement for the office of Sajadanashin and that the appellant had been appointed as interim Sajadanashin
The trial court overruled the objection
53 The suit was resisted by the appellant s father on the ground that the plaintiff had no legitimate right to succeed to the office as he was not the nearest male heir to the last holder of the office that the right to appoint Sajadanashin by established usage custom and tradition vested exclusively in the local representative of the Government and that the Court had no power to interfere with such appointment in any way whatsoever
The trial court non suited the plaintiff on merits
The High Court in appeal reversed the judgment and declared that the plaintiff was the nearest male heir to the last office holder and therefore entitled to succeed as Sajadanashin
It however observed that the plaintiff had failed to prove that he was qualified to occupy the office and therefore left the question open for determination by the Governor who was the competent Authority under the DKS Act to appoint the Sajadanashin
The judgment of the Single Judge was challenged before the Division Bench under section 18 of the Rajasthan High Court Ordinance
Meanwhile the Governor on being satisfied with the qualifications of the plaintiff approved his appointment as Sajadanashin by a Government Notification dated July 71975
On the death of the plaintiff on October 23 1975 his son was brought on record and following the dismissal of the Special Appeal by the Division Bench of the High Court on March 71980 he was recognised as Sajadanashin by the Government by a communication dated January 241981
Against the decision of the High Court an appeal was filed before this Court
While the special appeal was pending before the High Court and on plaintiff s death on October 23 1975 his son approached the Durgah Committee for recognition as Sajadanashin but it did not accede to his request and decided to invite applications from persons who wanted to be appointed as Sajadanashin
In response to the public notice under sub section 1 of section 13 of the DKS Act 11 applications were received by the Committee and none of these were related to the plaintiff or the last office holder
The Committee forwarded the applications to the Governor for making a reference to the High Court for decision but the Governor did not make a reference and took a firm decision that plaintiff s son was alone entitled to succeed to the office being the son of the last office holder and that the other applicants had no right to the said office
The Committee disagreed with the Governor 54 and referred all the applications to the High Court for determination of rival claims of the candidates
After the disposal of the special appeal by the Division Bench the High Court accepting the view taken in the special appeal rejected the reference as not maintainable
The Committee and one of the applicants filed two Special Leave Petitions before this Court
In the appeal before this Court it was urged on behalf of the appellant that the plaintiff could not be considered as the nearest male heir to the last holder of the office and that there were two other persons ie PW 2 and PW 3 who were nearer to the last holder of the office than the plaintiff
In the Special Leave Petitions on behalf of the Committee it was urged that the decision of the High Court as to the succession to the office of Sajadanashin was based on the concession made by the parties and was therefore not binding on the Committee that in view of sections 13 and 21 of the DKS Act it had the power to appoint a proper person as Sajadanashin that it was not bound to follow the customary rules of succession to the office and that the selection of a suitable person need not be made only among the heirs of the last office holder and could be made from the public as well to better serve the devotees
Dismissing the appeal and Special Leave Petitions this Court  HELD 11 The nature of the office of Sajadanashin and the rule of succession to it always remained undisputed
It was occupied by a hereditary descendant of the Saint
The Government of India had also recognised that Sajadanashin has always been a descendant of the Saint and that position should not be disturbed
61CE 12 Section 21 of the Durgah Khawaja Saheb Act 1955 was intended to provide transitional arrangement to hold the office of Sajadanashin
It enables the Sajadanashin who was holding the office immediately before the commencement of the DKS Act to continue to hold that office
His right however was made subject to other provisions of the Act and to the final decision of the suit relating to that office
The suit referred to under section 21 must be the suit which was pending on the date of coming into force of the DKS Act
63E F 13 Section 13 of the Act does not confer unlimited or absolute power to the Durgah Committee
The scope of section 13 is limited
The Durgah Committee is only entitled to accord recognition as Sajadana 55 shin to the person legitimately entitled to succeed to the office
The Durgah Committee cannot enlarge the scope of this power to invite applications from the public and select any person for appointment as Sajadanashin
The power conferred under section 13 is only to locate the legitimate heir to the office by the accepted rule of succession and recognise him as Sajadanashin and not beyond that
64C 14 It cannot be said that the plaintiff is not the legitimate person to succeed as Sajadanashin
PW 2 did not consider himself nearest to the last office holder and PW 3 was illiterate and did not want to become Sajadanashin
Moreover both of them have died during the pendency of the suit leaving behind none to succeed
64E G Asrar Ahmed vs Durgah Committee Ajmer AIR 1947 PC 1 and The Durgah Committee Ajmer  Anr
vs Syed Hussain Ali