Case: PEER GULAM JILANI Vs. PEER GULAM NASEER AND ORS

2.1 In the year 1838 Khwaja Haji Muhammed Najmuddeen Sahib founded the Dargah in Fatehpur, District Sikar, Rajasthan. During his lifetime, he nominated his son Maulana Naseeruddeen Sahib as his successor to the office of Sajjadah Nashin and Mutawalli of the Dargah. Maulana Naseeruddeen Sahib during his lifetime nominated Gulam Najmuddeen Sahib, who was aged 3 years at that time as Sajjadah Nashin and Mutawalli after him. Gulam Najmuddeen Sahib after attaining majority nominated Gulam Sarwar Sahib as his successor to the seat of Sajjadah Nashin and Mutawalli of the Dargah. Gulam Sarwar Sahib became the third Sajjadah Nashin and Mutawalli of the Dargah. Gulam Sarwar Sahib while functioning as Sajjadah Nashin and Mutawalli framed a Constitution (Zabta) in the year 1932 of the Dargah by laying down Rules for nomination of Sajjadah Nashin and Mutawalli, for management of Dargah and other Rules and Principles for Dargah. Original Zabta was in Urdu which has been filed as Ex.2 along with translated copy in English and Hindi in the suit. Gulam Sarwar Sahib, the third Sajjadah Nashin and Mutawalli nominated Nurul Hasan as the 4th Sajjadah Nashin and Mutawalli during his lifetime by a Will dated 02.12.19512.2 Nurul Hasan, the 4th Sajjadah Nashin and Mutawalli got registered the Dargah in the Muslim Wakf Board of Rajasthan, copy of Zabta was also submitted at the time of registration of the Deed. The Zabta before being submitted in the Wakf Board for registration was acknowledged by 4th Sajjadah Nashin and Mutawalli, petitioner and other members of the Khandan. Fourth Sajjadah Nashin and Mutawalli, Nurul Hasan made declaration executing Will on 12.09.1979 nominating his grandson (daughters son) - Gulam Naseer, the respondent No.1 to these appeals, as Sajjadah Nashin and Mutawalli. The Will was also got registered on 16.11.1979 at Sub-Registrar, Ajmer. On 03.08.1982, 4th Sajjadah Nashin and Mutawalli passed away. Before his death, he also made declaration and confirmation of nomination in favour of respondent No.12.3 After the death of 4th Sajjadah Nashin and Mutawalli when certain disturbance in the management of Dargah was created by the appellant and some other persons, a Suit No.96 of 1982 (Peer Gulam Naseer vs. Shri Abrar Ahmad and 10 others) was filed by the respondent through his guardian and father Maujam Ali. The suit was filed for the permanent injunction. A temporary injunction was granted in the suit. Interim injunction granted by the trial court although was set aside by the Appellate Court but ultimately was restored by the High Court on 28.10.1988 in Civil Revision Petition No. 657 of 1986. Against the judgment of the High Court, SLP(C)No.14030 of 1989 was filed, which was dismissed. Review Petition also came to be dismissed. Another Suit No. 12 of 1989(Peer Gulam Jilani vs. Gulam Naseer and 05 others) was filed by the appellant praying for permanent injunction against the respondent2.4 Another Suit No.59 of 1986 (Gulam Naseer vs. Gulam Jilani and 23 others) was filed by the respondent. Suit No.96 of 1982 filed by the respondent No.1 was registered as Suit No.13 of 1989 in the Court of District Judge2.5 The trial court decided all the three suits by a common judgment dated 17.04.2003. Suit No.96 of 1982 filed by the respondent No.1 was decreed and defendants of the suit were restrained by way of permanent injunction. Suit No.96 of 1995 filed by the appellant for permanent injunction against the respondent was dismissed whereas Suit No.59 of 1986 filed by the respondent was decreed. The trial court upheld the nomination of the respondent by 4th Sajjadah Nashin and Mutawalli by declaration and Will dated 12.09.1979, declaration was held proved by the trial court. The trial court also held that the respondent No.1 was fully eligible to be nominated as Sajjadah Nashin and Mutawalli2.6 Aggrieved against the judgment of trial court dated 17.04.2003, the appellant filed three appeals under Section 96 of the CPC, which appeals were heard and dismissed by the First Appellate Court vide its judgment dated 04.09.2004. Aggrieved against the judgment of the First Appellate Court dated 04.09.2004 three second appeals were filed by the appellant, which were dismissed by the High Court by the impugned judgment dated 05.07.2012. The appellant aggrieved against the judgment of the High Court dismissing the three second appeals has come up in these appeals.

