Michael Westropp, C.J.
1. This suit is brought for a declaration of the right of the plaintiff to be Kazi of the taluka of Havri in Dharwad, and to recover certain fees appertaining to that office received by the first defendant from the second and third defendants, and to restrain the first defendant from disturbing the plaintiff in that office.
2. The plaintiff claims under sanads of 1049 Hijri A.D.1639, and 1074 Hijri A.D. 1663, purporting to be granted by the Bijapur Government to persons whom he alleges to have been his ancestors. Those sanads rather treat the grantees as Kazis already than assume to create them Kazis, and confer land and other benefits upon them in respect of a musjid established, or to be established by them, and for light/ing the same, anchor the reading of prayers and sacred books, as well as performing the usual duties of Kazis, and would appear to contemplate the maintenance of the musjid and the reading of prayers, and performance of the duties of Kazis, as well by the descendants of the grantees as by the grantees themselves.
3. Sayad Abdul v. Sayad Hasham (Sp. Ap. 56 of 1873; vide note infra) decided on the 4th October 1876, has been mentioned to us, but that suit was for the recovery of land in the taluka of Gadag and district of Dharwad granted by sanad of A.D. 1660 in inam to Sayad Kale Mula, who combined the offices of Khatib (preacher) and Kazi, and was not such a suit as we have here, viz., for a declaration of the plaintiff's exclusive right to the office of Kazi in the taluka of Havri, and for fees paid by the second and third defendants to the first defendant for duties performed by him as a Kazi in the taluka of Havri, and for an injunction against his disturbance of the plaintiff in his alleged office. In the Gadag case, moreover, proof of custom, that the office of Kazi had been enjoyed hereditarily for 200 years together with the inam, was given. It was not, however, in that case decided that the descendant of the sanadi Kazi could have maintained an action for fees against an alleged intruder, or that the sovereign could grant such an office so as to be held hereditarily. It was only decided there that the plaintiff' was, as the heir of the grantee named in the sanad of A.D. 1660, entitled to recover the land. Possibly, a local custom to enjoy such an office hereditarily might be established. Whether it could be so or not, it is unnecessary for us now to decide, and we do not express any opinion upon that point. The Muhammadan law does not seem to regard the office of Kazi as hereditary. No authority has been cited to us to show that the creation of an hereditary Kaziship can be sustained. In the Hidaya, Vol. II, Book XX, Chapter I, it is said: 'It is incumbent on the Sultan to select for the office of Kazi a person who is capable of discharging the duties of it and passing decrees; and who is also in a superlative degree just and virtuous; for the prophet has said: Whoever appoints a person to the discharge of any office whilst there is another amongst his subjects more qualified for the same than the person so appointed, does surely commit an injury with respect to the rights of God, the Prophet, and the Mussalmans.' This shows that high personal qualifications are to be carefully sought for by the appointing power--a moral injunction which would be frequently defeated if the office were made hereditary. There is not a hint, in the chapter on Kazis in the Hidaya, that the office can be made hereditary. The enactment of Bombay Regulation XXVI of 1827 seems to have been adverse to any supposition that the office of Kazi could be hereditary. That enactment was repealed by Act XI of 1864; but that repeal leaves the law as it stood before Regulation XXVI of 1827 was passed, and we have not any reason for thinking that the Muhammadan law sanctioned a grant of such an office to a man and his heirs. It is quite clear from the Hidaya, and the very carefully considered case of Muhammad Yussub v. Sayad Ahmed 1 Bom. H.C. Rep., App18 and the authorities there cited, that the appointment of Kazi lay exclusively with the sovereign or other chief executive officer of the State, and, as we have already said, it was to be exercised with the greatest circumspection with reference to the fitness of the individual appointed.
4. The present plaintiff has} neither proved, nor alleged any local custom in Havri, that the office of Kazi should be hereditary. Nay, more, he failed in 1855 in an attempt by suit, grounded on the sanads upon which he relies here, to prevent Imam Saheb, a near relative of the first defendant, from disturbing the plaintiff in his alleged office of Kazi. In referring to that circumstance we are not to be understood as giving any opinion whether Imam Sabeb, or the first defendant, or their kinsman Badrudin, mentioned in the first defendant's written statement, has any valid title to officiate as Kazi. Our decision simply is that the ordinary Muhammadan Law does not recognize hereditary Kazis, and that there are not any circumstances in this case which lead us to think that there is a local custom in Havri opposed or constituting an exception to the ordinary rule of Muhammadan Law as to Kazis. It is unnecessary for us to say whether, if this had been a suit for the vatan granted by the sanads of A.D. 1639 and A.D. 1663, we might not have adopted the same course which the Court in the Gadag case did. The sovereign may have had full power to make the vatan hereditary, though he may not have such power to make the office of Kazi so. It is sufficient for us to say that, this not being a suit for land, but in respect of a disturbance in an alleged hereditary and exclusive office, we see no reason for holding that the plaintiff has established his right to hold that office hereditarily and in opposition to the ordinary law of his co-religionists. On these grounds we affirm the decrees of the Courts below, and with costs of suit and both appeals. This Court concurs in the observation of the Division Bench which decided the Gadag case, that it is to be regretted that the Government should, by the repeal of Regulation XXVI of 1827, have abnegated their function of appointing a Kazi, and so quieting the dissensions frequently prevalent amongst Mussalmans as to the validity of the title of persons assuming the office of Kazi--an office which, the Mussalman Law itself ordains, can only be conferred by the State.