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Hussainbi Haji Subhan Mujavar Vs. Sayad KhairuddIn Kutubuddin - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 614 of 1935
Judge
Reported inAIR1939Bom487; (1939)41BOMLR875
AppellantHussainbi Haji Subhan Mujavar
RespondentSayad KhairuddIn Kutubuddin
DispositionAppeal dismissed
Excerpt:
mahomedan law - mujavar-duties of-mujavarki land-whether femaie can inherit such land and perform duties-custom.;under mahomedan law a female is entitled to succeed to mujavarki land, where the duties of a mlujavar consist of sweeping and cleansing the place, reading the fatiha, offering prayers and incense, and looking after the general management of the shrine.;munnavaru begam sahibu v. mir mahapalli sahib (1918) i.l.r. 41 mad. 1033 and shahoo banoo v. aga mahomed jaffer bindaneem (1906) i.l.r. 34 cal. 118 s.c. bom. l.r., referred to. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under..........certainly carry great weight. he expresses the definite view that a religious office can be held by a woman under the mahomedan law, unless there are duties of a religious nature attached to the office which she cannot perform in person or by deputy, and the burden of establishing that a woman is precluded from holding a particular office is on those who plead the exclusion. he has also remarked that, although there is no general rule of mahomedan law prohibiting a woman from holding a religious office, prohibition may arise by local usage or custom, and that in that particular case he held that a woman was competent to succeed to the office of head mujavar of the suit astan. the principle, as laid down by the privy council in shahoo, banoo v. aga mahomed jaffer bindaneem i.l.r......
Judgment:

Lokur, J.

1. The suit out of which this second appeal arises was filed by the plaintiffs for a declaration that they are the lawful heirs of the deceased Dada Saheb Shaikh Mire to the property in dispute which is assigned for service as Mujavars, and for an injunction restraining the defendants from interfering with their possession and enjoyment of the said land. The only issue which arises in this appeal is whether a female is entitled to succeed to the Mujavarki land. Both the lower Courts found in favour of the plaintiffs and decreed their claim.

2. The duties of a Mujawar are set out by Abdur Rahim J. in Munnavaru Begum Sahibu v. Mir Mahapalli Sahib I.L.R. (1918) Mad. 1033 as follows ( p. 1037 ):

The word 'Mujawar' literally means a sweeper or the person who cleans the place, but it is conventionally used to denote a person who is looking after a shrine or tomb of a holy person generally called Astana. 'Astana' is a word which is often used to denote a place inspiring respect and reverence.

From the evidence recorded in this case the lower appellate Court has held that the duties of the Mujavar in this case consist of reading the Fatiha, offering prayers and incense, and looking after the general management of the shrine. There are conflicting rulings of the Madras High Court as to whether a female can be a Mujavar or can perform the duties of a spiritual nature. In Mujavar Ibrambibi v. Mujavar, Hussain Sheriff I.L.R. (1880) Mad. 95 it is held that a woman is not competent to perform the duties of the Mujavar of a durga which are not of a secular nature. That decision was based on the earlier decision in Hussain Beebee v. Hussain Sherif (1868) 4 M.H.C.R. 23. The same view was taken in Sundarambal Ammal v. Yogavanagurukkal I.L.R. (1914) Mad. 850. But all these cases were considered by Abdur Rahim J. in Munnavaru Begam Sahibu v. Mir Mahapalli Sahib I.L.R. (1918) Mad. 1099. It is true that, as observed in the judgment of Seshagiri Ayyar J. in that case at p. 1042, no objection was taken in that case to the succession of the female to the Head Mujavarship on the ground that by reason of her sex she was not entitled to perform the duties of the Head Mujavarship. It is, therefore, argued that the observations of Abdur Rahim J. with regard to the right of a female to succeed to the title of a Mujavarship are obiter. But the observations, coming as they do from such an eminent Mahomedan Judge as Abdur Rahim J., regarding the duties of a Mujavar and the rights of succession to the Mujavarship, certainly carry great weight. He expresses the definite view that a religious office can be held by a woman under the Mahomedan Law, unless there are duties of a religious nature attached to the office which she cannot perform in person or by deputy, and the burden of establishing that a woman is precluded from holding a particular office is on those who plead the exclusion. He has also remarked that, although there is no general rule of Mahomedan law prohibiting a woman from holding a religious office, prohibition may arise by local usage or custom, and that in that particular case he held that a woman was competent to succeed to the office of Head Mujavar of the suit Astan. The principle, as laid down by the Privy Council in Shahoo, Banoo v. Aga Mahomed Jaffer Bindaneem I.L.R. (1906) Cal. 118 : S.C. 9 Bom. L.R. 85 is that by Mahomedan law there is no legal prohibition against a woman holding a Mutavalliship, when a trust by its nature involves no spiritual duties such as a woman could not properly discharge in person or by deputy, and it is always a question of fact whether the duties attached to a particular office are so spiritual that they cannot be discharged by a female. On behalf of the appellants reliance is placed upon the ruling in Mirzamalli v. Hidayatbi (1901) 3 Bom. L.R. 772 where it was held that the performance of the services of imamat, moujani and khitabat at a mosque could only be done by the male members of a family, and that it was not open to the female members to have them done by a proxy when there were already male members of, the family in existence. The duties of the four offices are explained on p. 776, and one of those duties, viz. the imamat, consisted of preaching by being a priest, and the duties of moujani consisted in calling to prayer, while those of khitabat consisted of reading the Koran at the mosque. These duties were regarded as incapable of performance by females, and the decision ultimately turned on the wording of the sanad which granted the inam. The word 'Bafarjandan' used in the sanad was interpreted as descendants in the male line only. It was also remarked that females were not competent to perform the duties which were of a spiritual nature. But in this case the duties of a Mujavar are said to consist of sweeping and cleansing the place, reading the Fatiha, offering prayers and incense, and looking after the general management of the shrine, and on the evidence the lower appellate Court has held that these duties can be performed by females; and, in the case of this very Mujavarship, instances were cited to show that females did succeed and that the duties of the Mujavar were performed by ladies. Defendant No. 1, who was herself a female, used to manage the present Pir Mahi Taj, and defendant No. 5 admitted that if any of them died without a male issue, his widow, daughters and sisters were entitled to get a share in the land of the Pir. It is not that this evidence is intended to prove a custom, but merely to show that the duties of a Mujavar in this case are capable of being performed by a female. If that is so, then according to the ruling of the Privy Council in Shahoo Banoo v. Aga Mahomed Jaffer Bindaneem female succession is not barred. On these grounds I confirm the decree of the lower appellate Court and dismiss the appeal with costs.


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