Reasoning:
11. Rule 1 of the Zabta cannot be read in a manner as suggested by the counsel for the appellant. Had the Zabta intended to lay down line of succession through lineal descendants, it would have been clearly provided. The succession to the Sajjadah Nashin and Mutawalli is not hereditary succession but it is selection by Sajjadah Nashin and Mutawalli. Following portion of Rule 1 makes it clear:It shall be obligatory upon the Sajjadah Nashin and Mutawalli to select his successor during his life time keeping in view the conditions prescribed in the aforesaid lines so that no faction or dispute arises thereafter. If the Sahib-e-Sajjadah expires before such a selection, it would then be the duty of the main members of this venerable family and virtuous murids to select such a person who is gifted with the aforesaid high qualities and thereby to entrust him with all the affairs of the Dargah, and the rights of such a Sajjadah Nashin would be the same as those of his predecessor-Sajjadah Nashin and in case there are several such qualified persons the decision will be taken in accordance with the customs and traditions prevailing in this Dargah since the very beginning12. The Zabta of Dargah refers to spiritual Sect Silsila and the word family (Khandan)had not been used in the limited sense as sought to be contended by the appellant13. Rule 1 of the Zabta cannot be read as laying down any hereditary succession to the office of Sajjadah Nashin and Mutawalli nor Rule 1 can be read to lay down succession to lineal descendants as sought to contend. The respondent who was daughters son of 4th Sajjadah Nashin and Mutawalli and who has also traced his lineage from Shahabuddin real brother of founder of Dargah, cannot be said to be person not belonging to Khandan. All the three Courts below have rightly held him to be fully eligible. Furthermore, Sajjadah Nashin who has been given right to select his successor, his selection and nomination has also to be given weight. There is no dispute between the parties that even a person of minor age can be selected as Sajjadah Nashin and Mutawalli14. Coming to the second submission of the learned counsel for the appellant that use of word Sagir Sinn in Rule 2 means minor son. There are two reasons due to which this submission cannot be accepted. Firstly, in the Courts below appellant never raised an issue or contention that word Sagir Sinn used in Rule 2 means minor son. When no such issue or submission was raised, appellant cannot be allowed to raise this submission in this Court for the first time15. Secondly, to satisfy ourselves, we have also looked into the Hindi translation, which is actual translation of Urdu words in the Zabta. In the counter-affidavit, the respondent has brought on the record Hindi translation which is in Devnagri translation of actual Urdu words. The word used is Sagir Sinn. The word Sagir Sinn is a combination of two words Sagir Sinn. Word Sinn is a Persian word. In English Persian Dictionary by A.N. Wollaston, word age has been mentioned as Sinn16. In another Persian-English Dictionary by S. Steingass one of the meanings to the Persian word sinn is year, age, period of life. Various combination of other different words using word sinn has also been defined like sinni balugh, sinni tamiz, sinni shaikhukhiyat to the following effect:...sinn, A tooth; nib of a pen; an indentation; a horn; year, age, period of life; a wild bull; greedy eating; name of a mountain near Madinah; also of a place sinni balugh(balughat, taklif), Age of puberty, mature age;- sinni tamiz(tamyiz, shuur), The age of discretion;- sinni shabab, Youth;- sinni shaikhukhiyat, Mature age; old age;- sinn u sal, Age, (many) years17. The word Sagir Sinn also gives the meaning of minor age. In no manner the word Sagir Sinn can be read as minor son as contended by the appellant.18. All the three Courts have not committed any error in reading the Zabta and coming to the conclusion that respondent was eligible to be nominated as Sajjadah Nashin and Mutawalli.